Judgment :- Petitioner seeks Writ of Certiorarified Mandamus praying to quash the final order of dismissal passed by the 1st Respondent and order of rejection of appeal passed by the 2nd Respondent and to reinstate the Petitioner in service with all consequential monetary and service benefits. 2. Petitioner was working as Gr-I constable in B2 -Coimbatore City Police. He has absented from duty on 211. 2001 without any leave or permission and reported for duty on 112. 2001 with medical certificates. For his unauthorized absence from 211. 2001 to 112. 2001, charge memo under Rule 3(b) of Tamil Nadu State Police Subordinate Services Rules (for short T.N.S.P.S.S.Rules) in P.R.No.12/F1/2002 was framed. Assistant Commissioner of Police, Law and Order, Coimbatore City Police was nominated as Enquiry Officer in P.R.No.12/2002. Petitioner had given his explanation to the charge and denied the allegation made against him. Enquiry Officer who conducted enquiry has submitted a proved minute. Copy of the report was served on the Petitioner on 04.05.2002 calling for his further representation. 1st Respondent passed a final order on 17.06.2002 dismissing the Petitioner from service. Petitioner has preferred an appeal to the 2nd Respondent on 18.05.2004. 2nd Respondent considered the appeal and dismissed the same by his order in Rc.No.F3/AP.10/2004 dated 21.06.2004 which is challenged in this Writ Petition. 3. Respondents have filed counter stating that Petitioner was a chronic absentee from work without leave or permission. So the punishment awarded to the Petitioner is in conformity with the delinquency. According to the Respondents, while ordering dismissal of the Petitioner, Respondents have not travelled beyond the charges and the punishment was awarded as per the P.S.O. 4. Challenging the impugned order of dismissal Mr. S. Ravi, learned counsel for the Petitioner contended that Supreme Court has specifically held that if the past records are taken into consideration while imposing punishment, specific charge should be given about the past records which the charge might take into consideration and the Petitioner has been dismissed from service for other than the given charge and he has been denied a reasonable opportunity and therefore, the punishment of dismissal from service is liable to be quashed. 5. Mr. 5. Mr. P. Muthukumar, learned Government Advocate (Writ) has submitted that Petitioner has previous punishments for desertion from force is a well known fact to the Petitioner and that he happened to be a repeated absentee from work without leave or permission and the same was rightly taken note of by the Respondents. 6. Charge under Sec.3(b) of T.N.S.P.S.S.Rules were framed against the Petitioner for his absence from 211. 2001 to 112. 2001. While imposing punishment of dismissal from service by the order dated 16. 2002, 1st Respondent had referred to the earlier two punishments and subsequent absentation of the Petitioner. The relevant portion of the impugned order reads as under:- "Further the delinquent Gr.I PC 754 Jayakumar has already been awarded 2 punishments of Black Mark and postponement of increment for one year without cumulative effect for the same offence i.e. desertion from 111. 91 and from 210. 2000." "Even though he was taken for duty on 112. 2001, he has again deserted the force from 15. 2002 and treated as a deserter and now continues to be a deserter till date. This will clearly prove his un-willingness to continue in this disciplinary force." 7. There is nothing in law, which prevents the punishing authority from taking previous record of Government servant into consideration during 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. 8. Observing that if imposed punishment is based on previous record of Government servant, 2nd notice must disclose the same. In AIR 1964 SC 506 (The State of Mysore v. K.Manche Gowda), the Honble Supreme Court has held as under:- "Under Art. 311(2) a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well high impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment; he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment is mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it would mean that the main reason for the proposed punishment is with held from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. What the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers." 9. In the present case, there is nothing to indicate that the Respondents intended to take previous punishment of the Petitioner for consideration in proposing to award punishment of dismissal from service. Charge was framed only for absence without information from 211. 2001 to 112. 2001. But while awarding punishment of dismissal from service the charges concerned had taken into account the past record and also subsequent absence. .10. Charge was framed only for absence without information from 211. 2001 to 112. 2001. But while awarding punishment of dismissal from service the charges concerned had taken into account the past record and also subsequent absence. .10. Learned Government Advocate has submitted that Petitioner already knew that he was a chronic absentee and therefore, it was not necessary for the Respondents to put the Petitioner on notice. This contention does not merit acceptance. It is not his knowledge of those facts. But the requirement is that Petitioner must be put on notice that the charges will take into consideration of those facts. Had it been indicated by the Respondents, Petitioner might have put forth mitigating circumstance or some other explanation as to why those punishments were given to him. As held by the Supreme Court in the above cited decision, if the past record of the Government servant is intended to be relied upon for imposing punishment, specific charge should be made in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority to impose the punishment. There is no proof to show that the Respondents intended to take Petitioners previous punishment into consideration in proposing to dismiss him from service. 11. Next point to be considered is proportionality of punishment. For the absence of 21 days, Petitioner was awarded punishment of dismissal from service. Placing reliance upon AIR 1994 SC 215 (Union of Indian and others v. Giriraj Sharma); (1996) 7 SCC 634 (Malkiat Singh v. State of Punjab and others); (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) and (2006) 4 MLJ 1008 (J.Patric v. Government of Tamil Nadu, rep. by its Secretary, Home (Pol.VI) Department, Chennai and others), learned counsel for the Petitioner contended that in cases where the punishment imposed is disproportionate to the charge, court can set aside the same or modify the punishment based on the facts and circumstances of the case. 12. On the other hand, learned Government Advocate would submit that as far as the Petitioner is concerned, it was not an isolated case of desertion for 21 days. But he was in the habit of deserting habitually and therefore, punishment of dismissal from service came to be passed. 13. 12. On the other hand, learned Government Advocate would submit that as far as the Petitioner is concerned, it was not an isolated case of desertion for 21 days. But he was in the habit of deserting habitually and therefore, punishment of dismissal from service came to be passed. 13. According to the Petitioner, he was unwell and hospitalized and his family members could not inform the higher officials about his ill-ness and his absence was not deliberate. Charges framed for absence for 21 days. 14. In AIR 1996 SC 484 : 1995 (6) SCC 634 (B.C.Chaturvedi v. Union of India and others), the Honble Supreme Court has decided the question as to whether Tribunal was justified in interfering with the punishment imposed by the disciplinary authority by referring to various Judgments to the effect that it is for the disciplinary authority who has to imposed penalty and normally Tribunal or High Court should not interfere. Supreme Court has further held that in cases where punishment shocks the conscience of the High Court or Tribunal, the High Court or Tribunal can either direct the disciplinary authority to reconsider the penalty or to shorten the litigation in exceptional cases and in rare cases imposed an appropriate punishment. .15. In this aspect, Honble Supreme Court has laid down the law as follows:- ."..... A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 16. In AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma), Government servant over-stayed the leave period subsequent to the order of rejection of application for explanation of leave. In AIR 1994 SC 215 (Union of India and others v. Giriraj Sharma), Government servant over-stayed the leave period subsequent to the order of rejection of application for explanation of leave. Observing that there was no willful intention to flout the order that the punishment of dismissal merely on the ground of over-staying leave period was held to be harsh and disproportionate and the Supreme Court has ordered reinstatement with all monetary and service benefits granted with liberty to visit minor punishment. 17. In (1999) 9 SCC 86 (Syed Zaheer Hussain v. Union of India and others) the delinquent Government servant was dismissed from service on the ground of unauthorized absence for 7 days. Observing that dismissal was too harsh, Supreme court directed the Appellant to reinstate with continuity in service with all other benefits but limiting the back wages to 50% only for the period between dismissal to the date of passing of the order by the Court. In the present case, Petitioner was absent for 21 days. It is one of the clear instance where the punishment of dismissal from service is disproportionate to the charge. 18. In the result, the impugned Orders are set aside and this Writ Petition is allowed. Petitioner is ordered to be reinstated into service within a period of eight weeks from the date of receipt of copy of this order. Absence period and the period after dismissal are directed to be taken as "leave on loss of pay". However, the said period shall be taken into account for continuity of service and other benefits. Of course earlier, petitioner could have obtained NET/SLET qualification. Point falling for consideration is Whether services of Petitioner is liable to be terminated as she does not possess mandatory qualification of NET/SLET as required. The next point falling for consideration is whether in the changed scenario when U.G.C. has relaxed NET qualification that U.G. Teacher is to be granted relief taking note of the subsequent events.