IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.5066 of 1999 Dr.Chanrahash Kant Chaudhary, son of late Padma Kant Chaudhary, resident of village Nehra, P.S. Manigachhi, District Darbhanga … Petitioner Versus 1. The State Of Bihar through the Chief Secretary, Govt. of Bihar, Main Secretariat, Patna 2. The Commissioner cum Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, patna 3. The Additional Commissioner, Department of Health Medical Education and Family Welfare, Govt. of Bihar, Patna 4. The Director-in-Chief, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna 5. The Deputy Director, Health Services, Govt. of Bihar, Patna 6. The Deputy Secretary cum Chief Vigilance Officer, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna … Respondents ---------------------------------- 5. 2.8.2011 Heard Mr. Bonodanand Mishra, learned counsel for the petitioner and the counsel for the State. While this Court would find it difficult to interfere with the impugned order inflicting certain punishment on the petitioner on the charge of his being unauthorized absent, inasmuch as no evidence at all was led by the petitioner before the Enquiry Officer to prove that he had proceeded on leave after obtaining approval and/or sanction of such leave. The Enquiry Officer, therefore, in the enquiry report had rightly found the charge to have been proved against the petitioner. The impugned order in fact is only by way of reaffirmance of the view taken by the Enquiry Officer in respect of the charges having been proved against the petitioner. In that view of the matter, when there is also no complaint by the petitioner as with regard to any procedural infirmity in course of departmental enquiry, this Court would find it difficult to interfere with the 2 impugned order of punishment. The plea taken in course of submission by Mr. Mishra that such order of punishment was passed without service of enquiry report would also not hold good in this case in view of the fact that the respondents have enclosed the enquiry report and nothing could be shown by the petitioner as with regard to prejudice caused to him on account of non-supply of enquiry report. The Apex Court in the case of Managing Director, ECIL, Hyderabad & ors. vs. B. Karunakar & ors., reported in (1993) 4 SCC 727, has already held that mere non-supply of enquiry report by itself will not vitiate the order unless the delinquent/ writ petitioner could demonstrate such prejudice after the enquiry report is served on him in the counter affidavit. In that view of the matter, this Court would not interfere with the impugned order of punishment even on the ground of non-supply of enquiry report. That would lead to the last submission of Mr. Mishra that while he has been punished severely for the misconduct of remaining absent from duty by way of unauthorized leave, other similarly situated persons were treated differently and were in fact also allowed post facto leave. Though there is no direct pleading in this writ application but in the show cause reply filed by the petitioner before the authority he had named certain persons. The resultant order of punishment, however, does not take into account with the specific aspect of discrimination in the matter of punishment. 3 It is well settled that even in the disciplinary proceeding the order of punishment should not be discriminatory and for the same misconduct there should not be different punishment. Here in this case it is not clear as to whether the persons named by the petitioner in the second show cause reply had been initially granted leave for the smaller period like in the case of Saroj Anis, who has given leave for one month, whereafter she was allowed post facto approval of her period of absence by granting her extraordinary leave. Therefore, each of the case as cited by the petitioner will have to be examined by the authorities before plea of discrimination can be said to be established. Thus, this Court would only give liberty to the petitioner to approach the Principal Secretary of the Health Department by filing a compact representation wherein he would specifically name the persons as with regard to whom he has a feeling of being discriminated in the matter of grant of punishment. It is expected that the Principal Secretary of the Health Department will give due consideration to the issues raised by the petitioner, inasmuch as in the impugned order this aspect of the matter was not gone into. Such exercise should be completed within a period of six months from the date of receipt/ production of a copy of this order. Additionally this Court would also direct the Principal Secretary, Health, to decide fresh place of posting of the petitioner, inasmuch as the earlier order of his posting in a Primary Health Centre had been stayed by this Court. It would be, 4 however, open to the Principal Secretary to post the petitioner at any appropriate place as per his entitlement and his entry in general cadre/ teaching cadre. Let it be made clear that this Court has not expressed any opinion on the merits of the claim of the petitioner and has simply remitted the matter back for re-examination of the limited aspect as referred above. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/