PER URMITA DATTA (SEN), MEMBER (J):
1. This instant application has been filed by the Applicant praying for following reliefs:
“8.1 That the Hon’ble Tribunal be pleased to set aside and quash the impugned order No. RD/ER/BKN(Conf)-GC/16-565 dated 29.09.2016 (Annexure-A1), impugned letter F, No. BC/INQ/Conf-532 dated 29.06.2017/04.07.2017 (Annexure-A2) and impugned letter F.No. BC/INQ/Conf-5537 dated 08.12.2017 (AnnexureA3).
8.2 Cost of the application.
8.3 Any other relief/reliefs Hon’ble Tribunal is pleased to grant the above reliefs are prayed on the ground stated in para 5 above.”
2. As per the applicant, while he was working as Conservation Assistant, Grade-I (re-designated as Sr. Conservation Assistant) under the respondent department, a Memorandum of Charge-sheet dated 21.12.2015 (Annexure-A/4) was issued to him under Rule 14 of the CCS/CCA Rules, 1965, which consists of 3 Article of Charges and in short, as follows:-
In Article I ─ it has been alleged that during 2013-14, the applicant did not supervise the execution of works at Singri Hill ruins properly.
In Article II ─ it has been alleged that the applicant as in charge of Sub-Circle Tezpur had shown his utter negligence on government duty and did not maintain the site/monument neat and tidy and remained absent from his duty from 16 to 19 August, 2014 without valid leave or any intimation.
In Article III ─ it has been alleged that the applicant remained absent from duty from 22.09.2014 to 23.09.2014 without leave and was absconded from his duty since 2nd May, 2015 without valid leave or intimation.
3. Thereafter, the Disciplinary Authority appointed Sri B. Sinha as Inquiry Officer to inquire into the charges framed against the applicant. Vide Order dated 19.01.2016 (Annexure-A/7), the Inquiry Officer requested the Superintendent Archaeologist, ASI, Guwahati (Respondent No. 4) to make available those documents, which the applicant wants to make his defence submission. Accordingly, he was allowed to inspect those documents on 15.02.2016. Subsequently, on 29.02.2016, applicant’s deposition was recorded in the inquiry proceedings and the Presenting Officer examined him in detail. Thereafter, the Inquiry Officer, submitted his Inquiry Report dated 25.05.2016 (Annexure-A/9), which was forwarded to the applicant by the Disciplinary Authority vide letter dated 26.05.2016 (Annexure-A/10). In the said Inquiry Report, the Inquiry Officer held that the charges levelled in Article I, II & III are not proved. Subsequently, the Disciplinary Authority after considering the Inquiry Report, issued ‘Warning’ to the applicant vide Order dated 26.05.2016 (Annexure-A/11). However, surprisingly, the respondent No. 3 i.e. Disciplinary Authority had issued the impugned Order dated 29.09.2016 (Annexure-A/1) and had appointed another Inquiring Authority to re-inquire into the charges framed against the applicant under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules 1965.
4. It has been submitted by the applicant that he submitted a representation before the Disciplinary Authority on 14.06.2017 (Annexure-A/12) stating that since erstwhile Disciplinary Authority had already passed an Order after considering and accepting the Inquiry Report, therefore, there is no provision under Rule 14 of CCS (CCA) Rules, 1965 for re-inquiry. Being aggrieved with the action of the respondent authority, the applicant has filed the instant application.
5. Sri S. Nath, learned counsel for the applicant has submitted that as per Rule 15 of CCS (CCA) Rules, 1965, if the Disciplinary Authority is not satisfied with the Inquiry Report, then he may record his disagreement to the Inquiry Report and forward the same to the charged officer asking for representation, if any. However, there is no provision for re-enquiry by appointing a new Inquiry Officer. During the course of hearing, learned counsel for the applicant has placed one judgment reported in (2014) 10 SCC 589, [LQ/SC/2014/1021] Vijay Shankar Pandey Vs. Union of India and Another and has submitted that the instant case is fully covered by the aforesaid judgment.
6. The respondents have filed their written statement, wherein it has been stated that though it is a fact that the Inquiry Report in the departmental enquiry under Rule 14 of CCS (CCA) Rules 1965 against the applicant was not established as conveyed by the Disciplinary Authority in his letter dated 26th May, 2016 to the applicant, but certain/valid points were not taken into consideration by the Inquiry Officer during holding of the enquiry. Therefore, the respondent No. 4 i.e. the Superintending Archaeologist requested the respondent No. 2 and 3 i.e. the Director General, ASI, New Delhi and Regional Director (ER), ASI, Kolkata (Disciplinary Authority) vide his letter dated 28th June 2016 (Annexure-R/3) and 29th August 2016 (AnnexureR/4) for re-enquiry by indicating those valid points. Thereafter, the Disciplinary Authority i.e. Regional Director (ER), Kolkata had taken up the matter seriously and issued an Order for re-enquiry and had appointed new Inquiry Officer. According to the respondents, as per the observation of respondent No. 4 i.e. the Superintending Archaeologist, the case has been reopened for re-enquiry.
7. The applicant has filed his rejoinder and reiterated his earlier submission.
8. We have heard Sri S. Nath, learned counsel for the applicant and Sri S.K. Ghosh, learned Addl. CGSC for the respondents and perused the records.
9. It is noted that the applicant was served with a Memorandum of Charge-sheet dated 21.12.2015 (Annexure-A/4) and subsequently, the Disciplinary Authority had appointed one Inquiry Officer, who had submitted his enquiry report in details on 25.05.2016 (Annexure-A/9) with following findings:-
“Reasonings: After carefully going through the evidences both oral and documentary and application of mind the findings of charges are concluded above separately for each charge. The cases in support of the charges as well as cases of the defence are duly analysed on the basis of available evidences in relevant places above and found that the charges brought against Shri B.K. Nath, the Charged Official, are not established. On the other hand the Charged Official brought a charge during inquiry against the Superintending Archaeologist, ASI, Guwahati Circle, Guwahati that his salary for the month of April and May 2015 were not disbursed by the office without any intimation to him. If so, it is a violation of natural justice as well as constitutional provisions. The concerned disciplinary authority may kindly look into the charges accordingly and may be asked for the misconduct.”
Subsequently, the Disciplinary Authority vide Order dated 26.05.2016 (Annexure-A/11) had passed the following Order:-
WARNING
“After going through the inquiry report the undersigned as a Disciplinary Authority is of the view that you should be cautioned for future to be punctual and regular in attending your official duties with utmost satisfaction of the superiors. You should inform your superior authority regarding your presence to your duty and without permission you should not leave your Headquarter.”
However, the Regional Director (ER), Archaeological Survey of India, Kolkata/Disciplinary Authority, had ordered for re-enquiry by appointing a new Inquiry Officer at the instance of the Superintending Archaeologist, ASI, Guwahati Circle, Guwahati vide Order dated 29.09.2016 (Annexure-R/5) which is as follows:-
“ORDER
WHEREAS an re-enquiry under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules 1965, is being held against Shri Basanta Kumar Nath, Sr. Conservative Assistant, Archaeological Survey of India, Udaipur SubCircle under Guwahati Circle, Guwahati.
AND WHEREAS the undersigned considers that an Inquiring Authority should be appointed to inquire into the charges framed against Shri Basanta Kumar Nath, Sr. Conservation Assistant, A.S.I, Udaipur Sub-Circle under Guwahati Circle, Guwahti.
NOW, THEREFORE, the undersigned, in exercise of the powers conferred by sub-rule (2) of the said rule, hereby appoints Dr. Rajeev Dwivedi, Deputy Superintending Archaeologist, A.S.I, Bhubaneswar Circle as the Inquiring Authority to re-inquire into the charges framed against the said Shri Basanta Kumar Nath, Sr. Conservation Assistant, A.S.I, Udaipur Sub-Circle under Guwahati Circle, Guwahati.”
10. Para 1 & 2 of Rule 15 of CCS (CCA) Rules, 1965 stipulates inter alia:-
“(1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
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11. From the above, it is clear that the Disciplinary Authority if not satisfied with the inquiry report, may serve a copy of his tentative reasons of disagreement along with copy of enquiry report to the delinquent Officer to enable him to submit his written representation, if he so desires on those points within 15 days. Therefore, there is no scope for re-enquiry by appointing one new Inquiry Officer.
12. Further in the case of Vijay Shankar Pandey Vs. Union of India and Another, the Hon’ble Apex Court has observed inter alia:
“24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the Enquiry already undertaken and resort to appointment of a fresh Enquiring Authority (multi- member).
The issue is not really whether the Enquiring Authority should be a single member or a multi member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. The Collector of Central Excise, Shillong, (1971) 2 SCC 102, [LQ/SC/1971/240] examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a sub-Inspector, Central Excise (the appellant before this Court). The inquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another inquiry officer “to conduct a supplementary open inquiry”. Such supplementary inquiry was conducted and a report that there was “no conclusive proof” to “establish the charge” was made. Not satisfied, the disciplinary authority thought it fit that “another inquiry officer should be appointed to inquire afresh into the charge.
25. The Court in K.R. Deb 10 held that (SCC p. 105, paras 12-13):
12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.” (Emphasis supplied) and allowed the appeal of K.R. Deb.
26. It can be seen from the above that the normal rule is that there can be only one Enquiry. This Court has also recognized the possibility of a further Enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the Report submitted by the Enquiring Authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second Enquiry.
27. The scheme of Rule 8 of the DISCIPLINE Rules and Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are similar. Therefore, the principle laid down in Deb’s case, in our opinion, would squarely apply to the case on hand.”
13. In view of the above, we are of the opinion that the decision of the Hon’ble Apex Court in the case of Vijay Shankar Pandey (supra) is squarely applicable in the instant case. The Disciplinary Authority after passing a final Order by way of issuance of ‘Warning’ Order dated 26.05.2016 (Annexure-A/11) cannot appoint a fresh Inquiry Officer to re-enquire into the matter by abandoning the earlier inquiry report. Further, Rule 15 (2) of CCS (CCA) Rules, 1965 has only empowered the Disciplinary Authority to issue disagreement note to the applicant. But in the instant case, the Disciplinary Authority had already passed the final order and there is no such provision for appointment of 2nd Inquiry Officer for re-enquiry, therefore, it is not sustainable in the eye of law. Accordingly, we quash and set aside the impugned Orders dated 29.09.2016 (Annexure-A/1), 29.06.2017/04.07.2017 (Annexure-A/2) and 08.12.2017 (Annexure-A/3) respectively.
14. O.A. stands disposed of to the above extent with no order as to costs.
