1. Heard Mr. Chittaranjan Sinha, learned Senior counsel for the petitioner and J.C. to S.C. 20 for the respondents and also considered the counter affidavit filed on behalf of the respondents.

2. This writ application is directed against the order of punishment as contained in Annexure 7 issued vide memo no. 2332 dated 7.7.1999 and also the appellate order. By the orders impugns the petitioner having been found guilty for the charges levelled against him in a departmental proceeding, has been punished in the following terms:

(i) Censure,

(ii) Stoppage of one annual increment

(iii) He will not get anything during the suspension period save and except the subsistence allowance already paid.

It is contended by Mr. Chittranjan Sinha that the order impugned has been issued without following the procedures of law and without applying the principles of natural justice inasmuch as that neither copy of the enquiry report was served upon the petitioner nor an opportunity was given by way of a separate show cause for punishment no. (iii) as required under the provisions of Rule 97 (3) of the Bihar Service Code (hereinafter referred to as the Code, it is further submitted by Mr. Sinha that enquiry in this matter was complete and the enquiry report was submitted on 24.5.1994 whereas the order of punishment was issued vide order dated 7.7.1999, almost after five years of the conclusion of the proceeding; that too without service of the enquiry report. Learned counsel, therefore, submitted that the order impugned is wholly without jurisdiction and is liable to be set aside.

3 Though a counter affidavit has been filed behalf of the respondents but no where it is stated that copy of the enquiry report was ever served upon the petitioner, the delinquent or any opportunity was given in terms of the provisions of Rule 97 (3) of the Code.

4. This Court faced with this situation, had directed the state counsel to produce the records of this case pertaining to the departmental proceeding initiated against the petitioner.

5. Learned counsel for the State after going through the records, submitted that there is no mention in the entire of the records to show that the enquiry report was served upon the petitioner or a show cause notice was given in terms of Rule 97(3) of the Code.

6. This matter, however, was heard by a learned Single of this Court on 31.1.2006 and it was referred to the Division Bench to decide the question as to the effect of non service of notice to the delinquent in terms of Rule 97(3) of the Code.

7. From the materials on record, we are satisfied that neither a copy of the enquiry report was served upon the petitioner, the delinquent nor a separate show cause notice was served upon him in terms of Rule 97(3) of the Code. The question as to the effect of non serving of enquiry report, is no more res Integra and it has been settled by various judgments of this Court and the Apex Court. In the case of Union of India and Ors. Vs. Md. Ramjan Khan reported in AIR 1991 (1) SC 471 and in the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727, it has been held that copy of the enquiry report is required to be served upon the delinquent employee prior to the passing of the order of punishment and non service of the same would amount to violation of the principles of natural justice. This Court, recently, in the case of Jagannath Singh Choudhary Vs. State of Bihar and Ors., reported in 2004 (3) PLJR 253, relying upon the judgment of the Supreme Court as referred to above, took the same view and held the order of punishment to be bad in law.

8. Apart from these questions, so far the main question for which this matter has been referred, is concerned, it appears that for imposing the punishment no. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence allowance, the disciplinary authority was required to give separate show ca