ORDER This writ petition is filed questioning the order of the 2nd respondent dated 05.02.1998, as confirmed by the order of the 1st respondent dated 03.09.1998 and a direction is sought to quash both the orders. 2. By his Order dated 05.02.1998, the 2nd respondent-Deputy Inspector General, Central Industrial Security Force (S.Z.) imposed on the petitioner the penalty of dismissal from service. Aggrieved thereby, the petitioner preferred an appeal and the 1st respondent-Inspector General (S.W.S), vide proceedings dated 03.09.1998, rejected the appeal on the ground that it was devoid of merits both in fact and in law. 3. The petitioner, a constable in "A" Coy, C.I.S.F. Unit, Visakhapatnam Port Trust, Visakhapatnam, was issued charge memo dated 30.08.1997 on the following charges:- "(i) That CISF NO.85451 0083 Constable VDharma Raju of 'A' Coy, CISF Unit, VPT, Visakhapatnam had left his H-8 duty post alongwith CISF NO.854510117 Constable D.Rushikesava Reddy and went to residence of Mylipali Sanyasi Rao, a civilian on 7.8.97 at about 0330 hrs without any permission or information to his superior which amounts to gross negligence and dereliction of duty. (ii) That CISF NO.85451 0083 Constable V.Dharma Raju of 'A' Coy, CISF Unit, VPT, Visakhapatnam had connived with criminals viz., M. Sanyasi Rao, M. Polamma and M. Lakshmi in that he failed to prevent the criminals while they were filling up Di-ammonia Phosphate (DAP) in two bags and one plastic bucket and keeping the bags filled with DAP at his duty post at about 0355 hrs on 7.8.97, during his tenure of duty, thereby he showed utter indiscipline, irresponsibility and misconduct amounting to unbecoming conduct of a member of an Armed Force of the Union. (iii) That CISF No.85451 0083 Constable V. Dharma Raju of 'A' Coy, CISF Unit, VPT, Visakhapatnam, is having bad records in that he was awarded 01 Major punishment and two Minor punishments on earlier occasions. The Disciplinary Authority intends to take notice of previous bad records of Constable V. Dharma Raju into account in deciding on the quantum of punishment." 4. The petitioner submitted his written explanation thereto on 07.09.1997 and, on the said explanation being found unsatisfactory, the Assistant Commandant of CISF Unit was appointed as an Enquiry Officer, vide proceedings dated 10.09.1997, to enquire into the charges. The Enquiry Officer conducted an enquiry and held all the charges levelled against the petitioner as proved. The petitioner submitted his written explanation thereto on 07.09.1997 and, on the said explanation being found unsatisfactory, the Assistant Commandant of CISF Unit was appointed as an Enquiry Officer, vide proceedings dated 10.09.1997, to enquire into the charges. The Enquiry Officer conducted an enquiry and held all the charges levelled against the petitioner as proved. A copy of the enquiry report was supplied to the petitioner by the Commandant, CISF Unit, vide letter dated 28.11.1997, calling upon him to submit his written representation, if any within 15 days from the date of receipt of the letter. The petitioner received a copy of the enquiry report on 29.11.1997 and submitted an application on 01.12.1997 requesting that the english version of the enquiry report be supplied to him. The english version of the enquiry report was served on the petitioner on 20.12.1997, to which the petitioner submitted his written representation on 02.01.1998. 5. The Disciplinary Authority, in his order dated 05.02.1998, accepted that, with regard to charge No.1, there was no eye witness to prove that the petitioner and Sri D.R.K. Reddy went to the residence of Sri M.Sanyasi Rao without permission. He observed that, as per the statements of P.Ws.2, 3 and 4 who apprehended Sri M.Sanyasi Rao, his wife and daughter while gathering the DAP, it was evident that they came to know that the petitioner and Sri D.R.K. Reddy had engaged the three civilians to remove the DAP from the road and this circumstantial evidence clearly proved that the petitioner, along with Sri D.R.K. Reddy, had visited the residence of the civilians and had engaged them to remove the DAP from the road. The Disciplinary Authority held that charge NO.2 was proved with reference to the statements of P.Ws.2, 3 and 4 and that charge NO.3 was proved basing on the service records of the petitioner as produced by the witness during the course of enquiry. The Disciplinary Authority, agreeing with the findings of the Enquiry Officer, held the petitioner guilty of all the three charges and, accordingly, imposed on him the punishment of removal from service. 6. The Disciplinary Authority, agreeing with the findings of the Enquiry Officer, held the petitioner guilty of all the three charges and, accordingly, imposed on him the punishment of removal from service. 6. The order of the Disciplinary Authority was confirmed by the Appellate Authority, who noted that five prosecution witnesses were examined by the Enquiry Officer and they had adequately proved the charges levelled against the petitioner to the effect that he had left the duty post on 07.08.1997 at about 0330 hours to go to the residence of civilians without the permission of the superior authorities and had also connived with the criminals on 07.08.1997 thereby allowing them to take the property, namely Di-ammonia Phosphate, in tin bags and also to have kept the bags at his duty post on the night of 07.08.1997. The Appellate Authority also noted that charge nO.3 related to the punishment earned by the petitioner earlier which was based on the entries made in his service record. The Appellate Authority noted that, in the enquiry, the petitioner had cross-examined the witnesses, but could not prove anything substantial in support of his defence, that the Enquiry Officer has based his findings solely on considering the evidence on record, both oral and documentary. The Appellate Authority found nothing on record to suggest that the Enquiry Officer was prejudiced against the petitioner or that he had recorded his findings unfairly. He held that there was overwhelming evidence to sustain the charges against the petitioner, that it was incorrect to contend that he was denied an opportunity to represent the case before the Disciplinary Authority and that the Disciplinary Authority had passed final orders correctly. The Appellate Authority found no procedural infirmity in the departmental enquiry held against the petitioner and observed that in the facts and circumstances of the case, particularly since the proven charges were grave in nature, the punishment awarded could not be said to be excessive and, accordingly, dismissed the appeal. 7. Sri A. Hanumantha Reddy, learned counsel appearing on behalf of the petitioner, would contend that the findings on charge NO.1 was based on no evidence. Learned counsel would submit that the conclusions of the Enquiry Officer and the Disciplinary Authority that charge NO.2 was established was based on surmises and conjectures. 7. Sri A. Hanumantha Reddy, learned counsel appearing on behalf of the petitioner, would contend that the findings on charge NO.1 was based on no evidence. Learned counsel would submit that the conclusions of the Enquiry Officer and the Disciplinary Authority that charge NO.2 was established was based on surmises and conjectures. He would submit that, under Sections 10 1 and 14 of the Central Industrial Security b Force Act, 1968, a Constable in the Central tI Industrial Security Force was required only P to protect and safeguard industrial c undertakings owned by the Central E Government together with such installations t as were specified by the Government to be ~ vital for carrying on of work in those f undertakings, and that there was no evidence c on record to show that the DAP powder, (a chemical fertilizer), which fell down from a lorry on a busy thoroughfare, outside the premises/limits of Visakhapatnam Post Trust, belonged to any undertaking owned or controlled by the Central Government. Learned counsel would state that there was no evidence on record to connect the DAP powder strewn on the road, a busy thoroughfare, with the Visakhapatnam Port Trust, to which undertaking the petitioner was posted as a Constable. Learned counsel would point out that it was the specific case of the petitioner, during the enquiry, that he was permitted by the agent Sri Sharath Chaterjee to collect the DAP powder, which was strewn on the road, for his personal use and the mere fact that the petitioner had requested three civilians to collect the DAP powder and put them into bags did not amount to misconduct, since it was nobody's case that the DAP powder found on the road belonged to the Visakhapatnam Post Trust or that the material was being transported from within, or to go inside, the premises of the Visakhapatnam Post Trust. According to the learned counsel the mere fact that the petitioner had engaged the services of three civilians, to collect the unclaimed DAP powder lying on the road, did not amount to misconduct, for which the disciplinary action could have been taken under the applicable rules. According to the learned counsel the mere fact that the petitioner had engaged the services of three civilians, to collect the unclaimed DAP powder lying on the road, did not amount to misconduct, for which the disciplinary action could have been taken under the applicable rules. Learned counsel would point out that charge No.3 which related to the petitioner's previous record could not, by itself, be a ground to impose a punishment on him and it is only if charges 1 and 2 were established, could charge NO.3 be taken into consideration in determining the appropriate penalty to be imposed. According to the learned counsel, since charges 1 and 2 had itself not been established, the question of the petitioner being punished solely on the basis of charge NO.3 would not arise. Learned counsel would further contend that failure to examine the civilians in the enquiry, and thereby denying an opportunity to the petitioner to cross-examine such witnesses, vitiated the enquiry proceedings, since the finding of guilt recorded in respect of charge NO.2 was on the basis of an alleged statement made by the civilians before PWs.2, 3 and 4. Learned counsel would point out that the circumstances under which such a statement was made could have been elicited in cross-examination by the petitioner and denying him reasonable opportunity of doing so would necessitate the enquiry proceedings, held against him, to be set aside. Learned counsel would place a copy of the order of the Criminal Court in C.C.No.181 of 1998 dated 20.10.1998 before this Court in support of his submission that, while the respondents had lodged a complaint against the three civilians for lifting DAP powder, these three civilians were acquitted of the charge in the Criminal Case. Learned counsel would contend that, in any event, the punishment of dismissal from service imposed on the petitioner was shockingly disproportionate justifying interference under Article 226 of the Constitution of India. Learned counsel would rely on Central Bank of India Ltd. v. Prakash Chand Jain1, K. Abdul Gattor v. High Court of A.P.2, B.C.Chaturvedi v. Union of India and others3 and Ranjith Thakur v. Union of India. 8. Learned counsel would rely on Central Bank of India Ltd. v. Prakash Chand Jain1, K. Abdul Gattor v. High Court of A.P.2, B.C.Chaturvedi v. Union of India and others3 and Ranjith Thakur v. Union of India. 8. Smt C. Vani Reddy, learned Central Government Standing Counsel, on the other hand, would submit that there was an adequate evidence adduced in the departmental enquiry to substantiate the charge, that the finding of guilt recorded by the Enquiry Officer was on the basis of the evidence on record, that in departmental enquiries even hearsay evidence which had a probable nexus to the charge could be taken into consideration, that an identical charge sheet issued against the other Constable Sri D.R.K. Reddy, which had also resulted in imposition of punishment of removal from service, was upheld by this Court in W.P.No.2080 of 1999 dated 03.09.2004, that this Court would not reappreciate the evidence on record to arrive at a conclusion different from that of the Enquiry Officer/Disciplinary Authority, that this Court would not sit in appeal or substitute its conclusions for the findings of fact recorded by the Enquiry Officer, that the punishment to be imposed for proved misconduct is in the employer's realm and that this Court would not substitute the punishment imposed by the employer with another. According to the learned counsel, the discipline required of a member of the C.I.S.F., which is an armed force, is of a very high order and that the charge of leaving his duty post or collecting Di-ammonia Phosphate powder, which does not belong to him, necessitated a deterrent penalty being imposed on him. Learned counsel would submit that the Order of the Court below does not necessitate interference by this Court under Article 226 of the Constitution of India. 9. As is evident from the order, placed before me by Smt. C. Vani Reddy, Learned Central Government Standing Counsel, Constable Sri D. Rushikeshava Reddy 'had approached this court questioning the order of punishment imposed on him and this Court, by order in W.P.No.2080 of 1999 dated 23.9.2004, had dismissed the Writ Petition holding that the order did not suffer from any legal infirmity. Smt. C. Vani Reddy, Learned Central Government Standing Counsel, would contend that, since identical charges were framed against Sri D.R.K. Reddy and the petitioner, dismissal of the Writ Petition filed by Sri D.R.K. Reddy would necessitate a similar order being passed in this writ petition also. I am afraid I cannot agree. None of the contentions raised by Sri A. Hanumantha Reddy, Learned Counsel for the petitioner, before this Court were raised in W.P.No.2080 of 1999. Since none of these questions fell for consideration, the said judgment would not constitute a binding precedent necessitating a similar order being passed in the present writ petition. 10. The jurisdiction, to issue a writ of certiorari, and quash the order of punishment imposed on a delinquent employee, is supervisory and the Court does not act as an appellate Court. This limitation necessarily means that the findings of fact reached by the inferior Court or Tribunal, as a result of appreciation of evidence, cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that, in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, it must always be borne in mind that a finding of fact recorded by the Tribunal cannot be challenged in certiorari proceedings on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a Writ Court. It is within these limits that the jurisdiction conferred under Article 226 to issue a Writ of Certiorari can be legitimately exercised. It is within these limits that the jurisdiction conferred under Article 226 to issue a Writ of Certiorari can be legitimately exercised. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. To be amenable to correction in certiorari jurisdiction, the error committed by the court or authority, on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. (Syed Yakoob v. K.S. Radhakrishnart, Ranjeet Singh v. Ravi Prakash). As to what would constitute an error of law the Supreme Court, in Municipal Council, Sujanpur v. Surinder Kumar?, observed:- "......The High Court's jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action, IVth Edn., pp. 136-37, SA de Smith has summed up the position: "The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence....... ...." 11. It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not the impugned error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case. (Syed Yakoob (5 supra). 12. Whether or not the impugned error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case. (Syed Yakoob (5 supra). 12. While Courts in judicial review will not normally interfere with assessment of fact, in certain situations, however, they may do so: first, where the existence of a set of facts is a condition precedent to the exercise of a power and second, when the decision maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends or where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact. Again, these decisions are best described as strictly "irrational". (Judicial Review of Administrative Action: de smith, woolf & Jowell-Fifth Edition). 13. The High Court, under Article 226 of the Constitution, has jurisdiction to enquire whether the conclusion of the disciplinary/ appellate authority, on which the impugned order of punishment rests, is not supported by any evidence at all. The proceedings held against the delinquent employee under the rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and a writ of certiorari can be claimed by the delinquent employee if he is able to satisfy the High Court that the ultimate conclusion of the disciplinary/appellate authority in the said proceedings, which is the basis of the punishment imposed on him, is based on no evidence. (Union of India v. H.C. Goel). If a finding of fact is made by the impugned order, and it is shown that it is based on no evidence, that would be a point of law open to be urged under Article 226. (W.M. Agnani v. Badri Dass). 14. The High Court would be justified in quashing the impugned order if it is satisfied that the said order is not based on any evidence at all. An order passed by a Tribunal, holding a quasi-judicial enquiry, which is not supported by any evidence is an order which is erroneous on the face of it and, as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under Article 226. An order passed by a Tribunal, holding a quasi-judicial enquiry, which is not supported by any evidence is an order which is erroneous on the face of it and, as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under Article 226. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. (Board of High School & Intermediate Education v. Bagleshwar Prasada). 15. 'No evidence' does not mean total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding, or where no tribunal could reasonably reach that conclusion on that evidence. This 'no evidence' principle has something in common with the principle that perverse or unreasonable action is unauthorized and ultra vires. It also has some affinity with the substantial evidence rule which requires that findings be supported by substantial evidence on the record as a whole. Lord Denning MR, in Ashbridge Investments Ltd v. Minister of Housing and Local Government, put 'no evidence' at the head of the list of vitiating errors, saying:- "...... The court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a decision to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law......" (Administrative Law: H.W.R. Wade & C.F. Forsyth Ninth Education (sic. Edition)) 16. It is within this limited area that the facts of the present case and the contentions raised, both for and against the impugned order, are required to be examined. 17. The entire controversy revolves around collection of Oi-Ammonia Phosphate powder (OAP) which had fallen down from a lorry and was strewn all over the busy thoroughfare nearby the check-post where the petitioner and another constable of the Central Industrial Security Force were on duty. 17. The entire controversy revolves around collection of Oi-Ammonia Phosphate powder (OAP) which had fallen down from a lorry and was strewn all over the busy thoroughfare nearby the check-post where the petitioner and another constable of the Central Industrial Security Force were on duty. The ingredients of the first charge are: (a) that the petitioner left his duty post; (b) that he did so along with constable Sri O.Rushikesava Reddy; (c) that both of them went to the residence of Mylipalli Sanyasi Rao, a civilian on 7.8.1997 at about 03.30 hours; (d) that their leaving their station and proceeding to the residence of Mylipalli Sanyasi Rao was without either intimation to, or permission from, their superiors. 18. The enquiry officer, after noting the statements of witnesses, refers to certain points which, according to him, are "undisputed". Among the points which the enquiry officer, himself, considers disputable is whether, as per the standing orders, a sentry could leave the duty post when an incident occurs nearby and at what time the petitioner had left his duty post to call the civilians from their huts. In his findings, the enquiry officer holds that the petitioner, while he was on duty at H-8 post had called the thieves from their huts. The enquiry officer has not even referred to the evidence on the basis of which he has arrived at such a conclusion. On the other hand, he puts the onus on the petitioner to prove his innocence. While the degree of proof in domestic enquiries is preponderance of probabilities, and not proof beyond reasonable doubt, the onus to establish the charge, nonetheless, rests on the employer and the charged employee cannot be presumed guilty until proven otherwise. It is only if the employer is able to establish the charge on preponderance of probabilities, would the onus shift on the employee who would then be required to rebut the evidence let in by the employer to substantiate the charge. P.W.1, in cross-examination, stated that when he had gone to the incident spot Constable Sri O.R.K. Reddy had told him that they had called civilians to lift the OAP. It is the word "they" in the evidence of P.W.1 which is taken to be a reference to the petitioner also. P.W.1, in cross-examination, stated that when he had gone to the incident spot Constable Sri O.R.K. Reddy had told him that they had called civilians to lift the OAP. It is the word "they" in the evidence of P.W.1 which is taken to be a reference to the petitioner also. It is necessary to note that, while Constable Sri O.R.K. Reddy had also been charged for a similar offence, the respondents conducted separate departmental enquiries against both the delinquent employees. Neither was any statement made by Constable Sri O.R.K.Reddy put to the petitioner nor was the petitioner given an opportunity to cross-examine Sri O.R.K. Reddy on this aspect. P.W.1 's statement that Constable O.R.K. Reddy told him that "they" had gone to call civilians, without any further evidence on record, cannot form the basis to hold the petitioner guilty of Charge NO.1. In fact, P.w.1 in his cross-examination admitted that he found the petitioner alert at his duty post. 19. The disciplinary authority holds that the enquiry officer had not recorded the statement of the civilian Sri M. Sanyasi Rao only because a police case had been registered against him, his wife and daughter. The disciplinary authority takes note of the statement said to have been made by Sri M. Sanyasi Rao to P.W.2 that he, his wife and daughter had been engaged by the petitioner and Constable D.R.K. Reddy to lift the DAP. The Disciplinary authority admits that there were no eye-witnesses to prove that the petitioner went to the residence of Sri M. Sanyasi Rao without any permission. He, however, holds that as per the statement of P.Ws.2, 3 and 4, they came to know that the petitioner and D.R.K. Reddy engaged Sri M.Sanyasi Rao to remove the DAP lying on the road and that this circumstantial evidence proved that the petitioner along with Sri D.R.K. Reddy had visited the residence of the civilian and had engaged them to remove the DAP. 20. The mere fact that PWs.2, 3 and 4 stated that Sri M. Sanyasi Rao had informed them that he, his wife and daughter were engaged by Constable D.R.K. Reddy and the petitioner does not, by itself, necessitate a presumption that the petitioner went along with Constable D.R.K. Reddy to the house of Sri M. Sanyasi Rao. 20. The mere fact that PWs.2, 3 and 4 stated that Sri M. Sanyasi Rao had informed them that he, his wife and daughter were engaged by Constable D.R.K. Reddy and the petitioner does not, by itself, necessitate a presumption that the petitioner went along with Constable D.R.K. Reddy to the house of Sri M. Sanyasi Rao. To illustrate, Constable D.R.K. Reddy may have gone alone to the house of M. Sanyasi Rao or M. Sanyasi Rao may have been passing by the area where the DAP had fallen. While circumstantial evidence, or even "hearsay evidence" which has reasonable nexus and credibility, may also be relied upon to hold a delinquent employee guilty of the charge, mere surmises and conjectures cannot form the basis for recording a finding of guilt. 21. As the conclusions of the disciplinary authority, in holding the petitioner guilty of charge No.1, is based merely on surmises and conjectures, and not on any material evidence on record, it must, necessarily, follow that the findings of both the enquiry officer and the disciplinary authority with regards Charge No.1 are based on no evidence and are perverse. 22. With regard to Charge No.2, P.W.2 deposed that these three persons Sri M. Sanyasi Rao, Smt. M. Polamma and Smt. M. Lakshmi had informed him, pointing out to Constable D.R.K. Reddy and the petitioner, that they were engaged by them. Sri A. Hanumantha Reddy, Learned Counsel for the petitioner, would contend that, since these three persons were not made available for cross-examination, the statement of P.W.2 that they had informed him about their being engaged by the petitioner cannot be accepted. The charges levelled against the delinquent employee are required to be established on the basis of oral and documentary evidence adduced in the departmental enquiry and, as long as there is some material evidence on record to establish the charges, non-examination of certain witnesses, even if it be the complainant, may not vitiate either the departmental enquiry held against the delinquent employee or the punishment imposed on him. In this context, reference can usefully be made to the judgments of the Supreme Court in The East India Hotels v. Their Workmen, State of Haryana v. Rattan Singh and J.D. Jain v. State Bank of India). 23. In this context, reference can usefully be made to the judgments of the Supreme Court in The East India Hotels v. Their Workmen, State of Haryana v. Rattan Singh and J.D. Jain v. State Bank of India). 23. In East India Hotels' 2, Hindustan Motors Limited had hosted a cocktail party for about fifty to sixty of its members in the banquet room of the Oberoi Grand Hotel at Calcutta. Sri J. Suleman, one of the workmen employed by the hotel, was deputed to look after the work of the barman to attend on the party. One of the hosts of the party, Sri B.S. Sethi, found the said workman pouring whisky into an empty gingerale bottle and when he was asked as to why he was doing so, the workman started pouring the whisky into the tub. After half the contents of the bottle was poured into the tub, Sri Sethi took the bottle from his hand, called on Sri Pyare Lal the Steward who was on duty and complained to him. Even while Sethi was complaining, the workman took the bottle from Sethi, in the presence of Sri Pyare Lal, and started pouring the contents into the tub. The Manager Sri Mittal was called but was not found. Thereafter, one Sri Agarwal came along with pyare Lal and the bottle was taken into custody and was sealed in the presence of the workman who, when asked to sign the sealed bottle, refused to do so. The gingerale bottle was sent for chemical analysis and its contents were found to be whisky. Sri Sethi then made a written complaint to the management of the hotel. On receipt of the complaint, the workman was issued a charge-memo for major misconduct. In the enquiry, Sri Agarwal, Sri Pyare Lal and two others were examined on behalf of the employer in the presence of the workman. However Sri Sethi, the 'complainant, was not examined. The workman was held guilty of the charges and was dismissed from service. Before the Industrial Tribunal, a contention was raised that the complainant was not examined. In the enquiry, Sri Agarwal, Sri Pyare Lal and two others were examined on behalf of the employer in the presence of the workman. However Sri Sethi, the 'complainant, was not examined. The workman was held guilty of the charges and was dismissed from service. Before the Industrial Tribunal, a contention was raised that the complainant was not examined. The Industrial Tribunal held that the witnesses who were examined in the enquiry were not present at the time of occurrence of the incident and were not competent to state as to what had actually happened and they had simply stated what they had heard from Mr Sethi and this sort of evidence was insufficient to prove the charge alleged against the workman. The order of dismissal passed by the company was set aside by the Tribunal. When the matter was carried in appeal, the Supreme Court observed: "....It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect their prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained 'Nimboo Pani' and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare La!. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply was "Hum Jab esme sign karenge tob mariayenge". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and substitute instead the finding that the dismissal of the respondent was justified......." (emphasis supplied) 24. The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and substitute instead the finding that the dismissal of the respondent was justified......." (emphasis supplied) 24. In Rattan Singh (13 supra), the respondent was a conductor in a bus which was subjected to a vigilance check. On inspection, the vigilance squad found that four passengers had alighted without tickets and that eleven passengers travelling in the bus did not have tickets although they claimed to have paid the fares. On the basis of the report submitted by the flying squad, a charge sheet was issued, a domestic enquiry held and on his guilt being established, the services of the respondent conductor was terminated. The Civil Court held the order of termination to be a nullity and declared that he was entitled to be continued in service. The appellate Court affirmed the order of the trial Court and the second appeal was dismissed by the High Court. All the Courts had declared the termination to be bad as none of the eleven passengers had been examined in the domestic enquiry and there were departmental instructions that the checking Inspectors should record the statements of the passengers which was not done in this case. The explanation of the State was that the Inspector of the flying squad had stated that the passengers had informed that they had paid the fares, but had declined to give written statements. On the State of Haryana approaching it by way of special leave, the Supreme Court observed: "....... It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, in some evidence which has relevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal....." ( emphasis supplied) 25. In J.D. Jain (14 supra), the appellant was working as a cashier with the State Bank of India. One Sri D.P. Kansal, who had a savings bank account with the bank, came to receive his passbook. On receipt of the passbook from the counter clerk, Sri Kansal complained to Sri Wadhera, the Ledger-Keeper that on February 8, 1971, he had withdrawn only RS.500.00 (Rupees five hundred only), but a debit entry of Rs.1,500.00 (Rupees fifteen hundred only) had been shown in the passbook. Sri Wadhera took Sri Kansal to the supervisor Sri R.P. Gupta before whom Sri Kansal repeated the complaint. The documents were examined and it was found that Sri Kansal had given a 'letter of authority' to the appellant Sri J.D. Jain authorizing him to withdraw the amount from his account. The letter of authority showed that it was a withdrawal of Rs.1,500.00 (Rupees fifteen hundred only) though there appeared to be some interpolation suggesting that the figure of RS.500.00 had been altered to the figure of Rs.1 ,500.00. The matter was brought to the notice of Sri M. Ramzan, the Agent of the bank, before whom also Sri Kansal repeated his complaint. Eventually, a charge memo was issued to the appellant alleging that he had altered, in his own handwriting, the figures of RS.500.00 in the letter of authority to Rs.1,500.00 and had received Rs.1,000.00 in excess passing only Rs..500.00 to the passbook holder and that he had subsequently, on 24-06-1971, deposited Rs.250.00 (Rupees Two Hundred and Fifty only) in the account of Sri Kansal to liquidate a part of the amount misappropriated by him. Since the appellant denied the charges an enquiry officer was appointed and, on the appellant being found guilty, the disciplinary authority discharged him from service. Since the appellant denied the charges an enquiry officer was appointed and, on the appellant being found guilty, the disciplinary authority discharged him from service. The appellant raised a dispute and the Tribunal held that, on the evidence before it, the appellant could not be held guilty in the absence of the evidence of Sri Kansal and that the evidence recorded in the enquiry was hearsay. The Tribunal directed reinstatement of the appellant with full back wages. Aggrieved thereby, the bank moved the High Court and the High Court, while holding the charges against the appellant to have been established, quashed the award of the Tribunal. When the matter was carried in appeal, the Supreme Court observed: "........ ..In an application for a Writ of Certiorari under Art. 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the Tribunal as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty. In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500.00 - Rs. 1,000.00 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs. 1 ,000,00. With regard to the fact whether the appellant manipulated the documents withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eyewitness except the appellant's 'confession' referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit "1" before 500. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is, therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the above-named four witnesses, the respondent has succeeded. No rule of law enjoins that a complaint has to be in writing as insisted by the TribunaL......" (emphasis supplied). 26. In The Divisional Manager United India Insurance Co. Ltd v. Thotapalli Radhakrishna Murthy15 the respondent was an Inspector with United India Insurance Company Limited. He was charged of submitting false hospital claims for a sum of RS.925/- towards medicines, drugs and charges incurred for the treatment of his wife for a period of one month in a private nursing home. The allegation levelled against the respondent was that the said bill was not true, that his wife had never undergone any treatment in the said clinic and that the claim was put forth only with a view to defraud the company. After the respondent submitted the bill, M.Ws. 1 to 4 i.e, M.W-I the private secretary, M.W-2, the Assistant Regional Manager, M.W-3, the Assistant in the Divisional Office and M.W-4 the Divisional Manager, wanted to verify the correctness of the bills submitted by the respondent. M.W.3 met the doctor who admitted that it was not a true certificate whereupon, M.W.4 accompanied by M.W.3 again went to the doctor who reported the falsity of the certificate and made an endorsement on the obverse of the certificate that "the bill was withdrawn". Thereafter, they confronted the respondent with the said endorsement who admitted his guilt and gave his statement in writing on the same day. Thereafter, they confronted the respondent with the said endorsement who admitted his guilt and gave his statement in writing on the same day. On the ground that the doctor, who made the endorsement on the medical certificate, was not examined, the writ petition was allowed. The learned Single Judge rejected the argument that the doctor was not available in India at the time of enquiry, and was in the USA, and observed that the said ground was not an answer or a panacea for the said "fatal infirmity of non-examination of the doctor". It is in this context that the Division bench of this Court observed:- "..... ...may be the doctor's evidence was material may be his evidence was important; but, that is a question touching upon the adequacy of the evidence, which this Court cannot go into under Art. 226 of the Constitution. This Court can interfere if there is no evidence in support of the charges, or in a case where the finding or the conclusion is such that no reasonable person would have arrived at it, to wit, perverse; but the this Court cannot sit as an appellate authority and weigh the evidence. Moreover, it cannot also be said that it was a case of deliberate suppression of material evidence. The doctor was not available in India and summoning him from United States for giving evidence at the enquiry would have meant inordinate cost to the Company. Another fact to be remembered in this behalf is that, the Evidence Act does not apply to these enquiries. The only obligation of the Enquiry Officer is to conduct the enquiry in accordance with the principles of natural justice, which means, in a fair manner........ The evidence of the Company officials in whose presence the doctor madp, the endorsement, cannot be said to be hearsay. M.Ws.3 and 4 have deposed that the doctor made the said endorsement on the obverse of the certificate/bill in their presence. For these reasons' we must hold that the enquiry is not vitiated by non examination of the doctor......." (emphasis supplied) 27. The contention that failure on the part of the prosecution to examine the civilians who had collected the DAP fertilizer found strewn on the road, and who were material witnesses, would vitiate the enquiry proceedings and the order of punishment, does not, therefore, merit acceptance. 28. The contention that failure on the part of the prosecution to examine the civilians who had collected the DAP fertilizer found strewn on the road, and who were material witnesses, would vitiate the enquiry proceedings and the order of punishment, does not, therefore, merit acceptance. 28. That, however, is not end of the matter. Even if the petitioner is held to have engaged the services of these three civilians in collecting the DAP powder, which had fallen on the road into bags, and in a plastic bucket, that may not suffice to hold the petitioner guilty of charge NO.2. Under Section 10(b) of Central Industrial Security Force Act, 1968, it is the duty of every member of the force to protect and safeguard industrial undertakings owned by the Central Government together with such other installations as are specified by it to be vital for the carrying on of work in those undertakings. Likewise under Section 14(1), the Director General, CISF is empowered to depute such number of members of the force as are necessary for the protection and security of the industrial undertakings and installations attached thereto. The statutory duty cast on a member of the CISF is to protect and safeguard industrial undertakings, and other installations, owned by the Central Government. The Visakhapatnam Port Trust, the security of which was entrusted to the CISF, is a Central Government Undertaking under Section 10(d) of the CISF Act. The petitioner, therefore, was statutorily bound to protect the property of the Visakhapatnam Port Trust. The contention of Sri A. Hanumantha Reddy, Learned Counsel for the petitioner, is that the DAP, which was lying strewn on the road, neither belonged to the Visakhapatnam Port Trust nor to any person utilizing the facilities and services of the Visakhapatnam Port Trust. He would contend that DAP powder had fallen down from a lorry passing through a busy thoroughfare outside the premises of the Visakhapatnam Port Trust, that the Agent, to whom this DAP powder belonged, had permitted the petitioner to collect the DAP powder for his use and that the petitioner had engaged these three civilians to collect DAP in bags. He would contend that DAP powder had fallen down from a lorry passing through a busy thoroughfare outside the premises of the Visakhapatnam Port Trust, that the Agent, to whom this DAP powder belonged, had permitted the petitioner to collect the DAP powder for his use and that the petitioner had engaged these three civilians to collect DAP in bags. While the petitioner's moral conduct in collecting the DAP powder lying strewn on the road, for his personal use though it did not belong to him, may be questionable, and it could be said that he ought to have handed over the OAP powder which was strewn on the road, to the police, to be handed over in turn to the owner that, by itself, cannot be the basis to hold him guilty of dereliction of duty or of indiscipline or of doing an act unbecoming of a member of an armed force, for it is only if he had committed an act of misconduct as enumerated under the Rules and regulations governing his service, or had failed to act in accordance with the provisions of the CISF Act would he be held guilty of misconduct. The question whether the petitioner's contention, that he was permitted to collect the OAP powder by the Agent, is true or not was not examined either by the enquiry officer or the disciplinary authority. The agent, to whom the OAP allegedly belonged, has not even been examined in the departmental enquiry. The criminal case instituted against the three civilians, who were found collecting the OAP powder in bags, ended in their acquittal. The Criminal Court had, in fact, noted in its judgment that the scene of the offence was a busy locality. P.Ws.1 and 2, examined in the criminal case, are P.Ws.2 and 4 in the departmental enquiry. It is no doubt true that the findings of the criminal court would not automatically bind the enquiry officer, but the judgment of the Criminal Court is a relevant circumstance required to be taken into consideration. 29. P.Ws.1 and 2, examined in the criminal case, are P.Ws.2 and 4 in the departmental enquiry. It is no doubt true that the findings of the criminal court would not automatically bind the enquiry officer, but the judgment of the Criminal Court is a relevant circumstance required to be taken into consideration. 29. As the OAP powder, found lying on the road, was not the property of the Visakhapatnam Port Trust which, under the CISF Act, he was duty bound to protect, the petitioner, cannot be held guilty of having failed to prevent Sri M.Sanyasi Rao and M.Polamma from filling up OAP powder, lying strewn on a busy thoroughfare outside the premises of Visakhapatnam Port Trust, in bags and in a bucket. 30. That, however, does not conclude the issue. The petitioner was also charged of having kept the OAP powder at his check post. P.W.3 deposed that at 3.55 hours he saw a man, woman and a girl collecting DAP fertilizer in a plastic bucket and two sacks and put them at the H-8 post. It is not in dispute that the petitioner was admittedly on duty at H-8 post. Either deliberately or otherwise, the petitioner had kept/permitted these gunny bags of DAP fertilizer to be kept at his duty post. Whether that, by itself, would necessitate imposition of such a severe penalty as that of dismissal from service is the question. It is no doubt true that, if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment. (State of Orissa v. Bidyabhushan Mohapatra16; Railway Board v. Niranjan Singh1?; State of U.P. v. Nandakishore Shukla; Y. Rajeswari v. District Judge, Nellore). 31. The quantum of punishment in disciplinary matters is primarily for the disciplinary authority to consider and the jurisdiction of the High Court, under Article 226 of the Constitution, in this regard is limited. Where the punishment in disciplinary cases is challenged as "arbitrary" under Article 14 the question is whether the order is "rational" or "reasonable" and the test then is the Wednesbury test. Where the punishment in disciplinary cases is challenged as "arbitrary" under Article 14 the question is whether the order is "rational" or "reasonable" and the test then is the Wednesbury test. Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these requirements it should be treated as arbitrary. The court while reviewing punishment, and if it is satisfied that Wednesbury principles are violated, has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases, where there has been long delay in the time taken by the disciplinary proceedings, and in the time taken in Courts, can the Court substitute its own view as to the quantum of punishment. (Om Kumar v. Union of India). The High Court cannot, while exercising powers under Article 226, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds Courts should not interfere. (Union of India v. R.K. Sharma). Interference with the quantum of punishment cannot be a routine matter. Interference would be justified only if the High Court finds that the decision is one which no sensible person who weighed the pros and cons could have arrived at or where it records a finding, based on material, that the punishment is in 'outrageous' defiance of logic. (Canara Bank v. Awasthy). 32. Unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority is either impermissible or is such that it shocks its conscience the High Court should not normally substitute its own opinion and impose some other punishment or penalty. (Canara Bank v. Awasthy). 32. Unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority is either impermissible or is such that it shocks its conscience the High Court should not normally substitute its own opinion and impose some other punishment or penalty. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that it cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority. (Apparel Export Promotion Council v. A.K. Chopra23). 33. Courts, while dealing with the quantum of punishment, must record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. The High Court should give reasons why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. (Regional Manager, U.P. SRTC v. Hoti Lal, Oamoh Panna Sagar Rural Regional Bank v. Munna Lal Jain, Maharastra State Seeds Corporation Ltd. v. Hariprasad Drupadrao Jadhao, and UPSRTC v. Suresh Pal). 34. While this Court would not sit in appeal over the conclusions of the disciplinary authority in imposing punishment, it would, nonetheless, interfere where the punishment is one which shocks its conscience. One does not use a hammer to swat a fly. The mere fact that the petitioner had permitted the DAP fertilizer bags to be kept in his duty check post would certainly not warrant imposition of the maximum punishment of dismissal from service even if such proved act of misconduct were to be read with his previous record of service which is the subject matter of charge NO.3. 35. The question then is what should be the punishment which should be imposed on the petitioner for the proved act of misconduct and whether this Court should not take upon itself the task of imposing a punishment in the place of the one imposed by the disciplinary authority. 35. The question then is what should be the punishment which should be imposed on the petitioner for the proved act of misconduct and whether this Court should not take upon itself the task of imposing a punishment in the place of the one imposed by the disciplinary authority. Sri A. Hanumantha Reddy, Learned Counsel for the petitioner, would place reliance on B.C. Chaturvedi (3 supra) and K. Abdul Gaffor (2 supra) to contend that the case on hand would fall under the category of "rarest of rare cases" which would require this Court to interfere with the punishment imposed. Learned counsel would contend that the present case is pending on the file of this Court for the past decade and, sending the matter back to the disciplinary authority, would needlessly delay the entire matter further. While this submission is no doubt attractive, I must express my inability to agree. The nature and extent of punishment to be imposed on a delinquent employee for proved acts of misconduct is, ordinarily, for the employer to decide. While it is true that the writ petition has been pending on the file of this Court for a decade, this Court could avoid further delay by directing that the matter, with regard to the appropriate punishment to be imposed, be decided expeditiously by the employer and a time frame is fixed within which he is called upon to exercise his discretion in this regard. While quashing the impugned order, I consider it appropriate to remit the matter back to the disciplinary authority who shall decide the appropriate punishment to be imposed on the petitioner for the proved act of misconduct of his having kept the bags of DAP fertilizers at his duty post. As' observed hereinabove, both charge No.1, and the remaining part of Charge NO.2 have been set aside as the findings of the enquiry officer and the conclusions of disciplinary authority are based on no evidence and are perverse. The entire exercise, with regard to imposition of punishment, shall be completed within a period of three months from the date of receipt of a copy of this order and consequential orders, if any, shall also be passed within the aforementioned period. 36. The entire exercise, with regard to imposition of punishment, shall be completed within a period of three months from the date of receipt of a copy of this order and consequential orders, if any, shall also be passed within the aforementioned period. 36. Sri A. Hanumantha Reddy, Learned Counsel for the petitioner, would submit that since this Court has recorded its satisfaction that the punishment is grossly disproportionate, it should direct the disciplinary authority to impose some other punishment other than that of dismissal, removal and compulsory retirement thereby enabling the petitioner, an employee in the lowest cadre of constable, to at least eke out his livelihood. As noted above, the punishment imposed on the petitioner is grossly disproportionate and is also one which shocks the conscience of this Court. I have no reason to doubt that the disciplinary authority will bear the observations in this order in mind, including the submission made in this regard by Sri A. Hanumantha Reddy, while passing an appropriate order of punishment. 37. The writ petition is allowed subject to the above observations. However, in the circumstances, without costs.