(Prayer: Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus calling for the records pertaining to the order dated 18.12.2024 passed in O.A.No. 136 of 2021 on the file of the Hon'ble Central Administrative Tribunal, Chennai, and quash the same, consequent to direct the respondents to reinstate the petitioner into service with all attendant benefits.)

C.V. Karthikeyan, J.

1. The petitioner in O.A.No. 136 of 2021 aggrieved by the order dated 18.12.2024 of the Central Administrative Tribunal, Chennai, has filed the present Writ Petition.

2. The petitioner had been appointed as Sorting Assistant on 13.06.1997 in Railway Mail Service (RMS) of the Postal Department through direct recruitment. He was transferred to Paramakudi and joined RMS “MA” Division in the office of the Sub Record Office on 22.09.2003. A charge memo was issued to him on 21.03.2013 under Rule 14 of CCS (CCA) Rules 1965 containing two allegations.

                     (i) the first allegation was that he was granted scooter advance for a sum of Rs.30,000/- and took payment on 03.08.2011 but did not buy any scooter.

                     (ii) the second allegation was that he had attended MDCP (Mid- Career Development Programme) training on 03.09.2012 after the department had paid hostel fees. He fell ill and complained that he had got fits. His mother had to be called and he was then taken to the hospital. He was absent from 03.09.2012 till 15.09.2012. The second charge was that he absented himself and did not attend the training during that period.

3. An enquiry was conducted and it is contended that the petitioner had admitted to the allegations. It was therefore held that the charges were proved. He was imposed with the punishment of compulsory retirement from service. This punishment was challenged by him before the Tribunal. The Tribunal by its order dated 18.12.2024 dismissed the Original Application, necessitating filing of the present Writ Petition.

4. Heard arguments advanced by Mr.R.Malaichamy, learned counsel for petitioner and Ms. Sushma, learned Senior Panel Counsel for the first to fourth respondents.

5. Mr.R.Malaichamy, the learned counsel for petitioner pointed out the facts of the case and stated that the petitioner had obtained an advance of Rs.30,000/- for purchase of a scooter. However, medical advise was given that he should not drive a two wheeler. It was contended that therefore, he had not purchased the two wheeler. The learned counsel contended that the amount received as advance had been collected back by the respondents together with penalty. With respect to the absence from training, learned counsel pointed out that the petitioner suffered from fits and therefore, had to take treatment for the same and he was hospitalised. The learned counsel stated that for these two charges, the imposition of penalty of retirement from service was disproportionate. The learned counsel further contended that no enquiry was conducted and the petitioner was not provided opportunity to place any fact before the enquiry officer including records relating to his medical condition. The learned counsel therefore contended that the order of the Tribunal must be set aside.

6. Ms. Sushma, learned Senior Panel Counsel for the respondents however argued that the petitioner had financially benefited while receiving advance towards purchase of scooter. He had not purchased the scooter and had also not submitted documents towards purchase of scooter. The learned counsel argued that if the petitioner had a history of suffering from fits attack then, he should never have applied for the scooter advance. The learned counsel stated that the petitioner had also absented himself from 03.09.2012 till 18.09.2012. It was pointed out that both the allegations were admitted and stood proved during the course of enquiry. It was argued that the punishment imposed was commensurate with the nature of the charges alleged.

7. We have carefully considered the arguments advanced and perused the materials available on records.

8. The writ petitioner had been selected through direct recruitment for the post of Sorting Assistant on 13.06.1997 in Railway Mail Service (RMS) of the Postal Department. He was then transferred to Paramakudi and joined RMS “MA” Division in the office of the Sub Record Office on 22.09.2003.

9. The petitioner had applied for a scooter advance for purchase of a scooter and also received a sum of Rs.30,000/-. It is an admitted fact that he did not purchase a scooter.

10. The petitioner had been deputed to attend MDCP training on 03.09.2012. He went of the training but suffered from fits. His mother was called and he was taken to the hospital. He was absent from 03.09.2012 till 18.09.2012. This period had been regularised by grant of leave without pay.

11. Enquiry was conducted against the petitioner for the two allegations. A perusal of the records reveal that during the enquiry proceedings, a presenting officer was not appointed. In the absence of the presenting officer, the enquiry officer himself conducted the enquiry. This procedure does not withstand the scrutiny of the Court. The enquiry officer has to adjudicate on the issues presented before him. He has to give a finding on the documents presented. He has to analyse the evidence presented and render a finding whether the charges stood established or not. But he can never take on the role of a presenting officer which is a distinct and separate role in itself.

12. In the instant case, the specific allegation against the procedure adopted during enquiry is that the enquiry officer conducted the enquiry in the absence of the presenting officer and obtained signatures of the petitioner in a statement as if the petitioner had admitted the charges. The petitioner was then inflicted with a major punishment of compulsory retirement from service.

13. It is to be seen that the specific case of the petitioner was that he was under treatment for nervous disorder due to epilepsy and that the Doctor had advised him not to drive a scooter. The total advance received by him for purchase of the scooter with penal interest had been recovered from the salary. It is also to be noted that the charge memo had been issued after the recovery of all amounts payable by the petitioner had been completed. We hold that imposition of penal interest itself is a punishment imposed on the petitioner.

14. With respect to the second charge, the petitioner had attended the MCDP training and he also joined the hostel but however he fell ill owing to epilepsy attack. This was caused by a typhoid fever. He took treatment from the Government hospital, Paramakudi and medical certificate was also issued. The period from 03.09.2012 till 18.09.2012 was also subsequently regularised as grant of leave on loss of pay. We hold that there cannot be a further punishment imposed over being absent for that period. We hold that the petitioner cannot be inflicted with a major punishment of compulsory retirement on the flimsy nature of the two charges.

15. We further hold that the punishment imposed is disproportionate to the nature of the allegations. The enquiry officer had failed in providing proper opportunity to the petitioner. Documents should have been marked and witnesses should have been examined to speak up about the documents. The petitioner should have been afforded an opportunity to cross examine the witnesses. He should have been afforded an opportunity to present his medical records for consideration. Unfortunately, the respondents had taken note of the statement made by him admitting receipt of the scooter advance. He could never have denied the same since it is a fact that he had received the loan amount. It is a further fact that the amount was recovered with penal interest and only after effecting recovery, the charge memo had been issued.

16. We hold that imposing punishment of compulsory retirement was extremely disproportionate to the nature of the allegations particularly since the petitioner had been denied proper opportunity. We further hold that remitting the matter back for fresh enquiry would only be an exercise which would protract and prolong the agony of the petitioner herein. We would therefore exercise our discretion and impose a punishment of cut of increment for two years with cumulative effect. The petitioner has considerable service ahead of him and these factors play interfering with the punishment imposed and modifying the punishment to cut of increment for two years with cumulative effect. We hold that this would serve the ends of justice.

17. The respondents are directed to reinstate the petitioner back in service. The period of service is to be regularised and the petitioner is entitled for continuity of service but however since he had not worked, he is not entitled for back wages. The respondents cannot treat the interregnum period as break in service. Necessary orders in this regard are to be passed within a period of four weeks from this date. The punishment imposed is modified to cut in increment for two years with cumulative effect.

18. The Writ Petition stands disposed of by modifying the punishment imposed. No order as to costs.