IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11626 of 1997 Jagat Bihari Verma, Son of Sri Brij Behari Prasad Verma, Resident of Mohalla- Ahirpurva, Police Station- Arrah Town, District- Bhojpur at Arrah. ------ Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Department of Labour, Employment and Training, Government of Bihar, Patna. 3. The Joint Labour Commissioner, Department of Labour, Employment and Training, Government of Bihar, Patna. 4. The Urdu Secretary, Department of Labour, Employment and Training, Government of Bihar, Patna. 5. The Director, Agriculture Labourer, Department of Labour, Employment and Training, Government of Bihar, Patna. 6. The Labour Superintendent, Agriculture- Labourer, Department of Labour and Employment, Bihar, Patna. ------- Respondents ----------- 4 7.7.2009 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) For issuance of an appropriate writ/ writs, order direction for quashing the order/communication issued by the under Secretary, Department of Labour, Employment and training, Govt. of Bihar, Patna (Annexure-1) whereby and whereunder he has stated that after consideration, the appeal/representation of the petitioner for reinstatement in service has been rejected. (ii) For quashing the order as contained in memo no. 355 dated 3.10.1980 passed by the respondent no.3 (Annexure-2) whereby and whereunder the petitioner has been dismissed 2 from his service with effect from the date of issuance of the order i.e. 3.10.80. (iii) For direction commanding the respondents to reinstate the petitioner with full back wages. (iv) Further for direction commanding the respondents for payment of provident fund, Gratuity and other legal dues for which the petitioner may be entitled.” Learned counsel appearing on behalf of the petitioner, in support of the aforementioned prayer, would submit that the departmental proceeding which was initiated against the petitioner and in which he had been punished by an order of punishment dated 3.10.1980 was fit to be set aside by this Court on a simple ground of non-consideration of the defence taken by the petitioner in course of departmental enquiry before the enquiry officer. Counsel for the petitioner would further assail the impugned order on the ground that the enquiry report was not supplied to the petitioner nor any show-cause notice was given to him prior to passing of the impugned order. Counsel for the petitioner finally would submit that the charges by itself were not proved, inasmuch as, there are 3 documents to show that the petitioner, for part of the period under the subject matter of charge, had already been sanctioned prior leave and therefore the punishment is also wholly disproportionate. The respondents have filed their counter affidavit and in the same a categorical objection has been raised by them that after 17 years of the passing of the order of termination, it was not possible for them either to produce the records of departmental proceeding or even to give an answer to the averments made by the petitioner as with regard to the alleged prejudice suffered by the petitioner in course of departmental proceeding. The respondents have also denied other contention of the petitioner that the charge against him were not supported by record and to that extent, a copy of the enquiry report itself has also been annexed by the respondents in their counter affidavit. On the basis of the aforesaid pleadings of the respective parties, the first an foremost issue arising for determination isthat of delay of 17 years in filing of this writ application while assailing the impugned 4 order of dismissal of the petitioner from his service. Counsel for the petitioner would explain the delay by taking a plea that he had filed an appeal in the year 1980 which remained pending for 14 years and ultimately got disposed of in the year 1994 and between 1994 to 1997, the petitioner was very seriously ill. The memo of appeal, however, is on record and that would reveal that there was actually no appeal filed by the petitioner before any competent authority rather the petitioner had filed a representation to the same authority imposing punishment for recall of the order of punishment on the ground that the petitioner was seriously ill and was suffering from Hydrophobia. It has to be also noted that not a word was said therein about any illegality or incorrectness of the order of dismissal nor it can be in any way treated to be an appeal. The dismissal order in question having been passed by the Secretary of the Labour Department, an appeal if filed in terms of the relevant Discipline and Control Rules had to be filed before the State Government but then as there was no appeal 5 before the competent authority rather the petitioner wanted only re-consideration of the order of punishment by the punishing authority that could not have been at least made a ground for not filing a writ application for a period of 17 years. The fallacy in the aforesaid explanation of the petitioner in fact also gets exposed from a letter of Pairvi written by Dr. S.S. Isha, Member of Legislative Assembly of Bihar Bidhan Sabha, Ara (Bhojpur) in which on 24.4.1983, all that was stated by him, in his letter addressed to the Chief Minister, was that the petitioner was a very competent officer and that he had to go on leave and as such his removal from service was wholly uncalled for. The said letter of M.L.A. Therefore again cannot be accepted in a valid explanation for delay of 17 years and therefore the reliance placed by the petitioner on these two documents can have hardly any mitigating effect on the issue of unexplained delay of 17 years inasmuch as, it becomes clear from the document dated 21.7.1994 that the petitioner had only filed an earlier application on 11.1.1991, as is 6 clearly mentioned in the impugned order itself. Therefore, this Court has to safely infer that from 1980 to 1991, the petitioner did not take any effective step against the order of punishment and in the year 1991 for the first time, he made a request to the Government for reinstatement in service which was rejected by an order dated 21.7.1994 (Annexure-1). In that view of the matter, it cannot be said that Annexure-1 dated 21.7.1994 also explains the delay in filing of the writ application. A question would also arise as to how long the authorities are required to maintain the records of a departmental proceeding so that if the impugned order of the departmental proceeding is challenged, a perfect answer can be given. The Secretariat instruction and other Government Rules prescribes the period for which such records have to be preserved and the same ranges at best between three to five years. That apart, this Court would find that the petitioner was facing some serious allegations and the petitioner had not contested the said departmental proceeding in an effective manner, inasmuch as, the 7 documents which has now been sought to be referred to as letter of sanction of leave was never produced before the enquiry officer. That much becomes clear from reading of the enquiry report and the alleged document dated 22nd August, 1977 (Annexure-7). The petitioner, if he had not produced the said document despite being given opportunity in course of enquiry, cannot be allowed to make complain at such a belated stage before this Court. Therefore, the findings arrived at by the enquiry officer as with regard to the petitioner for a habitual repetitive absentee from the duty without getting his leave sanctioned does not suffer from any error apparent on the face of record. Thus it can be safely held that whatever submission were advanced by the learned counsel for the petitioner, on the basis of the said document i.e. Annexure-7 before this Court, at least, the same was not available before the enquiry officer. The submission of the learned counsel for the petitioner that the order of punishment is bad only on the ground of non- supply of the enquiry report in the light of 8 the judgment of the Apex Court in the case of Union of India & Ors. Vs. Mohd. Ramzan Khan reported in 1991(1)SCC 588 and the subsequent Constitution Bench Judgment of the Apex Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in 1993(4)SCC 727 is also wholly misplaced. It has to be remembered that in this case, the enquiry report was submitted as far back as on 25.7.1980 and the consequential order of punishment was passed on 3.10.1980. Such order of punishment on the ground of non-supply of enquiry report cannot be set aside in view of the judgment of the Constitution Bench of the Apex Court in the case of Managing Director (supra) wherein the law laid down in Mohd. Ramzan Khan case (supra) was made prospective in operation and the law laid down in the case of Mr. Ramzan Khan (supra) on 20.11.1990 to the effect that non-furnishing a copy of the report of the enquiry report to the delinquent employee would render the final order passed by the authority against the delinquent to be bad, could also have been made applicable prospectively from the date of the decision of Mohd. Ramzan Khan i.e. 20.11.1990 only and 9 that no order of punishment passed prior to 20.11.1990 was held to be challengeable only on the ground of non-supply of enquiry report. In this context, the following passage of the judgment in the case of Managing Director, ECIL (supra) (majority view) needs to be quoted hereinbelow:- “-------It will, therefore, have to be held that notwithstanding the decision of the Gujarat High Court in N.N. Prajapati case and of the Central Administrative Tribunal in Premnath K. Sharma case and of the other courts and tribunals, the law was in an unsettled condition till at least November 20, 1990 on which day the Mohd. Ramzan Khan case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after November 20, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the enquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to November 20, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. 10 Ramzan Khan case. This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R.K. Vashisht case. The need to make the law laid down in Mohd. Ramzan Khan case prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the enquiry officer to the delinquent employee and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan case without furnishing the report of the enquiry officer should be disturbed and the disciplinary proceedings which gave rise to the said 11 orders should be reopened on that account. Hence we hold as above.” This Court, however, in order to examine as to whether there was any prejudice to the petitioner on account of non-supply of enquiry report had got the copy of the enquiry report supplied to the counsel for the petitioner but the counsel also failed to highlight any prejudice on account of non-supply of enquiry report. As a matter of fact, when the petitioner had even not challenged the order of punishment before this Court for a period of 17 years and had emerged on the scene only after completing the age of superannuation in Government service, his intentions were very clear that he did not want to get the matter of his misconduct, being the subject matter of departmental proceeding, reopened in any manner and that is how, counsel for the petitioner had also stressed that once the petitioner had reached the age of retirement, the case should not be remanded for fresh enquiry. There would be however no question of fresh enquiry against the petitioner in view of the fact that the petitioner either in 12 course of enquiry or even thereafter had never sought to rely on any material from which it could be shown that the absence of the petitioner from duty was authorized. In fact, from the enquiry report, it would appear that the petitioner had taken a defence that he had handed over papers to one Devi Prasad the then Labour Inspector but when the said person, namely, Devi Prasad was examined in the departmental proceeding and was also cross- examined by the petitioner, he could not elicit anything to show that either he had handed over charge or document as directed by the Labour Superintendent in his order containing in letter dated 28.5.1997 and the subsequent telegram dated 6.6.1977 sent to him by the Director of Agriculture Labour Bihar, Patna. In fact, the detailed discussion in the enquiry report in the light of the defence of the petitioner as also cross-examination of the witnesses by the petitioner would go to show that he had acquired proficiency in remaining absent from duty on in and every pretext and that is how, the charge against him of remaining absent from duty, beginning from 4.5.1977 and ending on the date of 13 submission of the enquiry report i.e. 25.7.1980, was found to have been proved. As a matter of fact,for the aforesaid reasons, none of those grounds raised by the petitioner while assailing the order of punishment of the year 1980 by filing a writ application in the year 1997 can be sustained and consequently, the petitioner must remain content with the order of punishment which was passed on 3.10.1980, inasmuch as, this Court would find no discrepancy in the order of punishment or no merits in the subsequent prayer of the petitioner for his reinstatement in service on a compassionate ground. The last submission of the counsel for the petitioner that no opportunity was given to the petitioner after completion of enquiry and no show-cause notice was given again is of no avail, inasmuch as, after the amendment in Article 311 of the Constitution of India, there is no concept of second show-cause notice. It is true that a copy of the enquiry report has to be supplied for eliciting the comments/reaction to the contents of the enquiry report but there is no provision now for second show-cause and accordingly, that by 14 itself also cannot be a ground for setting aside of the impugned order dated 3.10.1980. Before this Court would part with this case, it must be noted that the plea of the petitioner, at least, in this writ application read with his representation was one of mental illness on account of the dog bite and it appears to this Court that after the petitioner had remained out of service for 17 years on account of the order of punishment and he had found that there was no question of his reinstatement in service as he had reached the age of superannuation, a clever attempt was made by him for assailing the order of punishment on the usual grounds on which each and every departmental proceeding is normally assailed before a court of law. Thus, for the reasons mentioned above, this Court would find no merit in this writ application and the same accordingly must be and is hereby dismissed. However, there would be no order as to cost. Rsh (Mihir Kumar Jha, J.)