Judgment :- (Prayer:- This Writ Petition came to be numbered by transfer of OA.NO.2075/2004 from the file of the Tamil Nadu Administrative Tribunal, Chennai, praying this court to issue a Writ of Certiorarified Mandamus to call for the records relating to the order of the 2nd respondent in CPO.81/2004/PR.No.108/41/2003 dated 6.2.2004 and confirmed by the 1st respondent in C.No.41/APR/2/2004 and quash the same and direct the respondents to reinstate the applicant with all consequential benefits and monetary benefits.) 1. This Writ Petition came to be numbered by transfer of OA.NO.2075/2004 from the file of the Tamil Nadu Administrative Tribunal, Chennai, praying this court to issue a Writ of Certiorarified Mandamus to call for the records, relating to the order of the 2nd respondent in CPO.81/2004/PR.No.108/41/2003 dated 6.2.2004 and confirmed by the 1st respondent in C.No.41/APR/2/2004 and quash the same and direct the respondents to reinstate the petitioner with all consequential benefits and monetary benefits. 2. The brief facts in this case as set out by the Petitioner in the affidavit are as follows:- The Petitioner was appointed as a Police Constable in Armed Reserve on 25.10.1993 and while he was working as the Police Constable in AR, Salem, due to his illness on 1.7.2003, he could not attend the duty and on the very same day, he was admitted in the Government Hospital at Salem and thereafter, he was discharged from the Government Hospital and he went to his native village for taking native treatment from a Siddha Doctor, as he was suffering from ulcer and the Sidha Doctor advised the Petitioner to take rest for a minimum period of three weeks. According to the Petitioner, after taking treatment at his native Village, he reported for duty on 8.8.2003, but he was not allowed to attend duty on the ground that the disciplinary proceedings initiated against the Petitioner for his unauthorised absence were not yet over. The Petitioner further stated that on 22.10.2003, the 1st respondent served a charge memo, alleging that the Petitioner was absent for duty from 1.7.2003 at 14.30 Hours. The Petitioner further stated that on 22.10.2003, the 1st respondent served a charge memo, alleging that the Petitioner was absent for duty from 1.7.2003 at 14.30 Hours. Without any leave application or permission continuously for a period of 21 days, he deserted the Force and as it is in violation of the Police Standing Orders, the Petitioner was directed to submit his explanation for his unauthorised absent for the said period and accordingly, he has also submitted his explanation, explaining the circumstances, under which he could not attend the duty for the said period and the Department was not satisfied with the said explanation and after conducting an enquiry, found that the Petitioner was guilty of the said charge, based on which, the Petitioner was removed from service by the order dated 6.2.2004 of the 2nd respondent, which order reads as under:- "P.C689 Ramasamy of Armed Reserve, Salem City was dealt with on a charge for having deserted the Force from 1.7.2003 in P.R.108/H1/2003/ u/r 3(b) of TNPSS (D&A) Rules, 1955. He has already deserted the force four times and this is the 5th time he has deserted the force. He is awarded the punishment of "REMOVAL FROM SERVICE"." 2. This order will come into force with immediate effect." The Petitioner filed an appeal, against the said order of removal from service of the 2nd respondent, before the 1st respondent and the said appeal was also dismissed by order dated 17.2.2004 of the 1st respondent, the operative portion of which reads as under:- "3. I have carefully gone through the appeal petition PR.File and connected records. The charge against the appellant is for having deserted the force from 1.7.2003. He was already punished for deserting the force 4 times besides similar offences of absenting for duty 13 times. He was given enough chances to mend present but of no avail. This is the fifth time that he has deserted the force. The appellant has not put forth any fresh points in his appeal petition for consideration. His explanation is not an acceptable one since he is in the habit of frequently deserting the force. His appeal is therefore rejected." 3. Even though the respondents were served on 12.5.2005, no counter affidavit has been filed. 4. The appellant has not put forth any fresh points in his appeal petition for consideration. His explanation is not an acceptable one since he is in the habit of frequently deserting the force. His appeal is therefore rejected." 3. Even though the respondents were served on 12.5.2005, no counter affidavit has been filed. 4. The learned counsel for the Petitioner argued that the Petitioner has explained his absence for the above said period in his explanation and also during the enquiry that he was not feeling well and that therefore, he could not attend duty and that when he reported for duty on 8.8.2003, he was not allowed to attend duty and a reply was given to him on 11.8.2003, stating that only after completion of the disciplinary proceedings, he could be taken back for attending duty. 5. The learned counsel for the Petitioner further argued that the charge was framed, specifically alleging that the Petitioner has not reported for duty from 1.7.2003 at 14.30 Hours without any leave application or permission for a continuous period of 21 days. The Enquiry Officer also conducted an enquiry for the said period and found that the said period was proved. However, the 2nd respondent passed the impugned order of removal from service on the ground that the Petitioner has already deserted the Force 4 times and the present desertion was the 5th time and therefore, he was awarded with the punishment of removal from service. The appellate authority also dismissed the appeal only on the ground that the Petitioner was already punished for desertion for four times, besides a similar offence of absence for 13 days. 6. The learned counsel for the Petitioner relied upon the judgement of the Hon'ble Supreme Court rendered in State of Mysore Vs. K. Mache Gowda (AIR-1964-SC-506), wherein in paragraph 9, it was held that before relying upon the past conduct of the person concerned, in the matter of passing orders in the disciplinary proceedings, the concerned employee should be given a notice to the effect that the past conduct of the delinquent is going to be relied upon and that only after getting explanation from the concerned person and considering the said explanation, the past conduct of the particular employee can be relied upon. 7. 7. Admittedly in the present case, the 2nd respondent, in the impugned order, relied upon the past conduct of the Petitioner, but, however, no notice was issued to the Petitioner, stating that while passing final orders, the past conduct of the delinquent is going to be relied upon. In the absence of issuance of such a notice for reliance of the past conduct of the Petitioner, the action taken by the 1st respondent relying upon the past conduct is unsustainable and consequently, the order of the Appellate Authority is also vitiated on the said ground. 8. The learned counsel for the Petitioner further argued that in the decision reported in 1997-1-SCC-523 (State of Punjab Vs. Prakash Chand), the Apex Court, while dealing with the similar issue in respect of the dismissal of a Constable from service by the Punjab Armed Force, has held that as the misconduct proved was not grievous in nature, the imposition of punishment of dismissal from service is totally arbitrary. In the said Judgment, the Apex Court in paragraph 5 has held as under:- "We find merit in the said submission of the learned counsel. Even if the misconduct that has been found established against the Respondent is not the gravest act of misconduct so as to call for imposition of the penalty of dismissal from service, it would be open to the disciplinary authority to impose a lesser penalty keeping in view the nature of the misconduct that has been found established. In these circumstances, it must be held that the disciplinary authority is free to impose a suitable penalty having regard to the nature of the misconduct that has been found established in the disciplinary proceedings against the Respondent." The learned counsel for the Petitioner relying upon the said judgment submitted that since the charge proved against the Petitioner is not grievous in nature, lesser punishment may be imposed on the Petitioner. 9. Admittedly, the charge against the Petitioner was that he has not reported for duty for a continuous period of 21 days and that the said charge was also proved. But, the punishment of removal from service was awarded based on the past conduct of the Petitioner. Relying the past conduct without issuing a valid notice to the Petitioner cannot be held to be valid. But, the punishment of removal from service was awarded based on the past conduct of the Petitioner. Relying the past conduct without issuing a valid notice to the Petitioner cannot be held to be valid. The Petitioner having been absent for a continuous period of 21 days as per the charges leveled against the Petitioner, the Respondent are bound to impose only a lesser punishment than the punishment of removal from service. It is open to the Disciplinary Authorities to impose a lesser punishment, keeping in view the nature of misconduct, which has been found established. Therefore, the impugned order of removal from service is set aside, with a liberty to the respondents to pass a revised order, imposing a lesser punishment and the Petitioner is not entitled to get any back-wages, as the charged against the Petitioner found to be proved, but the said service shall be accounted for pension and other purposes and the 2nd respondent shall pass a revised order within a period of six weeks from the date of receipt of a copy of this order. 10. This Writ Petition is ordered on the above terms. No costs.