RANJAN GOGOI, J.

(1.) Heard Mr. D.K. Sarma, learned counsel for the petitioner and Mr. A.C. Buragohain, learned Government Advocate, Assam.

(2.) The challenge in the instant writ application is against an order dated February 17, 1998 passed by the Chief Secretary to the Government of Assam imposing the penalty of removal from service on the writ petitioner. The aforesaid penalty of removal from service has been imposed after holding a regular departmental enquiry in respect of the allegations brought against the writ petitioner by charge memo dated August 30, 1995.

(3.) The grievances of the writ petitioner as against the penalty imposed are several as would appear from the averments made in the writ petition. However, for the purposes of the present case, this Court is concerned with only one question namely, the effect of not furnishing the writ petitioner with a copy of the report of enquiry. The aforesaid position on facts i. e. that no copy of the enquiry report was furnished to the writ petitioner, has been admitted by the State.

(4.) The legal consequence of non-furnishing of the Enquiry Officers report has been settled by a judgment of the Apex Court in the case of Managing Director, ECIL v. B. Karunakar, reported in AIR 1994 SC 1074 [LQ/SC/1993/843] : 1993 (4) SCC 727 [LQ/SC/1993/843] : 1994-I-LLJ-162. The law laid down by the Apex Court in the aforesaid case is that non-furnishing of a copy of the Enquiry Officers report would not ipso facto vitiate the proceeding and the eventual punishment imposed. The question is one of prejudice that has been caused to the delinquent employee on account of the aforesaid lapse. The question of prejudice being a question of fact has to be established and prejudice has to be shown. If the delinquent employee succeeds in establishing that prejudice was caused, the matter will have to go back for completion of the enquiry proceeding de novo from the stage of submission of the Enquiry Officers report.

(5.) In the instant case, the charge against the delinquent employee was for production of a forged certificate showing him as a member of a Scheduled Tribe. In the enquiry proceedings, the finding reached by the Enquiry Officer is that the writ petitioner is guilty of making a false claim that he is a member of a Scheduled Tribe. The production of a forged certificate knowing the same to be a forged document and making a false claim on the basis of a certificate which may subsequently turn out to be incorrect are entirely two different things. This is precisely what has been pleaded in the writ petition. Additionally, pleadings have been advanced to contend that had a copy of the Enquiry Officers report been furnished to the writ petitioner, he would have been able to persuade the disciplinary authority not to take the view which was eventually taken leading to the punishment in question. The report of enquiry has to be submitted prior to any final decision regarding the culpability of the delinquent employee as furnishing a copy of the Enquiry Officers report is a part of doctrine of reasonable opportunity either under Article 311 of the Constitution or in view of the principles of natural justice. The furnishing of a copy of the Enquiry Officers report at a later stage would not remedy the situation. Therefore, the contention advanced on behalf of the State that no prejudice was caused as the Enquiry Officers report was furnished to the delinquent employee at the appellate stage, does not have any merit.

(6.) In the instant case, prejudice is writ large on the face of record. Consequently, the impugned order of removal from service dated February 17, 1998 is set aside and the disciplinary authority, may in its discretion, continue with the proceeding from the stage of furnishing of the Enquiry Officers report. All consequential reliefs following the interference made with the impugned order dated February 17, 1998 shall follow.

(7.) The writ petition stands allowed as indicated above.