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CASE NO.:

Appeal (civil) 5241 of 1998

PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

HARENDRA ARORA & ANR.

DATE OF JUDGMENT: 02/05/2001

BENCH:

G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

B.N. AGRAWAL,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Judgment passed by a Division Bench of the Allahabad

High Court in a writ application dismissing the same has

been challenged in this appeal whereby order passed by Uttar

Pradesh Public Services Tribunal quashing order of dismissal

of the respondent no. 1 from service has been upheld.

Respondent No. 1 Harendra Arora (hereinafter referred

to as `the respondent), who was temporarily appointed in

the year 1960 as Assistant Engineer in the Irrigation

Department of the Uttar Pradesh Government, was confirmed on

the said post and in the year 1963 he was promoted as

Executive Engineer. On 31.3.1970 the respondent was served

with a chargesheet by the Administrative Tribunal

incorporating therein various irregularities committed by

him with regard to the purchase of goods while he was posted

as Executive Engineer at the concerned station, requiring

him to submit his explanation relating thereto which was

duly submitted. Upon receipt of the show cause,

full-fledged enquiry was conducted whereafter the

Administrative Tribunal submitted its report to the State

Government recording a finding therein that the charge was

substantiated and recommending dismissal of the respondent

from service, upon receipt of which the State Government

issued a show cause to the respondent as to why he be not

dismissed from service. Pursuant to the said notice, the

respondent submitted his reply to the show cause notice

whereupon the State Government sent the reply to the

Administrative Tribunal for its comments and upon receipt of

the same, order was passed on 13.3.1973 dismissing the

respondent from service which order was challenged by the

respondent before the High Court by filing a writ

application and the same having abated in view of the coming

into force of the U.P. State Public Services Tribunal Act,

1976, a claim petition was filed by the respondent before

the U.P. State Public Services Tribunal challenging his

aforesaid order of dismissal. The Tribunal allowed the

claim petition and quashed the order of dismissal

principally on the ground that copy of the enquiry report,

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as required under Rule 55-A of Civil Services

(Classification, Control and Appeal) Rules, 1930 as amended

by the Government of Uttar Pradesh, was not furnished to the

delinquent against which order when a writ application was

filed on behalf of the State, a Division Bench of the High

Court dismissed the same upholding order of the Tribunal.

Hence this appeal by special leave.

Learned counsel appearing on behalf of the appellant in

support of the appeal submitted that in view of the judgment

rendered by a Constitution Bench of this Court in the case

of Managing Director, ECIL, Hyderabad & Ors., vs. B.

Karunakar & Ors., (1993) 4 SCC 727, merely because an

enquiry report has not been furnished to the delinquent the

same would not invalidate the order of dismissal unless it

is shown that the delinquent has been prejudiced thereby and

in the present case there is nothing to show that the

respondent has been prejudiced, as such setting aside the

order of dismissal of the respondent from service was

uncalled for. Learned counsel appearing on behalf of the

respondent, on the other hand, submitted that the law laid

down in the case of ECIL has no application to this case as

according to the set of rules governing service condition of

the respondent, there was requirement of furnishing copy of

proceedings of enquiry, which would obviously include the

enquiry report, whereas in the case of ECIL there was no

such requirement under the statutory rules, rather the

requirement was by virtue of interpretation put forth upon

Article 311(2) of the Constitution of India by a three Judge

Bench of this Court in the case of Union of India & Ors.

Vs. Mohd. Ramzan Khan, (1991) 1 SCC 588, as approved in

the case of ECIL, and consequently the prejudice theory as

laid down in the case of ECIL will not apply to the present

case and the order was rightly quashed for mere infraction

of the rule in not furnishing copy of the enquiry report.

Thus, in view of the rival contentions, the following

question arises for our consideration:-

Whether law laid down in the case of ECIL, to the

effect that the order awarding punishment shall not be

liable to be set aside ipso facto on the ground of

non-furnishing of copy of the enquiry report to the

delinquent unless he has been prejudiced thereby, would

apply to those cases also where under the statutory rules

there is requirement of furnishing copy of the enquiry

report to the delinquent.

For appreciating the question, it would be necessary to

refer to the genesis of the law on the subject of furnishing

the report of enquiry officer to the delinquent. The law on

the subject can be classified in two compartments one is

requirement to furnish the enquiry report under the statute

and another will be according to the principles of natural

justice. So far as statutory requirement is concerned,

under Public Servants (Inquiries) Act, 1850 a provision was

made for a formal and public inquiry into the imputation of

misbehaviour against pubilc servants. While the said Act

continued to be on the statute book, the Government of India

Act, 1919 was enacted and sub-section (2) of Section 96-B

thereof authorised the Secretary of State in Council to make

rules regulating their conditions of service, inter alia,

discipline and conduct pursuant to which the Civil Services

Classification Rules, 1920 were framed and Rule XIV whereof

provided that order awarding punishment of dismissal,

removal or reduction in rank shall not be passed without a

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departmental inquiry in which a definite charge in writing

has to be framed, opportunity has to be given to adduce

evidence and thereafter finding has to be recorded on each

charge, but there was no requirement under the Rules for

hearing the delinquent against the action proposed to be

taken on the basis of finding arrived at in the inquiry.

The aforesaid Rules were followed by Civil Services

(Classification, Control and Appeal) Rules, 1930 wherein

similar provision was made in rule 55 thereof. Thereafter,

in Section 240 sub-section (3) of the Government of India

Act, 1935, on the same lines, it was provided that the civil

servant shall not be dismissed or reduced in rank unless he

had been given `reasonable opportunity to show cause against

action proposed to be taken in regard to him. It was,

therefore, held that in order that the employee had an

effective opportunity to show cause against the finding of

guilt and the punishment proposed, he should, at that stage,

be furnished with a copy of finding of the enquiry

authority.

The aforesaid provision was virtually incorporated in

Article 311(2) of the Constitution. By the Constitution

(Fifteenth Amendment) Act of 1963, the scope of `reasonable

opportunity was explained and expanded and for the

expression until he has been given reasonable opportunity

to show cause against the action proposed to be taken in

regard to him, the expression except after an inquiry in

which he has been informed of the charges against him and

given a reasonable opportunity of being heard in respect of

those charges and where it is proposed, after such inquiry,

to impose on him any such penalty, until he has been given

reasonable opportunity of making representation on the

penalty proposed, but only on the basis of evidence adduced

during such inquiry was substituted. It would thus appear

that the Fifteenth Amendment, for the first time, in terms

provided for holding an inquiry into the specific charges of

which information was given to the delinquent employee in

advance and in which he was given reasonable opportunity to

defend himself against those charges. The Amendment also

provided for a second opportunity to the delinquent employee

to show cause against the penalty if it was proposed as a

result of the inquiry. The courts held that while

exercising the second opportunity of showing cause against

the penalty, the delinquent employee was also entitled to

represent against the finding on charges as well. It

appears that in spite of this change, the stage at which the

delinquent employee was held to be entitled to a copy of the

enquiry report was the stage at which the penalty was

proposed which was the law prevailing prior to the

Amendment.

The provisions of Article 311(2) were further amended by

the Constitution (Forty-second Amendment) Act, 1976 in which

it was expressly stated that it shall not be necessary to

give such person any opportunity of making representation on

the penalty proposed. The 42nd Amendment while retaining

the expanded scope of the reasonable opportunity at the

first stage, viz., during the inquiry, as introduced by the

Fifteenth Amendment of the Constitution, had taken away the

opportunity of making representation against the penalty

proposed after the inquiry. After the 42nd Amendment, a

controversy arose as to whether when the enquiry officer is

other than the disciplinary authority, the employee is

entitled to a copy of the findings recorded by him before

the disciplinary authority applied its mind to the findings

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and evidence recorded or whether the employee is entitled to

the copy of the findings of the enquiry officer only when

disciplinary authority had arrived at its conclusion and

proposed the penalty. After the 42nd Amendment, there were

conflicting decisions of various High Courts on the point in

issue and in some of the two Judge bench decisions of this

Court, it was held that it was not necessary to furnish copy

of the enquiry report. Thus for an authoritative

pronouncement, the matter was placed for consideration

before a three Judge bench in the case of Mohd. Ramzan

(supra) in which it was categorically laid down that a

delinquent employee is entitled to be furnished with a copy

of the enquiry report for affording him reasonable

opportunity as required under Article 311(2) of the

Constitution and in compliance of the principles of natural

justice, and in case no such report was furnished, the order

was fit to be quashed, but it was directed that the judgment

shall be prospective and had no application to orders passed

prior to the date of judgment in Mohd. Ramzans case.

Thereupon, as it was found that there was a conflict in

the decisions of this Court in the case of Kailash Chander

Asthana v. State of U.P. (1988) 3 SCC 600, and Mohd.

Ramzans case, the matter was referred to the Constitution

Bench in the case of ECIL which formulated seven questions

for its consideration which are enumerated hereunder:-

(I) Whether the report should be furnished to the

employee even when the statutory rules laying down the

procedure for holding the disciplinary inquiry are silent on

the subject or are against it?

(ii) Whether the report of the enquiry officer is

required to be furnished to the delinquent employee even

when the punishment imposed is other than the major

punishment of dismissal, removal or reduction in rank?

(iii) Whether the obligation to furnish the report is

only when the employee asks for the same or whether it

exists even otherwise?

(iv) Whether the law laid down in Mohd. Ramzan Khan

case will apply to all establishments Government and non-

Government, public and private sector undertakings?

(v) What is the effect of the non-furnishing of the

report on the order of punishment and what relief should be

granted to the employee in such cases?

(vi) From what date the law requiring furnishing of the

report, should come into operation?

(vii) Since the decision in Mohd. Ramzan Khan case has

made the law laid down there prospective in operation, i.e.,

applicable to the orders of punishment passed after November

20, 1990 on which day the said decision was delivered, this

question in turn also raises another question, viz., what

was the law prevailing prior to November 20, 1990?.

Interpreting Article 311(2) even after 42nd Amendment,

it has been laid down categorically by the Constitution

Bench that when the enquiry officer is other than the

disciplinary authority, the disciplinary proceeding breaks

into two stages. The first stage ends when the disciplinary

authority arrived at its conclusion on the basis of

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evidence, enquiry officers report and delinquent officers

reply to it. The second stage begins when the disciplinary

authority decides to impose penalty on the basis of its

conclusion. The employees right to receive the report has

been held to be a part of the reasonable opportunity of

defending himself in the first stage of the inquiry and

after this right is denied to him, he is, in fact, denied

the right to defend himself and to prove his innocence in

the disciplinary proceeding. The Court held that denial of

enquiry officers report before the disciplinary authority

takes its decision on the charges is not only a denial of

reasonable opportunity to the employee to prove his

innocence as required under Article 311(2) of the

Constitution, but is also a breach of the principles of

natural justice which has been regarded as a part of Article

14 of the Constitution by the two Constitution Benches in

the cases of Union of India vs. Tulsiram Patel, (1985) 3

SCC 398, and Charan Lal Sahu vs. Union of India, (1990) 1

SCC 613. According to the decision in ECIL, said principle

will apply even to those cases where the statutory rules on

the question of furnishing copy of the enquiry report are

either silent or prohibit the same. In view of the

aforesaid discussions, question no. [i] was answered by the

Constitution Bench as follows:-

Since the denial of the report of the enquiry officer

is a denial of reasonable opportunity and a breach of the

principles of natural justice, it follows that the statutory

rules, if any, which deny the report to the employee are

against the principles of natural justice and, therefore,

invalid. The delinquent employee will, therefore, be

entitled to a copy of the report even if the statutory rules

do not permit the furnishing of the report or are silent on

the subject.

Question no. (v), i.e., the effect of the

non-furnishing of the enquiry report on the order of

punishment, has been answered by the Constitution Bench in

paragraphs 30 and 31 of the judgment, relevant portion

whereof reads thus:-

The next question to be answered is what is the effect

on the order of punishment when the report of the enquiry

officer is not furnished to the employee and what relief

should be granted to him in such cases. The answer to this

question has to be relative to the punishment awarded. When

the employee is dismissed or removed from service and the

inquiry is set aside because the report is not furnished to

him, in some cases the non-furnishing of the report may have

prejudiced him gravely while in other cases it may have made

no difference to the ultimate punishment awarded to him.

Hence to direct reinstatement of the employee with

back-wages in all cases is to reduce the rules of justice to

a mechanical ritual. The theory of reasonable opportunity

and the principles of natural justice have been evolved to

uphold the rule of law and to assist the individual to

vindicate his just rights. They are not incantations to be

invoked nor rites to be performed on all and sundry

occasions. Whether in fact, prejudice has been caused to

the employee or not on account of the denial to him of the

report, has to be considered on the facts and circumstances

of each case. Where, therefore, even after the furnishing

of the report, no different consequence would have followed,

it would be a perversion of justice to permit the employee

to resume duty and to get all the consequential benefits.

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It amounts to rewarding the dishonest and the guilty and

thus to stretching the concept of justice to illogical and

exasperating limits. It amounts to an unnatural expansion

of natural justice which in itself is antithetical to

justice.

Hence, in all cases where the enquiry officers report

is not furnished to the delinquent employee in the

disciplinary proceedings, the Courts and Tribunals should

cause the copy of the report to be furnished to the

aggrieved employee if he has not already secured it before

coming to the Court/Tribunal and give the employee an

opportunity to show how his or her case was prejudiced

because of the non-supply of the report. If after hearing

the parties, the Court/Tribunal comes to the conclusion that

the non-supply of the report would have made no difference

to the ultimate findings and the punishment given, the

Court/Tribunal should not interfere with the order of

punishment. The Court/Tribunal should not mechanically set

aside the order of punishment on the ground that the report

was not furnished as is regrettably being done at present.

The courts should avoid resorting to short cuts. Since it

is the Courts/Tribunals which will apply their judicial mind

to the question and give their reasons for setting aside or

not setting aside the order of punishment, (and not any

internal appellate or revisional authority), there would be

neither a breach of the principles of natural justice nor a

denial of the reasonable opportunity. It is only if the

Court/Tribunal finds that the furnishing of the report would

have made a difference to the result in the case that it

should set aside the order of punishment.

[Emphasis added]

Question nos. (vi) and (vii), i.e., from what date the

law requiring furnishing of the enquiry report should come

into operation, whether from November 20, 1990 the date

when judgment was delivered in the case of Mohd. Ramzan, or

even earlier to it and in case it was held to apply

prospectively, what was the law prevailing prior to November

20, 1990, have been answered specifically in paragraph 33,

relevant portion whereof reads thus:-

It is for the first time in Mohd. Ramzan Khan case

that this Court laid down the law. That decision made the

law laid down there prospective in operation, i.e.,

applicable to the orders of punishment passed after November

20, 1990. The law laid down was not applicable to the

orders of punishment passed before that date notwithstanding

the fact that the proceedings arising out of the same were

pending in courts after that date. The said proceedings had

to be decided according to the law prevalent prior to the

said date which did not require the authority to supply a

copy of the enquiry officers report to the employee. The

only exception to this was where the service rules with

regard to the disciplinary proceedings themselves made it

obligatory to supply a copy of the report to the employee.

[Emphasis added]

Thus, according to the decisions of this Court in the

case of Mohd. Ramzan, as approved by the Constitution Bench

in the case of ECIL, denial of enquiry officers report

would amount to denial of equal opportunity to the employee

within the meaning of Article 311(2) of the Constitution and

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is a breach of principles of natural justice. Both the

aforesaid decisions were dealing with a case where there was

no requirement under the rules to furnish copy of the

enquiry report to the delinquent and the decision in the

ECIL case is silent on the question as to what would be the

effect of non-furnishing of copy of enquiry report in cases

where it is required to be furnished under the statutory

rules.

In the present case, the competent authority passed the

order of dismissal on 13.3.1973, as stated above, on which

date, undisputedly, rule 55-A of Civil Services

(Classification, Control and Appeal) Rules, 1930 as amended

and substituted by the U.P. amendment (hereinafter referred

to as the rules), was as follows:-

R.55-A.- After the inquiry against a government servant

has been completed, and after the punishing authority has

arrived at provisional conclusions in regard to the penalty

to be imposed, the government servant charged shall, if the

penalty proposed is dismissal, removal or reduction, be

supplied with a copy of the proceedings prepared under rule

55 excluding the recommendations, if any, in regard to

punishment, made by the officer conducting the inquiry and

asked to show cause by a particular date, which affords him

reasonable time, why the proposed penalty should not be

imposed on him:

Provided that, if for sufficient reasons, the punishing

authority disagrees with any part or whole of the

proceedings prepared under rule 55, the point or points of

such disagreement, together with a brief statement of the

grounds thereof, shall also be communicated to the

government servant charged, along with the copy of the

proceedings under rule 55.

[Emphasis added]

Perusal of the aforesaid rule would show that in a case

of dismissal, like the present one, a government servant is

entitled to be supplied with a copy of the proceeding

prepared under rule 55, meaning thereby the enquiry report

as well.

From a minute reading of the decision in the case of

ECIL, it would appear that out of the seven questions

framed, while answering question nos. (vi) and (vii), the

Constitution Bench laid down that the only exception to the

answer given in relation to those questions was where the

service rules with regard to the enquiry proceedings

themselves made it obligatory to supply a copy of the report

to the employee. While answering the other questions, much

less answer to question no. (v) which relates to prejudice,

the Bench has nowhere categorically stated that the answer

given would apply even in a case where there is requirement

of furnishing a copy of the enquiry report under the

statutory rules. As stated above, while answering question

nos. (vi) and (vii), the Bench has expressly excluded the

applicability of the same to the cases covered by statutory

rules whereas such exception has not been carved out in

answer to question no. (v) which shows that the Bench

having found no difference in the two contingencies one

covered by Article 311(2) and another covered by statutory

rules has not made any distinction and would be deemed to

have laid down the law uniformly in both the contingencies

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to the effect that if enquiry report is not furnished, the

same ipso facto would not invalidate the order of punishment

unless the delinquent officer has been prejudiced thereby

more so when there is no rationale for making any

distinction therein.

Thus, from the case of ECIL, it would be plain that in

cases covered by the constitutional mandate, i.e., Article

311(2), non- furnishing of enquiry report would not be fatal

to the order of punishment unless prejudice is shown. If

for infraction of a constitutional provision an order would

not be invalid unless prejudice is shown, we fail to

understand how requirement in the statutory rules of

furnishing copy of enquiry report would stand on a higher

footing by laying down that question of prejudice is not

material therein.

The matter may be examined from another view point.

There may be cases where there are infractions of statutory

provisions, rules and regulations. Can it be said that

every such infraction would make the consequent action void

and/or invalid? The statute may contain certain substantive

provisions, e.g., who is the competent authority to impose a

particular punishment on a particular employee. Such

provision must be strictly complied with as in these cases

the theory of substantial compliance may not be available.

For example, where a rule specifically provides that the

delinquent officer shall be given an opportunity to produce

evidence in support of his case after the close of the

evidence of the other side and if no such opportunity is

given, it would not be possible to say that the inquiry was

not vitiated. But in respect of many procedural provisions,

it would be possible to apply the theory of substantial

compliance or the test of prejudice, as the case may be.

Even amongst procedural provisions, there may be some

provisions of a fundamental nature which have to be complied

with and in whose case the theory of substantial compliance

may not be available, but the question of prejudice may be

material. In respect of procedural provisions other than of

a fundamental nature, the theory of substantial compliance

would be available and in such cases objections on this

score have to be judged on the touchstone of prejudice. The

test would be, whether the delinquent officer had or did not

have a fair hearing. In the case of Russel vs. Duke of

Norfolk & Ors., 1949 (1) All E.R. 109, it was laid down by

the Court of Appeal that the principle of natural justice

cannot be reduced to any hard and fast formulae and the same

cannot be put in a straitjacket as its applicability depends

upon the context and the facts and circumstances of each

case.

Even under general law, i.e., the Code of Civil

Procedure, there are various provisions, viz., Sections 99-A

and 115 besides Order 21 Rule 90 where merely because there

is defect, error or irregularity in the order, the same

would not be liable to be set aside unless it has

prejudicially affected the decision. Likewise, in the Code

of Criminal Procedure also, Section 465 lays down that no

finding, sentence or order passed by a competent court shall

be upset merely on account of any error, omission or

irregularity unless in the opinion of the court a failure of

justice has, in fact, been occasioned thereby. We do not

find any reason why the principle underlying the aforesaid

provisions would not apply in case of the statutory

provisions like Rule 55-A of the Rules in relation to

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disciplinary proceeding. Rule 55-A referred to above

embodies in it nothing but the principles of reasonable

opportunity and natural justice.

Some decisions in this regard may be referred to. In

the case of Ridge vs. Baldwin & Ors., 1964 Appeal Cases 40,

the House of Lords was considering a case where a Chief

Constable was dismissed from service without notice and

inquiry by the Watch Committee. The question was raised

whether the decision was void or merely voidable. The House

of Lords laid down that such a decision given without regard

to the principles of natural justice was void. The

violation in that case, though a procedural one, was of a

fundamental nature as it was a case of total violation of

the principles of natural justice.

In the case of R v. Secretary of State for Transport,

ex parte Gwent County Council, [1987] 1 All E.R. 161, the

Court of Appeal applied the test of prejudice in a case of

enhancement of toll charges over a bridge. The Act provided

for a public hearing before effecting increase. Dealing

with a complaint of procedural impropriety, the Court of

Appeal held that unless prejudice is established to have

resulted from the procedural impropriety, no interference

was called for.

In the case of Davis v. Carew-Pole & Ors., [1956] 1

Weekly Law Reports 833, it was laid down that mere fact that

a person appearing before a domestic Tribunal had not been

given formal notice of all the matters in which his conduct

was to be called in question, did not necessarily entitle

him to contend successfully that the proceedings were not

conducted in accordance with the principles of natural

justice as in that case, no fact was in dispute in relation

to the other matters raised and in the circumstances it was

held that the plaintiff was not prejudiced by the lack of

notice.

In the case of Jankinath Sarangi vs. State of Orissa,

1969 (3) SCC 392, Hidayatullah, C.J., speaking for the

Court, while considering the question of prejudice in a

departmental proceeding, approved judgment of the High Court

refusing to grant relief in favour of the delinquent

government servant on the ground that no prejudice was

caused to him and observed thus:-

From this material it is argued that the principles of

natural justice were violated because the right of the

appellant to have his own evidence recorded was denied to

him and further that the material which was gathered behind

his back was used in determining his guiltThere is no

doubt that if the principles of natural justice are violated

and there is a gross case this Court would interfere by

striking down the order of dismissal; but there are cases

and cases. We have to look to what actual prejudice has

been caused to a person by the supposed denial to him of a

particular right...Anyway the questions which were put to

the witnesses were recorded and sent to the Chief Engineer

and his replies were received. No doubt the replies were

not put in the hands of the appellant but he saw them at the

time when he was making the representations and curiously

enough he used those replies in his defence. In other

words, they were not collected behind his back and could be

used to his advantage and he had an opportunity of so using

them in his defence. We do not think that any prejudice was

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caused to the appellant in this case by not examining the

two retired Superintending Engineers whom he had cited or

any one of them.

[Emphasis added]

In the case of K.L. Tripathi vs. State Bank of India &

Ors., (1984) 1 SCC 43, while considering the question

whether violation of each and every facet of principles of

natural justice has the effect of vitiating the inquiry,

this Court laid down that the inquiry held and the

punishment imposed cannot be said to be vitiated on account

of an opportunity of cross-examination of certain witnesses

not having been afforded to the delinquent and observed

thus:-

The basic concept is fair play in action

administrative, judicial or quasi-judicial. The concept of

fair play in action must depend upon the particular lis, if

there be any, between the parties. If the credibility of a

person who has testified or given some information is in

doubt, or if the version or the statement of the person who

has testified, is, in dispute, right of cross-examination

must inevitable form part of fair play in action but where

there is no lis regarding the facts but certain explanation

of the circumstances there is no requirement of

cross-examination to be fulfilled to justify fair play in

action. When on the question of facts there was no dispute,

no real prejudice has been caused to a party aggrieved by an

order, by absence of any formal opportunity of

cross-examination per se does not invalidate or vitiate the

decision arrived at fairly. This is more so when the party

against whom an order has been passed does not dispute the

facts and does not demand to test the veracity of the

version or the credibility of the statement.

[Emphasis added]

In the case of Sunil Kumar Banerjee vs. State of West

Bengal & Ors. (1980) 3 SCC 304, in a departmental

proceeding a question was raised that the delinquent who had

not examined himself was not questioned by the enquiry

officer on the circumstances appearing against him in the

evidence for the purpose of enabling him to explain the same

as required under rule 8(19) of the relevant rules. The

Court held that as the delinquent was fully alive to the

allegations against him and had dealt with all aspects of

the allegations in his written defence, he was not

prejudiced by the failure of the enquiry officer to question

him. As such, the Court refused to interfere with the

punishment awarded.

In the case of State Bank of Patiala & Ors. Vs. S.K.

Sharma, (1996) 3 SCC 364, there was a departmental

proceeding against an officer in which the punishment

awarded was challenged on the ground that there was

violation of regulation 68(b)(iii) of the Bank Regulations

which had statutory force under which copies of statement of

witnesses recorded earlier were required to be furnished to

a delinquent not later than three days before the

commencement of examination of witnesses by the enquiry

officer, but no such copy was at all supplied and a stand

was taken that opportunity was afforded to the delinquent to

peruse the same and take notes therefrom though only half an

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hour before the commencement of the enquiry proceedings. In

these circumstances, it was held that there was substantial

compliance of the regulation as such, the punishment awarded

cannot be vitiated on account of infractions of the

aforesaid regulation in view of the fact that the

delinquent, expressly or by his conduct, would be deemed to

have waived the procedural provision which was of a

mandatory character which was conceived in his interest and

not public interest and was not prejudiced thereby,

following the decision of this Court in the case of ECIL.

In the case of Krishan Lal vs. State of J&K, (1994) 4

SCC 422, this Court was dealing with a case where under

Section 17(5) of Jammu & Kashmir (Government Servants)

Prevention of Corruption Act, 1962 before awarding

punishment of dismissal a government servant was entitled to

be furnished with a copy of the enquiry report which

provision having been violated, the question had arisen

whether the order awarding punishment was vitiated.

Following the Constitution Bench decision in the case of

ECIL, this Court laid down that if the delinquent has not

suffered any prejudice by non-furnishing of the report, the

same would not vitiate the order of punishment and observed

thus:-

We, therefore, hold that the requirement mentioned in

Section 17(5) of the Act despite being mandatory is one

which can be waived. If, however, the requirement has not

been waived any act or action in violation of the same would

be a nullity. In the present case as the appellant had far

from waiving the benefit, asked for the copy of the

proceeding despite which the same was not made available, it

has to be held that the order of dismissal was invalid in

law.

The aforesaid, however, is not sufficient to demand

setting aside of the dismissal order in this proceeding

itself because what has been stated in ECIL case in this

context would nonetheless apply. This is for the reason

that violation of natural justice which was dealt with in

that case, also renders an order invalid despite which the

Constitution Bench did not concede that the order of

dismissal passed without furnishing copy of the inquiry

officers report would be enough to set aside the order.

Instead, it directed the matter to be examined as stated in

paragraph 31.

[Emphasis added]

Thus, from a conspectus of the aforesaid decisions and

different provisions of law noticed, we hold that provision

in Rule 55- A of the Rules for furnishing copy of enquiry

report is procedural one and of a mandatory character, but

even then a delinquent has to show that he has been

prejudiced by its non observance and consequently the law

laid down by the Constitution Bench in the case of ECIL, to

the effect that an order passed in a disciplinary proceeding

cannot ipso facto be quashed merely because a copy of the

enquiry report has not been furnished to the delinquent

officer, but he is obliged to show that by non-furnishing of

such a report he has been prejudiced, would apply even to

cases where there is requirement of furnishing copy of

enquiry report under the statutory provisions and/or service

rules.

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Turning now to the facts of the case on hand, it has to

be seen whether by non-furnishing of the enquiry report the

delinquent officer has suffered any prejudice.

Undisputedly, after submission of enquiry report the State

Government sent a show cause notice to the delinquent

pursuant to which he had shown cause and the disciplinary

authority after considering the said show cause, passed the

order of dismissal. It is not stand of the respondent that

in absence of the enquiry report he could not submit an

effective show cause before the order of dismissal was

passed. Neither from the order passed by the Tribunal nor

the High Court it would appear that the respondent had

raised this point there that he could not file an effective

show cause in the absence of enquiry report nor it has been

stated that in the show cause reply it was complained that

the delinquent had not been served with a copy of the

enquiry report. From these facts, it is not possible to

hold that the respondent has been prejudiced by

non-furnishing of enquiry report.

For the foregoing reasons, we are of the opinion that

the High Court was not justified in upholding order of the

Tribunal whereby order of dismissal of the respondent from

service was quashed. Accordingly, the appeal is allowed and

the impugned orders are set aside, but there shall be no

order as to costs.