S. Chandrashekhar, J. - (1.) CHALLENGING the order of dismissal dated 9.5.2001 and the appellate order dated 27.6.2003, the petitioner has approached this Court by filing the present writ petition. The brief facts of the case are that, the petitioner who was posted at Hindustan Petroleum as a Guard, remained absent during the period 15.4.2000 to 2.9.2000. He was suspended on 27.4.2000 however, his suspension was revoked by order dated 4.9.2000. A charge -memo was issued however, it is the case of the petitioner that, a copy of the memorandum of charge was never served upon the petitioner. A departmental enquiry was initiated in which, the petitioner participated. On conclusion of the departmental enquiry, an enquiry report dated 21.3.2001 and a second show -cause notice dated 4.4.2001 were served to the petitioner however, the petitioner did not respond to the second show -cause notice therefore, penalty order dated 9.5.2003 was passed dismissing the petitioner from service.
(2.) HEARD the learned counsel appearing for the parties and perused the documents on record. The learned counsel appearing for the petitioner has submitted that though it has not been specifically pleaded in the writ petition that a copy of the enquiry report was not served upon the petitioner however, it would be evident from the materials on record, i.e. the penalty order and the second show -cause notice dated 4.4.2001 that it has not been pleaded by the respondent -department that a copy of the enquiry report was served upon the petitioner. It has further been submitted that in view of the judgment of the Hon'ble Supreme Court in "ECIL v. B. Karunakar", reported in : (1993) 4 SCC 727, non -supply of the enquiry report to the petitioner has caused prejudice to the petitioner and on that ground alone, the enquiry is vitiated. He has further submitted that had a copy of the enquiry report been supplied to the petitioner, the petitioner would have brought to the notice of the department the actual reason for his absence as well as the adverse circumstances which were taken into consideration by the enquiry officer. He has further submitted that for the absence of 137 days, dismissal from service, is a punishment definitely disproportionate to the charge levelled and proved against the petitioner. The learned counsel appearing for the petitioner has further submitted that the appellate order dated 27.6.2003 is a cryptic order. It does not disclose any application of mind on the part of the appellate authority in as much as the defence taken by the petitioner that his absence from duty was due to reasons beyond his control, has not been considered by the appellate authority. He has further submitted that the incidents of past misconduct which have been taken into consideration by the disciplinary authority before inflicting the order of dismissal from service, is not justified as the petitioner has been suitably punished for his past misconduct and the department has chosen to retain him in service.
(3.) AS against the above, Mr. Kumar Sundaram, J.C. to A.A.G. appearing for the respondents has submitted that since the petitioner has failed to plead specifically and prove the prejudice caused to him, non -supply of enquiry report to the petitioner would be inconsequential and it would not automatically invite an order of quashing the penalty order. He has further submitted that it was well within the jurisdiction of the disciplinary authority to take into account the incidents of past misconduct and since the petitioner has been proved to be a habitual absconder, the order of dismissal from service has been rightly passed by the disciplinary authority.;