JUDGMENT : Raja Basu Chowdhury, J. 1. By consent of the parties, this writ application has been taken up for final hearing. The writ petitioner was initially appointed as a Light Motor Vehicle Driver sometimes in the year 1988 by the Assistant Director of the Administration. The service of the petitioner was later confirmed and he was also granted 3rd financial up-gradation vide order dated 18th June, 2018. 2. The petitioner was on medical leave for the period from 16th June, 2020 to 5th July, 2020. Records would reveal that the aforesaid leave was regularised by the respondents vide order dated 14th July, 2020. 3. It is the petitioner’s case that since, his daughter was getting engaged he had applied for leave for a period of twenty days. Unfortunately, the authorities had only granted him five days leave. The petitioner, however, did not avail such leave, on the contrary had submitted a representation on 23rd July, 2020 intimating that he wished to avail the leave for five days from 27th July, 2020 instead of 20th July, 2020. It is the petitioner’s case that by reasons of the pandemic the engagement of the petitioner’s daughter could not take place. The petitioner, however, had submitted an application on 27th July, 2020 seeking forty five days leave on account of higher studies of his daughter. In the interregnum since, the petitioner was unwell from 31st July, 2020, he had approached a doctor, who was the Medical Superintendent of G.B.Pant. Hospital, Port Blair, who had advised him rest for fifteen days. 4. Before the petitioner could recover from his illness his daughter was tested Covid positive on 14th August, 2020, and the entire family was asked to undergo quarantine for twenty eight days. It is also the petitioner’s case that since, his condition deteriorated, he had to again approach the doctor on 16th August, 2020, when he was advised further rest for sixteen days. The petitioner claims that on 28th August, 2020 the respondents had issued a memorandum, inter alia, stating that the petitioner’s application dated 31st July, 2020, whereby he had sought for forty five days leave from 01st August, 2020, had not been favourably considered by the competent authority. The petitioner claims that on 28th August, 2020 the respondents had issued a memorandum, inter alia, stating that the petitioner’s application dated 31st July, 2020, whereby he had sought for forty five days leave from 01st August, 2020, had not been favourably considered by the competent authority. Following receipt of such memorandum, by a communication in writing dated 31st August, 2020, the petitioner had informed the respondents about his illness and had also indicated that if his health does not improve, he will apply for voluntary retirement. 5. According to the petitioner, the respondents without following due procedure of law, had issued the order no. 1967 dated 3rd September, 2020, thereby, while invoking the powers conferred by Clause j (ii) of Rule 56 of the Fundamental Rules/Rule 48 of Central Civil Service (Pension) Rules, 1972, notified the petitioner that the petitioner having attained 55 years of age and having completed 32 years of qualifying service for pension, shall retire from service on the forenoon of 1st December, 2020, on completion of three months period from the date of issuance of such order. 6. Challenging the aforesaid order dated 3rd September, 2020, the petitioner had filed an application before the learned Central Administrative Tribunal, Kolkata Bench. By an order dated 27th November, 2020, the learned Tribunal was of the view that the order contains detailed reasoning for invoking Rule 56 clause (j) of the Fundamental Rules, however, considering the powers of review provided for in Rule 56 (jj)(i), permitted the petitioner to make a representation, under the aforesaid rule, agitating all grounds/points which he wishes to, with a further direction that if such representation is made the same shall be considered in accordance with law, within a period of four weeks from the date of receipt of such representation. 7. Incidentally, on 25th November, 2020 by order no. 2739 the disciplinary authority of the petitioner while, contemplating a disciplinary proceeding against the petitioner in terms of Central Civil Service (Classification, Control and Appeal) Rules, 1965 placed the petitioner under suspension with immediate effect. The petitioner, however, appears to have reported on duty on 26th November, 2020, enclosing therewith, the medical fitness certificate. 2739 the disciplinary authority of the petitioner while, contemplating a disciplinary proceeding against the petitioner in terms of Central Civil Service (Classification, Control and Appeal) Rules, 1965 placed the petitioner under suspension with immediate effect. The petitioner, however, appears to have reported on duty on 26th November, 2020, enclosing therewith, the medical fitness certificate. The petitioner subsequently in terms of the liberty reserved by the order passed by the learned Tribunal had made a representation dated 3rd December, 2020 under Rule 56 jj(ii) of the Fundamental Rules, for consideration by the competent authority, whereupon the Deputy Director Administration /Vigilance by an order dated 24th December, 2020, was, inter alia, pleased to afford an opportunity of hearing to the petitioner for appearing before the Director of Transport on 29th December, 2020. 8. Pursuant to the aforesaid, the petitioner having availed the personal hearing was subsequently served with an office order no. 51 dated 6th January, 2021, issued by the Director of Transport, whereby the authority was, inter alia, pleased to uphold the decision of compulsory retirement, under Clause 56 (j) of the Fundamental Rules, dated 3rd September, 2020, thereby retiring the petitioner compulsorily from service with effect from 1st December, 2020. By a further order no. 64 of even date, the order of suspension issued vide office order no. 2739 dated 25th November, 2020 was cancelled. 9. Challenging, inter alia, the aforesaid order no. 51 dated 6th January, 2020 the petitioner had filed an application before the learned Central Administrative Tribunal, Kolkata Bench. On contest by an order dated 25th May, 2023 the learned Tribunal having not found any procedural lapse on the part of the respondents in passing the order dated 6th January, 2021 refused to interfere with the same. 10. The present writ application has been filed challenging the aforesaid order passed by the learned Tribunal. 11. Mrs. Nag, learned advocate representing the petitioner by drawing our attention to the order dated 3rd September, 2020 submits that although, a power has been conferred upon the respondents to issue the order of compulsory retirement, in terms of clause 56 (j) of the Fundamental Rules, the principle governing such exercise of power has already been summarised by the Hon’ble Supreme Court in the case of State of Gujarat vs. Umedbhai M. Patel, reported in AIR 2001 SC 1109 . 12. 12. It is submitted that the petitioner was granted 3rd financial up-gradation vide order dated 18th June, 2018, and that there are absolutely no adverse entries against the petitioner. Although, in contemplation of an inquiry the respondents had suspended the petitioner, such inquiry was never initiated and the respondents have chosen to compulsorily retire the petitioner without holding any inquiry, which as per the CCS Rules a major penalty. By drawing our attention to the reply filed on behalf of the respondents before the learned Administrative Tribunal, it is submitted that the period of absence of the petitioner was regularised by the department vide order no. 234 dated 21st January, 2021. 13. It is submitted that an order of compulsory retirement cannot be passed to shortcut or avoid a departmental inquiry when such course is more desirable and especially when the petitioner was even put under suspension in contemplation of such inquiry. It is submitted that the learned Tribunal did not consider the aforesaid aspect at all and also overlooked the fact that the respondents by issuing the order dated 28th November, 2020, by suspending the petitioner had in fact given a go by to the order dated 3rd September, 2020. From the tenor of the order dated 3rd September 2020 it would appear that the respondents have purported to inflict a punishment on the petitioner. This aspect was also completely ignored by the learned Tribunal. It is submitted that in the guise of a review under Clause 56 (jj) (i) of the Fundamental Rules, the original order passed under 56 (j) could not have been revived, especially when suspension of the petitioner continued beyond 1st December, 2020. According to the petitioner the order dated 6th January, 2021 cannot form an independent order for compulsorily retiring the petitioner from service. 14. Per contra, Mr. Lall, learned advocate submitted that there is no irregularity on the part of the respondents in issuing the orders dated 3rd September, 2020 or 6th January, 2021. By drawing the attention of this Court to a communication dated 31st August, 2020, it is submitted that the petitioner himself had claimed that he is unable to perform his duties and that he will apply for VRS. The respondents proceeding on such premise had issued the order dated 3rd September, 2020. The respondents cannot be faulted for having compulsorily retired the petitioner. The respondents proceeding on such premise had issued the order dated 3rd September, 2020. The respondents cannot be faulted for having compulsorily retired the petitioner. He says that the petitioner claims to have been suffering from vertigo and the same was one of the primary reasons for the respondents to retire the petitioner from service since, a person suffering from vertigo cannot be retained as driver. It is submitted that since, the petitioner wanted review of the order dated 3rd September, 2020 and had applied for review, the respondents had given opportunity of hearing to the petitioner and had thereafter, passed the final order. Principle of natural justice has duly been followed in this case. The inquiry was never initiated as such the suspension order was revoked on the very same day when the final order was passed. The petitioner is not entitled for any relief. He says that it is within the domain of the employer to take a decision whether or not to compulsorily retire a government servant. In support thereof, he has placed reliance on the judgment delivered by the Hon’ble Supreme Court in the case of Central Industrial Security Force vs. HC (GD) OM Prakash, reported in (2022) 5 SCC 100 . 15. Heard the learned advocates appearing for the respective parties and considered the materials on record. From the sequence of events as narrated herein above, it would appear that by an order dated 3rd September, 2020 the respondents in exercise of powers conferred by Clause (j) of Rule 56 of the Fundamental Rule and Rule 48 of the Central Civil Service (Pension) Rules, 1972, had notified that the petitioner shall retire from service on the forenoon of 1st December, 2020, on completion of three months from the date of issue of such order. A perusal of such order would in no uncertain terms indicate that the leave taken by the petitioner for the period between 16th June, 2020 to 5th July, 2020 and for the leave taken by him for the subsequent period formed the basis for the decision dated 3rd September 2020. A perusal of such order would in no uncertain terms indicate that the leave taken by the petitioner for the period between 16th June, 2020 to 5th July, 2020 and for the leave taken by him for the subsequent period formed the basis for the decision dated 3rd September 2020. As would further appear from the aforesaid order the decision to compulsorily retire the petitioner had been taken by, inter alia, concluding as follows:- “WHEREAS, the actions and the attitude shown by Shri. Jahan Khan, LVD clearly establishes that he is not at all serious about the task and responsibilities assigned to him by the Department and shows strong desire to disobey the orders of superior officers on the pretext of vague excuses. Considering the sensitive and important nature of work in the Transport Department, it would not be appropriate for the Department to continue with an employee who is unable to give any productivity and creating an atmosphere which is not conductive for healthy workmanship.” 16. Incidentally, the aforesaid order was not given effect to. Records reveal that by an office order dated 25th November, 2020 the petitioner was put under suspension in contemplation of an inquiry. The aforesaid suspension order continued well beyond 1st December, 2020. It is true that the petitioner having unsuccessfully challenged the order dated 3rd September, 2020 before the learned Tribunal, in terms of the liberty reserved by the learned Tribunal had made a representation under Rule 56 (jj)(i) of the Fundamental Rules, for review of the original order passed under Section 56 (j) and the respondents had in pursuance of the representation made by the petitioner and the order passed by the learned Tribunal, had after considering such representation, refused to interfere with the order dated 3rd September, 2020. The said decision, however, was arrived by the respondents only on 6th January, 2021, by which time the petitioner would have been compulsorily retired but for the order of suspension. It would further appear from the record that the respondents by a subsequent order issued on 6th January, 2021 had revoked the order of suspension. As such, the order of compulsory retirement which was issued on 3rd September, 2020 could not take effect at least up to 6th January, 2021. It is true that it is well within the domain of the employer to consider whether an employee is required to be compulsorily retired. As such, the order of compulsory retirement which was issued on 3rd September, 2020 could not take effect at least up to 6th January, 2021. It is true that it is well within the domain of the employer to consider whether an employee is required to be compulsorily retired. However, while passing such an order the entire service records of the incumbent may be considered and on such consideration, if it is found that the incumbent is no longer useful to the general administration, the incumbent can be compulsorily retired for the sake of public interest or for the purpose of better administration. Adverse entries made during the service tenure can certainly be taken note of and given due weightage while passing such an order, however, it is to be remembered that an order of compulsory retirement cannot be imposed as punitive measure to bypass or as a shortcut to avoid departmental inquiry when such course is more desirable. 17. In this case we note that the primary consideration for which the petitioner was found unsuitable was for his absence that too during the pandemic. The respondents while passing the aforesaid order and despite taking note of the pandemic situation had proceeded to conclude that the actions and attitude of the petitioner establish that he is not serious about the work and responsibilities assigned to him and shows strong desire to disobey the orders of superior officers. The tenor of the aforesaid order would in no uncertain terms indicate that the petitioner if not being penalised was being stigmatised. Although, the learned Tribunal in its order, while relying on diverse authorities and having taken note that an order of compulsory retirement ought not to be passed as a punishment, did not consider the aforesaid issue in its proper perspective and had by merely proceeding on the premise that due opportunity of hearing was given to the petitioner, refused to interfere in the matter. Although, it has been strenuously argued on behalf of the learned advocate representing the respondents that inasmuch as the petitioner was suffering from vertigo, he cannot be permitted to drive, we are afraid the order dated 3rd September, 2020, does not proceed on such a premise and the respondents cannot be permitted to improve the reasoning provided in the said order. 18. 18. Independent of the above, once, the respondents proceeded to suspend the petitioner in contemplation of an inquiry, it become evident that a preliminary decision had already been taken by the respondents to consider whether or not hold an inquiry against him. The order of suspension, however, continued beyond the date of compulsory retirement of the petitioner. It must be borne in mind that the decision to suspend the petition in contemplation of an enquiry was taken subsequent to passing of the order for compulsory retirement. In fact when the order under review in terms of Rule 56 (jj)(i) of the Fundamental Rules was passed the petitioner was under suspension. It is only thereafter, by an subsequent order being no. 64 dated 6th January 2021 that the respondents have proceeded to revoke the order of suspension. 19. Having regard to the aforesaid, the case made out by the petitioner that the order of compulsory retirement had been issued by way of punishment cannot be ruled out. We must also note that when the order dated 3rd September, 2020 was passed, a pandemic situation was prevailing. The order dated 3rd September, 2020 reflects that the same had been passed based on the absence and the conduct of the petitioner during the pandemic period. 20. We are, thus, of the considered view that the aforesaid orders dated 3rd September, 2020, 6th January 2021, and the order passed by the learned Tribunal on 24th May, 2023 cannot be sustained and the same are accordingly set aside. The respondents are directed to reinstate the petitioner with continuity in service. 21. We must observe that the learned advocate appearing for the petitioner has, however, contended that the petitioner has been paid his salary only up to July 2020. Taking note of such submissions we are of the view that the petitioner should be paid the salary up to the date when his service was regularised by the respondents. Insofar as, the period between 26th November 2020 to 6th January 2021 is concerned, the respondents are directed to pay the salary for the aforesaid period, less the subsistence allowance already paid, if any, in as much as, despite keeping the petitioner under suspension, no enquiry was conducted. 22. Insofar as, the period between 26th November 2020 to 6th January 2021 is concerned, the respondents are directed to pay the salary for the aforesaid period, less the subsistence allowance already paid, if any, in as much as, despite keeping the petitioner under suspension, no enquiry was conducted. 22. We also place on record that the learned advocate representing the petitioner on instructions has submitted that the petitioner is ready and willing to appear before the medical board for fitness test. As such, after reinstatement it shall be open to the respondents to medically examine the petitioner. We further make it clear that the petitioner shall not be entitled to actual salary for the period between 7th January 2021 till the date of passing of this order. 23. With the aforesaid observations and directions the writ application is disposed of. 24. There shall be no order as to costs. 25. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.