Vellu Pilai, J.
1. The petitioner was a police constable at the Shencottah police station and was also doing duty as station writer. After an audit conducted by the Financial Assistant to the Inspector-General of Police, the circle inspector of police framed charges against him, about twenty-six in number, for temporary misappropriation of funds, falsification of accounts and failure to maintain the cash book. This was on 31 October 1956. The petitioner filed his explanation denying the charges on 7 November 1956. Under the rules then in force, being order R. Dis. 8033/51/SC, dated 3 April 1951, which had no statutory force, the civil' servant proceeded against had to be asked specifically whether be desired an oral enquiry or only to be heard in person. The petitioner was asked whether he wanted, to examine witnesses or adduce documentary evidence when he replied, that two witnesses were to be examined and certain documents produced in evidence. The purport of this was certainly that he desired enquiry and not in any case that he was satisfied with a personal hearing. The two witnesses mentioned by, him were of course examined on 18 November 1956. After giving another personal hearing, the circle inspector proceeded to compile the punishment roll, Ex. Rule 1, which corresponds to the report of the enquiry in as ordinary proceeding for disciplinary action. It is obvious, from the above that no enquiry worth the name was held by the circle inspector. The charges denied were not proved, nor do they prove themselves. The material relied on by the circle inspector was t0he auditor's report, as to which no copy had been given to the petitioner. There having been no enquiry against the petitioner, it must be held, that he had no reasonable opportunity within the meaning of Article 311(2) as interpreted in Khem Chand v. Union of India--1959-I L.L.J. 167. The order of dismissal, Ex. P. 1, and the appellate order, Ex. P. 2, have both to be quashed.
2. A point was taken on behalf of the petitioner, that the circle inspector of police was not competent to hold the enquiry against the petitioner. It is unnecessary to consider this, as the orders of dismissal have to be, quashed In any case. Now the Kerala Police Department Inquiries Punishment and Appeal Rules have been promulgated under Article 309 of the Constitution and are in force. The inquiry and the disciplinary proceedings against the petitioner have to be instituted and carried on in terms of these rules.
3. A third spoilt was raised, that the punishment was imposed on the petitioner after looking into the record of his past service, and that this is illegal, and reliance was placed on Gopal Rao Damodarji v. State Government of Madhya Pradesh A.I.R. 1954 Nag. 90 . In that case, the adverse remarks entered in the character roll of the delinquent were taken into consineration, in awarding the punishment without affording an opportunity to him to offer his explanation concerning them. The learned Government Pleader, on the other hand, relied on Girija Sankar Shukla v. Senior Superintendent of Post Offices : AIR1959All624 in which it was observed that the previous punishments suffered by the delinquent which were well known to him, may be taken into consideration in deciding the measure of punishment, though not for establishing his guilt. The Nagpur case itself does not bold that the previous punishments could not be looked into in deciding the quantum of the punishment to be imposed. Often it may be necessary for the punishing authority to look into the past record of service, and even desirable to do so. All that need now be said is that, if the record of his past service is to be taken into consideration against the petitioner, he is entitled to an opportunity to offer his explanation concerning it. In any case such record is irrelevant and ought not to be used, for finding him guilty of any of the charges against him.
With these observations this petition is allowed and Exs. P. 1 and P. 2 are quashed. No costs.