Enquiry is not vitiated by mere non-furnishing of enquiry report unless prejudice caused to delinquent thereby.

Dharma Rao Elipe, J.

1. The Union of India and another filed this Writ Petition against the order passed by the Central Administrative Tribunal dated 4. 2006 in O.A. No.852 of 2004, wherein the Tribunal after considering the arguments of the learned counsel on either side, reserved the matter for orders and again the matter was posted for "being mentioned" and or misrepresenting the judgment of the Apex Court in State of Uttar Pradesh v. Harendra Arara and Another, 2001 (3) CTC 176 : 2001 (6) SCC 392, relied on by the petitioners herein/respondents, allowed the said Original Application, directing reinstatement of the first respondent herein with full back wages.

2. The learned counsel for the petitioners contended that the order passed by the Tribunal is contrary to the Ruling of the Apex Court in the above said judgment. Further, without giving a categorical finding as to the prejudice shown by the first respondent, as per the said decision, except saying so, allowed the Original Application illegally. When the first respondent/applicant has not participated in the enquiry, the petitioners have no other option except conducting the ex-parte enquiry and based on which, the order of punishment was imposed for his long unauthorised absence from service. Therefore, the impugned order is liable to be set aside.

3. The brief facts in a nutshell are as follows:

The first respondent/applicant was appointed as Lascar in the civilian side in the Air Force Station, Avadi. He was afflicted with chronic ailment diagnosed as Phoochromacytoma (kidney tumor, supereneal glands). Therefore, he was on long medical leave from November 1988 to December 1992. For that, he was charged under Rule 14 of the CCS (CCA) Rules, 1965 for the alleged unauthorised absence. After an oral enquiry, he was dismissed from service on 11. 1993. The Appeal filed by him was also dismissed on 2. 1994, against which O.A. No.108 of 1993 was filed and the same was allowed, setting aside the order of the Appellate Authority and the matter was remitted back to the Appellate Authority to reconsider the Appeal, after giving notice to him. Thereafter the Appellate Authority by order dated 6. 1997 allowed the Appeal setting aside the order of the Disciplinary Authority to proceed in the matter de novo from the stage of charge sheet. The Disciplinary Authority by communication dated 212. 1998 informed the first respondent/applicant that the enquiry conducted was withdrawn without any condition and thereafter issued the present memo dated 212. 1998 with fresh charges on the same set of facts. He filed O.A. No.314 of 1999 to quash the fresh board of enquiry and prayed loran order of reinstatement. The Tribunal upheld the third enquiry and the Writ Petition No.17986 of 1999 filed against the said order of the Tribunal was dismissed on 8. 2001. Thereafter the second petitioner directed the first respondent to report for the enquiry on 17. 2001, which was received by him on 17. 2001. Thereafter, he orally informed the Enquiry Officer that he could not participate on the date of enquiry due to non-availability of Defence Assistant and requested for an adjournment. Thereafter he made a representation on 22. 2002 to the Disciplinary Authority. But, without passing any order on his representation, the enquiry was conducted and punishment was imposed by the order dated to 5. 2002, dismissing him from service. On Appeal, the Appellate Authority confirmed the dismissal order, rejecting the Appeal by order dated 8. 2003. Thereafter, the present O.A. No.852 of 2004 was filed against the order of dismissal which was confirmed in Appeal.

4. The grounds urged on behalf of the first respondent are that without affording opportunity to the first respondent by furnishing a copy of the report of the Enquiry Officer, contrary to the mandatory provisions of Rule 15, Rule 14(2) and Rule 19(1) of the CCS (CCA) Rules, the order of dismissal was passed.

5. The case of the petitioners/re