Judgment :- 1. The petitioner was working as Grade–II Warder at the Central Prison, Trichy. On 31.07.1999 at about 05.30 p.m., the Head Warder Mr.Gurudev Singh directed him to get the keys of the 5th Block at the outer gate from the another Chief Head Warder Mr.Sekar. Mr.Gurudev Singh also gave his bicycle. Accordingly, he went to the outer gate and took 3 keys bearing Nos.533, 59 and 356 from Mr.Sekar, after signing the key register. While he proceeded towards the inner gate, the then Additional Superintendent of Central Prison came there along with some other persons. On seeing the Additional Superintendent of Central Prison, he got down from the bicycle. While he got down, the keys fell on the ground. He thought of picking up the keys after the Additional Superintendent crossed him. But the then Additional Superintendent took the keys and the petitioner followed him. The then Additional Superintendent went into the office of the Jailor. When he came back, he informed the petitioner that the keys were handed over to the Jailor. But the said incident resulted in the issuance of the charge memo dated 01.12.1999 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 2. The crux of the charge was that the petitioner was negligent in missing the keys belonging to the 5th Block. An enquiry was ordered. Another Additional Superintendent, who replaced the then Additional Superintendent, was the Enquiry Officer. He conducted an enquiry. In the enquiry, the Chief Head Warder Mr.Sekar, who was at the gate on the particular day as well as the Jailor, were examined as departmental witnesses. The petitioner gave his explanation on the above lines. The Enquiry Officer submitted his findings dated 23.03.2000 holding that the charge was established. The respondent issued a letter dated 25.03.2000 enclosing the findings of the Enquiry Officer dated 23.03.2000 and directed the petitioner to submit his remarks thereon. The petitioner gave his remarks on 27.04.2000. 3. However, the respondent passed the impugned order dated 08.06.2000 imposing the punishment of compulsory retirement. In the impugned order, it is stated that the past record of the petitioner was also not clean and that therefore, it was decided to impose the penalty of compulsory retirement. 4. The petitioner filed Original Application in O.A.No.4409 of 2000 before the Tamil Nadu Administrative Tribunal praying to quash the aforesaid order dated 08.06.2000 of the respondent. In the impugned order, it is stated that the past record of the petitioner was also not clean and that therefore, it was decided to impose the penalty of compulsory retirement. 4. The petitioner filed Original Application in O.A.No.4409 of 2000 before the Tamil Nadu Administrative Tribunal praying to quash the aforesaid order dated 08.06.2000 of the respondent. 5. While Admitting the Original Application on 17.07.2000, the Tribunal granted interim stay and the petitioner continues in service. 6. The respondent filed reply affidavit stating that the petitioner was negligent in his duties, as he missed the keys. Had the keys were taken by the convicts that could lead to serious consequences. Fortunately, the keys were taken by the Additional Superintendent and he handed over to the Jailor. In these circumstances and also taking into account his past record, the petitioner was imposed with the penalty of compulsory retirement. 7. On abolition of the Tamil Nadu Administrative Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.40938/2006. 8. Heard the submissions made on either side and perused the materials available on record. 9. The learned counsel for the petitioner submits that the Enquiry Officer nowhere considered the explanation submitted by the petitioner, while rendering his findings. The petitioner was not cross examined on his findings. It is not disputed that the keys fell down on the ground, when he got down from the bicycle out of respect, on seeing the Additional Superintendent of Central Prison. When his version was not uncontroverted, the same has to be taken into account. The Disciplinary Authority also did not consider this vital aspect and that therefore, the impugned order of compulsory retirement is vitiated. 10. The learned counsel for the petitioner further submits that the charge is not grave as focussed by the respondent. They proceeded on the basis that had the keys were taken by the prisoners, serious consequences could have followed. Such an event did not take place. Hence, the extreme penalty of compulsory retirement was not warranted. It is also submitted that on so many occasions, the prisoners used to escape from the prison and the Warders were only imposed with minor punishment of increment cut without cumulative effect. 11. Such an event did not take place. Hence, the extreme penalty of compulsory retirement was not warranted. It is also submitted that on so many occasions, the prisoners used to escape from the prison and the Warders were only imposed with minor punishment of increment cut without cumulative effect. 11. The learned counsel for the petitioner further submits that the penalty of compulsory retirement is shockingly disproportionate to the charges, as held by the Honourable Apex Court in B.C. Chaturvedi v. Union of India reported in 1995 (6) SCC 749 . 12. The learned counsel for the petitioner submits that the alleged past record was taken into account, while imposing the extreme punishment of compulsory retirement, without putting the petitioner on notice. This is in violation of the judgment of the Honourable Supreme Court in INDU BHUSHAN DWIVEDI VS. STATE OF JHARKHAND AND ANOTHER reported in 2010 (6) MLJ 603 (SC). 13. The learned counsel for the petitioner also submits that the petitioner continues in service for the past ten years, in view of the interim stay granted by the Tribunal. There was no adverse remarks within ten years. Lastly, it is contended that this Court, applying the principles of the judgment of the Honourable Supreme Court in B.C.Chaturvedis case, could impose proper punishment, instead of remitting the matter to the authority. 14. On the other hand, the learned Government Advocate strenuously contends that the petitioner committed grave misconduct. Though it looks as if the keys fell down on the ground, the consequences could have been very serious, had those keys were taken by the prisoners. Hence, relying on the Prison Rules, departmental action was initiated against the petitioner and based on the findings recorded in the enquiry report, he was imposed with the punishment of compulsory retirement. The learned Government Advocate further submits that the reliance placed on the past record, could not vitiate the impugned order. 15. I have considered the submissions made on either side. 16. It is not in dispute that he took 3 keys of 5th Block at 05.30 p.m. from the outer gate from Mr.Sekar, Chief Head Warder, after signing the key register. It is also not in dispute that the keys were found near round tana by the Additional Superintendent of Central Prison, Trichy and he handed over the same to the Jailor. It is also not in dispute that the keys were found near round tana by the Additional Superintendent of Central Prison, Trichy and he handed over the same to the Jailor. But the version of the petitioner is that on the directions issued by the Head Warder Mr.Gurudev Singh, to take the keys at the outer gate, he went to the outer gate. According to the petitioner, Mr.Gurudev Singh also gave his bicycle and he went to the gate with his bicycle. He took the keys after signing the key register and returned in the bicycle. On the way, at the round tana, the Additional Superintendent came with some persons and on seeing that, he got down from the bicycle, as a mark of respect and in that process, the keys fell down on the ground. He thought of picking the keys after the Additional Superintendent crossed the place. But the Additional Superintendent, took the keys and proceeded towards the office of the Jailor. He also followed him and he waited outside at the office of the Jailor and the Additional Superintendent informed him that the keys were handed over to the Jailor. His version was not considered by the Enquiry Officer, while rendering his findings. It is a different matter, if the Enquiry Officer considered his explanation and rejected the same by giving one reason or other. 17. While perusing the enquiry report of the Enquiry Officer, nowhere the Enquiry Officer considered the explanation of the petitioner, while found him guilty of the charges, though he recorded his explanation at the very beginning of his report. In my view this is a serious infirmity. Further, as rightly contended by the learned counsel for the petitioner, this infirmity was not taken note of by the Disciplinary Authority, while imposing the major penalty. Had the version of the petitioner being true, at least it could have been taken as a mitigating circumstances. Furthermore, as rightly contended by the learned counsel for the petitioner, the respondent relied on the adverse past record of the petitioner for imposing the major penalty, without hearing the petitioner on those past record. 18. In this regard, the relevant para from the judgment of the Honourable Supreme Court in 2010 (6) MLJ 603 (SC) relied on by the learned counsel for the petitioner is extracted hereunder: "20. 18. In this regard, the relevant para from the judgment of the Honourable Supreme Court in 2010 (6) MLJ 603 (SC) relied on by the learned counsel for the petitioner is extracted hereunder: "20. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary / competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment." The aforesaid judgment of the Honourable Supreme Court squarely applies to the facts and circumstances of the case. Furthermore, as rightly contended by the learned counsel for the petitioner, the petitioner has been in service for the past ten years, due to the interim order of the Tribunal and there has been no adverse remarks for the past ten years. 19. Further, the learned counsel for the petitioner relies on the judgment of the Honourable Supreme Court in B.C.Chaturvedis case and submits that instead of remanding the matter back to the respondent, this Court could modify the impugned punishment to any other punishment, which this Court thinks fit in the circumstances of the case. 20. In the normal course, I could have remanded back the matter to the respondent to consider and to pass fresh orders in the light of the observations made above. But I am not inclined to do so, since the petitioner is in service pursuant to the interim order for the past ten years. In these circumstances, in my view, the principles stated in B.C.Chaturvedis case squarely applies to the facts of this case. Accordingly, I hereby modify the impugned punishment of compulsory retirement into the punishment of stoppage of increment for three years, with cumulative effect, that could affect his pension. 21. The writ petition is ordered accordingly. No costs.