Judgment :- 1. The writ petition is filed for issuance of a writ of certiorarified mandamus to call for the records from the respondents, quash the proceedings of the first respondent bearing Rc.No.B2/Ap.79/2004 dated 18.12.2004 and the order of the second respondent bearing J2/P.R.No.168/93 under Rule 3(b) dated 29.09.2004 and consequently direct the respondents to reinstate the petitioner with full backwages, continuity of service and all other attendant benefits. 2. The petitioner in the affidavit filed in support of this writ petition averred that he joined the services of the respondent-police as Grade II Police Constable on 12.09.1986 and he was posted in the Armed Reserve Police at Kancheepuram. According to the petitioner, he has been discharging his duties sincerely and efficiently to the utmost satisfaction of the superior officers. 3. The petitioner was issued with a charge memo under Rule 3(b) of the Tamil Nadu Police Services (Discipline and Appeal) Rules in P.R.No.26/2005 in which the following charge was framed against him. "Gross dereliction of duty in having absented for duty on 14.12.2004 @ 18.00 hours without getting any permission or leave from higher officers and continued to be absent for 21 days and deserted the post." Domestic enquiry was held and the Department, in order to substantiate the charges framed against the petitioner/delinquent, had examined Pws.1 and 2 and marked Exs.P1 to P7. The petitioner had also cross examined those witnesses. The Enquiry Officer, after conclusion of the enquiry, has submitted his report stating that charge framed against the petitioner has been proved and submitted the same to the Disciplinary Authority for appropriate orders. The Disciplinary Authority, on taking into consideration the enquiry report and past conduct of the petitioner, has awarded punishment of dismissal from service vide order dated 24.10.2004. The petitioner, challenging the legality of the above said order of punishment, has preferred an appeal to the first respondent and the same was dismissed on 18.12.2004. Challenge is made to the order dated 18.12.2004 passed by the first respondent in conforming the punishment of dismissal from service passed by the second respondent. 4. The petitioner, challenging the legality of the above said order of punishment, has preferred an appeal to the first respondent and the same was dismissed on 18.12.2004. Challenge is made to the order dated 18.12.2004 passed by the first respondent in conforming the punishment of dismissal from service passed by the second respondent. 4. The second respondent has filed the counter stating that after conclusion of the enquiry, a memo was issued to the petitioner calling for further representation by supplying a copy of the Enquiry Officers Report, which was served on him on 23.06.2005 and that the writ petitioner has not put forth any fresh points in his further representation. The Disciplinary Authority, on going through the enquiry report and connected records, thought fit to award punishment of dismissal from service against the petitioner and accordingly, the order of dismissal from service came to be passed on 14.07.2005. Consequent to the said order, the name of the writ petitioner was struck off from district strength with effect from 19.07.2005 vide D.O.No.662/2005 dated 25.07.2005. In the appeal preferred to the first respondent, the petitioner has not put forth any new points and therefore, the Appellate Authority has chosen to concur with the decision taken by the Disciplinary Authority and concurred with the finding. It is further averred by the second respondent that the petitioner absconded for duty with effect from 14.12.2004 afternoon and he was treated as deserted after completion of 21 days of his absence. In the desertion order itself, instructions were issued to the petitioner to report before the concerned authority within 60 days from the date of desertion. However, the petitioner has failed to avail the said opportunity also. As regards past delinquency, it is stated in the counter that the petitioner within the short spell of eight years of service deserted the force on three occasions and absented for duty two times and deserted the duty frequently. The second respondent, taking into consideration the contents of the Enquiry Report and other relevant materials available on record, has rightly imposed the order of dismissal from service, which was confirmed by the first respondent and hence, the second respondent prayed for dismissal of the writ petition. 5. Mr. The second respondent, taking into consideration the contents of the Enquiry Report and other relevant materials available on record, has rightly imposed the order of dismissal from service, which was confirmed by the first respondent and hence, the second respondent prayed for dismissal of the writ petition. 5. Mr. Balan Haridoss, learned counsel for the petitioner would submit that though the petitioner absented himself, he has offered proper explanation to the effect that while he was on duty on 12.05.1993, due to fever and vomiting, he had rushed to the nearby clinic and on reaching the clinic, his illness became worse and consequently lost his conscience. The physical condition of the petitioner was informed to his wife and his wife had taken him to Arakkonam for further treatment. On recovery, the petitioner reported before the second respondent along with the medical certificate and he was allowed to join duty on 09.07.2003. According to the petitioner, only on account of serious illness, he could not report for duty and his absence/abscondence was neither wilful nor wanton. It is further submitted by the learned counsel appearing for the petitioner that after the issuance of the charge memo dated 23.08.1993, domestic enquiry was conducted and enquiry officer has submitted his report on 07.10.1993 to the Disciplinary Authority viz., the second respondent. However, the second respondent has chosen to pass an order of punishment of dismissal from service only on 29.09.2004 i.e. nearly after lapse of 11 years and therefore, the said delay would definitely vitiate the impugned order. It is further submitted by the learned counsel appearing for the petitioner that in the charge memo, no particulars have been stated with regard to the past delinquency of the petitioner. Further the disciplinary authority has taken into consideration the said aspect also and awarded punishment of dismissal from service and the Appellate Authority has also placed reliance upon the past delinquency of the petitioner and confirmed the order of dismissal from service. Hence, it is submitted by the learned counsel appearing for the petitioner that unless the petitioner is put on notice in respect of past delinquency, the impugned order of dismissal from service is per se unsustainable. Hence, it is submitted by the learned counsel appearing for the petitioner that unless the petitioner is put on notice in respect of past delinquency, the impugned order of dismissal from service is per se unsustainable. The learned counsel appearing for the petitioner would submit that in any event, the punishment of dismissal from service is disproportionate to the alleged delinquency on the part of the petitioner and therefore, the quantum of punishment requires consideration. 6. The learned counsel appearing for the petitioner, in support of his submissions, placed reliance upon the following judgments: 1. Sri Bharathi Mills and others V. N.S.Mohan (Division Bench); 2. The order dated 12.04.2006 made in W.P.No.3265 of 2005; 3. Government of Andhra Pradesh and Others V. V.Appala Swamy(2008 (3) L.L.N. 103; 4. Chairman cum Managing Director, Coal India Limited and another V. Mukul Kumar Choudhuri & Others 7. The order of termination came to be challenged and one of the grounds of the challenge was that the employee has not been put on notice about the intention of the employer to take into consideration the past conduct of the petitioner. The Division Bench of this Court in Sri Bharathi Mills and others V. N.S.Mohan after taking into consideration number of judgments, held as follows: "Where the past conduct on record of service is taken as an act to impose the punishment, that cannot be done without putting the employee to notice." The Division Bench, for the said reason, has dismissed the appeal filed by the Mill. 8. In W.P.No.3265 of 2005, the petitioner was a Police Constable and he was absent from duty for the period from 12.02.2003 to 04.03.2003 on account of his illness. On joining duty, he was issued with the charge memo without prior permission or leave. As explanation submitted by the petitioner therein was found to be unsatisfactory, he was proceeded with the departmental enquiry, which ultimately culminated with the order of punishment of dismissal from service. The appeal filed by the petitioner was ended in dismissal, so also, the revision and hence, challenge was made to the order of dismissal. A single Judge of this Court, after taking into consideration the judgment of the Hounrable Supreme Court of India reported in 1995 (6) SCC 749 (B.C.Chaturvedi Vs. The appeal filed by the petitioner was ended in dismissal, so also, the revision and hence, challenge was made to the order of dismissal. A single Judge of this Court, after taking into consideration the judgment of the Hounrable Supreme Court of India reported in 1995 (6) SCC 749 (B.C.Chaturvedi Vs. Union of India and others) and other decisions, found that though the petitioner therein has not taken any steps to produce the medical certificate well in advance, the other circumstances were considered and held that the order of dismissal from service is disproportionate to the delinquency and therefore, set aside the order of dismissal and remanded the matter to the Disciplinary Authority for the purpose of deciding about the reduced quantum of punishment considering the entire circumstances. 9. In 2008(3) L.L.N. 103 (Government of Andhra Pradesh and Others Vs. V.Appala Swamy) the facts of the case were, inspite of direction to conclude the disciplinary proceedings within the stipulated time, the same was not done. The Honourable Supreme Court of India, placing reliance upon number of decisions, has laid down the principles upon which a proceeding can be directed to be quashed on the ground of delay viz.,(1)one where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer. Citing the said reasons, the Honourable Supreme Court of India held that prejudice made out by the employee on account of delay must be determined on its own facts. 10. In (Chairman cum Managing Director, Coal India Limited and another V. Mukul Kumar Choudhuri & Others) the first respondent had unauthorisedly absented himself for more than six months and he was removed from service. A challenge was made by the employee and the learned single Judge of this Court has ordered reinstatement of the employee. Further challenge was made before the Division Bench, who, while affirming the order of the learned single judge in so far as the reinstatement is concerned, modified the award by awarding him back wages. The Management preferred further appeal before the Honourable Supreme Court of India. Further challenge was made before the Division Bench, who, while affirming the order of the learned single judge in so far as the reinstatement is concerned, modified the award by awarding him back wages. The Management preferred further appeal before the Honourable Supreme Court of India. In the said decision, the Honourable Supreme Court of India, while holding that where the delinquent has fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention to disobey the order of higher authority or violate any of the Companys Rules and Regulations, but the reason was purely personal and beyond his control etc, then the order of removal cannot be held to be justified. Therefore, the learned counsel for the petitioner would submit that in view of the ratio laid down in the above said decisions, the order of punishment of dismissal from service against the petitioner is purely disproportionate and the impugned order also liable to be set aside on account of long or unexplained delay in passing the order of dismissal and therefore prayed for quashment of the impugned order and appropriate relief to the petitioner. 11. Per contra, the learned Additional Government Pleader would submit that the past conduct of the petitioner has to be taken into consideration though there was a delay on the part of the second respondent in passing the order of dismissal from service. It is further submitted by the learned Additional Government Pleader that the enquiry officer during the course of enquiry has taken into consideration the oral and documentary evidence let in by the Department and arrived at a finding that the charge framed against the petitioner has been proved. Inspite of opportunities given to the petitioner to submit his further explanation to the contents of the enquiry report, he has not chosen to avail the opportunity. It is further submitted that the Disciplinary Authority has thoroughly considered the contents of the Enquiry Officer and concurred with it and chosen to impose the punishment of dismissal from service. Inspite of opportunities given to the petitioner to submit his further explanation to the contents of the enquiry report, he has not chosen to avail the opportunity. It is further submitted that the Disciplinary Authority has thoroughly considered the contents of the Enquiry Officer and concurred with it and chosen to impose the punishment of dismissal from service. On an appeal by the petitioner, the Appellate Authority has also independently applied his mind to the materials placed before him and concurred with the decision taken by the second respondent and this Court, in exercise of Article under Section 226 of the Constitution of India, cannot act as an Appellate Authority to interfere with the factual finding recorded by the Enquiry Officer and the decision taken by the Disciplinary Authority. It is also submitted by the learned Additional Government Pleader that the petitioner, being a member of Armed Force, he is expected to maintain high degree of discipline and the conduct would disclose that he has failed in his duty miserably and therefore, the order of dismissal from service is justifiable. 12. This Court has carefully considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Government Pleader and also perused the materials available on record and also the decisions relied on by the learned counsel for the petitioner. The petitioner, in response to the charge memo, has submitted his explanation that while he was on duty on 12.05.1993 suddenly developed sickness and immediately rushed to the nearby clinic, wherein he lost his conscience. Since his physical condition became worse, an information was given to his wife and she rushed to the hospital and took the petitioner to Arakkonam, where he was admitted for further treatment. The petitioner, after recovery, appeared before the second respondent along with the medical certificate and he was permitted to join duty on 09.07.1993. The charge memo came to be issued on 23.08.1993. The Department, in order to substantiate the charge framed against the petitioner, has examined PW1, the Sub Inspector of Police, Armed Force-III Battalion, Kancheepuram and PW2, the Assistant dealing with the Casual Leave, District Police Office, Kancheepuram. The Department also filed Exs.P1 to P7. The charge memo came to be issued on 23.08.1993. The Department, in order to substantiate the charge framed against the petitioner, has examined PW1, the Sub Inspector of Police, Armed Force-III Battalion, Kancheepuram and PW2, the Assistant dealing with the Casual Leave, District Police Office, Kancheepuram. The Department also filed Exs.P1 to P7. The tenor of the cross-examination of the witnesses would disclose that the petitioner was not having any assistance to inform his higher officials about his condition and therefore, he could not inform them about the reasons for his absence. The petitioner has also expressed his regret for his absence and prayed for lenience. The Enquiry Officer has found that the petitioner should have informed his physical condition atleast by writing a letter to his superior official, but he has not done so and the said attitude would amount to careless and inadvertence on the part of the petitioner and given a finding that the charge has been proved. 13. It is pertinent to point out at this juncture that the Enquiry Officer has submitted his report on 07.10.1993 to the Disciplinary Authority viz., the second respondent. However, the second respondent has chosen to pass an order of dismissal from service on 29.09.2004 nearly after lapse of 11 years. A perusal of the said order would indicate that the second respondent has taken into consideration of the fact that the petitioner is a habitual absentee and deserter and totally he is having 13 punishments including three removal from service. A careful reading of the order of dismissal passed by the second respondent would indicate that apart from the Enquiry Report, he has also taken into consideration the past delinquency of the petitioner and chosen him to award dismissal from service. 14. Admittedly in the charge memo, no reference has been made with regard to the delinquency. Further the Disciplinary Authority viz., the second respondent has chosen to place reliance on those materials also to arrive at the conclusion to dismiss the petitioner from service. In the opinion of this Court, the judgment of Division Bench of this Court reported in (Sri Bharathi Mills and others V. N.S.Mohan) is squarely applicable to the case on hand. Further the Disciplinary Authority viz., the second respondent has chosen to place reliance on those materials also to arrive at the conclusion to dismiss the petitioner from service. In the opinion of this Court, the judgment of Division Bench of this Court reported in (Sri Bharathi Mills and others V. N.S.Mohan) is squarely applicable to the case on hand. Unless the petitioner is put on notice with regard to his past conduct of record of service, it cannot be a ground to impose the order of dismissal from service and the said act on the part of the second respondent is per se in violation of principles of natural justice. 15. The petitioner, challenging the legality of the order of dismissal from service passed by the second respondent, has preferred an appeal to the first respondent, who by order dated 18.12.2004, has concurred with the decision taken by the second respondent and confirmed the order of dismissal from service. 16. A perusal of the order passed by the first respondent/Appellate Authority would disclose that the Appellate Authority has also taken into consideration the past delinquency of the petitioner. Here again, the petitioner was not put on notice. Therefore the impugned order is vitiated on this ground. 17. As regards the delay in passing the order of dismissal from service, the counter affidavit filed by the second respondent does not offer any reasons, whatsoever and the Appellate Authority has stated that the petitioner has earned 14 punishments in 18 years of service and has been removed from service three times but managed to reenter and finally dismissed from service. In the order passed by the Appellate Authority also no reasons have been recorded as to the delay in passing the order of dismissal from service. In view of the failure on the part of the respondent to offer explanation with regard to delay of 11 years to pass the order of dismissal from service, the impugned order is vitiated on that ground also. 18. The learned counsel appearing for the petitioner has submitted that the order of removal from service in any event is disproportionate to the delinquency on the part of the petitioner and taking into consideration the long delay in passing the order of dismissal from service, this Court can straight away reduce the punishment instead of remanding the matter once again to the Disciplinary Authority. In the considered opinion of this Court, it is not inclined to accept the said submission on the part of the petitioner since this Court has already recorded a finding that the delinquent has not been put on notice with regard to the past delinquency. The imposition of quantum of punishment in the considered opinion of this Court, is within the competence of the Disciplinary Authority. 19. In the result, the writ petition is party allowed. The impugned order dated 18.12.2004 passed by the first respondent in confirming the order of dismissal passed by the second respondent dated 29.09.2004 is set aside and the respondents are directed to reinstate the petitioner forth with. However, it is open to the second respondent to put the petitioner on notice with regard to past delinquency, call for his explanation and pass appropriate orders on merits and in accordance with law as expeditiously as possible within a period of three months from the date of receipt of a copy of this order. Until the said order is passed, apart from reinstatement, the petitioner is not entitled to any other service benefits. No costs.