Judgment 1. This writ petition has been filed challenging the order in PR.36/Tr.PR(S)/2000 dated 13.09.2000 passed by the 4th respondent and order in appeal in proceeding R.C. No. Appeal 19/PR(S)/2000 dated 24.01.2001 passed by the 3rd respondent and order in review in proceeding C.No.33603/Ap.1(1)/2001 dated 17.05.2001 passed by the 2nd respondent and order in G.O.Ms.No.751 dated 21.08.2002 passed by the 1st respondent and for a direction to the respondents to reinstate the petitioner in service with all consequential benefits. 2. The case of the petitioner as seen from the affidavit would run thus: (i) The petitioner was enlisted as Police Constable on 17.03.1986 at Tamil Nadu Special Police VIII Battalion, Veerapuram and transferred to J-2 Police Station, Traffic Police Station in the year 1997. According to the petitioner, he has not committed any serious misconduct and has discharged his duties to the utmost satisfaction of his superior officers. While he was working at J-2, Adyar Traffic Police Station, the 4th respondent issued a charge memo framed under Section 3(b) of the Tamil Nadu Police Subordinate Service Rules (D & A) Rules, in P.R.No.36 of 2000 dated 30.05.2000 for the charge of absenting from duty for more than 21 days with effect from 210. 1999 without availing leave or permission. The petitioner gave his explanation to the charges, on 12.06.2000, stating that on 20.10.1999, all of a sudden, his wife developed stomach ache and subsequently, she had abortion and therefore did not get permission for leave. It is the case of the petitioner that he went on leave continuously due to mental agony and pressure of family circumstances and since he was continuously absent for more than 21 days, the 4th respondent treated him as deserter. (ii) The petitioner has further submitted that he received an order of desertion dated 111. 1999 in D.O.507/99. Immediately, he reported before the 4th respondent with a special report requesting him to take him back for duty. However, the 4th respondent rejected the legitimate request, as if the petitioner failed to appear before him within 60 days. Thereafter, the charge memo was framed against the petitioner. It is the further case of the petitioner that an oral enquiry was conducted and two evidences were examined. However, the enquiry officer held the charge as proved. However, the 4th respondent rejected the legitimate request, as if the petitioner failed to appear before him within 60 days. Thereafter, the charge memo was framed against the petitioner. It is the further case of the petitioner that an oral enquiry was conducted and two evidences were examined. However, the enquiry officer held the charge as proved. Based on the enquiry officers report, the 4th respondent imposed the punishment of removal from service by an order dated 13.09.2000 and the same was confirmed by the appellate authority as well as the revisional authority. 3. In the counter affidavit, the respondents have stated that the petitioner, while serving in J-2 Adyar Traffic Police Station had committed the delinquency of desertion with effect from 210. 1999 and hence, he was dealt with in PR 36/Tr.PR(S)/2000, under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955, (hereinafter referred to as Rules), although he appeared before the Deputy Commissioner of Police, Traffic (South) in person, on 03.02.2000 with his special report. The decision of reinstating him or otherwise was decided on the outcome of completion of the minute drawing officers findings. The petitioner had not given any valid explanation in the departmental proceedings, since he had not accounted for unauthorised absence as per norms prevailing in Police Standing Order 272(iii) & (iv) of Volume I and Police Standing Order 95(i) of Volume-I. Hence, again an opportunity was given to him to defend by submitting his further representation, which was received by the office on 29.08.2000. 3a. Though the petitioners further representation was received and considered, it was decided that the petitioner is a chronic absentee, since he deserted the force on eight earlier occasions apart from other delinquencies since the day of his enlistment till he committed the desertion in the present punishment roll. As such, he was ordered removal from service by the Deputy Commissioner of Police, Traffic (South) on 13.09.2000. The petitioner acknowledged the orders on 110. 2000, preferred an appeal before the then Additional Director General of Police & Commissioner of Police, Greater Chennai and the same was negatived by the appellate authority vide his proceedings in RC.No.19/Appeal/PR(S)/2000, dated 24.01.2001, which the petitioner acknowledged on 06.02.2001. Then, the petitioner gave a review petition dated 13.02.2001 to the Director General of Police, Tamil Nadu and submitted a mercy petition dated 09.07.2001 to the Government. Then, the petitioner gave a review petition dated 13.02.2001 to the Director General of Police, Tamil Nadu and submitted a mercy petition dated 09.07.2001 to the Government. After due analysation, the Government rejected the same as devoid of merits vide G.O.Ms.No.751, Home (Pol.V) Department, dated 21.08.2002. The petitioners wife preferred a grievance petition to the Chief Minister of Tamil Nadu during the grievance day and the Government, after considering it carefully, rejected the same vide Letter No.5781/Pol.V/2002, dated 23.04.2003. 4. Mr. M.S. Soundararajan, learned counsel for the petitioner has mainly contended that the appellate authority, while confirming the punishment of removal from service imposed by the disciplinary authority has taken into account the past records of the petitioner and has arrived at a conclusion of confirming the original authoritys order, which goes against the Constitutional Bench decision of the Supreme Court reported in AIR 1964 SC 506 in the case of State of Mysore vs. K.Manche Gowda. He also contended that the Government in its order in G.O.Ms.No.1382 dated 22.06.1981 has considered that all the police personnel, now not more than 40 years of age, who were dismissed/removed from service for having committed the only offence "desertion of force" may be reinstated in service with immediate effect unconditionally. 4a. In support of his case, learned counsel for the petitioner has relied on the following: (i) a decision of the Supreme Court reported in AIR 1964 (SC) 506 (The State of Mysore vs. K.Manche Gowda) : "7. Under Art. 311(2) of the Constitution, as interpreted by this court, 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: see the decision of this Court in the State of Assam vs. Bimal Kumar Pandit, Civil Appeal No.832 of 1962, dated 12.02.1963 : ( AIR 1963 SC 1612 ). If the grounds are not given in the notice, it would be well nigh 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 was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld 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 punishment were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, 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. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation." (ii) a decision of this court reported in 2008 (1) C.L.T. 67 in the case of Naganathan vs. The Superintendent of Police, Madurai and others, wherein paragraph 14 would read as under: "14. It is settled proposition that play of fairplay is to secure justice, procedural as well as substantive. The substance of the order, the effect thereof is to be looked into. Whether no misconduct spurns the action or whether the services of the petitioner is imposed with the punishment without imputation of the mis-conduct, is the test. It must be hedged with a bona-fide overall consideration of the previous conduct without being tainted with either malafide or colourable exercise of power or for extraneous exercise of power or for extraneous considerations and such action must be done with due care and diligence as held by the Supreme Court in its decision reported in 1991 Supp. (1) SCC 600 in the case of Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and others. In this case, the disciplinary authority has relied on past record but without giving an opportunity to the delinquent petitioner and without including the imputation of misconduct. Therefore, this action of the disciplinary authority is against fairplay to secure justice, both procedural and substantive. Though the disciplinary authority has passed the impugned proceedings without following substantive procedure and taking note of the past record without affording an opportunity to the petitioner and without imputation of the misconduct, the impugnity and infirmities of the order passed by the disciplinary authority have not been properly looked into by both the appellate as well as revisional authority. Though the disciplinary authority has passed the impugned proceedings without following substantive procedure and taking note of the past record without affording an opportunity to the petitioner and without imputation of the misconduct, the impugnity and infirmities of the order passed by the disciplinary authority have not been properly looked into by both the appellate as well as revisional authority. Therefore, the impugned proceedings passed by the respondents 1 to 3 suffer from legal infirmities and failure of substantive procedural justice and also fairplay. In that view of the matter, the impugned orders passed by the respondents 1 to 3 cannot be sustained on the ground the past record has been taken into consideration without affording an opportunity to the delinquent. 5. Per contra, Mr. N. Senthil Kumar, learned Additional Government Pleader appearing for the respondents would contend that the petitioner is a chronic absentee and has deserted the force on eight earlier occasions, since the day of enlistment till he committed the act of desertion in the present punishment roll and that the impugned order has been passed taking note of all these factors. Therefore, there is no infirmity in the order of punishment passed by the original authority, which has been confirmed by the appellate authority and also by the Government. According to the learned Additional Government Pleader, there is no scope for interference by this court in the quantum of punishment. 6. I have carefully considered the rival submissions made by the learned counsel on either side and perused the material documents on record. 7. It is seen that the petitioner was enlisted on 17.03.1986 and was transferred to J-2 Police Station, Adyar in the year 1997. He was issued a charge memo for the charge of absenting himself from duty for more than 21 days with effect from 210. 1999. The petitioner had submitted his explanation to the charges on 12.06.2000 stating that on 20.10.1999, all of a sudden, his wife developed stomach ache and subsequently she had abortion and therefore, he went on leave continuously without permission, due to mental agony and pressure of family circumstances. It is further seen that proceedings has been initiated against the petitioner as he had accounted for unauthorised absence and departmental enquiry was conducted. It is further seen that proceedings has been initiated against the petitioner as he had accounted for unauthorised absence and departmental enquiry was conducted. Since the charges were proved, the disciplinary authority had accepted the enquiry report and imposed the punishment of removal from service and the same has been confirmed by the appellate authority, the revisional authority and also by the Government. It also appears that the Mercy Petition submitted by the petitioner has also been rejected by the Government. 8. The order of the original authority would reveal that the punishment is imposed based on the proved charges and it is not on the ground that his past delinquencies have been taken into account. However, the appellate authority, while imposing the punishment has noticed the past records and confirmed the punishment of the original authority. It is a settled legal position that either the original authority or the appellate authority including the revisional authority while considering the punishment of the disciplinary authority have to give reasons for taking into account the other factors for confirming the punishment. In the case on hand, though the original authority has not taken into account the past records, the appellate authority has taken into consideration the past records, which goes against the basic principles. The ordained principle in the matter of service jurisprudence is when the disciplinary authority has not relied on the enquiry report, he cannot impose punishment without affording an opportunity to the petitioner. 9. The principle laid down in the Constitution Bench ruling of the Supreme Court in AIR 1964 SC 506 in the case of State of Mysore vs. K. Manche Gouda is, if the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld 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 punishment were imposed on him or that he knew of his past record. 10. 10. At this juncture, it would be useful to refer to the relevant portion of the proceedings of the 3rd respondent in Proc. R.C. No. Appeal 19/PR (S)/2000, dated 24.01.2001, as extracted below: "4. The appellant has joined the police force on 17.03.1986 and during his 14 years of service, he has got as many as 13 punishments. Of these, 8 were for deserting the force. Hence, it is very clear that the delinquent did not attach any value or respect for his job and takes his job very carelessly and casually and is in the habit of deserting the force frequently by giving some flimsy reasons. If such type of persons are allowed to continue in the force it will not only tarnish the image of the force but would definitely promote indiscipline among the men. Hence, he was rightly removed from the service by the DC. His appeal is rejected." 11. The 4th respondent, vide his proceedings in P.R.No.36/Tr.PR(S)/2000, dated 13.09.2000 has held as follows: "2. The delinquency of desertion from 010. 1999 is proved beyond any doubt by the Enquiry Officer and I fully agree with the findings of the Enquiry Officer. On the gravity of the charges and findings, I order that the delinquent be removed from service from the date of order." 12. A reading of the orders referred to above would reveal that the appellate authority has taken the entire past records into consideration and therefore, removal from service cannot be done unless the delinquent is given an opportunity to explain his position. The order of the appellate authority, dated 24.01.2001 cannot be sustained for the above reasons and it is set aside. Consequently, the matter is remitted to the appellate authority for fresh consideration and the appellate authority shall exercise its jurisdiction diligently, taking note of the entire facts and circumstances and also the relevant rules and Government Orders and pass appropriate orders in accordance with law within a period of four (4) months from the date of receipt of a copy of this order, after affording an opportunity of personal hearing to the delinquent. With the above direction, the writ petition stands disposed of. No costs. Consequently, connected W.P.M.P.No.1134 of 2008 is closed.