( 1 ) THESE appeals by the Union of India are directed against the orders passed by the learned Single Judge of the Gauhati High Court, and upheld by the Division Bench of the said High Court. The respondents were members of GREF and they led a demonstration for a considerable period for which they were arrested on 15-12-1979 and they were court-martialled in court martial proceedings. All three of the respondents were convicted, but while one of them was sentenced to RI for 30 months, two others were sentenced to ri for 18 months. Assailing the proceedings under court martial they filed a writ petition in the High Court. The High Court dismissed the writ petition and upheld the conviction recorded by the competent authority under court martial. But the High Court, however, observed that it would be open for the delinquent to apply to the competent authority for remission of the remaining part of the sentence. The respondents assailed the order of the High Court upholding the conviction by filing a special leave application in this Court which was ultimately dismissed by an order dated 2-7-1994. Pursuant to the observations of the learned Single Judge of the Gauhati High Court, the respondents applied for remission and obtained a remission by order dated 16-7-1987. Thus the conviction and sentence awarded against the respondents in the court martial has become final.

( 2 ) SUBSEQUENT to the aforesaid conviction and sentence the competent authority took recourse to the proceedings under the provisions of the Civil services (Classification, Control and Appeal) Rules and issued a notice to show cause on 21-7-1987 in terms of proviso to Rule 19 of the aforesaid rules. This Court, however, while entertaining the special leave application had granted an order of stay on 1-12-1987 restraining the employer to proceed with the disciplinary action. That order of stay was, however, modified by an order dated 26-11-1991 and this Court by the modified order, allowed the authority to proceed with the departmental proceedings but on the basis of the ultimate conclusion reached, the punishment was directed not to be given effect to until further orders of this Court. While dismissing the criminal appeal filed by the respondents there has been no indication by this court as to curtailing the power of the employer to take any disciplinary action in accordance with the provisions of the Civil Services (Classification, control and Appeal) Rules. The appropriate authority in exercise of power under Rule 19 (0 of the CCS Rules having ordered compulsory retirement of these respondents, they approached the High Court by filing a writ petition. The learned Single Judge, however, interfered with the aforesaid order of the employer on a finding that there has been no compliance with the proviso to rule 19 of the Rules. The High Court also further took into account the fact that some others who had agitated had been given a lesser punishment. The learned Single Judge therefore, set aside the order of compulsory retirement and observed that it would be open for the employer to pass any lesser order of punishment. The Union Government assailed the said order of the learned single Judge which was upheld by the Division Bench of the High Court. It is against this order the present appeal has been preferred.

( 3 ) MR PP. Malhotra, learned Senior Counsel appearing for the appellants contends that the findings of the learned Single Judge that proviso to Rule 19 was not complied with, is an error of record. It is apparent from the facts that notice was duly served in terms of proviso to Rule 19 by a letter dated 21-7-1987 and the judgment of the Gauhati High Court itself indicates that the respondents had submitted a representation to the same on 13-8-1987. The conclusion of the learned Single Judge therefore is fully vitiated on account of the aforesaid erroneous facts. The question that arises for consideration therefore is that whether the employer would be j