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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.