JUDGMENT : Indrajit Mahanty, J. - The present writ application has been filed by the State of Orissa seeking to question the validity of the order dated 10.11.1998 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 691 of 1991 by which, the Tribunal allowed the said Original Application and directed quashing of the order of termination, issued against the Opp.Party pursuant to a disciplinary proceeding and further directing reinstatement of the Opp. Party, while granting continuity of service and other service benefits. 2. Mr. Mohapatra, learned Addl. Government Advocate representing the State submitted that 'the Opp. Party-B.K. Samantray had been appointed as Lower Division Assistant on 29.9.1973 in the Directorate of Health Services and thereafter, on 17.9.1975 he was appointed as a "direct recruit" as a "L.D. Clerk" on being selected by the Orissa Public Service Commission. While working in P.R. Department, the Opp. Party was granted leave from 19.7.1977 to 2.8.1977 for repairing his house and such leave has been sanctioned. But as his wife and he himself fell ill, he applied for extension of leave. While continuing 01) leave, a disciplinary proceeding was initiated against him for unauthorized absence and basing on inquiry report, the Opp. Party was removed from his service. Thereafter, the Opp. Party filed a memorial/ representation before the Governor and the same being rejected by the Government by its order dated 15.4.1985 as not entertainable under Rule 32 of the O.C.S. (C.C.A.) Rules, 1962 (in short the 1962 Rules'), the Opp. Party once again filed a representation seeking reinstatement in service and rejection of the said representation On 27.11.1990 rejection of which led the Opp.Party to approach the Administrative Tribunal, seeking quashing of the order of termination as well as challenging the order of rejection of his memorial/representation. The contention of the learned Addl. Government Advocate is that the Opp. Party had not participated in the inquiry proceeding in spite of intimation to him and for which reason, the report of such inquiry was found against him and thereafter, though he was directed to furnish his explanation within thirty days of receipt of the proceedings failing which it was presumed that he has no explanation to offer, no explanation was filed and the proceeding was disposed of ex parte on its own merit. Learned Counsel for the State asserts that although the charge sheet was received by the Opp. Learned Counsel for the State asserts that although the charge sheet was received by the Opp. Party No. 1.9.1978, no explanation was received from him within the specified date and therefore, final orders were passed, terminating his appointment. The essence of the contentions advanced on behalf of the State is that since the Opp. Party did not participate in the disciplinary proceeding nor furnished his explanation to the charge sheet, he ought not to be permitted to raise a plea of non-compliance of Rule-15(10)(ii) of the O.C.S.(C.C.A.) Rules, 1962. Apart from the above, learned State Counsel submitted that copies of the order was served on the Opp. Party on 7.2.1979 and the order of termination was given effect from 31.10.1977 (i.e. the day after the sanctioned leave lapsed). Learned State Counsel submitted that since the Opp. Party never resumed his duty, as he was required, on 31.10.1977 after his period of leave was over and he having not participated in the inquiry, the order of termination dated 4.6.1980 removing him from service with effect from 31.10.1977 is wholly justified. 3. Mr. Sanjit Mohanty, learned Senior Advocate, on the other hand, supported the order of the Tribunal and submitted that in terms of Rule-15(10)(ii) of the 1962 Rules, it was mandatory that a copy of the inquiry report along with the copy of the order of punishment were required to be supplied by the disciplinary authority to the delinquent, irrespective of the fact whether he asked for it or not. He submitted that this statutory requirement having not been fulfilled, the impugned order of termination suffers from a grave legal infirmity and is not sustainable in law. Mr. Mohanty further submitted that law is well settled that the order of termination cannot be passed with retrospective effect and can have only prospective effect. According to him, even if the Opp. Party continued on unauthorized leave and the finding in the inquiry was against the Opp. Party, the said period should have been treated as unauthorized under the Leave Rules read with the provisions of the Orissa Service Code, but there exists no statutory provisions for issue of a retrospective termination order. Mr. Mohanty, learned Counsel for the Opp. Parties further submitted that during the pendency of the present writ application, the Opp. Party, the said period should have been treated as unauthorized under the Leave Rules read with the provisions of the Orissa Service Code, but there exists no statutory provisions for issue of a retrospective termination order. Mr. Mohanty, learned Counsel for the Opp. Parties further submitted that during the pendency of the present writ application, the Opp. Party-Bijay Kumar Samantray has expired on 4.6.2003 and his legal heirs have been substituted by the State, though belatedly and therefore, the legal heirs of the deceased-employee shall be entitled only to the financial benefits for the period prior to his demise and pensionary benefits thereafter. 4. On a consideration of the submissions advanced by the learned Counsel for the parties and on perusal of the impugned order of the Tribunal, we find that the Tribunal has accepted the plea of the Opp. Party that the statutory requirements of Rule-15(10)(ii) of the 1962 Rules have not been complied with. Apart from this, the Tribunal was also in agreement with the contention of the Opp. Party that the order of termination could not have been with retrospective effect and can only have prospective effect. Rule-15 (10) (ii) of the 1962 Rules is quoted herein below: The orders passed by the disciplinary authority shall be communicated to the Govt. servant, who shall also be supplied with a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement... 5. In view of the aforesaid provisions, it is clearly mandatory that the disciplinary authority must communicate to the delinquentGovernment Servant a copy of the inquiry report and this rule needs to be complied with, irrespective of the fact as to whether the delinquent participated or not in the disciplinary proceeding. It is well settled that even though the delinquent officer has not participated in the disciplinary proceeding, the delinquent-Government Servant is still entitled in law to a copy of the inquiry report in terms of the above quoted Rule. In view of this, we are in respectful agreement with the view of the Tribunal that, the statutory requirements under Rule 15 (10)(ii) of the 1962 Rules admittedly having not been complied with in the present case, the order of termination suffers from a grave legal infirmity and therefore, is not sustainable in law. In view of this, we are in respectful agreement with the view of the Tribunal that, the statutory requirements under Rule 15 (10)(ii) of the 1962 Rules admittedly having not been complied with in the present case, the order of termination suffers from a grave legal infirmity and therefore, is not sustainable in law. We are further in respectful agreement with the finding of the Tribunal that the impugned order of termination of the Opp. Party from service could not have been given effect to retrospectively and for this reason as well the impugned order of termination deserves to be quashed. 6. In course of the proceeding as noted hereinabove, the opposite party has passed away and his legal heirs having been substituted the question as to what relief could be given to them remains to be dealt with. 7. It appears that the opposite party had filed an affidavit before this Court on 1.7.2001 and his stand in paragraph-2 thereof is quoted hereinbelow: That in order to clarify the stand of the Opp. Party in respect of his claim for back wages, this affidavit is being filled by the Opp. Party. The stand of the Opp. Party in respect of the back wages is as follows: i) 3.8.77 - 4.6.80 (the date of order of removal) should be treated as leave due and admissible to him. ii) 4.6.80 -10.11.98 (Judgment of the Tribunal) the Opp. Party will not claim any back wages. iii) 10.11.98 till the Opp. Party resumes duty, the Opp. Party claims back wages. 8. Accordingly, keeping in view the aforesaid facts the writ application filed by the State is dismissed and the order dated 10.11.1998 passed by the Tribunal is affirmed with the following directions: i) The period from 3.8.1977 to 4.6.1980 (the date of order of removal) be treated as leave due and admissible to the deceased-Opp. Party. ii) Since the deceased-Opp. Party had filed an affidavit, to the effect that he will not claim back wages for the period from 4.6.1980 to 10.11.1998 (date of judgment of the Tribunal) and accordingly, the legal heirs of the deceased-Opp. Party shall not be entitled to the back wages for the said period. iii) For the period from 10.11.1998 to 4.6.2003 (the date of death of the Opp. Party) the legal heirs of the Opp. Party shall be entitled to claim back wages for the said period. Party shall not be entitled to the back wages for the said period. iii) For the period from 10.11.1998 to 4.6.2003 (the date of death of the Opp. Party) the legal heirs of the Opp. Party shall be entitled to claim back wages for the said period. We further direct that the family of the deceased-Opp. Party shall also be entitled to other retirement benefits as admissible to them in accordance with the rules. It is further directed that the aforesaid financial benefits be computed and released in favour of the legal heirs of the deceased-Govt. servant within a period of four months from the date of communication of this order, failing which the opposite parties shall be entitled to claim interest @ 12% P.A. to be computed from the date of entitlement of the opposite parties. In so far as retirement benefits are concerned, the same be computed and the outstanding retirement benefits be released in favour of the legal heirs of the deceased-Opp. Party within a further period of three months thereafter. 9. With the aforesaid observations and directions, the writ application stands dismissed. No order as to costs. L. Mohapatra, J. 10. I agree. Final Result : Dismissed