K. Vinod Chandran, CJ.—The appeal is by the State against the judgment of the learned Single Judge which set aside the order of dismissal passed by the appointing authority; confirmed by the appellate and revisional authority

2. We heard the learned Advocate General for the State.

3. The respondent, who was the writ petitioner was a Constable who was proceeded against on allegations of misconduct, an enquiry conducted and allegedly based on the evidence adduced, dismissed from service. The allegation of misconduct was that he celebrated a birthday party with a Probationer Lady Constable.

4. The learned Single Judge found that there was absolutely no valid evidence led at the enquiry conducted. Two officers of the police force who conducted the preliminary enquiry were examined before the Enquiry Officer. They merely stated that statements taken from eye witnesses, who saw the petitioner with the lady probationer, indicated that they were at a party and to avoid detection; the petitioner together with the probationer ran away and jumped over the boundary wall of the party venue. The learned Single Judge found that since there was no valid evidence led at the enquiry, the order of dismissal cannot be sustained.

5. We find absolutely no reason to interfere with the impugned judgment, especially in the context for there being no valid evidence led at the enquiry. Admittedly, there was a preliminary enquiry conducted and those who conducted the preliminary enquiry were alone examined before the Enquiry Officer. They deposed only about the statements recorded from eye witnesses; which deposition is only hearsay evidence. The eye witnesses were not examined and, in such circumstance, it cannot be said that there was any valid evidence regarding the allegation of misconduct.

6. Faced with the above prospect, the learned Advocate General urged that this was a fit case where the learned Single Judge ought to have remanded the matter to the Enquiry Officer.

7. We beg to differ, since the ground on which the dismissal order was interfered with, was not a technical defect in the conduct of the enquiry. It is only when the termination of an employee is faulted on a technical ground, there is need for a remand on the ground inter alia of violation of principles of natural justice; so as to resume the enquiry from the stage at which the technical defect is noticed. Where, in an enquiry carried out, there was no proper evidence led, the management cannot be allowed to correct its mistake by making a remand and permitting fresh evidence to be led to find the delinquent employee guilty of the misconduct.

8. The decisions in Union of India vs. Mohd. Ramzan Khan, (1991) 1 SCC 588 and ECIL vs. B. Karunakar, (1993) 4 SCC 727; considered the issue of denial of reasonable opportunity, when the enquiry report was not supplied to the delinquent employee; after the 42nd amendment of the Constitution of India. Before the 42nd amendment of the Constitution, there was a requirement to issue notice to the delinquent employee to show-cause against the punishment proposed, for which a reasonable opportunity of making representation on the penalty proposed was a mandatory condition under Article 311 (2) of the Constitution of India. The 42nd amendment removed the above condition and it was the contention of the employers that there was no requirement to supply the enquiry report. It was categorically held that whenever the Enquiry Officer is someone other than the Disciplinary Authority and the report of the Enquiry Officer holds the employee guilty of all or any of the charges; with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the Disciplinary Authority against the findings in the report.

9. The non-furnishing of the report, hence amounts to violation of principles of natural justice; in which context a remand is necessitated, to supply the enquiry report and afford a reasonab