STATE OF BIHAR Vs. KANIZ FATMA

JUDGEMENT

(1.) HEARD counsel for the State, who appears for the petitioner State of Bihar and Mr. Surendra Thakur, counsel for the sole respondent.

(2.) IN this writ application the prayer of petitioners the State of Bihar and its officials is to quash an order of the appellate authority, the Commissioner of Tirhut Division dated 20.3.2002 passed in Misc. Case No. 6/1999 -2000 setting aside the order of punishment dated 2.9.1988 of respondent no. 1 (since dead on 11.4.2005 during the pendency of this writ application) and substituted by his LRs. vide an order dated 17.5.2007 in IX No. 2765/ 2007.

(3.) COUNSEL for the State would point out that this order dated 2nd September, 1988 become final and binding on the petitioner in absence of appeal filed by Syed Rahamtullah and in fact after Syed Rahamtullah had attained the age of 58 years in the year 1999 and in normal course also could have retired on 31.7.1999 he had filed a miscellaneous case before the Commissioner of Tirhut Division, Muzaffapur which was curiously entertained even though under the Discipline Control and Appeal Rules the limitation for filing such appeal is only a period of six months. He would, therefore, submit that once the appellate authority without condoning the delay in filing of so - called appeal had proceeded to examine the matters on merit after 11 years and had ultimately set aside by an order dated 20.3.2002 putting clock back as on 2.9.1988, the order in question apparently is vitiated both on fact and in law. He would submit that in the disciplinary proceeding the concept of supply of enquiry report prior to the judgment of Union of India V/ss. Mohammad Ramzan Khan, reported in (1991)1 S.C.C. 588 was not a condition precedent and in fact when the Apex Court in the subsequent judgment of the Constitution Bench in the case of Managing Director, E.C.I.L. V/s. B. Karunakar & Ors., reported in (1993)4 SCC 727 had also clarified that no proceeding would be reopened or the order of punishment would be set aside on the ground of non -supply of enquiry report, the present order passed by the Commissioner on 20.3.2002 by taking the ground of non -supply of enquiry report was apparently vitiated. He would further submit that the issue of supply of documents in a departmental proceeding has to be always examined from the prejudice point of view as was settled by the Supreme Court in the case of State Bank of Patiala & Ors. V/s. S.K. Sharma, reported in AIR 1996 S.C. 1669. On the basis of all these submissions counsel for the petitioners has contended that the impugned order passed by the Commissioner of Tirhut Division was a vitiated order and was in fact passed only to favour the original respondent no.1 by transgressing all known norms of decency and fairness.