(Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records pertaining to the order of the 7 th respondent made in O.A.No.473 of 2017, dated 07.03.2023, and quash the same consequent to direct the respondents 1 to 6 to treat the petitioner as if she has retired from service on attainment of superannuation on 30.04.2022 and settle all the retirement service benefits including pension and pay the arrears of the same to her.)

K. KUMARESH BABU.,J.

1. This writ petition has been filed to quash the order passed by the Central Administrative Tribunal, in Original Application No.473 of 2017, dated 07.03.2023

2. Heard Mr.R.Malaichamy, learned counsel appearing for petitioner and Dr.K.Kannan learned Panel counsel appearing for the respondents 1 to 3, 5 & 6.

3. The learned counsel appearing for the petitioner would submit that the petitioner was engaged as a Postwoman and while she was undergoing training, the then Director Postal Training Centre had retained 70 candidates for further two weeks training indicating that the trainees had not secured 60% of marks as stipulated by the Directorate's letter dated 17.04.2009. He would submit that the petitioner had also attended the training as directed by the then Director, who is the fourth respondent herein. He would submit that she had been specifically arrayed as the respondent in the Writ Petition as she was the one who had initiated a complaint against the petitioner for initiating disciplinary proceedings and thereafter, as the Appellate Authority had also passed orders enhancing the punishment imposed on the petitioner. He would submit that the petitioner was served with a charge memo on 10.09.2012 by the fifth respondent, upon which an enquiry was also conducted and an order of punishment was imposed on 30.01.2015 by imposing a punishment of reduction of stage of pay for a period of two years with cumulative effect. He would submit that as against the order of punishment imposed, the petitioner had filed an appeal with the third respondent, which post was held by the fourth respondent. On the appeal filed by the petitioner, the third respondent had issued a show cause as to why the punishment should not be enhanced to which also the petitioner had submitted a detailed reply, but however without referring to the reply submitted and on the premise that the petitioner had not submitted her reply, the 3 rd /4 th respondent had enhanced the punishment into that of the compulsory retirement with immediate effect.

4. He would submit that the revision filed against the same, also came to be dismissed. As being aggrieved, the petitioner had approached the Central Administrative Tribunal, which had dismissed the Original Application filed by the petitioner. He would submit that the Tribunal had not considered that the order of enhancement of the punishment was made by the authority, who had instigated the complaint against the petitioner. He would further submit that the 3rd/4th respondent was responsible for extension of the training period.

5. After a detailed enquiry and by taking into consideration of the petitioner's medical condition, order of reduction of pay was made. He would submit that the Appellate Authority's order smacks malafides as not only the Appellate Authority, was the person who initiated the complaint, had passed an order on the lis that had been initiated by her, but also failed to take into consideration the representation sent by the petitioner on the show cause for enhancement of punishment. He would submit that to the show cause issued to her, the petitioner had submitted a detailed reply on 04.07.2015, which was sent through Speed Post and delivered to the office of the 3 rd /4 th respondent on 06.07.2015 and the Appellate Authority passed the order on 13.11.2015. Therefore, according to him, the entire proceedings against the petitioner had been vitiated by malafides at the instance of the fourth respondent. He would submit that the entire disciplinary proceedings would have to be set at naught and the petitioner be granted all the benefits.

6. Countering his arguments, the learned Panel counsel appearing for the respondents 1 to 3, 5 & 6 would submit that the husband of the petitioner was employed as a Sub-Inspector in the Police Department and when the petitioner was extended for training, he had approached the Training Centre to relieve the petitioner for undergoing her medical treatment. The third respondent had advised him to ask the petitioner to submit a leave application, however instead of doing so, he had created a ruckus inside the Postal Training Centre Campus and had also threatened the officials using un-parliamentary words and the petitioner had left the Postal Training Centre without getting prior permission. This has led to the initiation of disciplinary proceeding against the petitioner.

7. He would further submit that the petitioner was also on frequent leave and hence was directed to approach the Regional Medical Board at Government Rajaji Hospital, Madurai. The Medical Board had recommended to regularise the leave period from 04.08.2011 to 15.02.2012 with a further direction to attend the Board on 13.03.2012. The petitioner only appeared on 17.04.2012 & 15.05.2012 before the Medical Board and after examining her, she was certified to be fit to join duty on 16.05.2012. Even though she had joined duty on 16.05.2012, had not turned up for duty from 17.05.2012, that too without prior permission and had submitted an application seeking leave from 17.05.2012 to 13.06.2012, which was received by the office on 22.05.2012. As the Medical Board had recommended to join duty on 16.05.2012, the said application was rejected and the petitioner was directed to join duty on 28.06.2012. Hence, as the petitioner had unauthorizedly remained absent from duty, the petitioner was issued with a charge memo for which she had submitted a representation seeking to drop the charges on medical grounds. He would submit that subsequently, the Medical Board has also issued a certificate that the period of leave from 03.09.2012 to 18.09.2012 was not justified and recommended non-regularization the same on medical grounds. After a due enquiry, the petitioner was also inflicted with the punishment of reduction of pay to a stage for a period of two years with cumulative effect, however on appeal, a show cause notice was issued by the Appellate Authority for enhancement of punishment and had also given the petitioner an opportunity to reply to the same. He would vehemently contend that no representation had been received from the petitioner and therefore the Appellate Authority had ordered the penalty of compulsory retirement and the revision preferred by her also came to be dismissed. The Appellate Authority, according to him had enhanced the punishment taking into account the gravity of the delinquency committed by the petitioner and he would submit that there is no reason that had been brought in by the petitioner to interfere with the orders impugned in this Writ Petition and prays this Court to dismiss the Writ Petition.

8. We have considered the submissions made by the learned counsels appearing on either side and perused the materials placed on record.

9. The primordial contention of the petitioner is that the Appellate Authority who had enhanced the punishment, was the authority, who was responsible for initiation of the disciplinary proceedings thereby attributing malice in the Appellate Authority for enhancing the punishment.

10. It is not disputed by the respondents that it is the fourth respondent herein who had initiated the disciplinary proceedings against the petitioner. In that regard, it would also be useful to refer to the counter affidavit filed by the respondents particularly paragraph 31. In the averments in the said paragraph, it had been clearly accepted that the fourth respondent who was the then officer holding the post of third respondent, had intimated the second respondent with regard to the conduct of the petitioner and had requested action to be initiated against the petitioner for the reasons indicated therein. Further the petitioner had specifically averred in the Writ Petition that the petitioner in reply to the show cause notice issued by the Appellate Authority for enhancement of the punishment, had sent her reply through Speed post and had also produced the online delivery report with regard to the article booked by the petitioner, pursuant to the show cause notice issued to her.

11. A thorough perusal of the counter affidavit do not dispute the averments made by the petitioner in her affidavit, but on the other hand, it had only been indicated that there has been no representation made by the petitioner on the show cause notice for enhancement of punishment. It is further to be noted that the show cause notice for enhancement of punishment was dated 19.06.2015, for which the petitioner claims to have submitted a reply on 04.07.2015, which is supported by online delivery report indicating the delivery of the item on 06.07.2015 and the order of the Appellate Authority came to be passed on 30.11.2015.

12. It is further to be noted that even though the Officer who held the post of Appellate Authority had been impleaded in her personal capacity, she had not chosen to file any counter affidavit even before the Tribunal independently and a counter had been filed by the fifth respondent on behalf of all the other respondents. Even in the said counter affidavit, except to state that there has been no representation submitted by the petitioner on the show cause notice for enhancement of punishment, no specific averments have been made by the respondents refuting the receipt of such representation as substantiated by the petitioner or no statement has been made that the said item delivered on 06.07.2015, did not relate to the reply to the show cause notice for enhancement of punishment.

13. On the admitted fact that it was the fourth respondent who was holding the post of the third respondent at the relevant point of time was instrumental in initiating the departmental proceedings against the petitioner for the alleged misconduct, it would have been only proper for herself to recuse in deciding the appeal against the petitioner. That apart as indicated above, inspite of the petitioner sending a reply to the show cause notice for enhancement of punishment which had been substantiated by production of online delivery receipts, the fourth respondent had indicated in her order that there has been no representation that had been received from the petitioner, that too in an order that was passed after five months of the issuance of such show cause notice. This only brings us to the conclusion that not only the order of the Appellate Authority as passed by the 3 rd /4 th respondents would suffer from the vice of malafides, but also is hit by the principles of bias. In that event, the order of the Appellate Authority is liable to be interfered with.

14. The Original Authority had imposed a punishment of reduction in pay scale for a period of two years with cumulative effect. Such punishment itself is a major punishment that had been imposed on the petitioner. It is further to be noted that except to indicate the gravity of the delinquency, no reasons have been attributed by the 3 rd /4 th respondent in the order in appeal as to why enhancement is required as the punishment imposed by the original authority was disproportionate. The charge against the petitioner is that the petitioner had unauthorizedly absented herself. Event though, it is the claim of the respondents that the petitioner's husband had interfered in the training and had caused ruckus in the training centre, the charge memo do not impute the petitioner on such allegation. The respondents cannot be permitted to sustain the order of enhanced punishment based upon facts which the petitioner was not charged with.

15. Even in the show cause notice issued by the Appellate Authority for enhancement of punishment, such allegation was not made against the petitioner nor does the Appellate Authority's order imposing the enhanced punishment had taken note of such allegation against the petitioner. It is further to be noted that for her absence during the initial leave was also recommended to be regularised by the Medical Board and that fact has also been accepted to by the respondents. It is also to be further noted that the petitioner had also attained the age of superannuation on 30.04.2022 pending the Original Application.

16. For the aforesaid reasons, the Writ Petition stands partly allowed and the impugned order made by the third respondent dated 13.11.2015 and order of the Revisional authority/first respondent dated 20.01.2017 alone are set aside and we affirm the order of the fifth respondent dated 30.01.2015 and as consequence, the order passed by the Tribunal is also interfered with to that extent. Since the petitioner had superannuated on 30.04.2022, the respondents are directed to rework the monetary benefits to the petitioner by taking into account the punishment had been suffered by the petitioner and grant all her terminal benefits within a period of three months from the date of receipt of a copy of this order. However, there shall be no order as to costs.