Judgment :- 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. 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/respondents is that while notice was issued to participate in the enquiry on 111. 2001, he has not participated in the enquiry and therefore ex-parte enquiry was conducted on the same set of facts. Though opportunity was given to the first respondent, since he has not cooperated or participated in the enquiry, the petitioners were left with no other option except to hold ex-parte enquiry and it was not practicable to hold an enquiry. Therefore, the order is sustainable in law. 6. On hearing both sides, the Tribunal noticed that the enquiry report, dated 23. Therefore, the order is sustainable in law. 6. On hearing both sides, the Tribunal noticed that the enquiry report, dated 23. 2002, finding the first respondent/applicant guilty on both the charges, was not furnished to him, though he made a representation on 23. 2002 to furnish copy of the enquiry report. The petitioners/respondents should have furnished the copy of the enquiry report, in compliance of Rule 15 of the Rules and applying the principles of natural justice. 7. Rule 15 deals with action on the enquiry report. It specifically contemplates furnishing the findings of the enquiry report and calling upon the Government servants to submit a written representation. Government of India instructions under Rule 15 specifically directs the Disciplinary Authority before making final orders in a case, to forward a copy of the enquiry report to the Government servant, requiring to submit an explanation within 15 days. Government of India instructions have referred to the Honble Supreme Courts judgment in the case of Managing Director (ECIL), Hyderabad v. B. Karunakar, JT 1993 (6) SC 1, wherein it was held that wherever the service rules contemplate an inquiry before a punishment is awarded and when the Enquiry Officer is not the Disciplinary Authority, the delinquent employee will have the right to receive the Enquiry Officer report, notwithstanding the nature of the punishment. 8. Applying the above said principles of the Apex Court to the facts and circumstances of the case and also the judgment cited supra, the Tribunal noticed that after dismissal of W.P. No.17986 of 1999 dated 88.2001, notice was sent for attending the enquiry. Accordingly, the first respondent attended the enquiry between 17. 2001 and 111. 2001 but no enquiry was held. Ultimately, for the enquiry on 111. 2002, he has not participated in the enquiry due to non-availability of Defence Assistant and he had requested for postponement of enquiry over phone to the Disciplinary Authority. Therefore, the first respondent/applicant was unauthorisedly absent from 7. 1990 to 2. 1991 while medical certificates were issued from 7. 1990 to 2. 1991 obtained from various doctors with different dates and different diseases. The first respondent appeared on 111. 2001 and he was questioned as to why he was absent for 273 days and the first respondent without any answer submitted that his lawyer would come and answer Thereafter, notice was sent on 111. 2001 for the enquiry on 111. 1991 obtained from various doctors with different dates and different diseases. The first respondent appeared on 111. 2001 and he was questioned as to why he was absent for 273 days and the first respondent without any answer submitted that his lawyer would come and answer Thereafter, notice was sent on 111. 2001 for the enquiry on 111. 2001, which was received by him on 111. 2001. Therefore, he requested for postponement over phone. Therefore, finding of the Disciplinary Authority that it is not practicable to hold an enquiry is factually incorrect. Based on the enquiry report, the order of dismissal was passed, which is held to be illegal The Tribunal, following the other authorities of the Apex Court, ordered reinstatement, against which the present Writ Petition is filed. 9. We have gone through the entire materials on record including the Original Applications and the Writ Petitions filed against the order passed by the petitioners herein and noticed that it is an admitted fact of unauthorised absence for 273 days. 10. The first respondent received the notice of enquiry but did not participate in the enquiry due to the non-availability of Defence Assistant and he had requested for postponement of enquiry over phone to the Disciplinary Authority. Ultimately the only point for consideration is that whether imposition of the punishment of dismissal from service for unauthorised absence, non-attendance in the enquiry and without supplying the copy of the enquiry report, is contrary to law and Service Rules. 11. The learned counsel appearing for the petitioners mainly relied on the judgment of the Supreme Court in State of Uttar Pradesh v. Harendra Arara and Another, 2001 (3) CTC 176 : 2001 (6) SCC 392 , which dealt with the necessity of enquiry report in departmental enquiry. The issue came up for consideration whether the law laid down in the case of ECIL to the effect that the order awarding punishment shall not be liable to be set aside ipso facto on the ground on non-furnishing of a copy of the enquiry report to the delinquent unless he has been prejudiced thereby, would apply to those cases where under the statutory rules there is requirement of furnishing copy of the enquiry report to the delinquent. For appreciating the question, it would be necessary to refer to genesis of the law on the subject of furnishing the report of the Enquiry Officer to the delinquent. The law on the subject can be classified in two compartments -one is requirement to furnish the enquiry report under the statute and another will be according to the principles of natural justice. So far as statutory requirement is concerned, under the Public Servants (Inquiries) Act, 1850, a provision was made for a formal and public enquiry into the imputation of behaviour against public servants. White the said Act is continued to be on the statute-book, the Government of India Act, 1919 was enacted and sub-section (2) of Section 96-B thereof authorized the Secretary of State-in-Council to make rules regulating their conditions of service, inter alia, discipline and conduct pursuant to which the Civil Services Classification Rules, 1920 were framed and Rule 14 whereof provided that the order awarding punishment of dismissal removal or reduction in rank shall not be passed without a departmental enquiry in which a definite charge in writing has to be framed, opportunity has to be given to adduce evidence and thereafter finding has to be recorded on each charge, but there was no requirement under the Rules for hearing the delinquent against the action proposed to be taken on the basis of finding arrived at in the enquiry. The aforesaid Rules were followed by the Civil Services (Classification, Control and Appeal) Rules, 1930 wherein similar provision was made in Rule 55. The aforesaid provision was virtually incorporated in Article 311 (2) of the Constitution. By the Constitution (15th Amendment) Act of 1963, the scope of "reasonable opportunity" was explained. The provisions of Article 311(2) were further amended by the Constitution (42nd Amendment) Act, 1976. Ultimately the Supreme Court held that even according to the decision of this Court in the case of Mohammed Ramzan case as approved by the Constitution Bench in the case of ECIL denial of the Enquiry Officers report would amount to denial of equal opportunity to the employee within the meaning of Article 311(2) of the Constitution and a breach of principles of natural justice. Both the aforesaid decisions were dealing with a case where there was no requirement under the rules to furnish copy of the enquiry report to the delinquent and the decision in ECIL case is silent on the question as to what would be the effect of non-furnishing of copy of the enquiry report in cases where it is required to be furnished under the statuary rules. .12. Applying the principles to the facts and circumstances of the case therein, the competent authority passed the order of dismissal on 13. 1973, on which date, Rule 5A of the Civil Services (Classification, Control and Appeal) Rules, 1930 was amended. From the case of ECIL, it would be plain that in cases covered by the constitutional mandate i.e. Article 311(2) non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not he invalid unless prejudice is shown, the Supreme Court failed to understand how requirement in the statutory rules of furnishing copy of the enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein. Further it was held that even under general law the Code of Civil Procedure, there are various provisions viz. Sections 99-A and 115 besides Order 21, Rule 90 where merely because there is defect, error or irregularity in the order, the same would not be liable to be set aside, unless it has prejudicially affected the decision. Likewise, in the Code of Criminal Procedure also, Section 465 lays down that no finding, sentence or order passed by a competent Court shall be upset merely on account of any error, omission or irregularity unless in the opinion of the Court a failure of justice, has, in fact, been occasioned thereby. No reason is found why the principle underlying the aforesaid provisions would not apply in case of the statutory provisions like Rule 55-A of the Rules in relation to disciplinary proceeding. Rule 55-A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice. No reason is found why the principle underlying the aforesaid provisions would not apply in case of the statutory provisions like Rule 55-A of the Rules in relation to disciplinary proceeding. Rule 55-A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice. Further from a conspectus of the aforesaid decisions and different provisions of law noticed, the Supreme Court held that the provision in Rule 55-A of the Rules for furnishing a copy of enquiry report is a procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its nonobservance and consequently has to show that he has been prejudiced by its nonobservance and consequently the law laid down by the Constitution Bench in the case of ECIL to the effect that order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing a copy of enquiry report under the statutory provisions and/or Service Rules. .13. From the above, following the observations made by the Supreme Court in the case cited supra, under Rule 14 of the CCS (CCA) Rules, the first respondent was charged for the unauthorised absence of 573 days. He was dismissed from service on 11. 1993 and on Appeal, the dismissal was confirmed on 2. 1994. In O.A. No.108 of 1993, the Tribunal remitted the matter to the Appellate Authority for reconsideration. The Appellate Authority by order dated 6. 1997 set aside the orders of the Disciplinary Authority dated 11. 1993 and remitted the matter back to the Disciplinary Authority to proceed in the matter de novo from the stage of charge sheet Thereafter, the Disciplinary Authority, by communication dated 212. 1991 informed the applicant that the enquiry conducted was withdrawn and issued the memo dated 212. 1998 framing fresh charges on the same set of facts, against which O.A. No. 314 of 1999 was filed, wherein the Tribunal upheld the third enquiry and challenging the same, W.P. No.17986 of 1999 was filed and the same was dismissed on 8. 2001. 1991 informed the applicant that the enquiry conducted was withdrawn and issued the memo dated 212. 1998 framing fresh charges on the same set of facts, against which O.A. No. 314 of 1999 was filed, wherein the Tribunal upheld the third enquiry and challenging the same, W.P. No.17986 of 1999 was filed and the same was dismissed on 8. 2001. Thereafter, the second petitioner directed the first respondent to report for the enquiry on 17. 2001. 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. Therefore, it shows that he has not participated in the enquiry only on the pretext of non-availability of Defence Assistant. Thereafter, ex-parte enquiry was conducted and the order was passed. The enquiry was conducted to give an opportunity to the first respondent. He was absent from 7. 1990 to 2. 1991. though medical certificates were issued for the period from 7. 1990 to 2. 1991 but those certificates were obtained from various doctors with different dates and different diseases. Further, he participated in the enquiry held on 111. 2001 and when he was questioned for his unauthorised absence for 573 days, the first respondent replied that his lawyer would come and answer. Thereafter, notice was sent on 111. 2001 for the enquiry on 111. 2001, which was received by him on 111. 2001 and requested for postponement over phone. In the circumstances, ex-parte enquiry was conducted and the final order was passed. For his unauthorised absence, he has submitted medical certificates issued by various doctors for various diseases. But he has not participated in the enquiry.. Therefore, ex paste enquiry was conducted and punishment was imposed. Therefore, even Rule 15 contemplates issuance of copy of enquiry report before passing a final order and the petitioner is not able to show any reason or establish any prejudice is caused for not furnishing the enquiry report under Rule 15 of the Rules before passing final order. On the other hand, we noticed that at every stage of the matter, the first respondent has approached the Tribunal or this Court to stall the enquiry proceedings, but has not shown any interest in proceeding with the enquiry. 14. On the other hand, we noticed that at every stage of the matter, the first respondent has approached the Tribunal or this Court to stall the enquiry proceedings, but has not shown any interest in proceeding with the enquiry. 14. Considering the facts and circumstances of the case, we are of the opinion that the Tribunal has not properly followed the judgment of the Supreme Court referred to above and merely following the judgment of the Supreme Court that the delinquent must show that due to non-furnishing of the enquiry report, he has been prejudiced and in the present case, the first respondent has not shown any prejudice is caused to him in any manner and accordingly the impugned order is liable to be set aside and the reasons given by the Administrative Tribunal are not germane and more over, the impugned order is not in consonance with the rulings of the Supreme Court. 15. Therefore, the Writ Petition is allowed. The impugned order is set aside. There shall be no order as to costs.