JUDGMENT : N. Kotiswar Singh, J. Heard Mr. S. Hoque, learned counsel for the petitioner. Also heard Mr. R.K. Dev Choudhury, learned Deputy Solicitor General of India, appearing for respondents. 2. The present appeal has been preferred by the appellant against the order dated 16.07.2019 passed by the learned Single Judge in WP(C) No.6282/2015 by which the learned Single Judge rejected the challenge to the final order dated 23.05.2015 passed by the Disciplinary Authority by which the penalty of compulsory retirement from service was imposed on the appellant with the benefits of pension and gratuity with immediate effect. 3. Brief facts of the case as may be relevant for deciding the appeal may be stated as follows. 4. The case of the appellant is that he was initially appointed as a Constable of Central Industrial Security Force (CISF) in the year 1986 and thereafter, he was promoted to the post of Head Constable in the year 2012 and he was still continuing in the said post till he was compulsorily retired from service by the impugned order. 5. According to the appellant, while discharging his duty as a Head Constable in CISF Unit of KoPT, Kolkata, he was detailed for a duty from 0600 hours to 1800 hours at a location and at about 1605 hours on 07.12.2014. When the 'B' shift In-charge/S.I./Exe T Sudhakar was checking the duty post, it was found that the appellant was talking on with his mobile phone and using the same during the duty hours which was strictly prohibited. Accordingly, the appellant was served with a Memorandum dated 29.01.2015, which contains three Articles of Charge, which are reproduced hereinbelow:- ARTICLE OF CHARGE-I “An act highly prejudicial to good orders and discipline of the Force in that CISF No.863100019 HC/GD Hari Mohan Roy of CISF Unit KoPT Kolkata (“A” Coy) was detailed for day shift duty on 07.12.2014 from 0600 hrs to 1800 hrs at C.F.S. 1st and 2nd of NSD area, CISF Unit KoPT Kolkata. At about 1605 hrs on 07.12.2014, when ‘B” shift in-charge SI/ExeT Sudhakar went to check the duty post found that HC/GD Hari Mohan Roy was talking with his mobile phone in spite of instructions/directions were issued from time to time regarding not to bring mobile phone during duty hours. At about 1605 hrs on 07.12.2014, when ‘B” shift in-charge SI/ExeT Sudhakar went to check the duty post found that HC/GD Hari Mohan Roy was talking with his mobile phone in spite of instructions/directions were issued from time to time regarding not to bring mobile phone during duty hours. Such act on the part of CISF No. 863100019 HC/GD Hari Mohan Roy of “A” Coy of CISF Unit KoPT Kolkata tantamount to gross negligence, carelessness, disobey of law full orders and an act of unbecoming of a member of disciplined Force like CISF”. Hence the charge. ARTICLE OF CHARGE-II “In that CISF No 863100019 HC/GD Hari Mohan Roy of CISF Unit KoPT Kolkata (“A” Coy) was detailed for day shift duty on 07.12.2014 from 0600 hrs to 1800 hrs at C.F.S. 1st and 2nd NSD area, CISF Unit KoPT Kolkata. At about 1605 hrs on 07.12.2014, when ‘B’ shift in-charge SI/Exe T Sudhakar went to check the duty post found HC/GD Hari Mohan was talking with mobile phone. On question of ‘B’ shift in-charge to handed over the mobile phone HC/GD Hari Mohan Roy refused and started unnecessary arguments with Insp/Exe A K Singh, Coy, Commander of ‘A’ Coy. Such act on the part of CISF No. 863100019 HC/GD Hari Mohan Roy of “A’ Coy of CISF Unit KoPT Kolkata tantamount to gross indiscipline, insubordination, dereliction for duty and an act of unbecoming of a member of disciplined Force like CISF”. Hence the charge. ARTICLE OF CHARGE-III “In that No 863100019 HC/GD Hari Mohan Roy of CISF Unit KoPT Kolkata (“A” Coy) is not amenable to discipline and has not improved his conduct as expected from a member of disciplined Force, in-spite of having been penalized/punished earlier 02(Two) Major and 09(Nine) Minor penalties in various occasions for his incorrigible habits during his service tenure and thus, he is a habitual offender.” Hence the charge. 6. Accordingly, a disciplinary proceeding was initiated against the appellant. In the proceeding the appellant took the plea that at the relevant time he was talking with his wife who was seriously ill and who was undergoing treatment at the hospital at Chapar in Dhubri district of Assam. 6. Accordingly, a disciplinary proceeding was initiated against the appellant. In the proceeding the appellant took the plea that at the relevant time he was talking with his wife who was seriously ill and who was undergoing treatment at the hospital at Chapar in Dhubri district of Assam. He also submitted that as his wife was undergoing treatment, he became anxious and just to keep in touch with his ailing wife he had carried the mobile phone and it was not a case of deliberate misconduct contrary to the instruction issued in that regard. 7. The appellant also took the plea that normally, a person is assigned to the shift duty of 6 hours but on that particular day on 07.12.2014 he was directed to remain on duty for 12 hours and as such, the appellant carried his mobile phone to remain in touch with his wife. On conclusion of the Disciplinary Proceeding, the Disciplinary Authority held that all the three charges against the appellant have been proved as he was found to be in possession of a mobile phone contrary to the instructions and was found talking on his mobile phone in violation of the directions issued in that regard and the Disciplinary Authority by taking into consideration the earlier penalties imposed on the appellant, as mentioned in Article of Charge-III that he had been penalized/punished earlier 02(two) Major and 09(nine) Minor penalties on various occasions for his incorrigible habits during his service tenure, imposed the aforesaid penalty of compulsory retirement from service with full pension and gratuity with immediate effect. 8. Being aggrieved by the aforesaid penalty of compulsory retirement from service, the appellant preferred an appeal before the Appellate Authority making the same plea that he had used the mobile phone to talk to his ailing wife on the day of incident and as such, the appellant was on duty under anxiety, as his wife was undergoing treatment in Assam and was also far away from his place of posting in Kolkata and accordingly, he pleaded that because of the aforesaid use of mobile phone no untoward incident had happened during his duty period. He also pleaded that his wife cannot speak in Hindi and can only understand her mother tongue/dialect of Rajbongshi, as there could not be any occasion for his wife to communicate through any other person other than the appellant. 9. He also pleaded that his wife cannot speak in Hindi and can only understand her mother tongue/dialect of Rajbongshi, as there could not be any occasion for his wife to communicate through any other person other than the appellant. 9. However, the Appellate Authority did not agree with the submissions made by the appellant and affirmed the order of punishment of compulsory retirement from service with full pension and gratuity by the impugned appellate order dated 05.08.2015. 10. Being aggrieved by the aforesaid order of penalty imposed by the Disciplinary Authority and upheld by the Appellate Authority in rejecting his plea that the appellant has approached this Court by filing a writ petition being WP(C) No.6282/2015, which was dismissed by the learned Single Judge by the impugned order dated 16.07.2019. 11. The learned Single Judge after referring to the three articles of charge framed, referred to above, was of the view that appellant/petitioner was serving as a Constable at the relevant time and as a member of a disciplined force, he was not entitled to carry his mobile phone while on duty and the Article of Charge-III also clearly indicates the past misconducts for which he was put to notice by the authorities before the penalty was imposed. 12. As regards the Article of Charge-III, the learned Single Judge took the view that the said Article of Charge-III was not a charge for which he was inflicted with the punishment, but it was merely a reference to his past conduct for imposing the appropriate punishment in respect of other two charges under Article of Charge-I and II. 13. Coming to the Article of Charge-II, the learned Single Judge refrained from giving an opinion as the learned Single Judge was of the opinion that the charge against the appellant was not substantial enough to impose the penalty of removal by way of compulsory retirement and took the view that the substantial charge against the appellant relates to Article of Charge-I i.e. carrying a mobile phone and talking on a mobile phone while on duty and as such, the learned Single Judge proceeded to examine as to whether the punishment imposed on the appellant was disproportionate to the nature of offence as contained in Article of Charge-I. 14. The learned Single Judge took the view that the appellant had admitted that he was using the mobile phone during the duty hours and if the appellant's wife was having serious medical problem, the appellant could have informed this fact to the higher authority and could have taken the consent from the superior officers to carry mobile phone or ought to have sought permission to leave the post to speak to his wife, by the departmental phone. The learned Single Judge was also of the opinion that since the appellant was aware that there was a prohibition on carrying a mobile phone during duty hours and since the said fact had been proved during the disciplinary proceeding, the punishment awarded to the appellant cannot be said to be disproportionate. 15. However, the other issue raised by the respondent authorities as regards the lack of jurisdiction of the Court was rejected by the learned Single Judge on the ground that once the writ petition had been admitted for hearing, it could not have been dismissed on the ground of alternative remedy. 16. The learned Single Judge while dismissing the writ petition, took note of the fact that the appellant was earlier awarded 2(two) major and 9(nine) minor penalties as mentioned in Article of Charge-III. 17. In this appeal before us, Mr. S. Hoque, learned counsel for the appellant has submitted that the authorities have committed a grave mistake in taking into consideration the earlier major and minor penalties as mentioned in Article of Charge-III to impose the aforesaid punishment of compulsory retirement from service, which was also taken into consideration by the learned Single Judge while dismissing the writ petition. 18. According to the learned counsel for the appellant, if the aforesaid earlier penalties imposed on the appellant as mentioned in Article of Charge-III are not taken into consideration, compulsorily retiring a person because of use of mobile phone under the peculiar circumstances as referred to above would be disproportionate to the misconduct charge. 19. Learned counsel for the appellant also submits that the Disciplinary Authority could not have taken into consideration the earlier penalties imposed referred to in Article of Charge-III as those were imposed long before and also before he was subsequently promoted to the higher post of Head Constable in the year 2012 and thus, rendering the aforesaid penalties stale and no more relevant. 20. 20. According to the learned counsel for the appellant, it is on record that the last time the appellant was penalized was in the year 2004 and thereafter, because of his sincerity and dedication to duty and as there was no adverse remarks, he was duly promoted to the higher post of Head Constable in the year 2012. According to the learned counsel for the appellant, this factum of promotion to the higher post would clearly indicate that the earlier penalties imposed stand erased or wiped out for the purpose of consideration of his career service as otherwise, the appellant could not have been given promotion to the higher post of Head Constable. 21. It has been submitted by the learned counsel for the appellant that a promotion has the effect of wiping out the earlier adverse service record has been also judicially taken into notice. In this regard, learned counsel for the appellant has referred to the decision of the Hon'ble Supreme Court in State of Gujarat Vs. Umedbhai M. Patel, (2001) 3 SCC 314 , wherein it was held that if an officer is given promotion despite adverse entries made in the confidential record that would be a fact in favour of the officer as it would have effect of negating such adverse records for the purpose of career progression. 22. Learned counsel for the appellant has also referred to the decision of the Hon'ble Supreme Court in Allahabad Bank Officers Association & Anr. Vs. Allahabad Bank Limited & Ors., (1996) 4 SCC 504 , wherein it has been held that if compulsory retirement amounts to casting a stigma, it would not be permissible. Accordingly, it has been submitted by the learned counsel for the appellant that the appellant had used the mobile phone while on duty is not grave enough to justify the imposition of major penalty of compulsory retirement. Accordingly, it has been submitted that the Disciplinary Authority ought not have referred to the earlier penalties imposed on the appellant as mentioned in the Article of Charge-III for the purpose of imposing the penalty of compulsory retirement which is disproportionate to the charge. 23. Accordingly, it has been submitted that the Disciplinary Authority ought not have referred to the earlier penalties imposed on the appellant as mentioned in the Article of Charge-III for the purpose of imposing the penalty of compulsory retirement which is disproportionate to the charge. 23. It has been also submitted that the use of mobile phone was under certain peculiar circumstances and also under compelling situation arising out of the medical treatment of his wife who stayed far away from his place of duty and accordingly, it has been submitted that the impugned order of compulsory retirement may be set aside and the appellant is willing to accept any other penalty which is lesser than the aforesaid penalty and proportionate to the charges proved. 24. Mr. R.K. Dev Choudhury, learned D.S.G.I. has submitted that in matters relating to disciplined forces and that to when the punishment is imposed after going through proper proceeding of which there is no such irregularity, penalty imposed by the Disciplinary Authority which has been considered appropriate normally cannot be interfered by the Court in exercise of the jurisdiction under Article 226 of the Constitution, unless it is found to be shockingly disproportionate to the charge. It has been submitted that it is on record and also admitted by the appellant that the appellant had used the mobile phone in spite of strict prohibition for the same and being a member of the disciplined force he was fully aware of the consequences of disobeying the instruction of the higher authorities that to by discharging an important duty of remaining as Guard/Sentry duty of sensitive installations. 25. Under the circumstances, it has been submitted that even if it may appear to be disproportionate from the point of view of the appellant, the Disciplinary Authority does not consider it to be disproportionate and in fact, it is just a punishment which has been imposed on him in light of his proven misconduct and it has been submitted that it does not call for interference from this Court. 26. We have given our anxious consideration to the rival contentions. As to what amounts shockingly disproportionate punishment sometime there is a element of subjective element while considering any plea raised by any delinquent that the punishment is disproportionate. 26. We have given our anxious consideration to the rival contentions. As to what amounts shockingly disproportionate punishment sometime there is a element of subjective element while considering any plea raised by any delinquent that the punishment is disproportionate. However, while considering any such plea the attending circumstances has to be also looked into and the incident which led to the punishment may not be looked in isolation but in attending circumstances and also the factors which led the Disciplinary Authority in passing such an order of penalty. In the present case, while the appellant has strenuously tried to portray a picture before this Court that use of mobile phone was not a case of deliberate disobeying of instruction not to carry mobile, as on that particular day he was assigned a long duty hours of 12 hours contrary to the normal hour of duty of 6 hours and as his wife was also undergoing treatment in his native place at Assam, which is far away from Kolkata, where the appellant was doing his duty, mobile was the only means of expeditious communication to keep in touch with his ailing wife and as such, it cannot be said that he was totally negligent of his duty by disregarding the instructions though he admits that carrying mobile phone on duty is not allowed. 27. However, keeping apart the aforesaid incident what we have noted is that the Disciplinary Authority appeared to have also influenced by the earlier 2(two) major and 9(nine) minor penalties imposed on the appellant which also led to the imposition of the penalty of compulsory retirement. In this regard, we find force with the submission advanced by the learned counsel for the appellant in the light of the decision of the Hon'ble Supreme Court rendered in Umedbhai M. Patel (supra) that if an officer was given a promotion despite adverse entries made in the confidential record that would be a fact in favour of the officer. It is on record that the appellant was given promotion to the post of Head Constable in the year 2012 and all his adverse entries in his service record reflecting the imposition of 2(two) major and 9 (nine) minor penalties relate the period of 1988, 1989, 1994, 1996, 2000, 2001, 2002 and 2004. It is on record that the appellant was given promotion to the post of Head Constable in the year 2012 and all his adverse entries in his service record reflecting the imposition of 2(two) major and 9 (nine) minor penalties relate the period of 1988, 1989, 1994, 1996, 2000, 2001, 2002 and 2004. The last being on 2004, which is about 11 years before the order of compulsory retirement was imposed on him. As also mentioned by the learned counsel for the appellant that during this period the appellant was given promotion to the higher post of Head Constable in the year 2012. Thus, we are of the view that the principle highlighted in Umedbhai M. Patel (supra) would come into play in as much as if the appellant had been promoted to the higher post of Head Constable in the year 2012, in spite of the existence of adverse remarks relating to the period mentioned above, it would be deemed that the appointing authority did not consider such remarks not to be impediment to the promotion of the appellant. 28. Under the circumstances, if the competent authorities had not considered those remarks not to be sufficient to withhold his promotion to the higher post of Head Constable in 2012, we do not see any reason why these remarks could be used against him to impose the penalty of compulsory retirement. In our view, the aforesaid penalties by passage of time would loose their stint and accordingly can be considered to be stale and cannot be resurrected for the purpose of imposition of the penalty of compulsory retirement. To that extent we are satisfied with the submission advanced by the learned counsel for the appellant that the Disciplinary Authority could not have taken into account these penalties. But as can be seen from the order of penalty and also from the observation made by the learned Single Judge as contained in paragraph 26 of the order dated 16.07.2019, the aforesaid adverse entries did play a role in determining the quantum of punishment. 29. Though Mr. R.K. Dev Choudhury submits that even if these past adverse entries be considered to be stale and not considered, the factum of the appellant of mobile phone contrary to the instruction is sufficient enough to impose a penalty of compulsory retirement. 29. Though Mr. R.K. Dev Choudhury submits that even if these past adverse entries be considered to be stale and not considered, the factum of the appellant of mobile phone contrary to the instruction is sufficient enough to impose a penalty of compulsory retirement. However, we feel that which is a matter that should be left to be decided by the competent authority. 30. Having found that the competent authority could not have taken into consideration the earlier adverse entries which we considered to be stale and cannot be used. Having ignored by the authorities at the time of giving promotion to the higher post of Head Constable in 2012, certainly these cannot be used in a subsequent period i.e. in 2015 when the order of penalty was issued. 31. Under the circumstances, we are of the view that the authorities will be required to revisit the decision as regards the quantum of punishment to be imposed on the appellant. For the above reason, we are satisfied that the appellant has been able to make out a case for interference from this Court. Accordingly, the appeal is allowed by interfering with the decision of the learned Single Judge passed on 16.07.2019 in WP(C) No.6282/2015 and consequently, we are also inclined to interfere with the order of penalty dated 23.05.2015 as well as the order of affirmation dated 05.08.2015 and the matter is remanded to the Disciplinary Authority for passing a fresh order of penalty without taking into consideration the past adverse remarks, which are reflected in Article of Charge-III. 32. Accordingly, the appellant shall be reinstated in service, however, he shall be deemed to be under suspension from today i.e. 07.12.2022 till the fresh order of penalty is passed by the competent authority. As regards the earlier period from the date of passing the compulsory retirement on 23.05.2015 till today since the appellant has not rendered any service, even if the appellant will be also deemed to be under suspension there shall not be any question of payment of any allowances or salary for the period which he has not served. However, all these factors will be considered subject to the final order of penalty, which will be passed by the Disciplinary Authority within a period of 2(two) months from today.