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2015 DIGILAW 36 (MAN)

Wahijuddin Shah v. State of Manipur and Ors.

2015-02-27

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2015
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. Khagemba, learned counsel for the petitioner as well as Mr. R.S. Reisang, learned Sr. Govt. Advocate for the respondents. 2. The present writ petition has been filed for setting aside the departmental proceeding initiated against the petitioner, the order of removal dated 20.09.2008 (Annexure-A/6), the order dated 8.2.2013 passed by the appellate authority rejecting his appeal (Annexure-A/8) and also the order dated 30.4.2013 rejecting the second appeal (Annexure-A/10). 3. The facts in brief as may be relevant for consideration by this Court may be stated as below. 4. The petitioner was appointed as a Rifleman in the 2nd Indian Reserve Battalion, Manipur vide order dated 28.05.1999 and after undergoing necessary training programme had been serving as a Rifleman. He was placed under suspension by an order dated 21.11.2007 in contemplation of a departmental enquiry and on the same date, i.e., 21.11.2007, the Commandant, 2nd Indian Reserve Battalion issued the memoranda of charges which contained the charges that the petitioner was absent from 22.09.2007 to 21.11.2007 i.e. for 61 days without any leave or permission from the competent authority and he was a habitual absentee, as follows: "Statement of article of charge framed against Rifleman No. 1299431 Md. Wahijuddin Shaha 'A' Coy of 2nd IRB, Khuman Lampak. I, Shri K. Radhashyam, MPS, Commandant, 2nd IRB, Khuman Lampak, charge you Rifleman No. 1299431 Md. Wahijuddin Shaha 'A' Coy 2nd IRB, Khuman Lampak for your grave misconduct and dereliction of duty on the following counts: 1. That, you were found absent from your place of posting/duty w.e.f. 22/09/2007 to 21/11/2007 i.e. 61 (sixty one) days without any leave or permission from the competent authority; and 2. Wahijuddin Shaha 'A' Coy 2nd IRB, Khuman Lampak for your grave misconduct and dereliction of duty on the following counts: 1. That, you were found absent from your place of posting/duty w.e.f. 22/09/2007 to 21/11/2007 i.e. 61 (sixty one) days without any leave or permission from the competent authority; and 2. That, you are a habitual absentee having been awarded 18 times EOL on different occasions for 520 days during your service period of 8 years 5 months and 20 days which shows that you are not fit to be a member of the disciplined force." On receipt of a copy of the memoranda of charges, the petitioner submitted his reply/statement of defence on 6.3.2008 in which it was submitted that during the aforesaid period of 61 days he had been undergoing medical treatment and there were unavoidable family problems and he could not apply for leave in time due to lack of knowledge and requested for pardoning him and to reinstate his service by revoking the suspension order on humanitarian ground. The departmental enquiry was proceeded ex-parte against him. It is the stand of the respondent authorities that in spite of several notices to the petitioner, the petitioner did not appear before the enquiry officer and as such, the departmental enquiry was proceeded ex-parte. As many as 4(four) witnesses were examined on behalf of the Department. On conclusion of the departmental enquiry, the enquiry officer submitted the enquiry report holding the both charges framed against the petitioner proved. 5. After submission of the enquiry report, another show cause notice was served to the petitioner along with copy of the findings of the enquiry by Enquiry Officer, vide letter dated 18.10.2008 to submit his written statement as to why a major penalty should not be imposed. Though he received the show cause notice, the petitioner did not submit any reply. Thereafter, the impugned order of removal was passed by the Commandant 2nd IRB on 20.09.2008. Against the said order of removal, the petitioner submitted a representation/appeal on 17.02.2012 before the DIGP (AP-II) after about 3 1/2 years requesting for setting aside the said order of removal and for reinstating him in service. Thereafter, the impugned order of removal was passed by the Commandant 2nd IRB on 20.09.2008. Against the said order of removal, the petitioner submitted a representation/appeal on 17.02.2012 before the DIGP (AP-II) after about 3 1/2 years requesting for setting aside the said order of removal and for reinstating him in service. In the said representation, the petitioner submitted that he was suffering from illness and in the later part of 2006 his wife became seriously ill due to "Amurohume" for which she had to be taken to Guwahati for treatment and her condition remained critical for 2/3 years during which time she had to be given constant medical care and attention. The petitioner also pleaded that he also became seriously ill from Bipolar disease because of which he had to undergo treatment at Psychiatry Department, J.N. Hospital for a long time. He stated that he was suffering from mental illness from September, 2007 for about 1 year, during which period the departmental enquiry was proceeded ex-parte against him. It was pleaded by the petitioner that he was not mentally fit to respond to the notice issued against him in connection with the said proceeding. He stated that was not able to defend himself in the departmental proceeding due to the illness he was suffering from. After he recovered from illness after prolonged treatment and became fit in all respects, he submitted his representation on 17.02.2012 before the DIGP as mentioned above. The said appeal, however, was dismissed by the DIGP on 8.2.2013 holding that the appeal was preferred after a long lapse, further observing that on careful scrutiny of the records of the departmental enquiry, facts and comments obtained from the Commandant 2nd IRB, no ground for intervention was made out. Thereafter, the petitioner preferred another appeal before the Inspector General of Police by submitting appeal/representation on 19.03.2013 which was also dismissed by the Inspector General of Police on 3.4.2013. Thereafter, the petitioner has approached this Court by filing the writ petition. 6. The State respondents have contested the writ petition by filing affidavit-in-opposition. In the said affidavit-in-opposition, it has been stated that the reported illness of his wife and of the petitioner was not within knowledge of the authorities and the petitioner did not make any effort to intimate to any concerned authority about his inability to attend duties because of his illness or of his wife. In the said affidavit-in-opposition, it has been stated that the reported illness of his wife and of the petitioner was not within knowledge of the authorities and the petitioner did not make any effort to intimate to any concerned authority about his inability to attend duties because of his illness or of his wife. Though the petitioner received the memoranda of charges, he did not dispute the charges and he did not appear before the Enquiry Officer which was proceeded ex-parte as he did not attend in spite of several notices issued to him. Accordingly, it has been submitted that no case is made out for interfering with the order of removal. 7. The petitioner in his rejoinder-affidavit filed on 27.8.2014 has submitted that since the petitioner had already been given appropriate punishment as regards the earlier absence, the charge of habitual absence is irrelevant for the impugned departmental enquiry and as regards the claim of the petitioner that he was suffering from bipolar illness, the petitioner annexed a certificate which was stated to have been issued by the doctor who was examining him. He also claimed that he had informed the department about his illness and his wife. 8. At the time of hearing, Mr. Th. Khagemba, learned counsel for the petitioner has argued that the departmental proceeding and the order of penalty can not be sustained for the following reasons:- "(1) Firstly, it has been contended that the charges are vague. It has been submitted that the first charge against the petitioner that the petitioner is a habitual absentee having been awarded 18 times EOL on different occasions for 520 days during his 8 years 5 months 20 days is devoid of the particulars of the period of absence and as such, in absence of the particulars of the alleged absence, the charge against him on being a habitual absentee is vague. In this regard, Mr. Khagemba, learned counsel for the petitioner has relied on the decision of the Supreme Court in Anant R. Kulkarni v. Y.P. Education Society and others, : (2013) 6 SCC 515 . In the said case, the Supreme Court held that charges should be specific and definite giving details of incident which formed basis of charges and no enquiry can be sustained on vague charges. Another decision of the Supreme Court in Govt. In the said case, the Supreme Court held that charges should be specific and definite giving details of incident which formed basis of charges and no enquiry can be sustained on vague charges. Another decision of the Supreme Court in Govt. of A.P. and Others v. A. Venkata Raidu, : (2007) 1 SCC 338 was relied upon in which the Hon'ble Supreme Court also held that the charge sheet should not be vague but specific which otherwise would vitiate the departmental enquiry. (2) Secondly, it has been submitted that the petitioner has been vexed twice for the same offence. He had been already given appropriate penalty or punishment for the earlier periods of absence by awarding EOL and as such, he could not be punished for the second time in the impugned disciplinary proceeding. In support of his contention, the learned counsel for the petitioner has relied on the decision of the Supreme Court in Nand Kumar Verma v. State of Jharkhand and Others, : (2012) 3 SCC 580 contending that there could be only one enquiry in respect of the same charge for a particular misconduct and the second enquiry could not be conducted. Mr. Khagemba has submitted that the past conduct of the petitioner could not have been relied on for penalising him by issuing the order of removal by relying on the decision of the Supreme Court in The State of Mysore v. K. Manche Gowda, : AIR 1964 SCC 506 and Mohd. Yunus Khan v. State of Uttar Pradesh and Others, : (2010) 10 SCC 539 . (3) Thirdly, it has been submitted that there is no finding recorded by the Enquiry Officer in the Enquiry Report that the absence of 61 days from 22.9.2007 to 21.11.2007 was wilful and deliberate, for which the petitioner relied on the decision of the Supreme Court rendered recently on 7.7.2014 in the case of Chhel Singh v. M.G.B. Gramin Bank and Others, Appeal(Civil) No. 6018 of 2014. The Hon'ble Supreme Court held that in absence of a finding that unauthorized absence from duty was wilful and deliberate, it was not open to the Enquiry Officer or the Disciplinary Authority to disbelieve the certificate issued by the doctors and accordingly, the Hon'ble Supreme Court held the order of penalty of removal to be vitiated. The Hon'ble Supreme Court held that in absence of a finding that unauthorized absence from duty was wilful and deliberate, it was not open to the Enquiry Officer or the Disciplinary Authority to disbelieve the certificate issued by the doctors and accordingly, the Hon'ble Supreme Court held the order of penalty of removal to be vitiated. Further the petitioner also relied on the decision of the Hon'ble Supreme Court in Krushnakant B. Parmar v. Union of India and Another, : (2012) 3 SCC 178 as well as Geetaben Ratilal Patel v. District Primary Education Officer, : (2013) 7 SCC 182 in support of his contention that in absence of finding recorded in the Enquiry report that the absence of the petitioner was wilful, the petitioner could not have been penalised by imposing the order of removal." 9. Mr. R.S. Reisang, Sr. Govt. Advocate, however, argued that in the present case, the delinquent who was a police constable was found to be habitually absent from duty on several earlier occasions and the Department also found that he was absent for 61 days without authorization and as such, the penalty of removal was imposed on him rightly. It has been submitted that the petitioner being in disciplined force, imposition of penalty of removal does not warrant interference from this Court and in this regard, he relied on the decision of the Supreme Court in State of U.P. and others v. Ashok Kumar Singh and another, : AIR 1996 SC 736 . 10. Heard the learned counsel for the parties and also perused the materials on record. As discussed above, the petitioner was charged on two counts. The first charge relates to his absence for 61 days without any leave or permission from the competent authority and the second charge relates to the petitioner of being a habitual absentee as evident from his earlier service record as mentioned in the memorandum of charges. The petitioner was furnished a copy of the memorandum of charges to which he submitted his reply as mentioned above stating that he was undergoing medical treatment and because of certain unavoidable family problems, he could apply for leave in time due to lack of knowledge and requested for pardoning him on humanitarian ground. 11. The petitioner was furnished a copy of the memorandum of charges to which he submitted his reply as mentioned above stating that he was undergoing medical treatment and because of certain unavoidable family problems, he could apply for leave in time due to lack of knowledge and requested for pardoning him on humanitarian ground. 11. It seems, since the petitioner did not appear before the Enquiry Officer in spite of summons being issued to him, the departmental proceeding was proceeded him ex-parte against him and the Enquiry Officer gave the finding of guilt in respect of both the charges and ultimately the order of removal was issued on 29.11.2008 by removing him from service. 12. He, however, submitted his representation to the Deputy Inspector General of Police (AP-II) only on 17.02.2012 contending that he was not fit to respond to the notices issued to him in respect of the said proceeding and his condition did not improve for a long time and his wife was also suffering from illness. It has been stated that after recovering from prolonged treatment and after he became fit, he came to know about his removal from service and accordingly, submitted the said representation on 17.02.2012. In the said representation, he submitted that he was suffering from the illness of Bipolar disease from the month of September, 2007 for about 1 (one) year. However, there is no explanation why he submitted the said representation only on 17.02.2012 i.e. for more than 3 (three) years after he recovered from illness and became fit. In his subsequent representation before the Inspector General of Police (AP) submitted on 19.03.2013, he has not given any explanation as to why he approached the authorities at such a belated stage without specifying as to when he became alright from the illness he was suffering from except for contending that he was suffering from illness and he could not inform the authorities in time. Of course, the petitioner in his reply affidavit filed on 27.08.2014, for the first time, annexed a copy of the medical certificate stated to have been issued by the doctor who was treating him. Of course, the petitioner in his reply affidavit filed on 27.08.2014, for the first time, annexed a copy of the medical certificate stated to have been issued by the doctor who was treating him. The said certificate is dated 10th November, 2009 which stated that the petitioner who was suffering from Bipolar illness was undergoing treatment in Psychiatry OPD and had been examined by the said doctor and the absence from duty for the period w.e.f. 20.09.2007 till date of issue of the certificate i.e. on 10.11.2009 was absolutely necessary for restoration of his health. In other words, as per the said certificate issued on 10.11.2009, the petitioner had regained his fitness to resume his normal duties. However, nothing has been explained as to what the petitioner was doing since November, 2009 till he submitted his first representation to the DIGP (AP-II) on 17.02.2012. It may be also noted that when the petitioner submitted his representation to the DIGP (AP-II) on 17.02.2012, the petitioner did not enclose any documentary evidence in support of his claim that the petitioner was not well and was undergoing treatment at the relevant time and also about the illness of his wife for which he remained absent for a long time. Further, from the documents annexed by the petitioner himself i.e. the last show cause notice dated 18.10.2008 issued by the authorities to the petitioner giving an opportunity to show cause why the major penalty should not be imposed on him, which was received by the petitioner on 21.10.2008(Annexure-A/4), it can be seen that though he received it he never informed the authorities that he was undergoing treatment or his wife was also not well. He also did not submit any representation even after he became fit in November, 2009 enclosing any medical certificate in support of his claim that he was suffering from illness. 13. This Court has also noted that from the records of the departmental proceeding produced by the respondent authorities, it is seen that the petitioner had submitted his written statement of defence on 6.03.2008 pursuant to the memorandum of charges which does not indicate of his continuing medical treatment. 13. This Court has also noted that from the records of the departmental proceeding produced by the respondent authorities, it is seen that the petitioner had submitted his written statement of defence on 6.03.2008 pursuant to the memorandum of charges which does not indicate of his continuing medical treatment. The said written statement submitted by the petitioner simply stated that during the period of absence for 61 days from 22.09.2007 to 21.11.2007 he was undergoing medical treatment and due to unavoidable family problems he could not apply for leave in time due to lack of knowledge and requested for pardoning him. Therefore, the fact that the petitioner could submit his written statement of defence on 6.03.2008 would negate his claim that the petitioner was still undergoing treatment at that time (September, 2007 to November, 2009). This Court fails to understand what prevented the petitioner to submit the medical certificates/records to the authority to show that he was undergoing treatment at that time when he could submit his written statement on 6.3.2008. Thus, this Court on perusal of the records, is of the view that there is no credible material document/evidence to show that the petitioner was indeed suffering from Bipolar illness as claimed by him. The absence of any medial document/records for the aforesaid period except for the certificate issued by the doctor at a very belated stage does not inspire confidence of the Court to accept the plea of the petitioner that he was indeed suffering from illness during the aforesaid period of 61 days and thereafter. The inability of the petitioner to explain the delay in approaching the authorities in the year 2009 even after he was certified fit to resume his duties as per the medical certificate dated 10.11.2009 would cast a serious doubt on the genuineness of his claim that he was suffering from a debilitating illness which prevented him from attending the departmental inquiry or to inform his superior authorities about his illness. 14. As regards the various decisions of the Supreme Court relied on by the petitioner, this Court is of the view that these are not applicable in the facts and circumstances obtaining the present case. As regards the contention of vagueness of grounds of the charges, this Court fails to understand how the charges levelled against him as reproduced in para 4 of this judgment can be said to be vague. As regards the contention of vagueness of grounds of the charges, this Court fails to understand how the charges levelled against him as reproduced in para 4 of this judgment can be said to be vague. The charge No. 1 is very specific, the petitioner of being absent from 22.09.2007 to 21.11.2007 without permission from the competent authority. As regards the charge No. 2, the said charge was based on the service book record which specifically mentions about awarding of 18 days EOL on different occasions for 520 days during his service period of 8 years 5 months 20 days. The charge that he had been awarded 18 times EOL for 520 days during his service period cannot be said to be a vague one. In the aforesaid case of A. Venkata Raidu (supra) the charge against the charged officer which was said to have been proved was that while functioning as a General Manager of the Corporation he had violated the orders issued by the Government from time to time in connection with the deposit of funds. The Supreme Court observed that the authorities should have mentioned the particulars of the Government orders which are said to have been violated. It was observed that even copies of the said Government orders or directions were not placed before the Enquiry Officer. Therefore, in that context, it was held that the charge was vague. This is not the case here where the details of the charges have been mentioned. Similarly, in the case of Anant R. Kulkarni (supra) case, some of the charges were to the effect that the charge officer did not submit the dead stock in respect of several losses. He did not submit the documents such as fees, voucher files, etc. and he did not explain the excessive telephone bills in his letter etc. These are some of the charges. The Hon'ble Supreme Court was of the view that these charges without specific further elaboration were vague. This Court is of the opinion that the aforesaid judgment cannot be of any assistance to the petitioner as in the present case the charges are specific and cannot be said to be vague. These are some of the charges. The Hon'ble Supreme Court was of the view that these charges without specific further elaboration were vague. This Court is of the opinion that the aforesaid judgment cannot be of any assistance to the petitioner as in the present case the charges are specific and cannot be said to be vague. Secondly, coming to the contention of the petitioner that the petitioner had been penalised twice for the same offence, a perusal of the record would show that the aforesaid 2nd charges of being habitual absentee was in support of the first charge of prolonged absence of 61 days. It is not the case of the petitioner that the charge No. 1 of being absent of 61 days was not proved. Had it been the case, this Court would have agreed with the contention of the petitioner that the petitioner could not have been imposed the penalty of removal from service merely on the basis of charge No. 2 that he had been awarded 18 times EOL on earlier occasions. The order of penalty of removal was imposed on him because of the fact that he was found to have been absented for 61 days in the context of his earlier habitual absence as per record and this past service was taken into consideration. It is also to be noted that the petitioner was given due notice of the aforesaid habitual absence in the past to explain his conduct in the departmental proceeding. It may be noted that relying of past record of an employee is permissible, if reasonable particulars and opportunities are given, as observed by the Supreme Court in the case of K. Manche Gowda (supra) relied on by the petitioner himself. In para 8 of the judgment, the Hon'ble Supreme Court observed as follows: "8. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge 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 entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevent the punishing authority from taking that fact into consideration during the 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 should be given reasonable opportunity to know the fact and meet the same." Thus in the present case, the petitioner had been given ample opportunity to explain himself about his past service which also formed the basis for imposing the penalty of removal by making it the second charge. This Court is of the view that the past service had been invoked primarily for the purpose to show that the petitioner is a habitual absentee regarding which he was given proper opportunities of being heard and as such, this Court is of the opinion that it cannot be said to be case of double jeopardy. 15. The next contention of the petitioner is that in absence of a finding recorded by the Enquiry Officer that the absence of 61 days was wilful and deliberate, the departmental enquiry is vitiated relying on the decision of the Chhel Singh (supra), Krushnakant B. Parmar (supra) and Geetaben Ratilal Patel (supra). In Chhel Singh's case, though the Hon'ble Supreme Court observed that the finding of wilful absence is necessary in departmental proceeding for the purpose of taking action, the said observation was made in the context of the fact situations obtained therein. In Chhel Singh's case, though the Hon'ble Supreme Court observed that the finding of wilful absence is necessary in departmental proceeding for the purpose of taking action, the said observation was made in the context of the fact situations obtained therein. In the said case, the charged officer had submitted a list of 7 witnesses in his defence of which only 2 were examined and the Enquiry Officer refused to call rest of the 5 witnesses on the ground that the presenting officer of the Bank was ready to answer the questions on behalf of them. Further, the charged officer also submitted copies of medical certificates issued by the doctor in support of his claim after the authorities rejected his joining report, which were not considered by the authorities. It was in that context that the Hon'ble Supreme Court held that in absence of a finding by the disciplinary authority or the Enquiry Officer that absence was wilful or that the medical certificates were not genuine, the departmental enquiry was held to be vitiated. As mentioned above, in the present case, at no point of time, the petitioner had enclosed any document or medical certificate in support of his claim of illness except the medical certificate issued by a doctor on 10.11.2009 belatedly after filing of the writ petition in his reply affidavit. This Court has already observed that the said certificate submitted belatedly before the Court, in absence of any other corroborating or supporting medical documents could not be relied upon for a reconsideration of the matter. Accordingly, this Court is of the view that the said decision of the Hon'ble Supreme Court rendered in Chhel Singh (supra) will not apply in the present case. Similarly, in the case of Krushnakant B. Parmar (supra), the charge of absence arose out of certain transfer orders. It was contended by the charged officer that he was prevented from signing the attendance register and perform his duty after he reported for duty. Therefore, in that context, it was held by the Hon'ble Supreme Court that if the absence was not wilful and was due to compelling circumstances beyond his control, the absence could not be said to be lack of devotion of duty or maintenance of integrity which is unbecoming of a government servant as provided under Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. The charged officer had explained his absence to the respondent authority that he was prevented from joining his duty. In the present case, even though the petitioner had stated that he was undergoing treatment for 61 days as mentioned in his statement of defence submitted on 6.3.2008, he did not submit any medical certificate or document or evidence to the authority to show that he was indeed suffering from illness which prevented him from joining his duty. The only document he has produced is a medical certificate issued on 10.11.2009, that too, belatedly in course of the proceeding before this Court, which this Court has already observed to be non-reliable. In the case of Geetaben Ratilal Patel (supra), the charged teacher had remained absent for a long period. However, there was a finding recorded by the Commissioner for Persons with Disabilities that the teacher was suffering from 40% to 70% mental disability and accordingly, held the order of dismissal to be void. The Commissioner held that the said dismissal order was issued in violation of section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Thus, the case was in the context of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In the present case, as already discussed above, the petitioner has miserably failed to produce any credible material or record before the authorities which would support his claim that the petitioner had remained absent during the said period on account of his illness. Since, the petitioner has claimed that his absence was on account of his illness it was incumbent upon him to show with necessary supporting document that he was indeed suffering from illness, which prevented him from attending his duty. Only after he is able to show with credible material that he was indeed seriously ill, that the question will arise whether it was such an illness that it prevented him from attending his duties and as such was beyond his control and hence not wilful. It may be observed that the Supreme Court did not lay down any general proposition of law that for every absence for any reason whatsoever, the authorities have to prove that it was wilful. It may be observed that the Supreme Court did not lay down any general proposition of law that for every absence for any reason whatsoever, the authorities have to prove that it was wilful. In all these cases cited, the charged officials had produced materials to show that they were not well or that they were prevented by compelling circumstances from attending duties. It was in that context that the Supreme Court made the observations that even if the absence is said to be unauthorised, it may not amount to wilful negligence of duty to attract penalties. It was first required to be proved/established with credible evidence/material that the petitioner was suffering from illness because of which he could not attend his duties and remained absent. Once it is established that the petitioner was suffering from illness, it would have been incumbent upon the Department to prove that it was not such a sickness that it prevented him from joining his duty, thus to show his deliberate and wilful absence. In the present case, as he has failed even to show that he was indeed suffering from illness as claimed by him during the period of absence, the question of considering as to whether his absence was wilful or not does not arise. Accordingly, this Court is of the view that the decisions relied on by the petitioner would be of no assistance to his case. 16. Coming to the other decisions in Mohd. Yunus Khan (supra) as well as in K. Manche Gowda (supra), as regards the use of reference to past conduct, the Supreme Court in the said cases have clarified that the discipline authority could consider past conduct if the charge officer has been given sufficient notice and opportunity of being heard for the same. In the present case, the petitioner was also given opportunity to explain his position as regards his past habitual absence. 17. Accordingly, for the reasons discussed above, there is no merit in this writ petition and the same is dismissed, however, without any cost.