Judgment :- 1. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Certiorari, to quash the order dated 31.01.2001, imposing punishment of stoppage of one increment with cumulative effect. 2. The petitioner joined the department as Junior Assistant and was promoted as Assistant and posted to ESI Begampur, Dindigul District. The petitioner joined the new place of posting as Assistant and proceeded on 20 days leave. The petitioner thereafter extended his leave. The petitioner was referred to Medical Board at Headquarters Hospital at Dindigul. He was declared medically fit to assume duty on 28.06.1994. 3. The petitioner, instead of joining duty, again proceeded on leave and continued to stay away from duty. The petitioner thereafter expressed his unwillingness to joint duty at Dindigul and was accordingly posted to the office of Joint Director of Health Services, Ooty. The petitioner did not join duty at new station, inspite of specific direction. 4. The petitioner made a representation to post him at Narikkalpatty by offering to give up his promotion, but the request of petitioner was not accepted. The petitioner was, however, reverted and transferred to Periyakulam, then to Valparai, where the petitioner joined at new place of posting. 5. The petitioner was thereafter served with charge sheet on the following charges: "That Thiru. RaviVarmaRaja, formerly Store Keeper, Primary Health Centre, Pappampatti on his promotion as Assistant posted to ESI Dispensary, Begumbur, Dindugul, where he joined duty. Subsequently, proceeded on leave on Medical Certificate and joined duty on 21.2.94. After working for 2 days, proceeded on leave on Medical Certificate from 23.2.91 and extended his leave. He was referred to the Medical Board at Headquarters Hospital, Dindigul and the Medical Board made him fit to resume duty with effect from 28.06.94 and issued fitness certificate. Instead of joining duty on 28.6.94, he extended his leave on private affairs. Since he expressed his unwillingness to rejoin duty at ESI Dispensary, Begambur, Dindigul, he was posted to the Office of the Joint Director of Health Service, Ooty with strict instruction to join duty before 15.9.94. Though he received the posting order on 7.9.94 he did not join duty. Therefore in this office memo Re.No.84713/Sc.I/2/94 dated 20.10.94 he was instructed to join duty at the Office of the Joint Director of Health Services Ooty before 31.10.94. Though he received the posting order on 7.9.94 he did not join duty. Therefore in this office memo Re.No.84713/Sc.I/2/94 dated 20.10.94 he was instructed to join duty at the Office of the Joint Director of Health Services Ooty before 31.10.94. Though he received the same on 3.11.94 neither joined duty nor represented to his office and stayed away from duty from 28.6.94." 6. The petitioner submitted his explanation, that it was due to family circumstances and on medical ground, that he was not able to join the place of posting. It was also submitted that for this reason, petitioner had opted to forego his promotion. 7. The request of the petitioner was finally accepted by reverting him to the post of Junior Assistant by posing him near to the place asked for. 8. The case of petitioner is that, he could not be treated to be absent from duty, as he was waiting for acceptance of the representation. The competent authority found the explanation unsatisfactory and appointed an enquiry officer. 9. The enquiry officer recorded the statement of the petitioner, and held that charges were proved. 10. The competent authority, by agreeing with the enquiry officer, imposed punishment of stoppage of one increment with cumulative effect. The petitioner did not avail the remedy of statutory appeal, as the application moved by petitioner before learned Tamilnadu Administrative Tribunal to dispense with filing of appeal, was allowed. 11. Learned counsel for the petitioner has challenged the impugned order on the ground that the enquiry against petitioner stood vitiated, as it is based on no evidence, therefore, is perverse. 12. The contention of the learned counsel for petitioner is that in absence of examining any prosecution witnesses, and admitting documentary evidence, showing that the petitioner was absent, charges could not be proved, only on the basis of the explanation of the petitioner by treating the charges to be proved. 13. There is force in this contention. The enquiry under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules stipulates the prosecution to prove the charge first. In the present case, the charges could be proved by documentary evidence, but it required to be produced in presence of petitioner, by the prosecution, and it was thereafter that the petitioner could be called to give his defense, and examine the witnesses, if he so desired in defense. 14. In the present case, the charges could be proved by documentary evidence, but it required to be produced in presence of petitioner, by the prosecution, and it was thereafter that the petitioner could be called to give his defense, and examine the witnesses, if he so desired in defense. 14. The procedure adopted by enquiry officer herein is one under Rule 17(A) of the Tamil Nadu Civil Services (D & A) Rules and not the one prescribed under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules, where it is pre requisite for prosecution to independently prove the charge, and explanation by delinquent is only of denial. The enquiry officer can proceed on presumption that charge is proved to call the explanation of the charged employee. 15. The enquiry report can safely be said to be perverse, as it is based on no evidence, as even formal witness of the prosecution has not been examined, who could have produced the record. 16. The order of punishment having been passed on defective enquiry also cannot be sustained. 17. Consequently, this writ petition is allowed. The matter is remitted back to the competent authority, to hold departmental enquiry afresh in accordance with law, if so desires. No costs.