JUDGEMENT Mihir Kr.Jha, J. 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. From the records of this writ application it would be found that the original respondent no. 1 Syed Rahamtullah was an employee of West Champaran Collectorate, who for certain set of omission and pommission was subjected to a departmental proceeding in the year 1980 by placing him under suspension vide an order dated 17.12.1980. It appears that either the original respondent no. 1 did not co-operate in the departmental proceeding or there was some sort of communication gap between him and the Collectorate but the Enquiry Officer vide his two reports dated 12.12.1986 and 19.1.1987 had submitted his enquiry report holding the charges of unauthorized absence of the petitioner as also certain misappropriation of a fund of 12,000/- rupees to have been proved. Thereafter the original respondent no. 1 was subjected to a show cause notice dated 16.12.1987 for explaining as to why he should not be inflicted punishment in terms of the charges having been proved in the enquiry report but the original respondent no. 1 did not submit any reply even for a period of next 7 months, as a result whereof the Collector of West Champaran district being the disciplinary authority had passed the order of punishment on 2nd September, 1988 dismissing the original respondent no. 1 from service as also not being entitled for anything beyond subsistence allowance for the period of suspension. 4. 1 from service as also not being entitled for anything beyond subsistence allowance for the period of suspension. 4. 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. 5. 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. 5. Counsel for the substituted heirs in place of original respondent no. 1, on the other hand, would submit that true it is that the appeal was filed in form of a miscellaneous case after 11 years of the impugned order but then there was no knowledge of, such impugned order to the original respondent no.1 and that is how such the belated appeal was filed. He would further submit that in any event the plea of limitation ought to have been raised by the State of Bihar before the appellate authority but from the tenor of the impugned order it would appear that no such objection was raised before the appellate authority. He would finally submit that even if now the matter could be reconsidered as directed by the Commissioner in the impugned appellate order the person who have contested being the original respondent no. 1 is no longer alive and as no enquiry also can be held. 6. In the considered opinion of this Court two things are very clear. First of all Mr. J.N. Meena, the Commissioner of Tirhut Division, had no business to entertain the wholly belated appeal after 11 years of the impugned order. Mr. Meena had no such power to act as court of original instance, especially when his powers were totally circumscribed by the provisions of Discipline Control and Appeal Rules confining appeal to be filed and entertained in a period of six months from the date of order of punishment or by such period to be extendedunder the specific order of the appellate authority. In the entire appellate order there is no whisper as to whether the miscellaneous case filed by the original respondent no.1 was to be treated as an appeal or that the issue of condonation of delay of such appeal had ever been even considered much less condoned. In the entire appellate order there is no whisper as to whether the miscellaneous case filed by the original respondent no.1 was to be treated as an appeal or that the issue of condonation of delay of such appeal had ever been even considered much less condoned. It is well settled that any authority or the court having a power to condone the delay entertains an appeal filed after the prescribed period of limitation he must do so by a specific order, failing which it would be presumed that such an order passed after a period of limitation is nullity in the eye of law. In the" present case, this itself is a good ground for setting aside the order passed by the appellate authority because the appeal filed after 11 years was entertained and was disposed of after 14 years of passing of the order of punishment without condoning the delay in filing of the appeal. 7. That apart only two reasons had weighed upon the appellate authority for setting aside the order of punishment, namely, non-supply of the relevant documents and/or non-supply of the enquiry report. 8. The issue of non-supply of document being a question of fact, the appellate authority ought to have looked into the aspect of prejudice as was held in State Bank of Patiala case (supra). In fact nothing has been said in this regard by the appellate authority that which of the document was not supplied despite demand by the delinquent Respondent No. 1 who has in fact not even choosen to remain present in course of enquiry. 9. Similarly the order of punishment passed on 2.9.1988 could not have been interfered by the appellate authority on the ground non-supply of enquiry report in view of the judgment of Apex Court in Karunakar (supra) where it was held that: "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. 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 laid down in Mohd. Ramzan Khan case." 10. Moreover such procedural infirmity relating to supply of documents or in the departmental enquiry could have weighed, had the employee concerned i.e. Syed Rahamtullah, been in service on the date the appellate authority was considering such appeal on 20.3.2002. In fact after attaining age of 58 years on 31.7.1999, when such an appeal of the original Respondent No. 1 was entertained there was no question of either holding another enquiry against a person already reached the age of superannuation and therefore, the direction to pay entire salary, emoluments and hold another enquiry as on 20.3.2002 was absolutely impermissible in law. 11. This Court, however, having found that the appellate order is wholly unsustainable has also addressed to the findings recorded in the original order of punishment passed by the Collector of the District wherein there is no discussion as to how in an ex parte departmental proceeding the employee concerned Syed Rahamtullah had been held guilty. Counsel for the State has also not produced the enquiry report before this Court by which could have gone to show the propriety of such enquiry. In that view of the matter, this Court would hold that the order of dismissal of the employee concerned based only on the finding of ex parte enquiry report cannot be used to the detriment of the widow and legal heirs of Respondent No. 1 who would stand deprived of receiving family pension in the event the order of punishment against the deceased respondent is affirmed by setting aside the impugned appellate order. 12. 12. This Court, therefore, would hold that the widow of the original employee is entitled to receive at least the compassionate allowance in terms of Rule 46 of the Bihar Pension Rules which would be almost the same amount as family pension to her after the death of her husband on 11.4.2005. 13. At this stage counsel for both the parties have consented that this writ application be disposed of holding that the widow of employee concerned Syed Rahamtullah would be entitled for an amount by way of compassionate allowance in terms of Rule 46 which would be equivalent to the amount of family pension which she could have been entitled had the said employee Syed Rahamtullah died without any order of punishment. Such family pension, therefore, will be calculated on the basis of last salary drawn by Syed Rahamtullah as on the date of his removal from the service i.e. on 2.9.1988, and its payment will be made to Respondent Kaniz Fatma, the widow of original Respondent No. 1 w.e.f. 11.4.2005. 14. Counsel for the legal representative of Syed Rahamtullah the original Respondent No. 1 has also accepted that they will not claim anything beyond the family pension to the widow in terms of the aforementioned consent order and the counsel for the State of Bihar, the petitioner of this case has also agreed that the writ petitioners will have no difficulty in paying either the arrear or current amount on family pension to the widow w.e.f. 11.4.2005. 15. That being so, this Court would set aside the impugned order passed by the Commissioner of Tirhut Division, Muzaffarpur dated 20.3.2002 (Annexure-4) in Case No. 6-Misc./1999-2000. The order of punishment against the deceased original respondent would remain in force subject to the observations and directions with regard to payment of family pension by way of compassionate allowance in terms of Rule 46 of the Bihar Pension Rules. Such payment of arrears and current amount of compassionate allowance must be made within a period of three months from the date of receipt/production of a copy of this order. 16. With the aforesaid observation and direction this application is disposed of.