IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.08.2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR. JUSTICE K.KANNAN Writ Petition No.7460 of 2008 and M.P.No.2 of 2008 1.Union of India, rep. by the Chief Postmaster General, Tamil Nadu Circle, Chennai-600 002. 2.The Director of Postal Services, Chennai City Region, Chennai-600 002. 3.The Senior Superintendent of Post Offices, Tambaram Division, Chennai-600 045. ... Petitioners. Vs 1.S.Muthuramasubramanian 2.The Central Administrative Tribunal, Chennai Bench, High Court Building, Chennai. ... Respondent. Prayer:- Writ Petition under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari to call for the records of the 2nd respondent in O.A.No.48 of 2007 dated 5.11.2007 and quash the same. For Petitioner : Mr.K.M.Venugopal For Respondents : Mr.R.Malaisamy for R1 R-2 Tribunal. O R D E R (Order of the Court was made by P.K.MISRA, J.) Heard Mr.K.M.Venugopal, learned Counsel appearing for the writ petitioners and Mr.R.Malaisamy, learned counsel appearing for the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. Even though the matter is listed for considering the question of vacating the order of interim stay, since the very same question is involved in the writ petition, with the consent of Counsel appearing for both parties, the writ petition itself is taken up for disposal on merits. 3. The 1st respondent, who was employed under the present petitioners as a Postal Assistant, had applied for grant of leave for few days and thereafter, for extension of such leave through telegraphic communication. However, subsequently, he did not rejoin nor had prayed for any further extension of leave. A departmental proceeding was initiated against him on account of such unauthorised absence. However, the notices relating to the departmental proceeding could not be actually served on him, on account of the fact that the 1st respondent had shifted his residence to some other place, without furnishing the details of such address to the Department. Be that as it may, ultimately, an order of removal from service was passed. Thereafter, the 1st respondent filed O.A.No.48 of 2007 before the Central Administrative Tribunal. It was contended by him therein that he had remained absent on account of his mental illness (Schizophrenia) and it was further submitted by him that the departmental proceeding notices had not been served on him and as such, he did not have the opportunity of explaining his point of view. 4. The Tribunal, after taking into account the admission made by the present 1st respondent regarding the reason for not rejoining duty and particularly keeping in view the fact that there was no other allegation of any misconduct on his part on earlier occasion, observed as follows: "The facts and circumstances of this case are such that while punishing the applicant for his irresponsible conduct in not keeping the respondents informed about the reasons for his absence, it is necessary to ensure that his past services can not be totally ignored. Therefore, we are of the considered opinion that imposing of a lesser penalty of compulsory retirement and entitlement for compensation pension as is admissible in accordance with the length of service, meets the ends of justice. 9. For the reasons stated above, the OA is partly allowed. The penalty order dated 31.01.2003 is quashed and set aside. The respondents are directed to take into account the past conduct and service of the applicant and consider imposition of a lesser penalty in https://hcservices.ecourts.gov.in/hcservices/ the light of the observations made in this order and pass appropriate orders within a period of three months from the date of receipt of copy of this order. No costs." Such direction of the Tribunal is being challenged by the Department in the present writ petition. 5. The learned counsel appearing for the petitioner has submitted that once it is found that the delinquent had remained absent unauthorisedly, the Tribunal should not have interfered with the punishment. 6. The learned counsel for the 1st respondent, on the other hand, submitted that the Tribunal has merely given a direction to the Department to reconsider the matter keeping in view the various facts and circumstances and has opined that it would have been more appropriate for the department to impose lesser penalty of compulsory retirement, so that the 1st respondent would be in a position to receive the pension as admissible in accordance with the service rendered by him. 7. From the materials on record including the affidavit filed by the 1st respondent, it is apparent that the 1st respondent was suffering from ill-health including mental illness (Schizophrenia). It is no doubt true that the 1st respondent had remained absent for a long period and even though he had initially filed application for leave and subsequently sent telegrams regarding the extension of leave, thereafter, he had kept quiet and had not rejoined duty. Therefore, the contention of the Department, that such a person cannot be allowed to continue in service is, prima facie, justified. 8. However, we cannot lose sight of the fact that the 1st respondent was suffering from Schizophrenia and during the period of service of more than 10 years, there was no other complaint against him. In these circumstances, the observation of the Tribunal that instead of removal from service, lesser punishment like compulsory retirement would have met the ends of justice cannot be characterised as perverse or grossly illegal warranting interference by the High Court while exercising the jurisdiction under Article 226 of the Constitution of India. It is of course true that the Tribunal was not expected to consider the matter as an Appellate Authority over the decision in the disciplinary proceedings. However, as has been observed in several cases, when a punishment appears to be grossly disproportionate, either the Tribunal or the High Court can interfere - see State of Gujarat -vs- Anand Acharya @ Bharat Kumar {JT 2007(4) SC 124}. The question still remains whether the order of Tribunal calls for any modification or interference. https://hcservices.ecourts.gov.in/hcservices/ 9. We are conscious of the legal position that ordinarily, the question of imposition of punishment should be left to the discretion of the departmental authorities – see Damoh Panna Sagar, Rural Regional Bank and another -vs- Munnalal Jain (2005) 10 SCC 84. In the present case, we find that the disciplinary proceedings had been concluded even though the notice of the proceeding had not been actually served. It is of course true that the Department had sent a notice in the address of the 1st respondent known to the Department. However, such notice had returned unserved with an endorsement, "left and unclaimed". Therefore, it would have been more appropriate on the part of the Department to have published notices in a newspaper or by any other method of substituted service, so that the principles of natural justice could have been complied with. Since such an inherent defect in the proceeding is there, in normal course, we would have remanded the matter to the Department for continuing the departmental proceeding from that stage onwards. However, we find that no useful purpose would be served by adopting such a course because of the special features. In view of the mental illness of the 1st respondent and in view of the admitted misconduct of unauthorised absence, obviously, the Department would not be in a position to retain the 1st respondent in service for any further period. Even though reinstatement may not be possible, at least, to enable the 1st respondent and his family members to survive, the punishment of removal from service can be modified in the interest of justice to one of compulsory retirement, so that the 1st respondent would have the benefit of the minimum pension ti enable him and his family members to survive. 10. Having regard to all these peculiar facts and circumstances of this case, we feel that interest of justice would be served by modifying the order of the Tribunal and by bringing the departmental proceeding to an end by directing that instead of the order of removal from service, the 1st respondent shall be deemed to have been compulsorily retired with effect from 31.01.2003. This order, we have thought it fit to pass in the peculiar situation and more particularly, keeping in view the fact that the 1st respondent has lost his mental balance and it would be only prolonging the mental agony of the 1st respondent, if the matter is remanded either for a fresh enquiry or even for imposing any appropriate punishment on the basis of the admitted facts. Accordingly, the writ petition is disposed of with the above modification. The Department should calculate the pension amount payable to the 1st respondent and take steps to make necessary payment as expeditiously as possible preferably within a period of https://hcservices.ecourts.gov.in/hcservices/ two months from the date of receipt of a copy of this order. No costs. bs/ Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Registrar, Central Administrative Tribunal, Chennai. 2. The Chief Postmaster General, Tamil Nadu Circle, Chennai-600 002. 3.The Director of Postal Services, Chennai City Region, Chennai-600 002. 4.The Senior Superintendent of Post Offices, Tambaram Division, Chennai-600 045. 1 cc to Mr.R.Malaisamy, Advocate, SR.43644 1 cc to Mr.K.M.Venugopal, Advocate, SR.43859 vm (co) dv/4.9. Writ Petition No.7460 of 2008 https://hcservices.ecourts.gov.in/hcservices/