Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties on Civil Misc. Delay Condonation Application No. 233079 of 2013 and Civil Misc. Restoration Application No. 233082 of 2013 and perused the affidavits filed in support of the aforesaid applications. Cause shown is sufficient. Delay is condoned. The application for condonation of delay is allowed. The order dated 3.9.2011 dismissing the appeal in default is recalled and the appeal is restored to its original number and status.

2. Heard learned counsel for the parties on merit with regard to special appeal and perused the record.

3. This intra-Court appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 15.4.2004 passed in Civil Misc. Writ Petition No. 5596 of 1998, Harbansh Singh v. State of U.P. and others, whereby the aforesaid writ petition was allowed.

4. Brief facts giving rise to the instant appeal are that Harbansh Singh, respondent No. 2 (since deceased) was working as the Officer-in-Charge at Sugarcane Breeding and Research Centre, Nichlaul, Mahrajganj. While working he was charge-sheeted and after an enquiry his services were terminated by the order dated 21.1.1998. Aggrieved, respondent No. 2 (since deceased) preferred Civil Misc. Writ Petition No. 5596 of 2004, Harbansh v. State of U.P. and others, which was allowed vide judgment and order dated 15.4.2004, the relevant portion of which reads thus :

“Clause 18.10 of the Service Rules provides that before any action is taken, the enquiry report ought to be supplied to the incumbent. A clear statement to the effect that the enquiry report was not supplied to the petitioner before the impugned order was passed has been made in paragraph 14 of the writ petition. This statement has not been denied in the counter-affidavit, though it has been explained that the show-cause notice was based upon the enquiry report and the petitioner himself never demanded a copy of the report. The law casts a duty upon the employer to supply a copy of the enquiry report before or alongwith the show-cause notice in case the Enquiry Officer is other than the Disciplinary authority. In the present case, both the authorities were different and it is immaterial whether the incumbent had demanded the copy of the enquiry report. The law in this regard is very settled that if the enquiry report is not supplied, the resultant order is vitiated as non-supply would be in violation of principles of natural justice. The Apex Court in Union of India v. Mohammad Ramzan Khan, 1991 (1) SCC 727; Punjab National Bank v. Kunj Behari Misra, 1998 (7) SCC 81, has consistently taken this view. In my view, the contention of the learned counsel for the petitioner has substantial force and the impugned order is not legally sustainable.

Normally the matter should be remanded to the authorities concerned for passing orders afresh after supplying a copy of the enquiry report, but since Harbansh Singh is already dead, remand would be futile.

In view of the discussions hereinabove, the writ petition succeeds and is allowed and the impugned order dated 21.2.1998 is hereby quashed. The respondents are hereby directed to release the entire salary payable to Sri Harbansh Singh to his heirs who are petitioners in this case in accordance with law and to further release the family pensions etc. payable to them within a period of ten weeks from the date of submission of a certified copy of this order.

No order as to costs.”

5. Feeling aggrieved by the aforesaid judgment and order dated 15.4.2004, appellants have filed this appeal on the ground that it is settled law that mere non-supply of copy of inquiry report would not make the termination order bad and delinquent employee has to explain and demonstrate that non-supply of copy of inquiry report has affected his right or caused prejudice to him; that the Writ Court has failed to consider that respondent No. 2 (since deceased) was charged with serious offenc