JUDGMENT M. S. Karnik, J. - The Petitioners by this petition under Article 226 of the Constitution of India challenge the impugned judgment and order dated 25/06/2001 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai in Original Application No. 1176 of 1996. 2. The facts of the case in brief are; The Respondent (D. D. Raut), since deceased (employee for short), while working as Assistant Accounts Officer (S&C) in the Central Railway, drew a cheque for Rs. 48,360/ in his own name from Railway account and encashed the same. He was placed under suspension from 24/03/1983 till 31/07/1989 for misappropriation of the Railway fund. The entire amount of Rs. 48,360/ was refunded by the employee to the Petitioners on 31/05/1983. On 31/07/1989 the employee retired from service on superannuation. 3. On 24/08/1993 chargesheet was issued to the employee asking him to show cause as to why pension should not be withheld in full or part thereof. He filed reply on 18/10/1993. The Petitioners referred the case to the UPSC for advice and vide report dated 23/05/1995 UPSC advised withholding the entire monthly pension of the Respondent on permanent basis. The Railway Ministry referred the case back to the UPSC stating that the penalty recommended being harsh requires reconsideration. The UPSC reiterated its decision. On 24/07/1996, penalty of withholding the entire pension on permanent basis was enforced. The order dated 24/07/1996 was challenged before the Tribunal. 4. The Tribunal by judgment and order dated 25/06/2001 set aside the penalty on the ground that the advice of the UPSC which was made use of by the Railway Administration for imposing the penalty was not made available to the employee prior to passing the penalty. The matter was remitted to the Hon''ble President for redecision after consideration of the representation of the employee, which was to be filed by him within 45 days from the date of receipt of the copy of the order. Further directions for consideration of his case for provisional pension and for payment thereof was made. 5. Learned Counsel for the PetitionersUnion of India assailing the Tribunal''s order contended that in view of Rule 2308 of the Indian Railway Establishment Code Volume II show cause notice was issued to the Respondent as to why the authority should not withhold his pension in full or part thereof before any final order is passed. 5. Learned Counsel for the PetitionersUnion of India assailing the Tribunal''s order contended that in view of Rule 2308 of the Indian Railway Establishment Code Volume II show cause notice was issued to the Respondent as to why the authority should not withhold his pension in full or part thereof before any final order is passed. According to the learned Counsel there is no provision to consult UPSC before final orders are passed. Learned Counsel contended that there is no provision in the said Rule for giving a copy of the UPSC''s advice to the employee and invite his representation before passing a final order of penalty. In her submission, the only requirement under the rule was to supply UPSC''s advice along with order of penalty. Learned Counsel would further contend that before imposing the penalty, a show cause notice was also issued to the employee against which he has submitted his representation. In her submission, the deceased Respondent filed a Mercy Petition. He got an opportunity to represent against the UPSC''s advice. In her submission, no prejudice is caused to the employee by not supplying the UPSC''s advice before the order of penalty was passed. In her submission, UPSC is only an advisory body. UPSC tenders advice only when asked for. Learned counsel relied upon a decision of the Apex Court in the case of Union of India Vs. T. V. Patel , 2007 4 SCC 785 , to contend that the provisions of Article 320(3) (c) of the Constitution of India are not mandatory and they did not confer any rights on the public servant, so that the absence of consultation or any irregularity in consultation process or furnishing a copy of advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law. 6. Learned Counsel for the Petitioners also relied upon the decision of the Apex Court in the case of Union of India Vs. R. P. Singh , 2014 7 SCC 340 , to contend that in the facts of each case it has to be considered whether prejudice has been caused to the employee or not on account of denial to him of the copy of the advice. In her submission, the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. In her submission, the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The Courts/Tribunals would apply their judicial mind to the question and give reasons for setting aside or not setting aside the order of punishment. Learned counsel submits that it is only if the Court/Tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. In her submission, the advice of the UPSC has been submitted along with the penalty order. No prejudice therefore can be said to have been caused to the Respondents. 7. Learned Counsel for the Respondents on the other hand supported the impugned order. He invited our attention to the findings recorded by the Tribunal. Learned Counsel relied upon the decision of the Apex Court in the case of Union of India and others Vs. S. K. Kapoor , 2011 4 SCC 589 , to counter the submissions of the learned Counsel for the Petitioners. He submits that the Apex Court in S. K. Kapoor''s case has held the decision in T. V. Patel''s case is a judgment per incuriam. He relied on the decision of the Apex Court in the case of S. N. Narula Vs. Union of India and others , 2011 4 SCC 591 , wherein it is held that the principles of natural justice are violated when the copy of the UPSC report is not communicated to the employee to make effective representation on the quantum of punishment prior to imposition of punishment. The Apex Court has held that if the report of UPSC has been relied upon for taking disciplinary action, a copy of the report must be supplied to the delinquent concerned, otherwise it would be in violation of principles of natural justice. 8. Heard learned Counsel. In the present case, it is not disputed that the copy of the advice of the UPSC was furnished to the employee along with the penalty order. The disciplinary authority has relied upon the advice of UPSC while passing the penalty order. 8. Heard learned Counsel. In the present case, it is not disputed that the copy of the advice of the UPSC was furnished to the employee along with the penalty order. The disciplinary authority has relied upon the advice of UPSC while passing the penalty order. Learned Counsel for the Petitioner tried to contend that as the employee had admitted his guilt and in fact refunded the amount, no prejudice can be said to have been caused to him by not furnishing the advice of the UPSC before imposing the penalty order. 9. We do not find any merit in the submissions of learned Counsel for the Petitioners. The Apex Court in the case of S. K. Kapoor has clearly observed that the decision in T. V. Patel''s case is a judgment per incuriam. Even in the case of Union of India and others Vs. R. P. Singh it has been clearly held that advice from UPSC utilised against the delinquent should be supplied in advance. Learned Counsel for the Petitioners made an attempt to contend that the decision in S. K. Kapoor''s case would not be applicable as the position prior thereto was governed by the Rules which provided for supply of copy of advice to the government servant at the time of making an order. In our opinion, the contention of the learned Counsel can only stated to be rejected. 10. There is no dispute that the copy of the advice of the UPSC was furnished to the employee along with the penalty order and that this advice from UPSC was utilised as a material against the employee, the Petitioners ought to have supplied the advice of the UPSC in advance. In R. P. Singh''s case, their Lordships have agreed with the decision rendered in S. K. Kapoor''s case. 11. Once we have come to the conclusion that the advice of the UPSC has been relied upon by the disciplinary authority without supplying copy of the advice in advance to the employee concerned, we have no hesitation in holding that this would amount to violation of principles of natural justice. It is not the case of the Petitioners that the disciplinary authority did not rely on the UPSC report in which case there was no need to supply the same to the employee concerned. In the present case, the said report of UPSC has been relied upon. It is not the case of the Petitioners that the disciplinary authority did not rely on the UPSC report in which case there was no need to supply the same to the employee concerned. In the present case, the said report of UPSC has been relied upon. On an earlier occasion, the Railway Ministry had referred the matter back to the UPSC for reconsideration stating that the penalty was harsh. UPSC reiterated its decision. We do not find any infirmity in the view taken by the Tribunal. 12. Learned Counsel for the Respondents further submits that the disciplinary proceedings are instituted four years after the employee retired and in any event four years after the incident. He submits that the enquiry has been initiated beyond the limitation of four years from the date of incident and therefore the institution of disciplinary proceedings itself is abinitio void according to learned counsel. This contention was not raised before the Tribunal. 13. There is some controversy as to whether pursuant to the order dated 02/07/2001 passed by the Tribunal, any representation was preferred by the employee to the Hon''ble President or not. An affidavit dated 13/12/2016 has been filed by the daughter of employee enclosing a copy of the representation dated 06/08/2001, which according to her was sent by courier. It was submitted that the case for provisional pension as per Rule 2308A was not considered. It is pointed out that as per Rule 2308A, pension was paid upto 24/07/1996 and the same was stopped as a consequence of order dated 24/07/1996. Learned Counsel for the Respondents submits that provisional pension may be paid till demise of the employee and thereafter family pension. 14. In our opinion, even the contention that the enquiry has been instituted four years after the alleged incident and therefore the bar of limitation would apply needs to be examined. It is in this petition filed by the Union of India, that as an interim measure, the judgment and order passed by the Tribunal was stayed. In view of dismissal of this petition, it is necessary in the interest of justice that the respondents be given an opportunity of submitting a representation in terms of the order dated 25/06/2001 passed by the Tribunal. Accordingly, the Petitioners are directed to treat the representation dated 06/08/2001 annexed to the affidavit filed by Mrs. In view of dismissal of this petition, it is necessary in the interest of justice that the respondents be given an opportunity of submitting a representation in terms of the order dated 25/06/2001 passed by the Tribunal. Accordingly, the Petitioners are directed to treat the representation dated 06/08/2001 annexed to the affidavit filed by Mrs. Ashwini D. Raut, daughter of the deceased employee as a representation in terms of para 11 of the order passed by the Tribunal. The question of bar of limitation in initiating the disciplinary proceedings may be considered on its own merits. The Respondents may file an additional representation if they so desire within a period of 60 days from today. The time mentioned in para 11 of the Tribunal''s order to comply with the directions is extended by a period of four months. 15. With the aforesaid observations the Writ Petition is dismissed. Rule is discharged with no order as to costs. 16. In view of dismissal of the writ petition, Notice of Motion No. 389 of 2015 does not survive and the same is disposed of.