JUDGMENT
1. The appellant joined the respondent Company as EDP Operator in the year 1974. She had undergone several transfers and while she was working as Assistant, Grade I at Ranipet, it is stated that she used to go all the way from Madras to Ranipet because her family was located at Madras. She has referred to these aspects only to show that she was undergoing considerable difficulties on account of the transfers and also on account of the long distance travelled by her from Madras to Ranipet. By a show cause notice dated November 1, 1990, the following charges were framed against the appellant :
“You have been habitually absenting unauthorisedly from duty without any prior permission. You were warned orally and in writing on numerous occasions to desist from the habit of absenting yourself. You did not improve your attendance. Hence a charge sheet was instituted vide No. BAP : P&A : 2090139 dated March 23, 1990 for unauthorised absence and punishment was also imposed.
Inspite of all the above it is regretted to note that you are continuing the habit of absenting frequently without permission. In a period 30 from December 26, 1989 you have absented yourself without sanction of leave and without prior permission on the dates described in the Annexure herewith attached, out of which there is continuous absence from October 15, 1990 to till date. Thus, you are found to be a chronic absentee. Your action as above constituted a misconduct under the Certified Standing Orders of our Company.
2. The annexure to the charge sheet gave clear details as to the days on which the appellant was absent without any authority. The explanation of the appellant was received and an Enquiry Officer was appointed to enquire into the charges. The enquiry proceedings have been placed before us and it runs to nearly 50 pages. Witnesses have been examined and the appellant had crossexamined the witnesses. Thereafter, an enquiry report was submitted by the Enquiry Officer on October 12, 1991. The report of the Enquiry Officer was accepted by the furnishing authority and an order was passed June 23, 1992 removing the appellant from the services of the Company with effect from the Forenoon of June 23, 1992. It is admitted by both parties that it is only along with the order of punishment that the enquiry report was furnished to the appellant. In fact, this is clear even from the order dated June 23, 1992. An appeal was filed against this order and the order of removal was confirmed on July 11, 1992 by the appellate Authority. W.P. No. 1900 of 1992 was filed by the appellant seeking to quash the said order of removal and by judgment dated October 26, 1992, Srinivasan, J. (as he then was) held that there was no room for interference with the order of removal. That writ petition was dismissed. Before the learned Judge, the argument was only based on lack of opportunity and non-application of mind by the punishing Authority. The learned Judge has perused the papers and found that the complaint @o of the appellant was not well founded.
3. Before us, the argument of Mr. Sathish Parasaran is restricted to the point that the enquiry report was not furnished before the order 15 of punishment was passed. We have already’ noticed the fact that it is only along with the punishment order that the enquiry report was sent to the appellant. The law on this point is now very clear and it is necessary only to refer to two decisions of the Supreme Court of India. In Managing Director, ECIL v. B. Karunakar (1994-I-LLJ-162) a Bench consisting of five learned Judges of the Supreme Court of India had reviewed the entire law on the point including the effect of Ranman Khan’s case (1991-I-LLJ-29) and have categorically held that the non-furnishing of the enquiry report before the order of punishment is assed and without giving an opportunity to delinquent to submit his explanation on the enquiry report, would vitiate the order of punishment. It has been made clear that this will be so irrespective of the fact whether the rules provide for the furnishing of enquiry report or not. In this case, it is pointed out that the, rules really do not provide for furnishing of the enquiry report before passing the order of punishment. Whatever that may be, in view of the said judgment of the Supreme Court, the normal presumption will be that the order of punishment is vitiated.
4. There is however, one aspect of the case which need our careful consideration. This aspect of the case has been pointed out in the very judgment cited above. The following passage is apposite :
“When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to.2, 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 3, law and to assist the individual to vindicate his just rights. They are not incantations to he 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. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. (1997-I-LLJ-537). The facts of this case are almost identical to the facts of the case before us. In the said case before the Apex Court, both the learned single Judge and Division Bench of the Madhya Pradesh High Court had considered the aspect of prejudice to the petitioner on account of the non-furnishing of the enquiry report. The learned Judges of the Madhya Pradesh High Court found that the petitioner before them could not show sufficient prejudice on account of the non-furnishing of the enquiry report and, therefore, held that the orders of punishment need not be set aside and accordingly, upheld the orders. It is this view of the Madhya Pradesh High Court which came up for consideration before the Apex Court and the observations of the Apex Court are worth quoting : (p. 538).
“For this course, normally there is no quarrel, as this Court had settled the law that a copy of the report needs to be supplied to the delinquent employee to enable him to make representation against the proposed action or punishment and, thereafter, the authority is required to consider that explanation offered by tile petitioner and then to take decision on the quantum of punishment. In this case; though copy of the report was not supplied, he was asked by the learned single Judge as well as by the Division Bench as to what prejudice he suffered on account of nonsupply of the report; but he was not able to satisfy the learned Judges as to the prejudice caused to him on account of non-supply of the enquiry report. On the facts, we find that there is no illegality in the decision taken by the High Court.”
5. Therefore, our entire task in this case is only to find out whether on account of the nonfurnishing of the enquiry report, the appellant in this case was in any way prejudiced. No doubt, learned counsel for the appellant says after reading the report of the Enquiry Officer that prejudice had in fact been caused because the Enquiry Officer had proceeded on the basis that the appellant had not submitted the leave applications or informed by telegram about her absence on various days. Ale contention is that if an opportunity had been given, the appellant could have explained that there were other modes or persons through whom the leave applications had been sent. We are of the opinion that this contention cannot be accepted because several opportunities had been given to the appellant. She had admitted that she did not attend duty on all the 103 112 days in respect of which 1,5 the complaint had been lodged. Her only contention was that she had informed the Controlling Officer in advance through phones and phonograms or registered letters that she would be absent. On the 6th sitting of the Enquiry Officer, she had agreed to submit evidence in respect thereof. For the three subsequent hearings, she did not submit any explanation and was absent due to sickness as claimed by her. On August 29, 199 1, she did submit certain documents which were promptly marked as Ex.6. These documents did not at all show that i she had sought for leave or had informed in advance about her absence. A perusal of the enquiry report and the enquiry proceedings clearly show that the appellant had more than enough opportunity to put forth her case and she had miserably. We, therefore, do not accept the contention that any prejudice at all had been caused to the appellant on account of the 3,5 non-furnishing of the enquiry report.
6. In addition to the above facts, it is seen from the records that the appellant had suffered certain earlier punishments for fairly serious 4(lapses. On May 14, 1988, the following charges had been framed against the appellant :
“You have submitted 51 claims for medical reimbursement during the period from April 45 1985 to March 1988 enclosing cash bills from M/s. Vijaya Medicals, No. 43, Royapettah High Road, Madras-14.
Towards all the above claims, you received so a total amount of Rs. 24,932.62. On interrogation by the Vigilance Department, you have admitted in writing vide your letter dated April 16,1988 that in respect of Medical reimbursement claims submitted by you, you purchased only a few medicines from M/s Vijaya Medicals, but got the cash bills for the boosted up amounts.
Further to you letter mentioned above, you have also admitted in writing vide your letter dated May 5, 1988 that you have claimed a total amount Rs. 15000/- approximately through medical claims supported by false cash bills.
You have pleaded guilty of furnishing medical claims supported by false cash bills and remitted a sum of Rs. 19100/- (vide cash receipts No. 5507, dated May 6,1988 and 5528 dated May 13, 1988) to the company.”
Ultimately, the punishment of reduction to a lower post was ordered.
7. On March 23, 1989, the following charges had been framed and the same resulted in reduction to the lower post of Clerk.
You were in the habit of remaining in absence 0 without sanction of leave. You have so remained absent without sanction of leave on the dates described in the annexure attached herewith. From March 3,1989 onwards, you have remained absent unauthorisedly and continuously till date. Your above said acts are violative of Standing Orders 37(2) and 37 (10) read with item 27 of Standing Order No. 57. You have also committed mis-conduct as per item No. 5 of Standing Order 57.”
8. For all the above reasons, we do not think the appellant deserves any further consideration or any further opportunity to explain the enquiry report. We are fully satisfied that the appellant had all the necessary opportunity to explain the complaint against her and she had failed to do so. What is more, the past conduct of the appellant also shows that she does not deserve to be continued in employment. Under these circumstances, 0 the order of the learned single Judge is confirmed and the writ appeal is dismissed. No costs.