Judgment :- P.K. Misra, J. Heard the learned counsels appearing for the parties. Even though the matter was listed for considering the question of vacating the stay order, since the very same question is involved for deciding the writ petition, on consent of the counsels appearing, the writ petition itself is taken up for disposal. 2. The present writ petition has been filed by the Union of India and its Subordinate Officers against the order of the Central Administrative Tribunal dated 22.10.2003 in O.A.No.287 of 2003. 3. The present Respondent No.2 filed O.A.No.287 of 2003 before the Central Administrative Tribunal challenging the order of punishment imposed in a departmental proceeding. The departmental proceeding was initiated on the allegation that the present Respondent No.2 while functioning as a Radiographer in Heavy Vehicles Factory Hospital at Avadi, committed acts of misconduct by disobeying the orders of the superiors and there was lack of devotion to duty. The allegation was to the effect that on 25.5.2001, out of two Radiographers, the present Respondent No.2 alone was on duty as the other Radiographer was on leave. It is alleged that the Doctor in charge of the Operation Theatre had sent words to Respondent No.2 to stay in the X-Ray Department for post-operative check X-Ray and such intimation was sent through one Smt. Jhansi Rani and yet the Respondent No.2 remained absent. Respondent No.2 had denied the charges and had stated that he was being “persecuted” because of inimical relationship between himself and the Doctor. 4. The enquiry officer concluded as follows:- “ Article 1 Based on the evidence adduced during oral inquiry and also on documentary evidence produced, Inquiry authority infers that even though there is no direct evidence to prove that Smt. Jhansi Rani Matron informed Shri S.Bagirathan, Radiographer on Phone at 15.30 hrs. on 25.5.2001 to remain in the ‘X’ ray Department for post operative check ‘X’ ray, but based on the circumstantial evidence, it is inferred that Shri S. Bagirathan received message from Smt. Jhansi Rani to remain in the ‘X’ray Department beyond normal working hours for post operative check on 25.5.2001 and walked off at 16.30 Hrs. on 25.5.2001 to remain in the ‘X’ ray Department for post operative check ‘X’ ray, but based on the circumstantial evidence, it is inferred that Shri S. Bagirathan received message from Smt. Jhansi Rani to remain in the ‘X’ray Department beyond normal working hours for post operative check on 25.5.2001 and walked off at 16.30 Hrs. Shri S. Bagirathan’s argument that he was not aware of the operation on 25.5.2001 is not tenable because he was only Radiographer present on 25.5.2001 and it was his moral duty & responsibility to remain in the ‘X’ ray Department for post operative check if required. More so the ‘X’ ray Department is situated near to Operation Theater and argument by Shri S. Bagirathan that he was not aware of operation on 25.5.2001 is untenable. The prosecution could not prove directly that Smt. Jhansi Rani made a call to Shri S. Bagirathan at 3.30 p.m. on 25.5.2001 to remain in the ‘X’ ray Department for post operative check on 25.5.2001 beyond normal working hours, circumstantial evidence prove that Smt. Jhansi Rani made a call on 25.5.2001 at about 3.30 P.M. to Shri S. Bagirathan based on preponderance of probabilities of the facts. Hence it is inferred that Shri S. Bagirathan did not attend the post operative check ‘X’ ray as ordered by his superiors on 25.5.2001. The Article of Charges 1 has been established on the basis of evidence adduced during oral examination/written documents and circumstantial evidence.” 5. Subsequently, on the basis of the aforesaid conclusion, punishment of compulsory retirement was imposed. Such order was challenged before the Tribunal after exhausting the departmental remedies. The Tribunal came to the conclusion that since the evidence of Smt. Jhansi Rani had not been accepted, there was no other material in support of the allegation that the delinquent remained deliberately absent. In view of such conclusion, the Tribunal quashed the order of punishment. The Tribunal also came to the alternative conclusion that even assuming that the charges are proved, the punishment of compulsory retirement was grossly disproportionate. The aforesaid decision of the Tribunal has been challenged by the Union of India in this writ petition. 6. The main contention raised by the counsel for the petitioners is to the effect that in view of the conclusion in the departmental proceeding regarding culpability of Respondent No.2, the Tribunal should not have quashed such punishment. 7. The aforesaid decision of the Tribunal has been challenged by the Union of India in this writ petition. 6. The main contention raised by the counsel for the petitioners is to the effect that in view of the conclusion in the departmental proceeding regarding culpability of Respondent No.2, the Tribunal should not have quashed such punishment. 7. The conclusion of the enquiry officer has already been extracted. The aforesaid conclusion clearly indicates that the enquiry officer was not prepared to place reliance upon the so called direct evidence of Smt. Jhansi Rani, through whom the alleged message is said to have been conveyed. The enquiry officer had found that there are “circumstances” in support of the allegation. The Tribunal considered the aforesaid aspect and came to the conclusion that there was no other circumstance in support of the allegation. 8. Learned counsel for the petitioners to a pointed query indicated that there are two circumstances against the delinquent. The first circumstance is that he had remained absent on several earlier occasions for which punishment had been imposed. We fail to understand as to how the past conduct of the delinquent can be considered as a circumstance in support of the present charge. It is of course true that the past conduct is taken into consideration for the purpose of considering the punishment in a particular matter, but merely because a delinquent had committed certain misconducts on earlier occasion, it cannot be assumed - even in a departmental proceeding - regarding his delinquency, which is the subject matter of the subsequent departmental proceeding. 9. The other circumstance according to the learned counsel for the petitioner is that the operation theatre, where the patient was being operated, being nearby to the ‘X’ ray Department, therefore, the Radiographer ought to have known about such operation. This submission according to us is again without any basis and it is merely a conjecture. Merely because some operation takes place in the adjacent operation theatre, it cannot be assumed that the employees in the adjacent room of some other Department has the definite knowledge. 10. It is of course true that in a departmental proceeding the allegation is not required to be proved as in a criminal case and even on preponderance of probabilities the appropriate authority can come to the conclusion regarding delinquency of a person. 10. It is of course true that in a departmental proceeding the allegation is not required to be proved as in a criminal case and even on preponderance of probabilities the appropriate authority can come to the conclusion regarding delinquency of a person. However, such conclusion must be based on some materials or circumstances and cannot be based on mere surmises and conjectures. The so called circumstances pressed into service by the learned counsel for the petitioner are, according to us, mere surmises and conjectures. The Tribunal has considered these aspects in their proper perspective and come to the conclusion that there was no evidence in support of the allegation. As a matter of fact, the conclusion of the enquiry officer to a large extent justifies the ultimate conclusion of the Tribunal. We are not persuaded to take any contrary view in exercise of our jurisdiction under Article 226 of the Constitution of India. 11. In view of the aforesaid conclusion, the alternate conclusion reached by the Tribunal to the effect that the punishment of compulsory retirement is grossly disproportionate is not required to be considered. 12. The Tribunal had directed reinstatement of the present Respondent No.2 without backwages. When the writ petition was admitted, the order of the Tribunal was stayed on 12.2.2004. Thereafter, the present Respondent No.2 has filed petition to vacate stay only during the month of September, 2004. It is thus obvious that Respondent No.2 has not worked for the aforesaid period and only he has made some serious efforts to get the order vacated in the month of September. 13. Having regard to all these aspects, we feel, while upholding the order of the Tribunal, that the present Respondent No.2 should not be paid backwages till the end of August,2004 and he shall be entitled to salary only from September, 2004 onwards. The Respondent No.2 should be reinstated within 30 days from the date of communication of the order and the salary for the months of September to the end of December should be paid within three months from the date of such communication. Payment of salary for the future period shall be paid as per the normal procedure after Respondent No.2 joins the service. 14. Subject to the aforesaid directions, the writ petition is dismissed. There would be no order as to costs.