Judgment :- 1. This writ petition was filed challenging G.O.(D) No.141, Health and Family Welfare (I2) Department dated 31.1.2003, in which the first respondent, accepting the views of the Tamil Nadu Public Service Commission, imposed the punishment of removal from service on the petitioner Dr. C.Janakiram for the proven charges. 2. Mr. S. Ilamvaluthi, learned counsel for the petitioner heavily contended that when the petitioner was departmentally proceeded with for four charges, namely, that he unauthorisedly absented from duty from 4.1.84 to 25.4.85, that he disobeyed the orders of the Director of Medical Education issued on 12.12.84 directing him to rejoin duty immediately, that he again unauthorisedly absented from duty from 17.1.87 and that he disobeyed the orders of the Director of Medical Education issued on 25.2.88 and 11.3.89, the disciplinary authority, on completion of the enquiry, after receiving the report from the enquiry officer and again complying with the further procedure viz., issuance of second show cause notice and receiving a written representation from the petitioner, proposed to impose the punishment of compulsory retirement. At that stage, when the first respondent consulted the Tamil Nadu Public Service Commission, the Tamil Nadu Public Service Commission recommended for major punishment from compulsory retirement to one of removal from service on the petitioner. Therefore, after consulting the Tamil Nadu Public Service Commission and accepting the views of the Tamil Nadu Public Service Commission, the first respondent should not have directly imposed the punishment of removal from service on the petitioner for the proven charges without giving a further opportunity to explain as to the quantum of punishment proposed to be imposed by the first respondent, that too on the acceptance of views of the Tamil Nadu Public Service Commission. It was also further contended that when the first respondent thought it fit to impose the punishment of compulsory retirement for the proven charges, the Tamil Nadu Public Service Commission cannot substitute its own views either for enhancement of punishment or for reduction of punishment, since the Head of the Department and also the Government have got sufficient powers under Rule 36-A of the Tamil Nadu Civil Services (Classification & Appeal) Rules to impose appropriate punishment. When the Head of the Department has got suo motu power to enhance the punishment within six months from the date of imposing punishment and the Government has got power to enhance the punishment without there being any time limit, while merely on being consulted, if the Tamil Nadu Public Service Commission decides to enhance the punishment, the first respondent herein ought not to have decided to impose the major punishment of removal from service on the petitioner without any notice on the quantum of punishment. In any event, when the Tamil Nadu Public Service Commission has got power only to the limited extent to see whether the punishment proposed by the first respondent is adequate or inadequate, it is not open to the Tamil Nadu Public Service Commission to say that only a major punishment like the one imposed by the first respondent should be recommended by the Tamil Nadu Public Service Commission. Finally, it was contended that when no notice whatsoever was given on the proposed punishment of removal from service, the entire exercise carried out by the first respondent is liable to be interfered with. Adding further, it was contended that no reason whatsoever has been assigned by the first respondent for imposing the major punishment of removal from service than the one originally decided by the first respondent viz., the punishment of compulsory retirement, hence, the impugned order is liable to be interfered with. 3. In response to the said submission, Mr. N. Srinivasan, learned Additional Government Pleader for the respondents, by relying upon the detailed counter affidavit, submitted that when the petitioner was subjected to disciplinary proceedings for the four major charges, it is an admitted fact that a fair and proper opportunity was afforded to the petitioner till the completion of the enquiry. Only after completion of enquiry, when the enquiry officer submitted his report holding the petitioner guilty of all the charges, the first respondent, though decided to impose the punishment of compulsory retirement, as per Rule, before imposing any punishment, should consult the Tamil Nadu Public Service Commission, as the petitioner was appointed by the Tamil Nadu Public Service Commission. Only after completion of enquiry, when the enquiry officer submitted his report holding the petitioner guilty of all the charges, the first respondent, though decided to impose the punishment of compulsory retirement, as per Rule, before imposing any punishment, should consult the Tamil Nadu Public Service Commission, as the petitioner was appointed by the Tamil Nadu Public Service Commission. In exercise of that power, when the first respondent had consulted the Tamil Nadu Public Service Commission on the adequacy or inadequacy of the proposed punishment, the Tamil Nadu Public Service Commission, after going through the records along with the report of the enquiry officer, coupled with the punishment of compulsory retirement as proposed by the first respondent, thought it fit to recommend for the punishment of removal from service. Only thereafter the first respondent, rightly accepting the views made by the Tamil Nadu Public Service Commission as per subclause (c) of clause (3) of Article 320 of the Constitution of India, who have assessed the guilt and the service records of the delinquent officer along with the suitable punishment to be imposed against him, imposed the major penalty of removal from service. When the Tamil Nadu Public Service Commission, on being consulted, has recommended another punishment of removal from service, there is nothing wrong on the part of the first respondent to accept the said recommendation, since the Tamil Nadu Public Service Commission has got such power as conferred under Article 320(3) (c) of the Constitution of India. The learned Additional Government Pleader for the respondents, by bringing to the notice of this Court Regulation 18(1) of the Tamil Nadu Public Service Commission Regulations, 1954, supported the impugned order. Arguing further before the Court that when the first respondent has decided to dispense with the services of the petitioner by imposing the lighter punishment of compulsory retirement, cannot refuse the recommendation made by the Tamil Nadu Public Service Commission for enhancing the punishment to one of removal from service. On this basis he prayed for no interference with the impugned order. 4. On this basis he prayed for no interference with the impugned order. 4. This Court, having seen that the petitioner was departmentally prosecuted for unauthorised absence from duty from 4.1.84 to 25.4.85 and also for one another charge that after a short spell of duty he again unauthorisedly absented from 17.1.87 and going on sending piecemeal leave applications and that he failed to rejoin duty as directed in the office memos dated 12.12.84, 25.2.88 and 11.3.89 respectively and thus he neglected his duty, finds that he was finally imposed with the punishment of removal from service. But before passing this order, the disciplinary authority, after accepting the report of the enquiry officer on all the charges that the petitioner was guilty, thought it fit to impose a lighter punishment of compulsory retirement. But the first respondent cannot directly impose even that punishment, as it has to necessarily and legally consult the Tamil Nadu Public Service Commission for the reason that the petitioner was appointed only through the Commission. In that process, the Tamil Nadu Public Service Commission, in exercise of the power conferred under Regulation 18(1) of the Tamil Nadu Public Service Commission Regulations, 1954, after seeing that the petitioner was going to be imposed with a lighter punishment viz., compulsory retirement for proven major charges, rightly, assessing the adequacy of punishment that was proposed by the first respondent against the petitioner, disagreeing with the quantum of punishment, recommended the suitable punishment of removal from service. When Article 320(3)(c) of the Constitution of India also gives enormous power to the Tamil Nadu Public Service Commission to afford proper assistance to the Government in assessing the guilt or otherwise of the delinquent officer as well as the suitability of punishment to be imposed, the process of consultation by the first respondent-Government with the Tamil Nadu Public Service Commission cannot be considered as an empty formality by merely discarding the recommendation given by the Tamil Nadu Public Service Commission, more particularly, when the Tamil Nadu Public Service Commission, after going into the service records of the petitioner, reached a conclusion that the petitioner being an Assistant Professor of Bio-chemistry in Chengalpattu Medical College, was unauthorisedly absent from duty for a long time from 4.1.84 to 25.4.85, should be visited with a punishment of removal in lieu of compulsory retirement. Again the Tamil Nadu Public Service Commission also found that the petitioner was once again unauthorisedly absent from duty from 17.1.87 and bent upon sending piecemeal leave applications regardless of the paramount welfare of students and thereby failed to rejoin duty even though there was a direction given by the superior officer and thus he neglected his duty. Only by taking note of these serious lapses and the dereliction committed by the petitioner, the Tamil Nadu Public Service Commission has rightly come forward to recommend for the punishment of removal from service in lieu of compulsory retirement and the first respondent also rightly, accepting the recommendation, imposed the punishment of removal from service. Therefore, the question of issuing notice on the proposed punishment, as contended by the learned counsel for the petitioner, that is a part of the fundamental right, is absolutely far from acceptance. In this context, a recent judgment of the Apex Court in Punjab National Bank and others v. K.K.Verma, AIR 2011 SC 120 can be usefully referred to, in which it has been unambiguously held that there is no second opportunity available to the delinquent employee after the finding of guilt on the quantum of punishment, since the said right being the second right is taken away by the 42nd amendment. In fact, in the said judgment, while dealing with the 42nd amendment, the Apex Court has held as follows:- "19. The 42nd Amendment effected in 1976 once again amended sub-article 311(2) as follows:- "311.(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed." 20. In Mohd. Ramzan Khan's case ( AIR 1991 SC 471 ) (supra) the Court was concerned with the question as to whether the 42nd Amendment brought about any change in the matter of supply of a copy of the report which is a part of the first stage, and the effect of non-supply thereof on the punishment proposed. In Mohd. Ramzan Khan's case ( AIR 1991 SC 471 ) (supra) the Court was concerned with the question as to whether the 42nd Amendment brought about any change in the matter of supply of a copy of the report which is a part of the first stage, and the effect of non-supply thereof on the punishment proposed. The Court considered the various judgments on this aspect and held in paragraph 18 of the judgment as follows:- "We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." It is only with a view not to affect the inquiries which were conducted in the meanwhile that the Court held that those inquiries will not be affected, and though it was only declaring the law, the propositions laid down therein will apply prospectively. This was basically to protect the actions which were taken during the interregnum i.e., after the 42nd Amendment became effective until it was explained as above in this judgment." Again, in the same judgment, the Apex Court, while referring to two of the Constitution Bench judgments in Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others, AIR 1994 SC 1074 and in Union of India & another v. Tulsiram Patel, AIR 1985 SC 1416 , made it absolutely clear that after the 42nd amendment, the employees are not entitled in law to be heard in the matter of penalty. The relevant portion of the judgment reads as under:- "28....In Karunakar's case, AIR 1994 SC 1074 (supra), another Constitution Bench has referred to Tulsiram Patel in paragraph 4 and then explained the legal position in this behalf in paragraph 7 as follows:- "While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment." Thus, the right to represent against the findings in the inquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable." 5. In the light of the above ratio decidendi, since the law that prevailed prior to the 42nd amendment contemplating issuance of notice to the delinquent employee on the quantum of punishment has been dispensed with, the petitioner cannot ask for notice on the proposed punishment. Therefore, when the disciplinary authority was not having any obligation to issue any notice on the proposed punishment, it is not open to the petitioner's counsel to advance an argument that the petitioner should have been issued with a notice on the proposed punishment, as recommended by the Tamil Nadu Public Service Commission, before the same was accepted by the first respondent. 6. For all the foregoing reasons, the writ petition fails and the same is dismissed. No costs.