Judgment :- Balakrishnan Nair, J. The legality of removal from service of an extra-departmental delivery agent is the subject matter of this Original Petition. The brief facts of the case are the following: - Petitioner was the E.D. Delivery Agent at Konchira Branch Post Office, Trivandrum in 1980s. While so, he was put off from duty under rule 9 of P& T.E.D Agents (Conduct and Service) Rules, 1964. The allegation against him was that on 5.10.1987 he temporarily misappropriated Rs.500/- which was to be paid as per Money Order No.366 of the said date to one Mr. D. Rajayyan. After some time, the amount was paid to the addressee. A Memo of Charges dated 26.7.1988 was served on him. He denied the charges. An enquiry was held into the allegations against him and he was held found guilty. He was removed from service by order dated 30.10.1989. On appeal, the appellate authority by Ext.P3 order set aside the order in the following words: - " In view of what is discussed above, I hold that the inquiry has not been quite fair, and impartial. I record these findings, even without going in detail into the other grounds urged by the appellant as the two grounds taken up for examination above will be sufficient to adjudge the inquiry as one which was not held fairly and impartially. I therefore admit the appeal and set aside the proceedings issued under No.SDI/ADA/CR/88 dated 30.10.1989 and order that a de-novo inquiry may be held in this case." Later, a fresh charge-sheet dated 30.5.1990 was issued by the Disciplinary Authority containing the very same allegations. Petitioner again denied the charges. Considering his written statement of defence, the disciplinary authority cancelled the said charge-sheet by his memo dated 9.6.1990 stating that it was without prejudice to further action in the matter. From the date of removal from service, petitioner was without employment and even after the appellate authority set aside the removal, he was not reinstated. While so, by Ext.P4 dated 15.6.1990, petitioner was again put off duty with retrospective effect from the date he was removed from service. Again, another charge-sheet dated 13.8.1990. was served on the petitioner containing the very same allegations. An enquiry was held into the charges. He was found guilty and again the disciplinary authority by Ext.P12 order dated 13.7.1992 imposed the major penalty of removal from service. His appeal Ext. Again, another charge-sheet dated 13.8.1990. was served on the petitioner containing the very same allegations. An enquiry was held into the charges. He was found guilty and again the disciplinary authority by Ext.P12 order dated 13.7.1992 imposed the major penalty of removal from service. His appeal Ext. P13 dated 8.10.1992 was rejected by the appellate authority by Ext.P14 order dated 30.11.1992.His review petition dated 8.6.1992 submitted before the Chief Postmaster General, Kerala Circle faced the same fate. Ext.P16 dated 27.10.1995 is the order in review. Petitioner challenged Exts.P1, P4, P5, P12, P14 and P16 orders before the Central Administrative Tribunal in OA No. 1208/96. The tribunal dismissed the same by Ext.P18 order dated 4.1.2000. The present Original Petition is filed challenging the adverse orders passed by the Departmental Authorities as also Ext.P18 order of the tribunal. He prays for reinstatement in service with full back wages and consequential benefits. 2. Heard both sides. Counsel for petitioner mainly urged the very same four points urged before the tribunal which are stated in paragraph 4 of Ext.P18. The first ground urged by the petitioner is that the order, by which he was put off duty with retrospective effect after the appellate authority set aside the punishment is illegal. It was also urged that the continuance of the disciplinary proceedings without reinstating him in service is also untenable. Once the appellate authority set aside the order of punishment and directed de novo enquiry, the consequence is that the petitioner is deemed to be in service from the date of Ext.P1, the first order by which he was put off duty, to the date of Ext.P4, the second order by which he was put off duty again. We agree with the contention of the petitioner that during the said period, he should be treated as on duty and therefore entitled to all consequential benefits. We find force in the submission of the petitioner that the order Ext.P4 can take effect only prospectively. The retrospectivity given to it is unsupported by any statutory provision. The stand taken by the tribunal that Ext.P4, the order placing him on put off duty, cannot be challenged after the passing of the final order appears to be not correct. Intermediate challenges to interim proceedings during the pendency of disciplinary proceedings should be discouraged. The retrospectivity given to it is unsupported by any statutory provision. The stand taken by the tribunal that Ext.P4, the order placing him on put off duty, cannot be challenged after the passing of the final order appears to be not correct. Intermediate challenges to interim proceedings during the pendency of disciplinary proceedings should be discouraged. The delinquent must be able to challenge all the illegalities committed during the course of the disciplinary proceedings while challenging the final orders. If the same is not permitted, every employee facing an enquiry will be compelled to move the courts of law, every time he feels aggrieved by some action taken by the disciplinary authority or inquiring authority. 3. The second point urged before us was that the enquiry is vitiated for not having permitted him to avail the services of a legal practitioner to defend him. He was permitted to seek the assistance of a serving or retired government servant which he could not avail. But the same is not a ground for extending the assistance of a legal practitioner, especially in view of the nature of the allegations against him. The allegations cannot be said to be complicated involving voluminous documents and large number of witnesses where a government servant's assistance may not be sufficient. The allegation in this case is plain and simple. Therefore, we do not find any infirmity in the finds of the tribunal that the refusal to give permission to engage a lawyer has not vitiated the enquiry. 4. The third point urged was that the involvement of Shri Gopalakrishna Pillai, the Sub Divisional Inspector of Post Offices who Succeeded Shri Geevarghese has vitiated the proceedings. Reliance is placed on Ext.P2. The said order says the SDI of Post Offices, Trivandrum Central Sub Division who is the disciplinary authority is a material witness in the case. He may not be associated with the enquiry. The said order was passed to avoid bias. At the relevant time, Shri Geevarghese was the SDI who was replaced by Sri Gopalakrishna Pillai. Admittedly, the latter was not a witness in the enquiry. Therefore, his association with the proceedings will not vitiate the enquiry and we agree with the findings of the tribunal in this regard. 5. The said order was passed to avoid bias. At the relevant time, Shri Geevarghese was the SDI who was replaced by Sri Gopalakrishna Pillai. Admittedly, the latter was not a witness in the enquiry. Therefore, his association with the proceedings will not vitiate the enquiry and we agree with the findings of the tribunal in this regard. 5. The fourth point urged was that in the absence of the opinion of a handwriting expert, the finding that the disputed signature was put by the petitioner is unsustainable. The tribunal held that in the light of the evidence of various witnesses, the testimony of whom remain uncontroverted, the finding of the guilt even in the absence of the opinion of handwriting expert is sustainable. We agree with the said finding of the tribunal. Having regard to the totality of the circumstances of the case, the opinion of the handwriting expert is not necessary to reach the conclusion arrived at by the disciplinary authority. Therefore, we find no infirmity in the impugned order of the tribunal. 6. It was pointed out that while the petitioner was put off from duty, he had ten years blemishless service to his credit. The case of temporary misappropriation is the only case against him in the whole of his service. The disciplinary action was unnecessarily dragged on for a period of five years. Therefore, the counsel for petitioner submits that this Court may interfere with the penalty of removal from service. This Court under Article 226 cannot normally interfere with the penalty imposed by the disciplinary authority. This court cannot substitute its decision for the decision of the authority authorised to take the decision under the Statute. This Court can step in only by invoking the principle of ultravires. If the disciplinary authority has imposed a grossly disproportionate penalty which no man in his sense would impose on the facts of the case, this Court can definitely step in as the said action is ultravires, in the sense that the Rules cannot be intended to have conferred power to impose such grave penalty in the facts of the case. Therefore, the action can be termed as unauthorised warranting interference at the hands of the Court. 7. In this case, having regard to the facts and circumstances of the case, we do not purpose to delve into the question of proportionality of the punishment imposed. Therefore, the action can be termed as unauthorised warranting interference at the hands of the Court. 7. In this case, having regard to the facts and circumstances of the case, we do not purpose to delve into the question of proportionality of the punishment imposed. We find that the Appeal as well as the review petition filed by the petitioner has been disposed of without affording an opportunity of being heard to him. The same is evident from the orders Exts.P14 and P16. The 42nd Amendment to the Constitution has taken away the right of the civil servant to show cause against the proposed penalty at the original stage. But the said lack of opportunity is remedied if an opportunity is provided at the appellate stage. The Supreme Court in the decision in Ram Chander v. Union of India and others ((1986) 3 SCC 103) after analysing various decisions regarding hearing at the appellate stage has held as follows:- "It is not necessary for our purpose to go into the vexed question whether a post-decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel case unequivocally lays down that the only stage at which a government servant gets 'a reasonable opportunity of showing cause against the action proposed to taken in regard to him' i.e. an opportunity to exonerated himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved against him are not of such a character as to merit the extreme the penalty of dismissal or removal or reduction in rank and that any of the lesser punishment ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. Such being the legal position, it is of utmost importance after the Forty-second Amendment as interpreted by the majority in Tulsiram Patel case that the Appellate Authority must not only give a hearing to the government servant concerned, but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasize that reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. We wish to emphasize that reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given." (Emphasis supplied) 8. In view of the above legal position, the petitioner was entitled for a hearing at the appellate stage. We have affirmed the finding of guilt against the petitioner. But what should be penalty to be imposed or whether a lesser penalty would meet the ends of justice, is a matter for the designated authorities to decide after hearing the petitioner. It is trite law that any decision taken in the discretion of a public authority, like in disciplinary matters, should be taken after hearing the effected party, so that the decision making process will be fair. In this context, it is apposite to quote from Administrative law (7th Edition H. W. R. Wade & C.F. Forsyth) (Page 528): " A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. But, in the case of a discretionary administrative decision, such as the dismissal of a teacher or the expulsion of a student, hearing his case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified. This is the essence of good and considerate administration, and the law should take care to preserve it." 9. In view of the above legal position, the appellate order is liable to be set aside being a decision taken in violation of the principles of natural justice read in the light of the decision of the Supreme court in Ram Chander v. Union of India. But, as the petitioner had not raised such a ground, we decline to interfere with the appellate order. But, as the petitioner had not raised such a ground, we decline to interfere with the appellate order. But, having regard to the facts and circumstances of the case, we are exercising our discretion to the extent of directing the appellate authority to re-consider the question of penalty to be imposed on the petitioner after affording an opportunity of being heard. This, the appellate authority should do uninfluenced by the stand regarding penalty in Ext.P14 and Ext.P16 10 The Supreme Court in the decision in Secretary. Ministry of Communication V. Gondu Achari (Unreported decision in SLP (C) No.5646 /1990 referred to in Ram Dhiraj Pandev V.Union of India -1999 SCC (L&S) 946) has declared rule 9 (3) of the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 as unconstitutional. Rule 9(3) provided that an employee put off duty shall not be entitled to any allowance for the period for which he is kept out of duty under this rule. We have already found that the petitioner is eligible to be treated as on duty from 13.11.1987 to 15.6.1990. In view of the obliteration of rule 9(3) from the Statue, the petitioner is entitled to pay/ allowances for the period upto 13.7.1992, the date on which he was dismissed from service by Ext. P12. Regarding payment of subsistance allowance, the Supreme Court in the decision in R.P. Kapur V. Union of India (AIR 1964 S.C. 787) has held: " But, what amount should be paid to the public servant during such suspension will depend upon the provisions of the Statute or Rule in that connection. If there is such a provision, the payment during suspension will be in accordance therewith. But, if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension." 11. This decision albeit on suspension will apply to put off duty as well. Therefore, the disciplinary authority shall decide what should be the wages/ allowance to be paid of the petitioner while he was put off duty in the light of the observations contained hereinabove. The appellate authority shall take a fresh decision on the question of punishment to be imposed on the petitioner. The disciplinary as well as the appellate authority shall take the decision within two months from the date of receipt of a copy of this judgment. The appellate authority shall take a fresh decision on the question of punishment to be imposed on the petitioner. The disciplinary as well as the appellate authority shall take the decision within two months from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above. No costs.