Judgment :

Dr. B.S. Chauhan, J.

1. This Appeal has been filed against the Judgment and Order of the Division Bench of the Calcutta High Court dated 31st January, 2002 in FMAT No. 1370 of 1992 by which it affirmed the judgment and order dated 16th July, 1991 of the learned Single Judge passed in Civil Order No.3885 W of 1987 setting aside the order of punishment of removal awarded by the Disciplinary Authority to the respondent employee.

2. The facts and circumstances giving rise to this appeal are that respondent joined the service as Security guard in Central Industrial Security Force (CISF) in August, 1980. He remained absent from duty without seeking permission or leave, thus, vide order dated 12th August, 1984, he was awarded the entry of censure for the same. Respondent was again punished for remaining absent from duty for three days vide Order dated 22 nd July, 1985 withholding one annual increment for two years. The respondent again absented himself from duty from 31st August, 1985 to 8th September, 1985 i.e. for six days for which vide Order dated 5th September, 1985, he was imposed the punishment of withholding of one annual increment for three years. The respondent again deserted the LINE for the period from 6.3.1986 to 16.3.1986 i.e. 10 days for which he was issued a Show Cause Notice under Rule 34 of CISF Rules on 22/24.3.1986. The said notice could not be served upon him as the respondent again deserted the LINE for a period of 50 days, from 21.3.1986 to 10.5.1986 and joined the service on 11th May, 1986. Therefore, he could be served the show-cause notice dated 22/24.3.1986 on 15th May, 1986. The respondent submitted his reply to the show cause notice. However, as it was not found satisfactory, a regular departmental enquiry was initiated against him. During the pendency of the enquiry, the respondent again deserted the LINE for 11 days from 6.6.1986 to 16.6.1986. The Enquiry Officer concluded the enquiry and submitted the report which was accepted by the Disciplinary Authority who vide order dated 17.6.1986 imposed the punishment of removal from service. While passing the punishment Order, the Disciplinary authority also took into consideration the past conduct of the respondent.

3. Being aggrieved, the respondent preferred the Statutory Appeal which was dismissed by the Appellate Authority vide order dated 19.10.1986 observing that the respondent had not completed six years in service but had deserted the LINE five times. Thus no lenient view was permissible.

4. Being aggrieved, the respondent-employee preferred the revision before the Statutory Authority. However, during the pendency of the said revision, he filed Writ Petition No. 3885 of 1987 before the Calcutta High Court. The learned Single Judge vide Judgment and Order dated 16.7.1991 allowed the writ petition, quashing the order of punishment on the ground that the copy of the enquiry report was not furnished and the respondent employee was not given the opportunity to file the objections to the same. More so, his past conduct could not have been taken into consideration while imposing the punishment.

5. Aggrieved, the present appellants filed F.M.A.T. No. 1370 of 1992 before the Calcutta High Court which was dismissed by the Division Bench by Judgment and Order dated 31st January, 2002. Hence, this appeal.

6. Shri SWA Qadri, learned counsel appearing for the appellants has submitted that the respondent employee remained absent from duty without any justification or leave for more than five times within a short span of less than six years in service. Even during the pendency of the enquiry, he remained absent two times; firstly for 50 days and secondly for 11 days. Thus, the enquiry could not be concluded expeditiously. It is not necessary that in every case, non furnishing the copy of the enquiry report to the delinquent employee is always fatal. It is necessary for such employee to establish that non-furnishing of the copy of the enquiry report has caus