IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5430 of 2002 SHUKDEO SUBODH GANDHI Versus THE STATE OF BIHAR & ORS ----------- 4/ 16-01-2009 Learned counsel for the petitioner prays for leave and is permitted to implead the State of Jharkhand as respondent no.6. Shri Dhrub Mukherjee is present at the request of the Court on behalf the State of Jharkhand. Heard learned counsel for the petitioner and the State of Bihar as also the State of Jharkhand. The petitioner is aggrieved by the order dated 24.08.1996 visiting with the punishment of censure to be entered in the character rolls for the year 1990-91 and stoppage of one increment with cumulative effect. The petitioner appears to have come to this Court earlier in C.W.J.C. No. 11059 of 2000. The application was withdrawn in order to avail statutory remedy in appeal. The predicament of the petitioner appears to be the non- disposal his appeal preferred thereafter on 30.11.2000. The petitioner did not approach the High Court on the previous occasion within the period of limitation. The stand of the respondents in the counter affidavit is that the appeal is still barred by limitation. This Court finds a substance in the submission of the counsel for the petitioner that the punishment was major and, therefore, required a regular departmental proceeding which has not been done. Mere passage of time and laches alleged against the petitioner in preferring the Appeal does not persuade this Court to reject the prayer as no third party right has been created much less any right in favour of the State by reason of - 2 - the laches alleged on the part of the petitioner which benefits the respondents shall now stand deprived. Dismissal of a writ application on the grounds of delay is a discretionary matter to be exercised in accordance with law on the facts of a particular case. When on the face of the order itself it is apparent that the order is illegal, this Court finds it difficult to throw out the writ application, only on the ground of delay. The petitioner is said to have now been allocated to the State of Jharkhand after re-organization of the State. The only appropriate order, therefore, to be passed now is to set aside the order of punishment dated 24.08.1996. This shall, however, not result in passing of immediate benefits to the petitioner since the punishment has been set aside not on merits but technicality. The matter is remanded to the concerned authority in the State of Jharkhand who shall now proceed afresh in a regular departmental proceeding against the petitioner in accordance with law. Should the State of Jharkhand require any further documents from the State of Bihar, the Chief Secretary of the State of Bihar shall be obliged to make the same available to the State of Jharkhand. This Court expects the State of Jharkhand to proceed afresh in accordance with law on the basis of such documentary evidence available and pass a fresh order within a period of six months from the date/receipt of the documents requested and made available by the State of Bihar to the State of Jharkhand. In the event that the petitioner ultimately succeeds the financial liability shall have to be apportioned between the State of Bihar - 3 - and the State of Jharkhand with effect from the date of joining of the petitioner in the state of Jharkhand. With the aforesaid observation, this writ petition is disposed off. B.Tiwary/ (Navin Sinha,J)