In cases of misconduct and imposition of punishment, the court may consider the absence of a proper domestic enquiry and the employee's request for voluntary retirement.

JUDGMENT

Kurian, J. -. Leave granted.

2. The appellant before this Court is aggrieved by the judgment dated 21.07.2016 in Writ Petition (C) No. 1268 of 2016 and the order dated 18.11.2016 passed in Review Petition No. 504 of 2016. In the nature of the order that we propose to pass in this case it may not be necessary to go into the facts of the case in detail

3. Shorn of details, the appellant was removed from service pursuant to inquiry conducted under the Fundamental Rules. The charge established was that he did not report back to duty/curtail his deputation to the International Labor Organization despite the direction issued by the competent authority. Thus, order dated 26.06.2009 was passed removing the appellant from service.

4. Ms. V. Mohana, learned senior counsel appearing for the respondents, submits that the appellant overstayed his period of deputation. Be that as it may, the order removing the appellant from service at paragraph 13 reads as follows: -

"Now, therefore after considering the facts and circumstances of the case, the President has come to the conclusion that all the Articles of Charge framed against the CO stand established and considering the gravity of misconduct of persistent defying of the direction of the superiors it would not be desirable to retain him in service."

5. What is discernible from the satisfaction as reflected in the aforesaid order is that the competent authority felt it not desirable to retain the appellant in service. It is one thing to say that it is not desirable to keep an employee any more in service and yet another thing to say that the service of the employee should be terminated on account of proved misconduct.

6. It is significant to note that there was no proper domestic enquiry. It is also significant to note that the appellant had sought voluntary retirement. Having regard to the background of the case, we are of the view that the alleged overstay and defiance of the direction to report back to duty may not require the imposition of extreme punishment of removal from service, particularly, since the satisfaction of the competent authority is what is indicated above. Accordingly, in the peculiar facts and circumstances of this case, we dispose of these appeals with the direction to the competent authority to substitute the punishment of removal with compulsory retirement w.e.f. 26.06.2009, the date of the order of removal from service.

7. The competent authority shall, therefore, pay eligible/consequential benefit(s) flowing out from such substitution within a period of three months from today. There shall be no claim for any interest for the benefits.