IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.10308 OF 2007 HARENDRA PRASAD THAKUR, S/O SRI KASHI NATH THAKUR, R/O VILLAGE MURLI P.O. BHEDA MURLI P.S.SANGRAMPUR, IN THE DISTRICT OF EAST CHAMPARAN, MOTIHARI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HEALTH AND MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DEPUTY SECRETARY TO THE GOVERNMENT, HEALTH AND MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, SHIVHAR. ………………………RESPONDENTS. ----------- 02/ 19.10.2011 Heard counsel for the parties. Mr. Dinu Kumar, learned counsel for the petitioner while assailing the impugned order of punishment dated 23.03.2007, which is in two parts namely stoppage of one increment without cumulative effect and also stoppage of salary beyond subsistence allowance for the period of suspension would submit that neither the petitioner was given a copy of the Inquiry Report nor notice under Rule-97(3) of the Bihar Service Code. He would further submit that in view of 2005 Rules suspension being not a punishment as has been enumerated in the Rules, the withholding of salary beyond subsistence allowance cannot be inflicted 2 by way of punishment and therefore, the procedure envisaged in Rule-97(3) of Bihar Service Code has to be compulsorily followed. Mr. Manoj Priyadarshi, learned counsel for the State with the help of the counter affidavit would take a stand that since the petitioner was inflicted only a minor punishment of stoppage of one increment without cumulative effect, there would be no need to serve a copy of the Inquiry Report. He, however, has got no answer to the second part of the submission of Mr. Dinu Kumar that the petitioner was never given notice under Rule-97(3) of Bihar Service Code. In the considered opinion of this Court, supply of Inquiry Report even in the case of minor punishment would be necessary where the proceeding had started in the form of full fledged departmental proceeding meant for inflicting major punishment. That is how, the Apex Court in the case of Managing Director, ECIL, Hyderabad and Ors vs B. Karunakar and Ors, reported in 1993(4) SCC 727 has settled the 3 law in respect of service of Inquiry Report prior to inflicting of punishment. This Court is aware that normally the order of punishment should not be quashed merely on account of non supply of Inquiry Report and the respondents should be given opportunity to produce a copy of the Inquiry Report but when the respondents themselves have not chosen to enclose the copy of the Inquiry Report along with counter affidavit, the said recourse in the case of Karunakaran (supra) can also not be followed. The correspondence which has been produced by the petitioner by way of Annexure-5 series, if they are to be treated as Inquiry Report would only go to show that the Deputy Development Commissioner actually did not hold the inquiry and had left the matter on Civil Surgeon and when the Collector of the district was to record his opinion, he too on somehow approved the aforesaid approach of the Deputy Development Commissioner. If Annexure-5 series can be said to be Inquiry Report, this Court will have no difficulty 4 in holding that the whole procedure of holding inquiry was itself vitiated. It was not that the Collector and the Deputy Development Commissioner and Civil Surgeon were doing some file work or exchanging views which could be termed as a departmental inquiry in terms of 2005 Rules. From the reading of memo of charge and decision of the Government to appoint Inquiry Officer, it would be clear that the procedure as envisaged for inflicting major penalty was to be followed and therefore, there should have been a proper inquiry in which the department had to prove the charge by bringing the material evidence either oral or documentary or both. Nothing of this sort had been done as is apparent from perusal of Annexure-5 series, the letter of the Deputy Development Commissioner, Sheohar dated 04.06.2005 addressed to the Collector, Sheohar and the letter of the Collector, Sheohar dated 01.09.2005 addressed to the Secretary of Health Department. It is really shocking for this Court to also find that such 5 perfunctory procedure of inquiry was sought to be approved by the Director-in-Chief of Health Department leading to the impugned order of punishment. Additionally, this court would find that the petitioner before being inflicted the punishment of stoppage of increment and/or salary for the period of suspension by way of subsistence allowance was given no show cause notice much less in terms of Rule-97(3) of Bihar Service Code. Thus for all these reasons, this Court would find that the impugned order passed against the petitioner as with regard to inflicting punishment of withholding of one increment with non cumulative effect and stoppage of salary for the period of suspension beyond subsistence allowance are wholly unsustainable both in fact or in law and the same is, accordingly, quashed so far it relates to the petitioner. That being so this writ application stands allowed to the extent indicated above. Ranjan (Mihir Kumar Jha, J.)