Judgment ( 1. ) THE petitioner, who was rifle-man in the 1st Battalion, has suffered penalty of dismissal from his services by order (Annexure V) dated 13-2-87. The appeal preferred by the petitioner was also dismissed by order dated 26-11-87 (Annexure X) by the Deputy Inspector General, West Zone, central Industrial Security Force, Bombay. ( 2. ) THE petitioner faced the following two charges:- (i) "gross misconduct and indiscipline in that CISF No. 7518174 const. Lekh Ram was absent from Unit line without any permission or authority from 2300 hrs. to 26-8-1986 hrs. on 3-10-1986. " (ii) "gross misconduct and indiscipline in that CISF No. 7518174 const. Lekh Ram disobeyed that the orders issued to him to turn-up from Dy. Commandants orderly room on 3-10-86 by hc/cjm T. Nagaratinam and thus did not turn-up for orderly room of Dy. Commandant. " ( 3. ) THE Enquiry Officer after enquiry, submitted a report on 7-2-87 (Annexure VIII ). Thereafter, disciplinary authority vide order, Annexure -V passed penalty of dismissal from services of the petitioner. ( 4. ) THE contention of the learned Counsel for the petitioner is as under:- (i) That, the petitioner has submitted explanation for his absence for a period of 7 days and in this regard, the witnesses produced in the enquiry, have supported the contention of the petitioner. In spite of this, the disciplinary authority erred in awarding the major penalty. (ii) That, the disciplinary authority has taken into consideration the past conduct of the petitioner in awarding the major punishment, which record was not made subject-matter of the charge at first stage. (iii) That, the punishment is harsh and shocks and conscious and it should be moulded by a minor penalty. ( 5. ) TO substantiate his contention, learned Counsel for the petitioner has relied the decision of Apex Court in the case of State of Mysore vs. K Manche Gowda, AIR 1964 SC 506 , B. C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 , and Malkiat Singh Vs. State of Punjab and others, 19% (7) SCC 634, and contended that even if mis-conduct for absence of 7 days may be found against the petitioner, even then, the major penalty may be reduced to minor penalty. ( 6. ) LEARNED Counsel appearing for respondent, has supported the order of punishment and contended that the petitioner was constable in the armed Force. ( 6. ) LEARNED Counsel appearing for respondent, has supported the order of punishment and contended that the petitioner was constable in the armed Force. He is expected to maintain discipline of the Armed Force. Without sanction of leave, he proceeded on leave and in place of seeking treatment in the Army Hospital, he went to his village and was treated in civil hospital. All this shows that the absence was wilful and disciplinary authority has rightly passed the major punishment. The authority has rightly taken into consideration the past record of the petitioner while passing the punishment. He further contends that even if any lenient view has to be taken, then the matter has to be remitted back to the appellate authority, who will take into consideration all the circumstances to show leniency in reducing the punishment of the petitioner. ( 7. ) CONSIDERING the rival contentions of the parties, it is necessary to state some facts of the case :- ( 8. ) THE petitioner, who was Constable in Armed Force, proceeded on leave without getting it sanctioned. He remained on leave between the period 26-9-86 to 3-10-86. It is not in dispute that before proceeding on leave, he did not seek permission from the authorities. Though, learned Counsel for the petitioner has relied upon some part of the enquiry report (Annexure VIII)and the statements of Const. Mahender Singh (D. W. 1) and ASI Man Singh (D. W. 2) and contended that the petitioner was sick and all of a sudden, he had to proceed on leave. After informing the Const. Mahender Singh and ASI man Singh, he proceeded on leave. It is not a case where the petitioner wilfully remained absent but because of compelling circumstances as he was sick, he proceeded on leave. Learned Counsel for the petitioner further submits that petitioner had justified reason for proceeding on leave and in those circumstances, the appellate authority ought not to have passed the major punishment while the authority ought to have taken the lenient view in the matter. ( 9. ) THE another fact, which emerges from perusal of Para 13 the order (Annexure V), reads as under:- "he has been involved in several misconduct within the short period. He was afforded several opportunities to mend himself but of no avail, he has continued bad record at his credit. ( 9. ) THE another fact, which emerges from perusal of Para 13 the order (Annexure V), reads as under:- "he has been involved in several misconduct within the short period. He was afforded several opportunities to mend himself but of no avail, he has continued bad record at his credit. Therefore, his retention in this Force adversely affect the discipline and internal administration of the Unit. I am of the opinion that Constable Lekh Ram (CISF No. 7518174) never become a suitable member of the force because he is incorrigible and as such unfit for retention in this organisation. The delinquent has not deserving any mercy. " ( 10. ) THE aforesaid fact shows that while awarding major punishment to the petitioner, the authority has taken into consideration the previous conduct of the petitioner and considering the aforesaid, the disciplinary authority opined for passing the major punishment of dismissal of the petitioner. ( 11. ) SO far as consideration of the previous conduct or record of delinquent employee, while deciding the question of punishment, it has been considered by the Apex Court in the case of State of Mysore Vs. K Manche gowda (supra), wherein the Apex Court in Paras 8 and 9, held :- "8. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it can not be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done into stages. The report submitted by the enquiry Officer is only recommendatory in the nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. 9. In the present case the second show-cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of Paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show-cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Article 311 (2) of the Constitution as interpreted by Court. " ( 12. ) IN view of the aforesaid settled position of Law by the Apex court, it is necessary to issue show-cause notice to delinquent employee to such effect, before awarding the punishment. But, in the present case, no such notice was issued to the petitioner and without affording any opportunity of hearing to meet the same to the petitioner, the order of punishment was passed by the disciplinary authority. As the aforesaid mis-conduct was not made the subject-matter of charge at the first stage of enquiry and petitioner was not informed that his previous punishment will be taken into consideration in awarding the punishment, in the circumstances, the disciplinary authority erred in taking into consideration the aforesaid previous misconduct of the petitioner. ( 13. As the aforesaid mis-conduct was not made the subject-matter of charge at the first stage of enquiry and petitioner was not informed that his previous punishment will be taken into consideration in awarding the punishment, in the circumstances, the disciplinary authority erred in taking into consideration the aforesaid previous misconduct of the petitioner. ( 13. ) IN the circumstances, the order passed by the disciplinary authority is apparently contrary to the Law laid down by the Apex Court in the case of State of Mysore Vs. K Manche Gowda (supra ). ( 14. ) IN the present case, it is not disputed that the petitioner proceeded on leave for a short period of 7 days though in the Armed Forces, it is expected that the personnel of Armed Forces will follow the disciplines of armed Force and will not proceed on leave without seeking prior permission of the higher authority. Even if he was sick then it was his duty to inform the higher authority in this regard and to act in accordance with law. But the fact remains that the period of his absence was short one and it can not be said that the petitioner was not sick and proceeded on leave without any just cause. In this regard, the Apex Court in the case of Malkiat Singh Vs. State of Punjab and others (supra), in Para 3, has held as under:- "3. The appellant was appointed on 20-4-1990 and was discharged from service on 22-7-1992 on the ground that he remained absent from duty for more than 1 month 9 days. Another ground was that he was irregular in attending to the duty. So he could not prove himself to be an efficient constable. We had sent for the records which disclose that he was absent on three occasions. On the first occasion, when he was called upon to report for duty at 12 noon, he reported on 10-9-1990 and was late by six hours. On the second occasion, he was absent on 30-6-1991, from night duty. The third occasion was on 24-4-1995. The explanation offered for the absence on the third occasion was that since in his wifes delivery certain complication had arisen, he had to attend to his wife and so he could not be present. The medical certificate in that behalf was produced. The third occasion was on 24-4-1995. The explanation offered for the absence on the third occasion was that since in his wifes delivery certain complication had arisen, he had to attend to his wife and so he could not be present. The medical certificate in that behalf was produced. In view of the medical certificate, it can not be said that he had deliberately absented himself from duty. On the previous two occasions, the absence for one day and in another year for one night can not be considered to be regular absence so as to reach the conclusion that he had not proved his efficiency. It is true that discipline is required to be maintained. However, absence may sometimes be inevitable. In the facts and circumstances of this case, an opportunity may be given to the appellant to work efficiently to prove his excellence. The order of discharge is set aside. The respondents are directed to take the appellant into service forthwith. If the appellant absents himself again for two consecutive days within one year without prior permission, appropriate action may be taken by dismissing him from service. The appellant, however, he is not entitled to back wages. " ( 15. ) IN view of the aforesaid law laid down by the Apex Court in malkiat Singhs case (supra) the punishment awarded by the authority is excessive and in the circumstances, matter deserves to be remitted back to the appellate authority to reconsider the quantum of punishment in view of law laid down by the Apex Court in the cases of State of Mysore Vs. K. Manche gowda (supra) and Malkiat Singh Vs. State of Punjab and others (supra) and pass appropriate lenient punishment in the aforesaid facts and circumstances of the case. ( 16. ) IN the circumstances, this petition is allowed. The order passed by the appellate authority, Annexure X is hereby quashed and matter is remitted back to the appellate authority to decide the appeal afresh taking into consideration the law laid down by the Apex Court. The authority will decide the case expeditiously so far as possible within a period of 90 days from the date of receipt of the order passed by this Court. No order as to costs. Writ Petition allowed.