JUDGMENT (Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 8.12.2017 passed in W.P.No.24162 of 2012 by the learned Single Judge.) A.P. Sahi, CJ. 1. This appeal by the Superintendent of Police, Railways, questions the correctness of the impugned judgment dated 8.12.2017 of the learned Single Judge, whereby the writ petition filed by the respondent/writ petitioner praying for quashing of the order of compulsory retirement as a punishment against him has been set aside with a direction to reinstate the respondent/writ petitioner without backwages. 2. The charge against the respondent/writ petitioner was to the following effect: “Irreprehensible conduct, based on which Constable 1224 Hariharan, Podanur Railway Police Station against the proposed charges: Constable 1224 Hariharan while serving in Podanur Railway Police Station entered medical leave from 6.7.10 to 2.8.10 for a period of 27 days and thereafter did not appear for duty from 2.8.10 continuously for more than 21 days without leave or permission of higher officials voluntarily, thereby he was declared as a deserter w.e.f. 2.8.10 and confirmed his desertion, thereby committed irreprehensible conduct.” The statement of allegations in support thereof is as follows: “Constable 1224 Hariharan, serving in Podanur Railway Station voluntarily without leave passport admitted himself in the Coimbatore Govt. Police Hospital from 6.7.10 as In-patient. The information was received from the hospital and thereafter on 7.7.10 at about 12.00 PM, passport was issued to him. He was on medical leave from 8.7.10 to 22.7.10 for a period of 15 days and thereafter on 21.7.10, he came to the police station. He was issued with a passport in order to utilize the medical leave for 13.00 hrs. According to the passport, he has to report for duty on 23.7.10, but he did not report for duty. He entered medical leave for a period of 15 days from 23.7.10 and again he appeared before the police station on 30.7.10 and he was issued with a medical passport for 14.00 hrs. According to the passport he has to report for duty on 2.8.10. From 2.8.10 without permission of the higher officials and without leave, voluntarily he has absented from duty continuously for 21 days and it was completed on 22.8.10. Hence he was declared as a deserter as per PSO Vol.I Sec.95(1) and DPO No.278/2010 (Na.Ka.No.8140/2010) dt 27.8.10 and the said charge memo was issued to him on 5.9.10. From 2.8.10 without permission of the higher officials and without leave, voluntarily he has absented from duty continuously for 21 days and it was completed on 22.8.10. Hence he was declared as a deserter as per PSO Vol.I Sec.95(1) and DPO No.278/2010 (Na.Ka.No.8140/2010) dt 27.8.10 and the said charge memo was issued to him on 5.9.10. As per DO No.270 dt 28.7.10, he has to report for duty on the next hearing, i.e. before 17.9.10 before the Superintendent of Police and explain the reason for his absence and inspi9te of the above information, he did not appear before the Supdt of Police on that date and hence the desertion order issued to him on PSO Vol.I Sec. 95(1) dt 1.10.10 was confirmed by the District DO No.436/2010 dt 1.10.10 (Na.Ka.No.B3/9143/2010) and the said confirmation order was served on 14.10.10. The Constable has absented from duty without leave or permission from the police station and he did not inform his whereabouts to the police station voluntarily w.e.f. 2.8.10 continuously for 21 days, thereby he has committed irreprehensible conduct.” 3. The respondent/writ petitioner, after holding of the enquiry, was punished with the penalty of compulsory retirement from the post of Police Constable. 4. The writ petition giving rise to this appeal assailed the said order and the learned Single Judge has allowed the writ petition holding in paragraph (15) as follows: “15. As rightly pointed out by the learned counsel for the petitioner that the entire disciplinary action which culminated into imposition of penalty of compulsory retirement from service is vitiated. First of all, on the ground that no proper enquiry was conducted against the petitioner in terms of rule position. Further, the enquiry report copy was not furnished to the petitioner. The order passed by the Disciplinary Authority on the basis of flawed findings cannot also be sustained in law and even otherwise without adhering the mandatory procedure for furnishing of enquiry report, such penalty cannot be imposed on him. Further, the opportunity of appeal being considered on merits has also not been given. Then, in the present case, the appellate authority's decision to reject the appeal as time barred without appreciating the explanation submitted by the petitioner, is without justification.” 5. Further, the opportunity of appeal being considered on merits has also not been given. Then, in the present case, the appellate authority's decision to reject the appeal as time barred without appreciating the explanation submitted by the petitioner, is without justification.” 5. After having found the proceedings to be vitiated on account of non supply of enquiry report, the learned Single Judge further in paragraphs (16) and (17) held as follows: “16. Learned counsel for the respondents would submit that the petitioner was in the habit of frequently absenting without informing to the department. In any event, the following order is passed for giving a last opportunity to the petitioner to correct himself in future. In case, the petitioner is going to continue with this attitude of absenteeism without proper reasons and without getting permission from the department, it is always open to the respondents to proceed against him, as they may be advised in future. 17. For all the above reasons, the petitioner is entitled to succeed. However, in view of the fact that the petitioner was absent without giving proper reasons, continuously for several weeks and such conduct does advance the cause of discipline, the petitioner has to be imposed with punishment of forfeiture of backwages as a method of corrective measure so that in future, he does not absent or commit any misconduct during his service.” 6. The contention of the learned counsel for the State is that the impugned judgment proceeds on clear erroneous assumptions of fact, particularly with regard to non supply of enquiry report to the respondent/writ petitioner. 7. On an earlier occasion, we had adjourned the matter to enable the learned counsel for the State to confirm as to whether any such enquiry report was served on the respondent/writ petitioner or not, inasmuch as the counter affidavit filed before the learned Single Judge recited the serving of an enquiry report on 4.3.2011. Today, learned Government Advocate has produced before us the copy of the enquiry report which bears an endorsement of the respondent/writ petitioner having received the copy of the enquiry report on 29.3.2011. This fact, being a matter of record, has nowhere been denied by the respondent/writ petitioner. Consequently, the assumption by the learned Single Judge of an erroneous fact of non supply of enquiry report vitiates the impugned judgment, as it is against record. 8. This fact, being a matter of record, has nowhere been denied by the respondent/writ petitioner. Consequently, the assumption by the learned Single Judge of an erroneous fact of non supply of enquiry report vitiates the impugned judgment, as it is against record. 8. On the issue of punishment, the learned Single Judge has proceeded to record that the respondent/writ petitioner had indulged in absenteeism, as is evident from the findings recorded herein above. The law on this issue is well settled that once a Court of law comes to the conclusion that the punishment is shockingly disproportionate, then the course open is for a remittal of the matter to the disciplinary authority for assessing as to whether a lesser punishment would be necessary on the facts of a particular case. The learned Single Judge after having found the respondent/writ petitioner to have indulged in absenteeism, instead of adopting the above said procedure and recording a finding of the penalty being shockingly disproportionate, abruptly converted the punishment of compulsory retirement into reinstatement without backwages. We do not find this to be justified, more so in the absence of any analysis of the doctrine of proportionality on the issue of the extent of the punishment to be meted out on the findings arrived at, particularly when in paragraph (17) the learned Single Judge himself found the respondent/writ petitioner to have indulged in such acts in the past. 9. On the aforesaid two grounds, the appeal has to succeed. 10. Learned counsel for the respondent/writ petitioner submits that he had no occasion to question the correctness of the judgment, even though there was an adverse finding against him, which also cannot be sustained in as much as the charge memo issued to him no where indicated that the respondent/petitioner would be tried for the said charge also on the basis of his past conduct. He contends that had any opportunity been given to him, after narrating his past conduct, he would have been in a better position to respond to the same by placing any mitigating circumstances in order to assess the nature of the punishment or even exonerate him from the charges. He contends that had any opportunity been given to him, after narrating his past conduct, he would have been in a better position to respond to the same by placing any mitigating circumstances in order to assess the nature of the punishment or even exonerate him from the charges. We find this to be clearly borne out from a perusal of the charge memo, which does not narrate any such incident of past conduct, but while awarding punishment the aforesaid factor has been taken into account and so also the learned Single Judge narrated it in paragraph (17) of the impugned judgment. We, therefore, find that this procedure has not been adopted, which is in violation of PSO 80(8)(a) and (b) of the Tamil Nadu Police Standing Orders, which are extracted herein under: “PSO 80. Procedure prior to reduction, compulsory retirement, removal or dismissal:— .... (8) (a) An Officer’s past record should not be taken into account in arriving at a finding as to the truth or otherwise of the charges against him. If the past bad record of an officer is proposed to be taken into account in determining the penalty to be imposed it should be made a subject matter of a specific charge either in the main charge sheet issued in the first instance or in the form of an additional charge sheet issued before the commencement of an enquiry in respect of the main charge-sheet and the person charged should be afforded all the facilities necessary for enabling him to meet his allegations based on past record. (b) In his explanation the delinquent cannot question the propriety of the punishments already awarded to him as they have been or could have been dealt with by appeal; he can, however, claim extenuating circumstances.” 11. Having considered the submissions raised, we find that the past conduct as narrated in the counter affidavit had not been disputed by the respondent/writ petitioner, but the question as to whether the respondent/writ petitioner was in a position to explain the same or not could have been considered while dealing with the proportionality of punishment. 12. Having considered the submissions raised, we find that the past conduct as narrated in the counter affidavit had not been disputed by the respondent/writ petitioner, but the question as to whether the respondent/writ petitioner was in a position to explain the same or not could have been considered while dealing with the proportionality of punishment. 12. We, therefore, find that the matter can be revisited and for that there is a recital contained in the counter affidavit of the appellants filed before the learned Single Judge that the respondent/ writ petitioner had filed a representation before the Director General of Police, which can be entertained within six months for review of any order of punishment. The said representation has also been indicated to have been not disposed of and was then pending. For this, learned counsel for the respondent/writ petitioner has invited the attention of the Court to Rule 15A of the Tamil Nadu Police (Discipline and Appeal) Conduct Rules, 1955, where the following provisos indicate the existence of such a remedy that can be availed of by a delinquent. Provisos to Rule 15A(2) of the 1955 Rules read as under: “Rule 15A(2) No proceeding for review shall be commenced until after.- ..... Provided that members of the constabulary (Police Constables and Head Constables) shall be eligible to make one representation to the Government against the orders of dismissal or removal from service after exhausting the right of appeal. Provided further that no application for review shall be entertained if it has not been made within a period of six months from the date of receipt of the order on which such application for review is preferred.” 13. We, therefore, remit the matter back to the Director General of Police, as appeal of the respondent/writ petitioner had been rejected on the ground of delay. In the given circumstances and in the light of the observations made herein above, the issue of proportionality of the punishment may have to be gone into and for that we permit the respondent/writ petitioner to pursue the aforesaid remedy, for which he will be entitled to move a fresh representation along with a certified copy of this order and the Director General of Police shall be obliged to look into the same and pass appropriate order within six weeks of the presentation thereof. 14. 14. In the result, the appeal is allowed and the impugned judgment of the learned Single Judge is set aside with the above directions. No costs. Consequently, C.M.P.No.27416 of 2019 is closed.