JUDGMENT : D.N. Patel, J. I.A. No. 1276 of 2018 1. Present interlocutory application has been preferred under section 5 of the Limitation Act, 1963, for condonation of delay of 118 days in preferring this Letters Patent Appeal. 2. Having heard counsels for the both sides and looking to the reasons stated in the interlocutory application, especially in paragraph Nos. 4, 5, 6, 7, it appears that there are reasonable grounds for condonation of delay. 3. In view of these facts, we, hereby, condone the delay in preferring this Letters Patent Appeal. Accordingly, I.A. No. 1276 of 2018 is allowed and disposed of. L.P.A. No. 567 of 2016 4. This Letters Patent Appeal has been preferred by the Original Petitioner, whose writ petition was dismissed by the learned Single Judge, being W.P.(L) No. 6341 of 2006, vide order dated 4th August, 2010, and thereafter, review application preferred by this appellant, being Civil Review No. 32 of 2011, was also dismissed by the learned Single Judge vide order dated 8th July, 2016. Hence, Original Petitioner has preferred the present Letters Patent Appeal. 5. Having heard counsels for both sides and looking to the facts and circumstances of the case, it appears that misconduct is alleged to have been committed by this appellant on 16th November, 1992. The same reads as under as per Annexure 2 to the memo of this Letters Patent Appeal: “On 16.11.1992 you were in ‘A’ shift (6 am to 2 pm) duty working as Driver in the Transport Section of Material Handling Services Department. It has emerged that you left the place of duty around 11.00 am and not found at the place of your duty till the end of your shifts (i.e. 2.00 pm). It has also emerged that you took Sri Bihari lall an ex-employee (Ex.T.No. 151053) of W.G.S. Department and went to the house of Sri S.M. Haider Incharge of C.F. Yard, AKS Dept. at 7, Arpat Road, Sakchi assuring him that you would manage Sri S.M. Haider to sign on a challan for having delivered Ferro Alloy to the Steel Company (Ferro Alloys Yard of MHS Dept.) by M/s. V.B.C. Alloys Ltd., the entire shipment of Ferro Alloys. The above acts on your part amounts to leaving your place of work without permission and attempted fraud and dishonesty in connection with the Company’s Business.” 6. The above acts on your part amounts to leaving your place of work without permission and attempted fraud and dishonesty in connection with the Company’s Business.” 6. In pursuance of this chargesheet, dated 18th February, 1993, Enquiry Officer was appointed and enquiry was conducted. Thereafter, Enquiry Officer gave his report and the charges levelled against this appellant was found to be proved. 7. Second show cause Notice, dated 28th December, 1993 (Annexure 9 to the memo of this Letters Patent Appeal), was also replied to by this appellant and the Disciplinary Authority passed an order on 5th January, 1994 (Annexure 1 to the memo of this Letters Patent Appeal), whereby, this appellant has been discharged from the services of respondent Steel Company. 8. Counsel appearing for the appellant submitted that a copy of the enquiry report was not given to him. This aspect of the matter has not been properly appreciated by the Labour Court, Jamshedpur while deciding Reference No. 25 of 1995. This aspect of the matter has also not been properly appreciated by the learned Single Judge in the writ petition preferred by this appellant. 9. It is also submitted by counsel appearing for the appellant that reply was given to the second Show Cause Notice on 5th January, 1994 and the Disciplinary Authority has passed an order on 5th January, 1994, whereby the appellant was discharged from the services of the respondents and hence also, the said order of punishment passed by the Disciplinary Authority deserves to be quashed and set aside. None of these contentions are accepted by this Court mainly for the reason that: (a) The second Show Cause Notice was given on 28th of December, 1993. Reply was to be given within 48 hours. If the delinquent has not given reply within stipulated time, there is no need for the Disciplinary Authority to wait before passing the final order in the Departmental Proceeding. (b) So far grant of report of the Enquiry Officer is concerned, no prejudice has been caused to the appellant. Moreover, this point was not taken at all before the Labour Court, Jamshedpur when the Reference Case was argued out. Preliminary issue was also decided by the Labour Court, Jamshedpur and order was also passed, which is Annexure 12 to the Memo of this Letters Patent Appeal. In this preliminary issue also this point was not taken by this appellant. Moreover, this point was not taken at all before the Labour Court, Jamshedpur when the Reference Case was argued out. Preliminary issue was also decided by the Labour Court, Jamshedpur and order was also passed, which is Annexure 12 to the Memo of this Letters Patent Appeal. In this preliminary issue also this point was not taken by this appellant. Paragraph 2 of the order dated 2nd September, 2005 passed in Case No.Ref. 25/95 reads as under: “It has been submitted by the workman that copy of office order appointing Enquiry Officer was not served to him, the explanation submitted by the workman was not considered fairly and properly by the competent authority, the workman was not given copy of any complaint or document which had formed the basis of issuance of chargesheet, during the course of enquiry the workman was not provided copies of document filed by the management, the workman was not given reasonable opportunity to cross-examine the management witnesses and some of question which were put to the witnesses were not recorded by the Enquiry officer. It has further been submitted that the Enquiry Officer had fixed 9.11.93 but the enquiry was adjourned on the request of the workman but the Enquiry Officer has not informed about the adjourned date and the workman was not given opportunity to make his defence statement and examine his defence witness.” 10. On perusal of the aforesaid paragraph, it appears that it has been submitted by the workman that the copy of the office order appointing Enquiry Officer was not served to him. Thus, the competence of the Enquiry Officer was under challenge, but, never an issue was raised by this delinquent-appellant that report of the Enquiry Officer was never received by him. 11. It has been held by Hon’ble the Supreme Court in ECIL v. B. Karunakar reported in (1993) 4 SCC 727 as under: “30. Hence the incidental questions raised above may be answered as follows: [i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. [ii] The relevant portion of Article 311(2) of the Constitution is as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.” Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, 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’s report notwithstanding the nature of the punishment. [iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. [iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to 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 law and to assist the individual to vindicate his just rights. They are not incantations to be 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. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. 31. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. 31. Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” (Emphasis supplied) 12. It has been held by the Hon’ble Supreme Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 as under: “21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer’s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside. 22. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. 22. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply the inquiry officer’s report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the inquiry officer’s report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed. 23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar1, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was “no whisper” in the writ petition showing any prejudice to the delinquent as required by B. Karunakar1, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is “writ large”. 24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar1, this Court stated: (SCC p. 757, para 30) “30. (v) … 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.” 25. It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept of “natural justice” is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept of “natural justice” is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula.” (Emphasis supplied) In view of the aforesaid judgment, burden of proof is upon delinquent to plead and prove the prejudice caused to him by not providing Inquiry Officer’s report. In the facts of the present case, the delinquent has failed to plead and prove that prejudice has been caused to him, as the management has not provided Inquiry Officer’s report. 13. It has been held by the Hon’ble Supreme Court in Union of India v. Alok Kumar, reported in (2010) 5 SCC 349 as under: “85. The doctrine of de facto prejudice has been applied both in English as well as in Indian law. To frustrate departmental enquiries on a hypertechnical approach has not found favour with the courts in the recent times. In S.L. Kapoor v. Jagmohan a three-Judge Bench of this Court while following the principle in Ridge v. Baldwin stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in itself prejudice would not apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S.L. Kapoor held as under: (SCC p. 392, para 18) “18. In Ridge v. Baldwin (AC 40 at p. 68 : All ER at p. 73), one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed at (p. 68): ‘It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the watch committee would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellant’s pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course.’” 89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice. 92. We are not able to accept the contention addressed on behalf of the respondents that it is not necessary at all to show de facto prejudice in the facts of the present cases. We may notice that the respondents relied upon the judgment of this Court in ECIL that imposition of punishment by the disciplinary authority without furnishing the material to the respondents was liable to be quashed, as it introduced unfairness and violated the sense of right and liberty of the delinquent in that case. No doubt in some judgments the Court has taken this view but that is primarily on the peculiar facts in those cases where prejudice was caused to the delinquent. No doubt in some judgments the Court has taken this view but that is primarily on the peculiar facts in those cases where prejudice was caused to the delinquent. Otherwise right from S.L. Kapoor case, a three-Judge Bench of this Court and even the most recent judgment as referred to by us in Kailash Chandra Ahuja case has taken the view that de facto prejudice is one of the essential ingredients to be shown by the delinquent officer before an order of punishment can be set aside, of course, depending upon the facts and circumstances of a given case. Judicia posteriora sunt in lege fortiora. In the latter judgment the view of this Court on this principle has been consistent and we see no reason to take any different view. Prejudice normally would be a matter of fact and a fact must be pleaded and shown by cogent documentation to be true. Once this basic feature lacks, the appellant may not be able to persuade the Court to interfere with the departmental enquiry or set aside the orders of punishment.” (Emphasis supplied) 14. It has been held by Hon’ble the Supreme Court in Burdwan Central Coop. Bank Ltd. v. Asim Chatterjee, reported in (2012) 2 SCC 641 as under : “19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar case despite holding that non-supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the enquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits. 20. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits. 20. It was also observed in B. Karunakar case that in the event the enquiry officer’s report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee. 21. This is, in fact, a case where the order of punishment had been passed against Respondent 1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a bank acts in a fiduciary capacity in regard to people’s investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live link between Respondent 1’s performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous misdemeanour, it is then that the second part of B. Karunakar case becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. 22. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed Respondent 1 from service, in fact, he was selected and appointed in the appellant Bank on account of his merit and performance at the time of interview. It cannot be said that the Bank harboured any ill feeling towards Respondent 1 which ultimately resulted in the order of dismissal passed on 8-5-2010. It cannot be said that the Bank harboured any ill feeling towards Respondent 1 which ultimately resulted in the order of dismissal passed on 8-5-2010. We, therefore, repeat that since no prejudice has been caused to Respondent 1 by the non-supply of the enquiry officer’s report, the said respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply.” (Emphasis supplied) 15. Looking to the report of the Enquiry Officer, it cannot be said that the same was based upon no evidence. Report of the Enquiry Officer is based on the evidences on record. The order dated 2nd September, 2005 passed by the Presiding Officer of the Labour Court, Jamshedpur was never challenged by this appellant before any competent authority and any court. Thus, Order dated 2nd September, 2005 has attained its finality. 16. Once the enquiry is held as a legal and a valid one, the only point which shall be addressed is the quantum of punishment. Looking to the nature of misconduct, the quantum of punishment inflicted upon the delinquent-appellant can be labelled as neither shockingly disproportionate nor unreasonably excessive. This aspect of the matter has been properly appreciated by the Labour Court, Jamshedpur while deciding Case No. Ref. 25/1995 vide Order dated 2nd September, 2005 as well as by the learned Single Judge while deciding W.P.(L) No. 6341 of 2006, vide order dated 4th August, 2010. 17. Therefore, we see no reason to take any other view than what has been taken by the learned Single Judge in deciding W.P.(L) No. 6341 of 2006, vide order dated 4th August, 2010 and Civil Review No. 32 of 2011 vide Order dated 8th July, 2016. 18. There is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.