JUDGMENT : Ujjal Bhuyan, J. 1. Heard Dr. J.L. Sarkar, learned Senior Counsel assisted by Mr. M. Chanda, learned counsel for the petitioner and Mr. K.P. Sarma, learned Senior Counsel assisted by Mr. H. Das, learned counsel for the respondents. Matter relates to imposition of penalty of removal from service on the petitioner following a departmental proceeding. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of the inquiry report dated 24.05.2000, order of penalty dated 08.01.2004 and the order of the appellate authority dated 20.03.2009 dismissing the appeal of the petitioner. Petitioner further seeks a direction to the respondents to reinstate him in service with all consequential benefits. 3. Facts of the case as projected in the writ petition may be briefly noted. 4. Petitioner was serving as Security Guard in the North Eastern Electric Power Corporation (NEEPCO). NEEPCO is a statutory body and is an instrumentality of the State. NEEPCO is an industrial establishment under section 2(J) of the Industrial Disputes Act, 1947. Security personnel employed at NEEPCO are workers within the meaning of the Industrial Disputes Act, 1947 and the provisions of the Industrial Employment (Standing Orders) Act, 1946 would be applicable to them. Petitioner and others had formed a Trade Union under the Trade Unions Act, 1926 which received registration from the Registrar of Trade Unions, Assam, Guwahati. 5. According to the petitioner, formation of the Trade Union was not to the liking of the NEEPCO authorities. They started taking steps for de-registration of the Trade Union. However, the application filed by NEEPCO for de-registration was rejected by the Registrar of Trade Unions. 6. It is in this background that petitioner was initially served with a show cause notice by the NEEPCO authority dated 12.06.1998 alleging that by forming the Trade Union, he had breached the discipline of the organization, which amounted to misconduct. Petitioner submitted his show cause reply contending that he has not breached any discipline of the organization. It appears that the authorities did not proceed further pursuant to the show cause notice dated 12.06.1998. However, by order dated 12.08.1998, petitioner was placed under suspension. 7. Manager (Security), Fire & Safety Wing, Kopili Hydro Electric Project, NEEPCO issued a show cause notice to the petitioner dated 30.11.1998 asking him to show cause on the 3 charges framed against him. However, by order dated 12.08.1998, petitioner was placed under suspension. 7. Manager (Security), Fire & Safety Wing, Kopili Hydro Electric Project, NEEPCO issued a show cause notice to the petitioner dated 30.11.1998 asking him to show cause on the 3 charges framed against him. As per charge No. 1, petitioner had made allegation against the doctors of NEEPCO Hospital, Umrangso that he was refused treatment at the behest of Senior Officers of the Security Wing Headquarters. He also tried to incite other security guards by spreading the rumour that the doctors of NEEPCO Hospital were indifferent towards him. Second charge pertains to failure to pay respect to superiors by not saluting them. As per charge No. 3, petitioner failed to report for duty at the guest house as per order of the Manager (Security). Thus he was charged with disobeying the orders of superior authority. A statement of imputation of misconduct in respect of the 3 charges was enclosed and served upon the petitioner along with the show cause notice. 8. Petitioner submitted his written statement in defence dated 14.12.1998 denying the charges leveled against him. He stated that he never made any allegation against the doctors of NEEPCO Hospital. Regarding saluting his superiors, he stated that he was respectful towards his superiors and if on any occasion, there was an instance of not saluting, it was not intentional as he might have been busy in maintaining the entry and exist register at the gate while discharging guard duty. In so far charge No. 3 was concerned, he stated that he had already informed the higher authority on 29.05.1995 itself that he would not be able to attend to his duty in the guest house because of severe stomach problem as he was suffering from desentry. In fact, he had to take treatment in the hospital. He stated that perhaps the charges were brought against him because of his involvement with the Trade Union. 9. It appears that the disciplinary authority did not accept the written statement of the petitioner and decided to hold inquiry against him. Inquiry Officer as well as the Presenting Officer were appointed. The Inquiry Officer conducted inquiry and thereafter submitted his inquiry report dated 24.05.2000 to the Chairman-cum-Managing Director (CMD), NEEPCO. 9. It appears that the disciplinary authority did not accept the written statement of the petitioner and decided to hold inquiry against him. Inquiry Officer as well as the Presenting Officer were appointed. The Inquiry Officer conducted inquiry and thereafter submitted his inquiry report dated 24.05.2000 to the Chairman-cum-Managing Director (CMD), NEEPCO. In his report, the Inquiry Officer held that the 3 charges leveled against the petitioner were established and that the petitioner had committed misconduct under the NEEPCO Security Force Conduct, Discipline and Appeal Rules (Rules). Thereafter, the Executive Director (CSA), NEEPCO passed the order dated 08.01.2004 imposing the major penalty of removal from service on the petitioner with immediate effect. 10. Petitioner submitted an appeal dated 27.01.2004 before the CMD against the order of penalty. Petitioner was informed on 25.03.2005 that the appellate authority was of the opinion that there was no merit in the appeal, which was therefore, dismissed. 11. At this stage, petitioner moved this Court by filing, WP(C) No. 2133/2005. This Court after noticing the requirement of Rule 22 of the Rules, vide order dated 27.01.2009 took the view that the appellate order did not disclose any reason. In view thereof, the order dated 25.03.2005 was quashed and the matter was remanded back to the appellate authority to re-consider the appeal preferred by the petitioner strictly as per the provisions of Rule 22 of the Rules and to pass a speaking order. 12. General Manager (P) IR & A, NEEPCO, vide communication dated 25.03.2009 informed the petitioner that appellate authority had upheld the penalty imposed and as such his appeal stood dismissed. The communication was sent to the petitioner under the caption "speaking order". 13. Aggrieved, petitioner has filed the present writ petition seeking the relief's as indicated in the writ petition. 14. On receipt of notice, respondents entered appearance and filed counter-affidavit. In the counter-affidavit, relevant portion of the note sheet whereby the appellate authority considered the appeal of the petitioner and dismissed the same, was annexed. The order of the appellate authority is dated 20.03.2009. 15. Thereafter petitioner with the leave of the Court filed an amended writ petition bringing on record challenge to the said order of the appellate authority dated 20.03.2009. 16. Respondents have filed counter-affidavit to the amended writ petition contesting the contention of the petitioner. The order of the appellate authority is dated 20.03.2009. 15. Thereafter petitioner with the leave of the Court filed an amended writ petition bringing on record challenge to the said order of the appellate authority dated 20.03.2009. 16. Respondents have filed counter-affidavit to the amended writ petition contesting the contention of the petitioner. It is contended that security guards serving in NEEPCO are not workers and, therefore, they cannot be termed as workman. There are 3 recognized Trade Unions in NEEPCO. None of the Trade Unions have allowed the security personnel of NEEPCO to become members. Against the rejection of the application by NEEPCO for de-registration of the Trade Union by the Registrar of Trade Unions, Assam, NEEPCO had filed a writ petition before this Court being WP(C) No. 4254/1999. Initially registration granted to the Trade Union of the petitioner was stayed, which stay order was confirmed later on. However, it has been denied that issuance of show cause notice and framing of charge had any connection with the formation of Trade Union by the petitioner as the show cause notice dealt with specific charges of misconduct committed by the petitioner. Petitioner was given due opportunity to present his case in the inquiry, which was conducted in accordance with law and in compliance with the principles of natural justice. It is, however, stated that copy of inquiry report was served on the petitioner on 08.01.2004 along with the order of penalty dated 08.01.2004. Petitioner preferred appeal against the order of penalty, which was duly considered. Following order of this Court dated 27.01.2009, passed in WP(C) No. 2133/2005 filed by the petitioner, speaking order was passed by the CMD, NEEPCO as the appellate authority on 20.03.2009, which was, however, inadvertently not enclosed to the letter dated 25.03.2009, informing the petitioner about dismissal of his appeal. Petitioner did not seek for a copy of the speaking order. Penalty imposed is commensurate to the gravity of the misconduct, which has been proved in a duly constituted departmental inquiry and confirmed in appeal. Contentions have been made on the merit of the 3 charges, which have been held to be established by the Inquiry Officer. It is stated that letter dated 25.03.2009 was only a communication and not the speaking order passed by the appellate authority on 20.03.2009. Contentions have been made on the merit of the 3 charges, which have been held to be established by the Inquiry Officer. It is stated that letter dated 25.03.2009 was only a communication and not the speaking order passed by the appellate authority on 20.03.2009. It is stated that no fundamental or any legal right of the petitioner has been violated and, therefore, writ petition should be dismissed. 17. Petitioner has filed reply-affidavit. While reiterating the statements made in the amended writ petition, it is further contended that petitioner was not furnished with the list of documents along with the show cause notice, but those documents were only furnished to him in the course of inquiry on 14.12.1999, which the petitioner received under protest. Finding of the Inquiry Officer was based on no evidence. Inquiry report was not furnished to the petitioner and his response was not sought for before the disciplinary authority took the decision to accept the report of the Inquiry Officer and to impose the punishment. It is pointed out that respondents have admitted that the inquiry report was served on the petitioner along with the order of penalty on 08.01.2004, which is in violation of the principles of natural justice. Appellate order in the form of speaking order dated 20.03.2009 was not communicated to the petitioner. Appellate Authority did not consider the appeal of the petitioner in the light of Rule 22. Contentions advanced by the respondents on the merit of charges have been refuted by the petitioner. Finally, it is contended that the departmental proceeding against the petitioner was vitiated on account of violation of the principles of natural justice and other procedural infirmities and, therefore, this Court should intervene in the matter in an appropriate manner. 18. Dr. J.L. Sarkar, learned counsel for the petitioner submits that the departmental proceeding drawn up against petitioner was a farce inasmuch as the higher officials of NEEPCO were pre-determined to remove the petitioner from service of NEEPCO. They had adopted a vindictive attitude towards the petitioner for forming the Trade Union and he has been victimized. Referring to the show cause notice, he submits that the list of documents, on which the departmental authority wanted to rely upon to prove the charges, were not furnished to the petitioner along with the show cause notice. They had adopted a vindictive attitude towards the petitioner for forming the Trade Union and he has been victimized. Referring to the show cause notice, he submits that the list of documents, on which the departmental authority wanted to rely upon to prove the charges, were not furnished to the petitioner along with the show cause notice. Those were submitted during the inquiry, which caused prejudice to the petitioner in putting up his defence. It was also vocative of the principles of natural justice. Besides the charges were vague and not definite. Inquiry Officer proceeded on surmises and conjectures while recording his findings, holding that the 3 charges had been established. Relevant witnesses were not examined. Hearsay evidence were taken into consideration. He submits that respondents have admitted that copy of the inquiry report was not furnished to the petitioner before decision was taken by the disciplinary authority to accept the inquiry report. Copy of the inquiry report was furnished to the petitioner along with the impugned order of penalty. This is in clear violation of the principles of natural justice as held by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 . On this count itself, the impugned penalty is liable to be set aside and quashed. He further submits that the CMD, NEEPCO was monitoring the departmental proceeding drawn up against the petitioner and this would be evident from the act of the Inquiry Officer in submitting the inquiry report to the CMD vide the forwarding letter dated 24.05.2000. The disciplinary authority while passing the impugned order also furnished a copy of the same to the CMD referring to his order dated 31.10.2000. Therefore, punishment was not imposed by the disciplinary authority applying his own independent mind, but at the instance of the CMD, who is not only the appellate authority, but also the highest authority in NEEPCO. Coming to the order of the appellate authority, Dr. Sarkar submits that this Court had made it abundantly clear in its order dated 27.01.2009 that the appellate authority should consider the appeal preferred by the petitioner strictly as per the provisions of Rule 22 and, thereafter to pass a speaking order. The communication to the petitioner dated 25.03.2009 cannot be said to be a speaking order. Sarkar submits that this Court had made it abundantly clear in its order dated 27.01.2009 that the appellate authority should consider the appeal preferred by the petitioner strictly as per the provisions of Rule 22 and, thereafter to pass a speaking order. The communication to the petitioner dated 25.03.2009 cannot be said to be a speaking order. Respondents have admitted in their counter-affidavit that the appellate authority had passed, the speaking order on 20.03.2009, but that was inadvertently not enclosed with the letter dated 25.03.2009. He contends that an un-communicated order is no order at all in the eye of law and, therefore, the order dated 20.03.2009 of the appellate authority is not a valid order in the eye of law. Thus, there is non-compliance with the direction of this Court order dated 27.01.2009. Finally, he submits that on the face of it, the charges framed are such, which do not warrant imposition of such a major penalty as removal from service. He, therefore, prays for quashing of the order of penalty and for reinstatement of the petitioner with all consequential service benefits. 19. Opposing the submissions of Dr. Sarkar, learned Senior Counsel for the petitioner, Mr. Sarma, learned Senior Counsel for the respondents submits that petitioner was given full opportunity to defend himself in the departmental proceeding, including in the inquiry. Charges framed against the petitioner were specific and those have been established in a duly constituted inquiry, in which petitioner participated. He submits that non-furnishing of copy of inquiry report before the disciplinary authority takes the decision to accept the report or not by itself will not vitiate the departmental proceeding. Petitioner will have to prove that he was prejudiced by non-furnishing of a copy of the inquiry report Learned Senior Counsel for the respondents placed heavy reliance on the test of prejudice and submits that there are no pleadings to show that petitioner suffered any prejudice due to non-furnishing of a copy of the inquiry report prior to passing of the impugned order of penalty. In this connection, learned Senior Counsel has placed reliance on the decision of the Apex Court in the case of Managing Director, ECIL, Hyderabad & Ors. In this connection, learned Senior Counsel has placed reliance on the decision of the Apex Court in the case of Managing Director, ECIL, Hyderabad & Ors. (Supra) and submits that the employee must show that he has suffered prejudice because of non-furnishing of a copy of the inquiry report in this connection, reference has also been made to the decision of the Apex Court in the case of Divisional Manager, Plantation Division, Andaman & Nicobar Islands Vs. Munnu Barrick, reported in (2005) 2 SCC 237 . He has also referred to a Division Bench judgment of this Court dated 05.11.2003 in WA No. 173/2003 (Arun Borah Vs. NEEPCO & Ors.), which took the view that no prejudice could be shown by the petitioner because of non-furnishing of inquiry report and, therefore, the decision of the learned Single Judge not interfering with the penalty on the ground of non-furnishing of inquiry report was upheld. Learned Senior Counsel also submits that order of this Court was complied with by the appellate authority by passing a speaking order, which has been placed on record along with the counter-affidavit. He submits that scope of judicial interference in a departmental proceeding is limited and the Court should not examine or appreciate the evidence like an appellate authority. In this connection, reliance has been placed on the decision of the Apex Court in the case of Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Ors., reported in (1997) 3 SCC 657 . He also submits that copy of the inquiry report was furnished to the petitioner along with the order of penalty and, therefore, it cannot be said that the petitioner was prejudiced due to non-receipt of a copy of the inquiry report prior to the order of penalty. As a matter of fact, petitioner while filing the appeal, assailing the order of penalty, had placed reliance on the inquiry report. This would amount to substantial compliance with the requirement of natural justice. In this connection, reliance has been placed on the decision of the Apex Court in Union Bank of India Vs. Vishwa Mohan, reported in (1998) 4 SCC 310 . This would amount to substantial compliance with the requirement of natural justice. In this connection, reliance has been placed on the decision of the Apex Court in Union Bank of India Vs. Vishwa Mohan, reported in (1998) 4 SCC 310 . On the point of proportionality of punishment, learned Senior Counsel for the respondents submits that considering the fact that petitioner was employed as a security guard entrusted with the duty to protect vital installations, in such circumstances, the penalty of removal from service is justified. Allegation that respondents had adopted a vindictive attitude towards the petitioner is not correct inasmuch as, had that been so, penalty of dismissal would have been imposed. Since the petitioner was discharging security related duties, discipline is of paramount consideration and no leniency can be shown for breach of discipline. Penalty imposed cannot be said to be shocking to the judicial conscience to warrant any interference. In this connection, learned Senior Counsel for the respondents has placed reliance on the following decisions:- i) AIR 1996 SC 736 (State of UP & Ors., Vs. Ashok Kumar Singh & Anr.), ii) (2001) 9 SCC 592 (Union of India Vs. R.K. Sharma), iii) (2005) 3 SCC 401 (MP Electricity Board Vs. Jagdish Chandra Sharma), iv) (2006) 2 SCC 541 (Ram Saran Vs. IG of Police, CRPF & Ors.). 20. Submissions made have been considered. Decisions cited at the Bar have also been perused. 21. Before dealing with the other grounds of challenge urged upon by the learned Senior Counsel for the petitioner, it would be apposite to first attend to the challenge made to the order of penalty on the ground of non-furnishing of a copy of the inquiry report to the petitioner before passing the said order, as any decision on this ground one way or the other would have a bearing on the outcome of the present proceeding. 22. The issue relating to non-furnishing of a copy of the inquiry report to a delinquent in the context of Article 311(2) of the Constitution of India post the 42nd Amendment came up for consideration before the Apex Court in Union of India Vs. Md. Ramzan Khan, reported in (1991) 1 SCC 588 . 23. 22. The issue relating to non-furnishing of a copy of the inquiry report to a delinquent in the context of Article 311(2) of the Constitution of India post the 42nd Amendment came up for consideration before the Apex Court in Union of India Vs. Md. Ramzan Khan, reported in (1991) 1 SCC 588 . 23. Prior to the 1976 amendment, Article 311(2) provided for opportunity of hearing at 2 (two) stages, i.e., at the stage of inquiry into the charges and subsequently before imposition of penalty on the basis of findings of the inquiry. The 1976 amendment eliminated the provision providing for second opportunity of hearing before imposition of punishment. 24. In Ramzan Khan (Supra), the question which fell for consideration before the Apex Court was whether after the 42nd amendment, the delinquent had lost his right to entitlement to a copy of the report of the Inquiry Officer in the disciplinary proceeding. The Apex Court on due consideration took the view that deletion of the second part of issuing notice did not bring about any material change in regard to the requirement of furnishing a copy of the inquiry report to the delinquent The Hon'ble Supreme Court held as under:- "15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the inquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. For doing away with the effect of the inquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position." 25. The question as to whether the inquiry report of the Inquiry Officer, who was appointed by the disciplinary authority to hold enquiry into the charges against the delinquent, was required to be furnished to the delinquent to enable him to make proper representation to the disciplinary authority before such authority arrives at its own final decision with regard to the guilt or otherwise of the delinquent and the consequent punishment proposed was referred to the Constitution Bench in Managing Director, ECIL, (Supra). Reference was made in view of what was thought to be conflicting decisions in Ramzan Khan (Supra), and an earlier decision in the case of Kailash Chander Asthana Vs. State of U.P. reported in (1988) 3 SCC 600 . The question which was referred has since been authoritatively decided by the Constitution Bench in Managing Director, ECIL (Supra). It has been held that right to receive the Inquiry Officer's report and to show cause against the inquiry report was independent of the right to show cause against the penalty proposed. Acknowledging that there was some confusion between the two rights, the Apex Court clarified that the right to receive the inquiry report and to represent against the findings recorded in it was inexplicably connected with the decision of the disciplinary authority and the nature of penalty proposed. Acknowledging that there was some confusion between the two rights, the Apex Court clarified that the right to receive the inquiry report and to represent against the findings recorded in it was inexplicably connected with the decision of the disciplinary authority and the nature of penalty proposed. Since the 42nd amendment dispensed with the requirement of issuance of notice against the penalty proposed, the Apex Court observed that some Courts took the view that the delinquent was deprived of his right to represent against the finding of his guilt as well. The confusion was on account of the failure to distinguish the 2 (two) rights, which were independent of each other. The Apex Court explained the distinction between the two stages and held as under:- 25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. 26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings." 26. Therefore, from a careful reading of the aforesaid decision of the Apex Court, it is clearly evident that before the disciplinary authority comes to its own conclusion whether to accept the inquiry report or not, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. Thereafter, the disciplinary authority is required to consider the evidence on record, the report of the Inquiry Officer and the representation of the delinquent employee against the report of the Inquiry Officer. 27. In the instant case, it is the stand of the respondents themselves that copy of the inquiry report was served on the petitioner on 08.01.2004 along with the order of removal dated 08.01.2004. Therefore, there is no controversy that a copy of the inquiry report was not furnished to the petitioner before acceptance of the inquiry report by the disciplinary authority. There is, thus, clear violation of the principles of natural justice as explained by the Apex Court in the case of Managing Director, ECIL (Supra). 28. It is true that even in the case of Managing Director, ECIL (Supra), it was held that prejudice should be caused to the employee on account of denial of the inquiry report before acceptance of the report and imposition of penalty. 28. It is true that even in the case of Managing Director, ECIL (Supra), it was held that prejudice should be caused to the employee on account of denial of the inquiry report before acceptance of the report and imposition of penalty. It cannot be treated as a mechanical formality that in every case of non-furnishing of the inquiry report, the penalty should be set aside and the employee should be reinstated with all back wages. To that extent, learned Senior Counsel for the respondents is right. Principles of natural justice cannot be put in a straight jacket formula. It is a flexible rule, which has undergone significant changes in recent years. But at the same time, it has to be borne in mind that rules of natural justice are placed at a high pedestal and is sacrosanct in the scheme of dispensation of justice. It is integral and basic to the rule of law so much so that rules of natural justice form the cardinal principle of any civilized system of jurisprudence. Observance of the rules of natural justice is the norm and non-observance is the exception. Test of prejudice is an exception to the rules of natural justice. It cannot be elevated or given a higher status to overshadow the rules of natural justice itself. Moreover, in so far test of prejudice is concerned, it is a matter between the delinquent employee and the Court. Ultimately, it is the Court which must be satisfied that the employee had suffered prejudice because of non-furnishing of a copy of the inquiry report. It is not for the employer or the disciplinary authority to take up test of prejudice as a plea of defence. In the case of SL Kapoor Vs. Jagmohan & Ors., reported in (1980) 4 SCC 379 , it was held that it ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. It is not open to the disciplinary authority to first deny a copy of the inquiry report to the delinquent and then take the plea that no prejudice was caused to the delinquent because of non-furnishing of a copy of the inquiry report Otherwise, this will amount to rubbing salt to wound. It is not open to the disciplinary authority to first deny a copy of the inquiry report to the delinquent and then take the plea that no prejudice was caused to the delinquent because of non-furnishing of a copy of the inquiry report Otherwise, this will amount to rubbing salt to wound. As discussed above, this is a matter which is within the discretion of the Court while exercising the power of judicial review under Article 226 of the Constitution of India. 29. It is an elementary principle of natural justice that the documents which are sought to be relied upon in a departmental proceeding against the delinquent should be furnished in advance to the delinquent so that he can prepare his defence accordingly. In the present case, it is admitted by the respondents that the show cause dated 30.11.1998 did not include the list of documents, which would be relied upon by the disciplinary authority to prove the charges against the petitioner, but the list of documents was produced by the Presenting Officer in the inquiry on 14.12.1999 though in presence of the petitioner. It is seen that on 14.12.1999, the Presenting Officer submitted a list of witnesses before the Inquiry Officer. Documentary evidence in the form of 3 documents i.e., report of security guard, Dildar Hussain, report of Senior Manager (Security) against the petitioner and report of Subedar M.C. Roy were submitted before the Inquiry Officer. The order sheet of the inquiry proceeding dated 14.12.1999 placed on record by the respondents as Annexure-D to the counter-affidavit does not indicate that copies of those documents were furnished to the petitioner. Even in para 12 of the inquiry report, the Inquiry Officer has stated that the documentary evidence as above, were produced and recorded. The inquiry report is silent about furnishing of copies of the said documentary evidence to the petitioner. Those documents were relied upon by the Inquiry Officer. A perusal of the inquiry report will show that the Inquiry Officer had placed reliance on those documents. Therefore, non-furnishing of those documents to the petitioner clearly prejudiced him besides being in violation of the principles of natural justice. Those documents were relied upon by the Inquiry Officer. A perusal of the inquiry report will show that the Inquiry Officer had placed reliance on those documents. Therefore, non-furnishing of those documents to the petitioner clearly prejudiced him besides being in violation of the principles of natural justice. Had a copy of the inquiry report been furnished to the petitioner before passing of the impugned order dated 08.01.2004, perhaps petitioner could have shown to the disciplinary authority the shortcomings in the inquiry and other drawbacks and could have persuaded the disciplinary authority to take a different view. The inquiry report further discloses in para 5 that the CMD, NEEPCO was not satisfied with the written statement of defence submitted by the petitioner and he passed an order on 17.06.1999, directing holding of inquiry and appointing the Inquiry Officer to conduct the inquiry. As noticed above, CMD, NEEPCO is the appellate authority. He is not the disciplinary authority of the petitioner. However, the inquiry report shows that it was the CMD who was not satisfied with the written statement of defence of the petitioner and who had directed inquiry. Views of the CMD, the highest authority in NEEPCO, definitely weighed with the Inquiry Officer though to what extent it would be difficult to say. However, this is an aspect which the petitioner could have pointed out to the disciplinary authority, had a copy of the inquiry report been furnished to him prior to passing of the impugned order. 30. Therefore, in the absence of the inquiry report, petitioner was prevented from making his representation as to the contents of the inquiry report which found him guilty and how it was vitiated because of violation of the principles of natural justice and procedural fair play. Therefore, he was clearly prejudiced by non-furnishing of a copy of the inquiry report. 31. The Division Bench judgment of this Court in the case of Arun Borah (Supra) stood on a different factual matrix altogether. Though he was employed as security guard in NEEPCO, he suppressed the fact that he was previously dismissed from Army following conviction by a Court Martial. When show cause notice was issued, the said petitioner could not dispute the above fact. Though he was employed as security guard in NEEPCO, he suppressed the fact that he was previously dismissed from Army following conviction by a Court Martial. When show cause notice was issued, the said petitioner could not dispute the above fact. It was in that context that the Division Bench held as follows:- "In the above backdrop, when the case of the writ petitioner-appellant is considered, it clearly emerges that though the writ petitioner was not furnished with the report of the Inquiry Authority before the impugned order of dismissal was passed, the fact remains that no prejudice could be shown to have been caused to the writ petitioner for non-furnishing of the inquiry report inasmuch as the allegations contained in the charges are, admittedly, correct and stood proved by the materials on record. In fact, in the departmental appeal, which was preferred by the writ petitioner, no grievance was, admittedly, expressed by the petitioner regarding any prejudice having been caused to him due to omission to furnish the copy of the enquiry report. In a situation, such as this, it is impossible to infer that the petitioner suffered from any prejudice due to non-furnishing of any copy of the enquiry report before the impugned order of dismissal was passed against him." In that case it was an admitted position that the petitioner was dismissed from the Army following conviction by a Court Martial which was suppressed at the time of recruitment in NEEPCO. In such a scenario, in the face of such admitted or indisputable facts, even if a copy of the inquiry report was given to the petitioner before the dismissal order was passed, it would not have made any material difference to the final outcome. Therefore, the above decision is clearly distinguishable from the facts of the present case. In S.L. Kapoor (Supra), the Apex Court held that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. The Apex Court expressed the apprehension that it will be a pernicious principle to apply in other situations where conclusions are controversial and penalties are discretionary. 32. In the case of Narayan Chandra Ghosh Vs. The Apex Court expressed the apprehension that it will be a pernicious principle to apply in other situations where conclusions are controversial and penalties are discretionary. 32. In the case of Narayan Chandra Ghosh Vs. State of Tripura & Ors., reported in 2010 (5) GLT 331, decided on 02.08.2010, a Division Bench of this Court set aside the penalty imposed on the ground that copy of the inquiry report was not furnished to the delinquent, which is a basic principle of natural justice. The Division Bench held as under:- "(7) It is now well settled that in matters of disciplinary proceedings, a delinquent officer is entitled, as a matter of right and as a basic principle of natural justice, to a copy of the inquiry report if the findings are against him. The delinquent officer is also entitled to make a representation against the inquiry report to the disciplinary authority. Admittedly, neither of these basic requirements were adhered to in this case. This is clear from an absence of any specific denial to the averments made by the appellant in paragraph 14 of his writ petition. There is also no positive averment made by the respondents that the inquiry report was furnished to the appellant before imposition of the punishment. (8) Since there is a clear failure to follow the principles of natural justice in this case, we have no option but to set aside the finding of guilt against the appellant and all the consequential actions that have been taken against the appellant including the imposition of penalty of stoppage of three increments of pay with cumulative effect." 33. Coming to the order passed by the appellate authority, it is admitted by the respondents that though order was passed by the appellate authority on 20.03.2009, but the same was not communicated to the petitioner along with the communication dated 25.03.2009. It is a settled proposition in law that an order must be communicated to the person concerned before taking effect. An order which is kept in the file and not communicated to the person concerned, is not an order in the eye of law. Here is a case where the appellate authority was required to consider the appeal of the petitioner against the order of penalty. Naturally, the decision of the appellate authority would entail civil consequences on the petitioner. An order which is kept in the file and not communicated to the person concerned, is not an order in the eye of law. Here is a case where the appellate authority was required to consider the appeal of the petitioner against the order of penalty. Naturally, the decision of the appellate authority would entail civil consequences on the petitioner. He was, therefore, entitled to know how his appeal was decided by the appellate authority. In fact, this Court vide its order dated 25.01.2009 had directed the appellate authority to pass a speaking order strictly in accordance with Rule 22 of the Rules, which requires the appellate authority to consider as to whether the facts on which the order was passed have been established and whether those are sufficient for taking action against the delinquent. It also requires the appellate authority to consider whether the penalty imposed is adequate, inadequate or excessive. 34. In Kranti Associates Pvt. Ltd. Vs. Masood Ahmed Khan & Ors., reported in (2010) 9 SCC 496, the Apex Court considered the expression speaking order. It was held that the necessity of giving reason by a body or authority in support of its decision is no longer open to any question. Though initially Court had recognized a distinction between administrative orders and quasi judicial orders, subsequently, the distinction between the two has been obliterated. Speaking order is one, which must speak. It has been observed that the face of an order passed by a quasi judicial authority or even by an administrative authority affecting the rights of the parties must speak. In the context of the present case, petitioner had the right to know how his appeal was considered and decided by the appellate authority. If the decision of the appellate authority was kept in the file as is the case and not communicated, obviously the petitioner would not know the reasons assigned by the appellate authority while rejecting his appeal. It is another matter that the respondents have placed a copy of the said order of the appellate authority on record as an annexure to the counter-affidavit, but this does not remove the initial lacuna of non-communication. 35. It is another matter that the respondents have placed a copy of the said order of the appellate authority on record as an annexure to the counter-affidavit, but this does not remove the initial lacuna of non-communication. 35. Having regard to the discussions made above, Court is of the considered opinion that the departmental proceeding initiated against the petitioner till the stage of rejection of his appeal stood vitiated by violation of the principles of natural justice and non-observance of procedural fairness. In the ordinary course, Court would have remanded the matter to the disciplinary authority to proceed from the stage of furnishing a copy of the inquiry report to the petitioner and seeking his response, but in the present case, Court is reluctant to follow this course of action for two reasons. Firstly, petitioner was dismissed from service on 08.01.2004, which is more than 11 years ago; remanding the matter back to the disciplinary authority at such a belated stage will only prolong the agony of the petitioner. Secondly, remand to the disciplinary authority would be a useless formality when the head of the organization i.e., the CMD, NEEPCO has already taken the view in the appellate order, though not communicated, that the penalty imposed was justified. In such circumstances, it would meet the ends of justice, if the order of penalty is set aside and the petitioner is directed to be reinstated in service. 36. In a recent decision, a Division Bench of this Court in Commissioner & Ors. Vs. Shri Haren Chandra Das (WP(C) No. 5310/2008), decided on 04.03.2015 held that when the initiation of inquiry and imposition of penalty is arbitrary and there was no basis to initiate any inquiry in the matter, the rule of "no work no pay" cannot be applied. In the facts of that case, it was held that the employee would be entitled to full back wages on reinstatement with continuity of service till superannuation. In the present case, this Court has not gone into the merit of the 3 charges framed against the petitioner. Interference has been made because of violation of the principles of natural justice and lack of procedural fairness. In such circumstances, Court is of the view that it will meet the ends of justice, if petitioner is paid 50% of the back wages. Interference has been made because of violation of the principles of natural justice and lack of procedural fairness. In such circumstances, Court is of the view that it will meet the ends of justice, if petitioner is paid 50% of the back wages. Accordingly, impugned order of penalty dated 08.01.2004 and order of the appellate authority dated 20.03.2009 are set aside and quashed. Petitioner shall be reinstated in service with continuity of service and all other benefits. He shall be entitled to 50% of the back wages. Writ petition is accordingly allowed. No costs.