- (1.)THE main points raised in this Writ Petition are,(a) Whether the Disciplinary Authority has to issue a show cause notice, before inflicting a major penalty of removal, dismissal, compulsory retirement or reduction in rank, when he takes into consideration the previous penalties suffered by a delinquent.(b) Whether it is obligatory on the Disciplinary/Appointing Authority to include the previous penalties, as part of a charge memo.
(2.)IT is the case of the petitioner that he joined the Police Department as Grade-II Police Constable on 15.01.1995 and was dismissed from service, even before the completion of his training. Pursuant to the directions of the Government, he was reinstated in service. Thereafter, he was served with a charge memo in P.R. No,23/97, alleging that he had deserted the force without prior permission. The Deputy Superintendent of Police, Armed Reserve, Enquiry Officer, in his report, dated 15.04.1997, held that the charge as proved. A memo, dated 27.04.1997 was issued to the petitioner, calling upon him to submit his further representation on the said report. The Superintendent of Police, Kancheepuram District, third respondent herein, dismissed the petitioner from service, on the ground of desertion. According to the petitioner, the Appeal preferred to the DIG of Police, Chengalpet Range, second respondent herein, was rejected on 24.10.1997 by a non-speaking order. Statutory Review Petition, dated 02.03.1998, submitted to the Inspector General of Police, Law and Order, Chennai, first respondent herein, was also rejected on 06.08.1998. Assailing the orders passed by the statutory authorities, the petitioner has come forward with the present Writ Petition.
Referring to the observations of the Disciplinary Authority that the petitioner was a chronic deserter absentee and that he had earned three punishments, including dismissal from service, reduction of pay and Black Mark during the Training period of the years 1976, 1993 in P.R. Nos.84/76, 52/93 and 132/93 respectively and the further observations that inspite of heavy punishments already awarded to the delinquent, he had not mended his ways, but continued to repeat his delinquency of desertion, learned counsel for the petitioner submitted that when the Disciplinary Authority had considered the past conduct of the petitioner as one of the reasons for imposing a major penalty of dismissal from service, he should have given an opportunity to the petitioner to explain the cause or facts, which lead to imposition of penalties stated supra and failure to do so, has resulted in violation of Article 311(2) of the Constitution of India.

Learned counsel for the petitioner further submitted that if the previous conduct of the petitioner forms part of the major penalty, the same ought to have been put on notice to him, before inflicting the penalty and that would have helped the delinquent to putforth, before the Disciplinary Authority, many mitigating circumstances or some other reasonable explanation, as to why those punishments were awarded to him or subsequent to the punishment, he had served with the satisfaction of the authority till the initiation of the present disciplinary proceedings, which culminated into a major penalty of dismissal from service. According to him, it is incumbent on the part of the Disciplinary Authority to give the Government servant, at the second stage, a reasonable opportunity to show cause, if the proposed punishment is based on previous punishments or past record of service. Reliance is based on a Constitutional Bench decision of the Supreme Court in State of Mysore v. K. Manche Gowda, AIR 1964 SC 506.

(3.)PER contra, Mr. S. Gopinathan, learned Additional Government Pleader submitted that after the 42nd Amendment Act to the Constitution of India, there is no legal requirement to give a second show cause notice to the delinquent on the proposed penalty and therefore, even if past record is not mentioned in the charge memo or in the notice calling for further explanation on the enquiry report, that would not- amount to violation of the Principles of Natural Justice. He further submitted that it is purely the discretion of the Disciplinary Authority to take into consideration the past conduct of the petitioner, while inflicting the penalty and what is taken away by the 42nd Amendment, cannot be revived by issuing a notice, calling for explanation from the delinquent on the proposed penalty. For the above said reasons, he prayed for dismissal of the Writ Petition.Heard the learned counsel for the parties and perused the materials available on record.
Before the 15th Amendment to the Constitution of India, Article 311(2) provided that, - No such person as aforesaid shall be dismissed or removed or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.-