Judgment Ajay Rastogi, J.-By this petition, the petitioner has challenged order dated 35.1991 (Annexure 18) whereby he has been dismissed from service after holding disciplinary inquiry under Railway Protection Force Rules, 1987 ("RPF Rules"), so also the order dated 11.1991 (Annexure 20), whereby appeal preferred by him was rejected. 2. Facts, in brief are that the petitioner was appointed as Rakshak in Railway Protection Force in November, 1978. While he was posted at Phulera, vide movement order dated 010.1990 (Annexure 1) he was directed to proceed to Renwal Railway Station to keep watch on derailed wagons of Goods Train. Allegation against him was that he left Renwal without permission to Phulera and while boarding the train No. 9932 DN (Arawali Express) from Phulera to Renwal, the petitioner had some hot exchange with TTE, as he was in civil dress and boarded unauthorisedly in a reserved coach on 10.1990. For this incident, upon receipt of complaint by TTE, a case was registered against the petitioner under Sections 145 and 146 of Indian Railways Act read with Section 323, IPC. For alleged misconduct on his part for aforesaid incident of 10.1990, the petitioner was suspended vide order dated 10.1990 (Annexure 2). Preliminary inquiry was conducted against him, and on the basis of preliminary inquiry report, he was then served with charge sheet dated 211.1990 (Annexure 4) under Rule 153 of RPF Rules, to which he submitted his written explanation, denying all the charges but, without looking into submission made by him in his reply, inquiry officer was appointed. The inquiry officer recorded statement of witnesses. As per material on record, the evidence of department was closed on 23.1991 and the inquiry was fixed on 9.5.1991 for defence evidence on that day he submitted list of his witnesses containing three names, alongwith an application, namely Madan Singh, Deviram and Tirath Singh, and witness Madan Singh was examined on 9.5.1991 and thereafter, inquiry was adjourned to 15.1991 for recording evidence of other witnesses. However, on 15.1991, the petitioner did not attend the inquiry as he was reported to be sick and vide communication dated 17.5.1991, inquiry was fixed for 25.1991 and on the said date, because of his illness, he could not appear before inquiry officer and reported on 27.5.1991 upon his recovery from illness and submitted his fitness certificate. However, on 15.1991, the petitioner did not attend the inquiry as he was reported to be sick and vide communication dated 17.5.1991, inquiry was fixed for 25.1991 and on the said date, because of his illness, he could not appear before inquiry officer and reported on 27.5.1991 upon his recovery from illness and submitted his fitness certificate. However, on account of his absence, on 25.1991, inquiry officer proceeded ex parte against the petitioner and submitted his report to the disciplinary authority on 27.5.1991, holding him guilty for all the charges except part of charge No. 3 with regard to the allegation of stopping train by pulling chain, and charge No. 4. However, disciplinary authority vide its order dated 35.1991 accepted the finding recorded by inquiry officer and inflicted penalty of dismissal from service upon the petitioner, and alongwith order of punishment, a copy of inquiry report was supplied to him. The petitioner preferred an appeal under Rule 212 of RPF Rules to the appellate authority, before whom it was his first opportunity available for him to point out any procedural error, infirmity and perversity in the inquiry report, if there is any, so also the prejudice having caused to him because of ex parte inquiry proceeded against him, and so also other material, which was made to be the basis by disciplinary authority in holding him guilty, which was not made available to him before passing order of punishment, which has resulted in causing prejudice to him, and thus took all such pleas in the appeal, but that too was rejected on 11.1991 vide order (Annexure 20). Hence, this writ petition. 3. Shri Abhay Kumar Bhandari, Sr. Hence, this writ petition. 3. Shri Abhay Kumar Bhandari, Sr. Counsel for the petitioner has urged that while proceeding ex parte against the petitioner despite the fact that he was ill on 25.1991 and list of witnesses, to whom he wanted to examine in the course of inquiry, was already furnished by him on first date, i.e. 9.5.1991 after closure of departmental evidence, and one of the witnesses Madan Singh was examined on first available date, itself , it showed his intention to co-operate in the inquiry, rather there was no intention on his part to defer the inquiry for one or the other reasons, but because of illness on 25.1991, the inquiry officer proceeded ex parte without affording any opportunity or any notice to him for proceeding ex parte against him, submitted his report to the disciplinary authority immediately on 27.5.1991, holding him guilty, and submitted that the very premises, on which inquiry officer acted upon in taking decision in holding the petitioner guilty in his absence on account of his illness duly supported by certificate of railway doctors was in clear violation of rules of natural justice, and the respondent failed to afford an adequate and reasonable opportunity to him to submit his defence by calling witnesses. Shri Bhandari submitted that ex parte inquiry initiated against him vitiates the finding of inquiry report so also the decision of the disciplinary/appellate authority in holding him guilty and inflicting penalty of dismissal from service. 4. Shri Bhandari submitted that ex parte inquiry initiated against him vitiates the finding of inquiry report so also the decision of the disciplinary/appellate authority in holding him guilty and inflicting penalty of dismissal from service. 4. Shri Bhandari further urged that as per report of inquiry, even if it is taken at its face value, there were only two material witnesses whose statements were recorded, namely Vishal Singh, who was concerned TTE on relevant date (Annexure 16) and Tirath Raj Tiwari, Inspector of Phulera Railway Station (Annexure 6), while rest of witnesses whose statements were recorded, have not at all uttered anything against the petitioner and even statement of Vishal Singh and Tirath Raj does not say anything against him in relation to the charges levelled; and despite the same, inquiry officer in the absence of material available on record, still held him guilty and even while recording guilt, he has reached to final conclusion straight away and the same is not supported by any material on record, including statements of two departmental witnesses, is perverse and since the same has been taken the basis by the authorities in holding him guilty, consequential decision stands vitiated. 5. Shri Bhandari has also submitted that in a criminal case, registered against the petitioner under Sections 145, 146 of Indian Railways Act and 323, IPC, he was acquitted from all the charges by competent Court of jurisdiction vide Judgment dated 17.2000-a copy whereof has been placed on record, as such charge No. 7, which is a mere fact and not even a allegation in the charge sheet still has been held proved against him in disciplinary inquiry, which does not hold good in view of Judgment dated 17.2000. 6. 6. Apart from merits of inquiry proceedings against him, Shri Bhandri urged that the petitioner was not furnished with copy of inquiry report which was a material document and taken note of by the disciplinary authority while inflicting penalty of dismissal from service, upon him, and he has been deprived of to justify perversity in the finding of guilt recorded against him by the inquiry officer, only in case report of inquiry was made available to him before punishing him by the disciplinary authority, so as to show that statement of witnesses recorded in relation to the charges, did not either corroborate or have no material to hold him guilty of imputed charge, and in such facts and circumstances, when the inquiry was ex parte proceeded against him, it was all the more necessary/required for the authority to first supply him material on the basis of which decision was to be taken for inflicting penalty by the disciplinary authority. In support of his submission, Shri Bhandari has placed reliance on the decision of Apex Court in Man. Dir. ECIL vs. B. Karunakar, 1993 (4) SCC 727 , wherein it has been held that the law laid down in UOI vs. Mohd. Ramzan Khan, 1991 (1) SCC 588 . is prospective, rather applicable to those orders which are passed by the authority after 20.11.1990, and thus will come into effect from 20.11.1990. In the absence supply of copy of inquiry report before issuing punishment order, passed by disciplinary/appellate authority indicating decision regarding dismissal of the delinquent from service is vitiated for non-compliance of principles of natural justice. 7. Shri Bhandari also urged that after copy of report was made available to him alongwith order of penalty dated 35.1991, the petitioner raised all objections in his appeal with regard to ex parte proceedings initiated against him, so also perversity in recording the finding of guilt and on account of non-availability of material particularly report of inquiry based on the statements recorded during the inquiry, which do not corroborate with the allegations of charges levelled against him, but still without taking note of all such objections made by him in his appeal, the appellate authority too rejected it in a arbitrary and capricious manner, vide order dated 11.1991 (Annexure 20). This is in fact has violated Rule 217(3) of RPF Rules, which casts an obligation upon appellate authority to consider and see as to whether procedure prescribed under RPF Rules have been complied with, and if not, whether such non compliance has resulted in violation of any constitutional provisions or in miscarriage of justice; and whether the findings are warranted and based on evidence on record; and as to whether the punishment is adequate or not, but in the present case, the appellate authority failed to consider in the light of provisions of Rule 217 of RPF Rules while taking decision on the appeal of the petitioner despite the fact that the petitioner raised all such objections and pleas in his appeal. 8. Shri Manish Bhandri, per contra, Counsel for respondents submitted reply to writ petition and contended that the act under imputed charges on the part of the petitioner was a grave misconduct being committed by him, and he being member of disciplined force was expected to follow rules and regulations. Shri Manish Bhandari further submitted that since the petitioner did not appear in the inquiry on 25.1991 despite intimated vide letter dated 17.5.1991 of the next date fixed by inquiry officer, in such circumstances, no error was committed by inquiry officer to proceed ex parte against the delinquent. 9. It has further been submitted on behalf of respondents that the inquiry officer has recorded finding of guilt on the basis of sufficient and cogent evidence available on record and after appreciation of statements of witnesses recorded in the course of inquiry and thereafter, he has reached to a final conclusion in holding the petitioner guilty for all the charges except charge Nos. 3 and 4. 10. Shri Manish Bhandari further urged that since disciplinary authority fully agreed with finding of the inquiry report, no independent reasons in upholding he guilt recorded by inquiry officer, was required for disciplinary authority which has rightly proceeded in taking its decision looking to the gravity of the proved charges levelled against the petitioner so also keeping in view his previous conduct, while inflicting penalty of dismissal from service against him for proved guilt, which does not warrant any interference by this Court. 10.11. 10.11. Shri Manish Bhandari also contended that since there was no requirement under RPF Rules to supply copy of inquiry report and on the contrary, Rule 155 of RPF Rules clearly indicate that while communicating the order of punishment, a copy of the findings of the inquiry officer has to be given to the delinquent concerned, and accordingly in due compliance under Rule 155 of RPF Rules, a copy of inquiry report was supplied to the petitioner, at the first stage alongwith punishment order dated 35.1991 (Annexure 18). 112. Shri Manish Bhandari further submitted that even after Judgment of Mohd. Ramzan Khans case (Supra) which has been held to be prospective as laid down by the Apex Court in decision in ECIL vs. B. Karunakar (Supra) in para 31 has considered that mere non-supply of copy of inquiry report will not vitiate action unless prejudice, if any, occasioned to the delinquent, is shown by him; and in the present case, at the first stage, opportunity was afforded point out prejudice if caused to him on account of non-supply of copy of inquiry report, which he failed to do so in appeal preferred by him, rather even in this writ petition before this Court, he has failed to point out or show any prejudice havng caused to him on account of non-supply of copy of inquiry report, therefore, in the absence of which, non-supply of inquiry report will not vitiate the inquiry proceedings. Apart form it, submissions made with regard to the defect in ex parte inquiry proceedings so also in appreciation of statements recorded and considered besides the conclusion on which the inquiry or disciplinary authority arrived at while holding the petitioner guilty, all were considered by the appellate authority in its order dated 11.1991 (Annexure 20), which has been passed in compliance of Rule 217 (3) of RPF Rules. 13. I have heard learned Counsel for the parties and perused material on record. 15. 13. I have heard learned Counsel for the parties and perused material on record. 15. As regards submission made by Shri Abhay Bhandari with regard to initiation of ex parte proceedings against the petitioner, from a perusal of record, it depicts that after closure of departmental evidence on 23.1991, petitioner submitted list of his witnesses in defence, which he wanted to examine on 9.5.1991 and he got Shri Madan Singh examined on the very day, and next date fixed by inquiry officer was 15.1991 but because of his sickness, he did not appear, rather sent his sickness certificate alongwith application and next date fixed by inquiry officer was 25.1991 when due to his illness, he could not appear before inquiry officer, for which railway doctor issued him sickness certificate on 27.5.1991 which too was furnished by him before inquiry officer. In such circumstances, the date 25.1991 on which inquiry officer took decision to proceed ex part against him, in my opinion, certainly denies a reasonable opportunity of hearing to him and since there is no allegation levelled against him that he has not cooperated in the course of entire inquiry proceedings or that there was any delay on his part on previous occasions; merely because he could not appear due to sickness on 25.1991, inquiry officer was not fair in proceeding ex parte against him and in my opinion, certainly prejudice has caused to him on account of proceedings initiated ex parte against him, which deprived him of his right of defence, which is only the right available to the delinquent in disciplinary inquiry so as to submit his explanation against the charges imputed upon him. 16. As regards next submission made that due to non-supply of copy of inquiry report to him and in view of decision of Apex Court in UOI vs. Mohd. Ramzan Khan (Supra), the order of penalty inflicted upon the petitioner is not sustainable, from the record it shows that prejudice caused to him has been raised by him in the appeal preferred before appellate authority since that was the first stage available before him, apart from the same, when ex parte proceedings were initiated against him, his valuable right of defence has been curtailed in an arbitrary manner and in my opinion, which, itself , was a prejudice apart from what the petitioner had pointed out in the appeal preferred by him. In the present facts and circumstances, non-supply of a copy of the inquiry report also vitiates the action of the respondent. 17. As regards the question of determining the entitlement of a person to pecuniary benefits as a consequence of punishment inflicted which is found to be arbitrary, Counsel for the respondent has placed reliance on the decision of the Apex Court in Kendriya Vidyalaya Sangthan vs. S.C. Sharma, AIR 2005 SCW 377 wherein it has been said that the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. Therefore, for determination of entitlement of pecuniary benefits for the period from the order of dismissal till he joins duty pursuant to this order, the matter has to be left open for decision to be taken in disciplinary proceedings. 18. Other submissions made by Counsel for the parties, are not required to be looked into as in my opinion the inquiry stands vitiated because of ex parte proceedings initiated and on account of non-supply of inquiry report to the delinquent petitioner. However, it is made clear that I have not expressed any opinion on the merits of the case, and/ or the question of entitlement of pecuniary benefits. 19. For aforesaid reasons, this writ petition is allowed. The order dated 35.1991 (Annexure 18) and dated 11.1991 (Annexure 20) are hereby quashed and set aside. The petitioner shall be deemed to be in service. However, the respondents are free to proceed further against the petitioner pursuant to the charge sheet dated 211.1990 (Annexure 4) from the stage of 22nd May, 1991, at which inquiry was proceeded ex parte, after due compliance of rules of natural justice so also the provisions contained in RPF Rules. The entitlement of pecuniary benefits for the period from the initial order of dismissal till he joins service in pursuance of this order, will be decided in the disciplinary proceedings. The delinquent is directed to co-operate and participate in disciplinary proceedings and if he fails to do so, it shall be at his own risk and peril. No order as to costs.