IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4374 of 2003 1.Smt. Hira Devi W/O DR.KAMLA KANTH THAKUR (since dead), 2.Ajit Kumar Thakur and 3.Sujit Kumar Thakur, both sons of Dr. Kamla Kant Thakur, resident of Village Labhagauo, P.S. & Distt. Khagaria. Versus 1.THE STATE OF BIHAR 2.The Health Commissioner, Government of Bihar, Patna. 3.The Additional Secretary, Health Department, Government of Bihar, Patna. 4.The Accountant General, Bihar, Patna. 5.The Under Secretary, Government of Bihar, Health Department, New Secretariat, Patna. ----------- 4 13.8.2010 Heard counsel for the petitioner and counsel for the State. Pursuant to the previous order of this Court dated 5.8.2010 the deponent Deputy Secretary of the Health Department is present. In his show cause reply it has been stated that since the statement contained in paragraph 29 of the writ application was both with regard to non supply of the enquiry report and non supply of the order of punishment, the deponent on the basis of the materials on record finding that the order of punishment was actually conveyed, had made a statement that the assertion of the original writ petitioner was false and fabricated. Mr. Choubey, learned counsel appearing on behalf of the State would also submit that the statement of the petitioner was capable of creating confusion, inasmuch as, it is an admitted fact that the enquiry report was never supplied on the original writ petitioner and to that extent statement in the counter affidavit cannot be supported by him. 2 The deponent, Deputy Secretary who is present before this Court seeks apology for a false statement made by him in the counter affidavit by taking plea of confusing statement of the petitioner. Considering the fact that the earlier Deputy Secretary, who has sworn the counter affidavit has already retired from service, this Court would accept his apology. Personal appearance of the deponent, Deputy Secretary, is accordingly dispensed with. Coming to the merits of this case, this Court would find that the prayer made by the original writ petitioner to the following extent, “For issuance of a writ in the nature of a writ of Certiorari for quashing the impugned order/notification bearing Memo no. 478 (3) dated 18.4.2002 issued by the Respondent No.3 whereby the petitioner has been illegally punished by reducing his seven increments without cumulative effect.” still subsists for the substituted petitioners, inasmuch as, it has also certain financial consequence for which the widow of the original petitioner has a right to sue even after death of her husband during the pendency of this writ application. It has also now becomes clear from reading of the supplementary counter filed today that such order of punishment for stoppage of three increments with cumulative effect was inflicted without supplying of enquiry report to the original writ petitioner. Normally, in such a case, this Court would have 3 adopted the recourse as laid down in the case of „Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors.’ Reported in 1993 (4) SCC 727 by directing the substituted petitioners to show as to what prejudice was suffered by the original petitioner on account of non supply of the enquiry report, but then at this stage Mr. Purushottam Jha, learned counsel for the petitioner, himself would submit that the substituted petitioner being widow would not be in a position to recollect the service details of the original petitioner and in such a situation she would be satisfied if quantum of punishment is reduced. In this context he would rely upon paragraph no.4 of the supplementary counter affidavit to suggest that the initial proposal of punishment against the original petitioner was for reduction of two increment with non cumulative effect but at the governmental level the same was enhanced to the stoppage of ten increments with non cumulative effect and an order of censure, which now has been reduced to seven increments and the petitioner would be satisfied if such order of punishment is again reduced to the stoppage of two increments with non cumulative effect. In view of the fact that the charges against the original petitioner were quite serious and definitely amounting to gross misconduct and the substituted petitioner does not want to contest the matter, this Court, in order to meet the ends of justice, would substitute the order of punishment of the original petitioner from the stoppage of seven increments on non cumulative basis to the 4 stoppage of two increments on non cumulative basis. This Court while doing so is also conscious of the fact that if the order of punishment is quashed on the ground of non supply of the enquiry report, the original petitioner having already retired in the year 2001 and also died during pendency of this writ application could not have been again inflicted any punishment of this nature and in fact only pension could be withheld either in full or in part. The reduction of punishment to the original petitioner by way of stoppage of his two increments on non- cumulative basis as prayed for by the counsel for the substituted petitioner and also agreed by the learned counsel for the State would therefore also meet the ends of justice for both the parties. That being so, this application with the consent of the parties is disposed of by modifying the order of punishment of the original petitioner from stoppage of his seven increments to only two increments and if any thing in excess has been recovered from the petitioner on the basis of the earlier impugned order of punishment, the balance amount would be refunded back to the widow of the original petitioner. Abhay Kumar ( Mihir Kumar Jha, J.)