ORDER : 1. The petitioner in this writ petition has called in question the order of dismissal dated 30.12.2016, passed by the respondents-Hindustan Aeronautics Limited (hereinafter referred to as ‘HAL’ for short) dismissing the petitioner from service on the allegations of unauthorized absence and the order of the Appellate Authority dated 06.07.2017, affirming the order of dismissal. 2. Brief facts of the case leading to the filing of the writ petition, borne out from the pleadings are as follows:- The petitioner joined the services of the HAL in Research and Design Division as Engineer, Grade-II and worked at the Division located in Bengaluru for about one year and six months. During his service at Bengaluru, the petitioner developed serious health issues and got affected with chronic bronchitis and asthma. The problem of the petitioner was attributed to the weather of the City of Bengaluru. 3. The petitioner submitted a representation to the respondents-HAL to transfer him to the Detachment Air Force Station at Tambaram, Chennai. The request was acceded to and the petitioner was transferred to Chennai in the month of July, 2008 and worked in the same cadre upto 07.05.2015. During his tenure at Chennai, the petitioner was issued with a charge-sheet dated 15.02.2012, alleging unauthorised absence for 53 days which culminated in imposition of penalty of censure. After which, again on the misconduct of the unauthorized absence, another charge-sheet was issued on 10.03.2015, which culminated in imposition of penalty of stoppage of one increment with cumulative effect. Appeal filed challenging the aforesaid penalties were also rejected. 4. It is after these proceedings, the petitioner was again posted back to Bengaluru. At Bengaluru, the petitioner again remained unauthorisedly absent for about 103 days, which lead to issuance of another charge-sheet dated 30.01.2016, which culminated in imposition of a penalty of dismissal from service in terms of the order of the Disciplinary Authority dated 30.12.2016. The appeal filed by the petitioner against the said order also came to be dismissed. It is these orders that are called in question by the petitioner in the subject writ petition. 5. Heard Sri. Subba Rao, learned senior counsel for Sri. Satheesha N. learned counsel for petitioner and Sri. Syed Kashif Ali, learned counsel for the second respondent. 6. The appeal filed by the petitioner against the said order also came to be dismissed. It is these orders that are called in question by the petitioner in the subject writ petition. 5. Heard Sri. Subba Rao, learned senior counsel for Sri. Satheesha N. learned counsel for petitioner and Sri. Syed Kashif Ali, learned counsel for the second respondent. 6. Learned senior counsel appearing for the petitioner would submit that the unauthorized absence of the petitioner was on account of severe bronchitis that was brought about due to weather conditions prevailing in the City of Bengaluru and with regard to certain periods of unauthorized absence from the workplace at Tambaram, Chennai and he has justified the same with adequate medical certificates. 7. He would contend that unauthorised absence that led to imposition of dismissal from service was on account of severe bronchitis again which cannot by any stretch of imagination said to be willful. Unless the misconduct is said to be willful, it cannot result in extreme penalty of dismissal from service. The learned senior counsel would place reliance upon the judgments of the Apex Court in the cases of Coal India Ltd. vs. Mukul Kumar Choudhuri, (2009) 15 SCC 620 and Krushnakant B. Parmar vs. Union of India, (2012) 3 SCC 178 . 8. On the other hand, learned counsel for the second respondents would vehemently argue and contend that the petitioner has been in the habit of remaining unauthorisedly absent right from the date of his employment. The assessment of the doctor that the petitioner should seek transfer to some other place other than Bengaluru was of the year 2008 and the same cannot be pressed into service in the year 2015. He would place reliance upon the judgments of the Apex Court in the cases of North-Eastern Karnataka Rt. Corporation vs. Ashappa, (2006) 5 SCC 137 , Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 and Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 and submits that misconduct of unauthorized absence cannot be pardoned and the dismissal is the only penalty that can be imposed upon for such unauthorised absence. 9. I have given my anxious consideration to the rival submission made by the learned counsel for the parties and perused the material on record. 10. 9. I have given my anxious consideration to the rival submission made by the learned counsel for the parties and perused the material on record. 10. The petitioner joined the services of the respondents-HAL as Engineer, Grade II in Research and Design Division at Bengaluru, in the year 2007. While working at Bengaluru, the problem of asthma which the petitioner was suffering became chronic and began to remain absent on account of asthma. The petitioner was examined by the doctor of the HAL Hospital and on such examination, the doctor advised the petitioner to seek transfer to some other place as he had by then became a chronic patient of asthma. The opinion of the doctor reads as follows: “The patient is a chronic patient of Br. Asthma and the Bengaluru weather is unsuitable. He is advised to go on leave and visit a dry area like Chennai which he is willing to go. So kindly he needs leave further & visit his native place CHENNAI. Dr. HCAS for needful. Sd/- 13.8.2008 ER 1180.” It is after this examination by the doctor, the petitioner gave a representation seeking transfer from HAL, Bengaluru, to the Detachment Air Force Station, Tambaram, Chennai. 11. When the petitioner was working at Tambaram, Chennai, he remained unauthorisedly absent on two occasions of 52 and 122 days, which culminated in issuing two charge-sheets respectively. Both the charge-sheets resulted in imposition of penalty of censure and stoppage of one increment respectively. In the month of March, 2014, the petitioner was retransferred back to Bengaluru before he could complete his seven years tenure that he was posted to work at Tambaram, Chennai. On coming back to Bengaluru, he joined the duties and the petitioner again began to remain absent due to chronic asthma for different spells between February, 2015 to January, 2016, totaling 103 days. 12. On an allegation that the petitioner remained absent without any prior sanction of leave/permission, a charge-sheet was issued against him on 30.01.2016. The petitioner gave an explanation in reply to the charge-sheet on 08.03.2016 for unauthorised absence of 103 days. The explanation given in the reply for the charge-sheet reads as follows: “(2) In this connection, I submit my explanation for taking leave for above periods as noted below: February 2015: For all the spells of leave, I have produced medical certificates along with leave applications. The explanation given in the reply for the charge-sheet reads as follows: “(2) In this connection, I submit my explanation for taking leave for above periods as noted below: February 2015: For all the spells of leave, I have produced medical certificates along with leave applications. March 2015: For all the days noted in the charge-sheet, I have submitted leave applications along with medical certificates. May 2015: I have submitted leave applications for 1/05, 4/05, 5/05 and 6/05 with medical certificates. From 13/05 to 15/05, I was admitted as Inpatient in HAL Hospital in Bangalore and copy of History Sheet is attached herewith for proving that fact. Moreoever, I have intimated about my inpatient treatment to the Officer-in-Charge over phone on 13.05.2015 morning itself. June 2015: I submit that I have sent intimation over phone for 23/06, 24/06, 27/06 and 30/06 and message also sent for those days. July 2015, August 2015, September 2015, October 2015, November 2015 and December 2015: I have availed leave by giving intimation for all spells of leave mentioned in the charge-sheet, for those days and message also sent. January 2016: I have intimated availing of leave on medical ground for 02.01.2016, 05.01.2016, 06.01.2016, 22.01.2016 and 25.01.2016. On 27th January 2016, I attended office and fallen ill suddenly and admitted as inpatient in the HAL Hospital, ICU and I was discharged on 28.01.2016. (3) From my above submission, it will be evident that I have taken leave on medical ground and not on any personal ground. I may add that taking of frequent spells of leave caused on account of I am being Acute Exacerbate of Bronchial Asthma and the climate condition of Bangalore is not suitable for a patient like me. For that purpose only, I sought for the transfer to Tambaram base during March 2014, but I was reposted to Bangalore during May 2015 and within one year period, before completion of my tenure. This will prove that I was purposely given inconveniences only on account of I am belonging to poor Dalit community. This will be known from the fact that no officer of my rank has been disturbed like me from Tambaram Base, before completion of tenure. One official even after completion of tenure is being allowed to remain at Tambaram base till date. This will be known from the fact that no officer of my rank has been disturbed like me from Tambaram Base, before completion of tenure. One official even after completion of tenure is being allowed to remain at Tambaram base till date. By showing favouritism to one official, I am denied of my legitimate right to get transfer to Tambaram base.” In terms of the afore-extracted explanation, the petitioner accepted that he was absent without prior permission or applying leave before hand but submits that he has given leave applications along with the medical certificates and records of treatment taken at the HAL Hospital itself for all the spells of his unauthorized absence and prayed that the charge-sheet be withdrawn. Not being satisfied with the reply given by the petitioner, enquiry proceedings were sought to be conducted by the Enquiry Officer and Presenting Officer. Petitioner again replied for sympathetic consideration on the ground that he was suffering from Acute Bronchial Asthma and also furnished the medical certificates evidencing the said problem. 13. The Enquiry Officer held the petitioner ex-parte on the ground that the petitioner has failed to appear on several adjournments and held that the allegations against the petitioner as proved by the following findings: “(III) Analysis and findings: As per the evidence given by the MW-1. CSO has remained unauthorizedly absent for duty between 07 May 2015 (Date of reporting to duty at Overhaul Division, Bangalore) to 28 Jan, 2016 without prior intimation/sanction of leave due to which the day to day departmental work got affected. Further, MW-1 has also stated that CSO was in the habit of submitting his medical certificates in few occasions issued by Doctors of Primary Health Centre of Tamil Nadu for regularizing the unauthorized absence which was not considered and sanctioned as it was not as per the Company policy. As per the evidence given by the MW-2, CSO remained absent for 103 days during the period from February 14, 2015 to January 28, 2016. MW-2 did not receive any sanctioned leave letters against the days mentioned in the Charge-Sheet. From the above, it is established that CSO remained unauthorizedly absent from February 14, 2015 to January 28, 2016. As CSO is not attending the enquiry proceedings inspite of receiving sufficient communication, the committee has placed him ex-parte. MW-2 did not receive any sanctioned leave letters against the days mentioned in the Charge-Sheet. From the above, it is established that CSO remained unauthorizedly absent from February 14, 2015 to January 28, 2016. As CSO is not attending the enquiry proceedings inspite of receiving sufficient communication, the committee has placed him ex-parte. (IV) Findings Committee is convinced that the charges leveled against CSO in the Charge-Sheet are proved. Hence, committee holds CSO guilty of all charges leveled against him in the Charge-Sheet referred in the preamble.” Noticing that the petitioner was given time to reply to the findings of the Enquiry Officer and the fact that the petitioner had not replied, considered the past records of the petitioner in respect of unauthroised absence for 56 days and 103 days on which proceedings had already been conducted and penalty had been imposed, imposed an extreme penalty of dismissal from service. The petitioner filed a detailed appeal against the order of the Disciplinary Authority again narrating all the reasons stated in the leave application enclosing all the medical certificates obtained from time to time and the misconduct was not willful. The appeal also came to be rejected. 14. It is required to be noticed in terms of what is narrated hereinabove is that, the petitioner though remained unauthorisedly absent, admits the factum of being unauthorisedly absent, but justifies the same on the ground that it was not willful but due to Chronic Bronchial Asthma that he suffered had resulted in unauthorized absence. In view of the aforesaid explanation given by the petitioner to all the spells of absence pursuant to the charge-sheet dated 30.01.2016, which alleged unauthorized absence of 103 days, I am of the considered view that the misconduct of the petitioner was not willful. He had a plausible explanation for remaining absent, the problem of the petitioner was known to the respondents as it is the doctor of the respondent-HAL itself who had recommended that the petitioner should seek transfer outside Bengaluru in view of the weather at the Bengaluru not being conducive to the problem of the petitioner. 15. It is germane to consider the facts of the case at hand in the light of the law laid down by the Apex Court in the case of Coal India Ltd. vs. Mukul Kumar Choudhuri, (2009) 15 SCC 620 , has held as follows: “21. 15. It is germane to consider the facts of the case at hand in the light of the law laid down by the Apex Court in the case of Coal India Ltd. vs. Mukul Kumar Choudhuri, (2009) 15 SCC 620 , has held as follows: “21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.” The Apex Court in the subsequent judgment in the case of Krushnakant B. Parmar vs. Union of India, (2012) 3 SCC 178 , has held as follows: “16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct. 19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty. 20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani vs. Union of India, (2006) 5 SCC 88 : 2006 SCC (L&S) 919, wherein this Court held: (SCC p. 95, Para 25) “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty. 22. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom the appellant alleged bias refused to appear before the inquiry officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about the absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved.” (Emphasis supplied) In the light of the law laid down by the Apex Court in the afore-extracted judgments and in the facts of the case at hand, the misconduct of the petitioner was not willful. It is not proved or held to be willful by the Disciplinary Authority even in the order of penalty. The order of penalty impugned herein reads as follows: “Reference is made to the Letter No. O/HR/531(a)/3920/2016 dated 24.11.2016 forwarding a copy of the enquiry reports to you, seeking representation if any, against the findings of the Enquiry on or before 08.12.2016, you did not submit any representation. 2. I have gone through the Charge-Sheet, Proceedings of the Enquiry, report of the Enquiry Officer and all other connected papers/records of the case afresh. I observe from the records that you have not participated in the enquiry despite providing ample opportunities to defend your case. The enquiry was held in a fair manner following the Principles of Natural Justice. 2. I have gone through the Charge-Sheet, Proceedings of the Enquiry, report of the Enquiry Officer and all other connected papers/records of the case afresh. I observe from the records that you have not participated in the enquiry despite providing ample opportunities to defend your case. The enquiry was held in a fair manner following the Principles of Natural Justice. From the records, it is seen that the charges leveled against you are conclusively proved in the enquiry and the proven charges constitute misconducts under the purview of HAL CDA Rules 1984. 3. On perusal of your past records, it reveals that you were awarded with the following: (i) Charge-sheeted during February 2012 for unauthorized absence of 121 days during the period from 01.01.2011 to 31.12.2011. Subsequently, letter of Censure was issued during October 2012. (ii) You were counseled on 26.02.2014 for unauthorized absence and you had committed during the counseling that you will be regular for duty failing which action can be initiated. (iii) Charge-Sheeted during March, 2015 for unauthorized absence for 56 days during the period from March 2014 to Feb 2015 and imposed with a punishment of “Stoppage of one Increment with cumulative effect during September, 2015. (iv) Considering all aspects, past records and also taking into consideration the gravity of the misconduct, I hereby impose the punishment of “Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or a Corporation/Company owned or controlled by the Government” as a specific punishment under Rule 6(ii) (j) OF HAL CDA Rules, 1984 of the Company as amended from time to time.” (Emphasis added) The other factor that would vitiate the order of penalty is that, the order takes within its sweep past misconduct and penalty is imposed upon such past misconduct without issuing a notice to the petitioner for the same. The second show cause notice issued to the petitioner enclosing the report of the Enquiry Officer, reads as follows: “This has reference to the Charge-Sheet No. O/HR/531(a)/323/2016 dated 30.01.2016 issued to you and the Departmental Enquiry held into the charges leveled against you. The Departmental Enquiry Committee has, after holding the enquiry into the charges in which you have not participated, submitted its report. A copy of the reports of the enquiry is sent herewith. 2. The Departmental Enquiry Committee has, after holding the enquiry into the charges in which you have not participated, submitted its report. A copy of the reports of the enquiry is sent herewith. 2. If you have any representation to make against the findings of the enquiry you are required to do so in writing so as to reach the undersigned by 08.12.2016 before a decision is taken on the said enquiry report.” The notice nowhere indicates that the Disciplinary Authority would take into consideration of the past misconduct of the petitioner and without putting the petitioner to notice, the order of penalty (supra) could not have been imposed on the basis of the past misconduct. Therefore, the order of penalty stands vitiated as it considers the misconduct of unauthorized absence in the month of February, 2012, which ended in imposition of censure and of 56 days which ended in stoppage of one increment with cumulative effect and does not speak about present misconduct. Therefore, the imposition of the penalty on past misconduct without putting the petitioner on notice of the same is in violation of principles of natural justice. The Apex Court in the case of Indu Bhushan Dwivedi vs. State of Jharkhand, (2010) 11 SCC 278 , read as follows: “13. The Division Bench of the High Court first considered the question whether the past adverse record could be considered for imposing the punishment of dismissal, referred to the judgment of the Constitution Bench in State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506 : (1964) 4 SCR 540 , as also the judgment in State of U.P. vs. Harish Chandra Singh, (1969) 1 SCC 403 : AIR 1969 SC 1020 and held that when the High Court proposed the punishment of dismissal from service and the appellant himself made a request in Para 17 of his reply that his past record may be considered, no prejudice can be said to have been caused to him on account of consideration of the adverse reports. 21. This Court approved the view taken by the High Court and observed: (Manche Gowda Case AIR 1964 SC 506 : (1964) 4 SCR 540 , AIR pp. 509-510: (Para 7) “7. 21. This Court approved the view taken by the High Court and observed: (Manche Gowda Case AIR 1964 SC 506 : (1964) 4 SCR 540 , AIR pp. 509-510: (Para 7) “7. Under Article 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 the decision of this Court in State of Assam vs. Bimal Kumar Pandit, 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 punishments 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. 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. 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.” (Emphasis supplied) The proposition laid down in the above-noted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. 27. The Court referred to the arguments urged on behalf of the State and observed: [Harish Chandra Singh Case (1969) 1 SCC 403 : AIR 1969 SC 1020 , SCC p. 406, Paras 8-9] “8. 27. The Court referred to the arguments urged on behalf of the State and observed: [Harish Chandra Singh Case (1969) 1 SCC 403 : AIR 1969 SC 1020 , SCC p. 406, Paras 8-9] “8. The learned counsel for the State contends that on the facts of this case it is clear that the plaintiff had notice that his record would be taken into consideration because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff. In the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show-cause notice that his past record would be taken into consideration. 9. It seems to us that the learned counsel is right on both the points. The concluding Para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police, and we are unable to appreciate what more notice was required. There is also force in the second point urged by the learned counsel. In State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506 : (1964) 4 SCR 540 , the facts were that the government servant was misled by the show-cause notice issued by the Government, and but for the previous record of the government servant the Government might not have imposed the penalty of dismissal on him. This is borne out by the following observations of Subba Rao, J. as he then was: (AIR p. 510, Para 9) “9. In the present case the second show-cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of Paras 3 and 4 of the order of dismissal shows that but for the previous record of the government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the enquiry officer and the Public Service Commission. This order, therefore, indicates that the show-cause notice did not give the only reason which influenced the Government to dismiss the respondent from service.” 28. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/ competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment.” (Emphasis supplied) In the light of the law laid down by the Apex Court, the order of penalty becomes illegal and unsustainable for the aforesaid reason. 16. Insofar as the judgments relied on by the learned counsel for the respondents-HAL, in the case of Gunasekaran (supra) or Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 and North-Eastern Karnataka Rt. Corporation vs. Ashappa, (2006) 5 SCC 137 . Those judgments are rendered on the facts obtaining in those cases as the misconduct alleged was of unauthorized absence which was held to be habitual and in gross violation of discipline. In the case of Bishamber Das Dogra (supra), the Apex court in the Paragraphs 22 and 23, has held as follows: 22. This Court in State of Assam vs. Bimal Kumar Pandit, AIR 1963 SC 1612 , considered the issue as to whether while imposing the punishment it is permissible to take into consideration the past conduct of an employee if it is not so mentioned in the second show-cause notice. This Court in State of Assam vs. Bimal Kumar Pandit, AIR 1963 SC 1612 , considered the issue as to whether while imposing the punishment it is permissible to take into consideration the past conduct of an employee if it is not so mentioned in the second show-cause notice. The Apex Court in the later decision in the case of Indu Bhusan (supra) has held after considering the judgment of Bimal Kumar Pandit (supra) has held to the contrary that an employee has to be put on notice if past conduct is forming a part of the final order of penalty. 17. In view of the preceding analysis, in my considered view the extreme penalty of dismissal from service upon the petitioner is disproportionate, to the alleged misconduct in the peculiar facts and circumstances of this case as the absence is not held or proved to be willful. The penalty of dismissal of service imposed upon the petitioner being disproportionate to the misconduct requires to be modified with the imposition of a lesser penalty which will not amount to cessation of service. The modification of penalty that is imposed by the disciplinary authority unless, in an exceptional circumstances, is a realm of the powers of the Disciplinary Authority. Therefore, the matter is to be remitted back to the Disciplinary Authority for reconsideration of the penalty imposed and for imposition of a lesser penalty which will not amount to cessation of service of the petitioner. 18. For the aforesaid reasons, the following: ORDER: (a) The writ petition is allowed in part. (b) The order of dismissal dated 30.12.2016 of the second respondent, which is confirmed by the order dated 06.07.2017, of the third respondent are quashed. (c) The matter is remitted back to the respondents-HAL to reconsider the penalty of dismissal from service by imposition of any lesser penalty upon the petitioner, within a period of three months from the date of receipt of a copy of the order. (d) All consequential benefits that would flow from the quashing of the order of penalty shall be subject to further orders passed by the Disciplinary Authority in terms of clause (c). Ordered accordingly.