ORDER : 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. None of the parties has raised any complaint regarding audio and visual quality. I.A. No. 7847 of 2019 2 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 50 days in preferring this Letters Patent Appeal. 3. Heard. 4. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation. 5. Accordingly, I.A. No. 7847 of 2019 is allowed and delay of 50 days in preferring the appeal is condoned. L.P.A. No. 502 of 2019 6. This instant intra-court appeal is directed against the order/judgment dated 25.04.2019 passed by the learned Single Judge of this Court in W.P. (S) No. 3743 of 2011, whereby and whereunder the order dated 10.11.2005 has been quashed by directing the authority to take decision in accordance with law. 7. The brief fact of the case, which requires to be referred herein, reads hereunder as: The writ petitioner was appointed as Miner/Loader in M/s BCCL on 10.01.1984, while he was in service, a charge-sheet dated 12.06.2003 was issued for unauthorized absence from duties with effect from 31.01.2003 under the signature of Project Officer/Manager, Bhowra (N) U.G. Mines. The writ petitioner filed show cause explanation on 18.06.2003 stating therein that he was not physically fit and was sick. The Project Officer/Manager, Bhowra (N) U.G. Mines issued a communication on 02.09.2004 informing the writ petitioner about his reply which was found not satisfactory by the competent authority and, therefore, he has been placed under suspension from 31.08.2004 to 10.09.2004 as a token of punishment. The writ petitioner, however, was allowed to resume his duty vide order dated 02.09.2004 with effect from 11.09.2004. He resumes duty but, was again served with another office order dated 26.08.2005 whereby he was informed that the management has decided to hold enquiry on the charge-sheet issued on 12.06.2003. The writ petitioner was directed to appear before the enquiry officer. The enquiry officer has submitted its report holding therein that the charges levelled against the writ petitioner have fully been proved. The writ petitioner was directed to appear before the enquiry officer. The enquiry officer has submitted its report holding therein that the charges levelled against the writ petitioner have fully been proved. The writ petitioner was served with a copy of enquiry report vide letter dated 09.11.2005 and was asked to furnish his reply thereto within 72 hours. But without even waiting for 72 hours, the time granted to the writ petitioner to report to the enquiry officer, he was terminated from service with effect from 10.11.2005 (Annexure-7 to the writ petition). The writ petitioner approached this Court by filing a writ petition, inter-alia, agitating the ground that the principles of natural justice have been violated since before completion of 72 hours i.e. the time assigned to furnish reply, the order of termination has been passed. Further, after the order of termination dated 10.11.2005, the second show cause notice has been served, that too after approval by the Chief General Manager, a higher authority, on the recommendation of due decision of termination by the Project Officer, the competent disciplinary authority and therefore, the disciplinary authority has not applied his independent mind. A counter affidavit has been filed before the writ Court by the respondent-BCCL, wherein the ground has been agitated that the enquiry officer has found the charge proved about the unauthorized absence and taking into consideration the past absence which was found to be habitual, the decision of termination has been taken after following due procedure which is to be followed in the departmental proceeding and hence, the order of termination suffers from no infirmity. The writ Court appreciating the argument advanced by the learned counsel for the parties as also the materials placed before it, has quashed and set aside the order dated 10.11.2005, granting liberty to the authorities to act in accordance with law. The respondents-BCCL has challenged the order passed by the learned Single Judge for quashing the order of termination dated 10.11.2005, in this appeal. 8. Mr. Amit Kumar Das, learned counsel appearing for the appellant-BCCL submits that the learned Single Judge has exceeded its jurisdictional power of judicial review in the matter of departmental proceeding, since extraordinary power conferred under Article 226 of the Constitution of India is very cautiously to be exercised in the matter of departmental proceeding, where the charge has been found to be proved by the enquiry officer. It has been submitted that the principles of natural justice have been followed in course of enquiry and the enquiry officer after taking into consideration the plea of the writ petitioner and considering the other evidences, has found the charge proved and accepting the same the Project Officer, in the capacity of disciplinary authority, has imposed the punishment of termination from service and as such, interfering with the impugned decision of termination, the learned Single Judge has committed gross illegality. 9. Per Contra, Mr. Sumir Prasad, learned counsel for the respondent-writ petitioner has defended the impugned order by making submission that the principles of natural justice has not been followed. The second show cause has been served after the order of termination. The Project Officer although is the disciplinary authority but he has not acted with his independent mind, rather initially had recommended for imposing the punishment of termination and sought for approval of the said recommendation from the higher authority i.e. the Chief General Manager, who has approved the recommendation and thereafter, the Project Officer has acted on the basis of the said approval made by the Chief General Manager and the order of termination has been issued, which cannot be said to be a proper order by the disciplinary authority since he ought to have taken independent decision in the capacity of quasi- judicial authority. The learned Single Judge, taking into consideration the non-observance on the principles of natural justice, has quashed and set aside the order dated 10.11.2005, however, with liberty to the authorities to act in accordance with law. He further submits that the writ petitioner has already retired from service in the year 2019 and as such, even if the matter would be remitted before the authority, no purpose would be served since the appellant-BCCL is having no rule to continue with the departmental proceeding against an employee who has already separated from service on attaining the age of superannuation. 10. We have heard learned counsel for the parties, perused the documents on record as also the finding recorded in the impugned order. 10. We have heard learned counsel for the parties, perused the documents on record as also the finding recorded in the impugned order. The admitted fact is that, the departmental proceeding was initiated against the writ petitioner by serving a memorandum of charge dated 12.06.2003, alleging therein that the writ petitioner has absented from duty with effect from 31.01.2003 without any information to the competent authority and as such, the writ petitioner was charged for misconduct in terms of the condition stipulated under Para-26.1.1 of the Certified Standing Order which contains: “26.1.1: Habitual late attendance or willful or habitual absence from duty without sufficient cause.” The content of the memorandum of charge, vide Annexure-1 to the writ petition, is being reproduced herein below: Subject: Charge-Sheet “It appears from our record that you are absenting unauthorisedly from duty with effect from 31.1.2003 without any information of the competent authority. Under the circumstances, you are hereby charged for misconduct in terms of the following para of the Certified Standing Orders applicable for the workmen of establishment of B.C.C.L. 26.1.1: Habitual late attendance or willful or habitual absence from duty without sufficient cause. You are hereby called upon to explain in writing within 7 days of the receipt of this charge-sheet as to why disciplinary action should not be taken against you for your above misconduct.” The writ petitioner submitted his reply on 18.06.2003 stating therein that since he was suffering from fever and as such, could not attend the duty from 31.01.2003. The Project Officer/Manager, Bhowra (N) U.G. Mines issued a communication on 02.09.2004 finding the reply furnished by the writ petitioner as unsatisfactory, sent the file before the competent authority for its approval. The competent authority approved 10 days suspension as a token of punishment and the writ petitioner was placed under suspension from 31.08.2004 to 10.09.2004. It appears from the communication that after completion of the period of 10 days, the writ petitioner was allowed to resume duty with effect from 11.09.2004. The appellant-BCCL has issued another communication on 26.08.2005 i.e. after about one year by appointing one Sri. H.K. Choudhary, Dy. Personnel Manager (Administration/Legal) E.J. Area Office as enquiry officer and one Sri. It appears from the communication that after completion of the period of 10 days, the writ petitioner was allowed to resume duty with effect from 11.09.2004. The appellant-BCCL has issued another communication on 26.08.2005 i.e. after about one year by appointing one Sri. H.K. Choudhary, Dy. Personnel Manager (Administration/Legal) E.J. Area Office as enquiry officer and one Sri. R.D. Tripathy, Personnel Manager, Bhowra (N) UG Mines as management representative to enquire into the charge-sheet issued to the employees, one of which is the writ petitioner, namely, Kalidas Mallah with a request to the enquiry officer and management representative to complete the enquiry as early as possible and submit the enquiry report to the undersigned for further action. Finally, as an outcome of the said departmental proceeding the writ petitioner was terminated from service with effect from 10.11.2005. 11. We, on perusal of the order of termination dated 10.11.2005, have found that the departmental proceeding has been initiated for unauthorized absence from duty from 31.01.2003 for which the competent authority had ordered for enquiry. In the enquiry, the charge has been found to be proved. The competent authority/disciplinary authority has accepted the finding of the enquiry officer and terminated the writ petitioner from service. It appears from Annexure-E to the counter affidavit filed on behalf of the respondent-BCCL dated 04.04.2019, which contains a letter dated 07.10.2005 under the subject (recommendation) which is made by the Project Officer, Bhowra, the disciplinary authority, wherefrom it is evident that the disciplinary authority has recommended the termination of the writ petitioner with immediate effect. The content of the said recommendation dated 07.10.2005 reads as under: “I have carefully gone through the Enquiry proceeding and Enquiry report submitted by the Enquiry Officer, it has been found that the charge-sheeted workman was absent from his duty from 31.1.2003 and was allowed for duty from 11.9.2004 by the then Manager without conducting the enquiry and without obtaining the approval of the Competent Authority. Enquiry has been order by the Competent Authority. Enquiry was held and the charge-sheeted workman was fully participated in the Enquiry. The charge leveled against the charge-sheeted workman is fully established. From the record it appears that the last 3 years performance of the charge-sheeted workman was very poor. Several charge-sheet and Warning was issued to him. In view of the above I hereby recommended the termination of Sri. The charge leveled against the charge-sheeted workman is fully established. From the record it appears that the last 3 years performance of the charge-sheeted workman was very poor. Several charge-sheet and Warning was issued to him. In view of the above I hereby recommended the termination of Sri. Kali Das Mallah, Miner/Loader of Bhowra (N) U.G. Mines from the service of the company with immediate effect.” Project Officer, Bhowra (N) U.G. Mines The aforesaid recommendation was sent before the Chief General Manager, has been approved vide note dated 29.10.2005 and thereafter, on 09.11.2005 the second show cause notice was issued asking the petitioner to furnish reply within 72 hours but the order of termination has been passed on 10.11.2005. It has been stated at Bar by the learned counsel for the appellant-BCCL that the Project Officer/Area Manager is the disciplinary authority of the writ petitioner. It is not in dispute that where a departmental proceeding is initiated against an employee, the disciplinary authority is to act as a quasi-judicial authority and in that capacity such authority is supposed to take decision with its independent mind. It is also settled that a second show cause notice is required to be issued after submission of the enquiry report finding the charges to be proved, in case the disciplinary authority and the enquiry officer are two different persons. It is equally settled that merely on the ground of non-furnishing of second show cause notice, the departmental proceeding is not required to be vitiated unless the prejudice is shown to be caused due to non-supply of second show cause notice. The question of prejudice is having broad aspect and it is to be tested on the facts of the case. It is not that merely by taking plea of non-service of the second show cause notice after submission of the enquiry report, the entire proceeding will be vitiated, but, if the disciplinary authority has not acted as per the power conferred to it to act as a quasi-judicial authority rather acted on the basis of the approval of the higher authority, certainly the issue of prejudice will come into play as, if any higher authority has approved the decision of the subordinate authority, there is always a tendency upon the subordinate authority to endorse the decision of the higher authority. In this regard reference may be made to the judgment of the Hon’ble Apex Court in the case of V.K. Ashokan vs. Assistant Excise Commissioner and Others, (2009) 14 SCC 85 wherein it has been observed at paragraph 49: “49. But there is no gainsaying that when a licence has been granted, which is subject to exercise of statutory power, the provisions of the statute must be complied with before a penal action thereunder is taken. The law provides for compliance with the principles of natural justice as a consequence flowing from an order of cancellation of licence has serious civil consequences and as such it was obligatory on the part of the Excise Commissioner to comply with the principles of natural justice. He has failed to do so. The submission of Mr. Iyer that in few of the matters the Assistant Commissioner of Excise had served notices before the recovery proceedings had been initiated cannot be accepted for more than one reason. Such a notice had been issued only pursuant to the order passed by the higher authority, namely, the Commissioner of Excise. As the higher authority had already made up his mind and confirmed forfeiture of the security as also cancellation of licence, administrative discipline would require that it is complied therewith. Issuance of such notices was, therefore, a mere formality.” 12. This Court, applying the aforesaid position of law, has found the fact exactly similar, since the disciplinary authority has first recommended for terminating the writ petitioner from service vide recommendation dated 07.10.2005, thereafter sent it before the Chief General Manager for its approval which has been approved by the Chief General Manager on 29.10.2005 and it is only then the second show cause notice was issued on 09.11.2005, therefore, after approval of the order of dismissal, the issuance of second show cause notice dated 09.11.2005 is nothing but a mere formality. It has been held by the Hon’ble Apex Court in the case of K.I. Shephard and Others vs. Union of India and Others, (1987) 4 SCC 431 , wherein at paragraph 16, it has been held as under: “16.......It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.” Secondly, because when an authority has made a formality of complying with the principles of natural justice, it may be held to be a nominal and is sham one. It is further settled position of law that when the competent authority has delegated the power upon a authority to act as a disciplinary authority, he in the capacity of quasi-judicial authority, is supposed to act with its independent mind by considering all the relevant materials. In the case in hand, the Project Officer has not discharged his duty conferred to it, to act as a quasi-judicial functionary and instead of taking its independent decision. He has first made a recommendation of termination of service of the writ petitioner and sent it for approval before the higher authority i.e. Chief General Manager and when it was approved by the Chief General Manager then only the second show cause notice was issued and the final order of termination has been issued by the Project Officer in the capacity of the disciplinary authority. Therefore, according to our considered view, the decision taken by the disciplinary authority i.e. the Project Officer of the area, cannot be treated to be proper in the eye of law. Secondly, even at the time of issuance of first show cause, the time of 72 hours had been provided to the writ petitioner but before completion of the period of 72 hours, the decision has been taken by terminating the writ petitioner from service which also violates the principles of natural justice as because the reply furnished by the writ petitioner has not been taken into consideration before taking such decision. Further, against the writ petitioner where there was alleged charge of unauthorized absence, the decision has been taken for putting the writ petitioner under suspension, as would appear from the order dated 02.09.2004, wherein it has been mentioned that absenting from duty with effect from 31.01.2003 although reply has not been found satisfactory, his case has been sent before the competent authority for its approval and the competent authority has taken 10 days suspension as a token of punishment. The question is that, if the higher authority has already taken a decision of 10 days suspension as a token of suspension, why the departmental proceeding against the petitioner been revived, no answer has been furnished by the appellant. This Court thinks it proper to refer the communication dated 02.09.2004, vide Annexure-3 to the writ petition, which reads hereunder as: “To, Sri. Kalidas Mallah Miner/Loader, P. No. Bhowra (N), UG Mines Dear Sir, You were issued Charge-Sheet No. 843 dated 02.07.2004 for absenting from your duty with effect from 31.1.2003. Finding your reply unsatisfactory the case file was sent to the Competent Authority for his kind approval. The Competent Authority has approved 10 days suspension as a token of punishment. Accordingly, you are placed under suspension from 31.8.2004 to 10.9.2004 confirming the period of suspension of the charges leveled against you for 10 days and now you are hereby allowed to resume your duty with effect from 11.9.2004. Yours faithfully Sd/- Project Officer/Manager Bhowra (N), UG Mines.” 13. It is settled position that in the departmental proceeding, the scope of the High Court under Article 226 of the Constitution of India is very limited. This Court is conscious of the fact but for the reasons as referred herein above, is of the view that the learned Single Judge, if exercised the aforesaid extraordinary jurisdiction conferred under Article 226 of the Constitution of India coupled with the reasons assigned by us herein above, it is a fit case where the power of judicial review is to be exercised and as such, it has rightly been exercised by the learned Single Judge. The further question is that, on the date of passing of the order by the learned Single Judge, the writ petitioner was in service and therefore, according liberty to the respondents to act in accordance with law can be justified on that date but as on today the writ petitioner, since, has retired from service and as has been stated by the learned counsel for the appellant that there is no provision for non-executives to continue with the departmental proceeding after superannuation. 14. In view thereof, this Court has considered that aspect of the matter that if the part of the order whereby and whereunder the learned Single Judge has accorded liberty to the respondents to act in accordance with law, will be allowed to remain as it is, no purpose would be served due to superannuation of the writ petitioner from service. Therefore, this Court is of the view that no purpose would be served granting liberty to the appellants to act in accordance with law after superannuation of the writ petitioner from service as because if the appellant will be allowed to carry out the departmental proceeding afresh, the same will not be permissible in absence of any provision to carry out departmental proceeding after superannuation of the non-executive. 15. In view thereof, the part of the order passed by the learned Single Judge, according liberty to the authority to act in accordance with law in the changed circumstances of the fact, is required to be quashed and set aside. Accordingly, the part of the order contained in the impugned order to the effect “the authorities are at liberty to act in accordance with law” is hereby quashed and set aside. 16. In consequence thereof, the appellant-BCCL is directed to disburse the consequential monetary benefits in favour of the respondent-writ petitioner, which is legally admissible to him to be paid within three months from the date of receipt of copy of the order. 17. Accordingly, the instant appeal is dismissed with the aforesaid observations and directions.