Judgment & Order

Ashutosh Kumar, C.J.

1. The appellant has questioned the judgment dated 14.06.2024 rendered by a learned Single Judge of this Court in WP(C) No.6946/2023, refusing to interfere with the decision of the Disciplinary Authority, who, on a representation filed by the appellant about the irregularities and procedural lapses during the conduct of the Disciplinary Proceeding before the Inquiry Officer, directed for a de novo inquiry from the stage of recording of evidence and also ordered for change of the Inquiry Officer, but without recording any reason whatsoever.

2. While serving as an Assistant Executive Engineer, Nagaon Irrigation Division, the appellant was served with a show cause notice by the Secretary to the Government of Assam, Irrigation Department under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 (hereinafter to be referred as the “Rules of 1964”) read with Article 311 of the Constitution of India. The charge against the appellant was that he had surveyed, submitted DPR and had executed and supervised the works of construction of head-work and appurtenant structures, which structures collapsed within a period of 3(three) years.

Though the appellant had replied to the afore-noted show cause notice but the same was not accepted and a Departmental Enquiry was instituted against him. Thereafter, an Inquiry Officer and a Presenting Officer were appointed.

3. On completion of the inquiry, the Inquiry Report was submitted to the Disciplinary Authority, a copy of which was also served upon the appellant, asking him to submit a written representation before the Disciplinary Authority within 15(fifteen) days from the date of receipt of the same.

4. The appellant, on finding that the Inquiry Officer had relied upon the statement of 2(two) witnesses, who are not amongst the listed witnesses to be examined and whose statements were recorded behind the back of the appellant with no opportunity to him to cross-examine them, submitted his representation before the Disciplinary Authority along with other grounds of challenge to the Inquiry Report.

5. The Disciplinary Authority took a decision of instituting a de novo inquiry from the stage of recording of evidence and also directed for change of the Inquiry Officer.

6. This decision of the Disciplinary Authority was challenged by the appellant before a learned Single Judge of this Court vide WP(C) No.6946/2023, which was, vide judgment dated 14.06.2024, as stated above, dismissed holding that there is nothing in Section 9 of the Rules of 1964 proscribing a de novo inquiry or change of the Inquiry Officer in the event of vulnerabilities being pointed out in the Inquiry Report.

7. We have heard Mr. K.N. Choudhury, learned Senior Advocate, assisted by Mr. S.A. Ahmed, learned Advocate for the appellant and Mr. P. Nayak, learned Additional Advocate General, Assam, assisted by Ms. P. Barua, learned Advocate for the respondents.

8. The issue before this Court is whether the Disciplinary Authority could have directed for a fresh de novo inquiry and could have asked for change of the Inquiry Officer, merely because some procedural infirmities were pointed out by the appellant/ proceedee during the inquiry proceedings.

9. The law relating to fresh inquiry on the same set of charges is well settled. The locus classicus on the subject is the Constitution Bench decision of the Supreme Court in K.R. Deb -Vs- The Collector of Central Excise, Shillong :: (1971) 2 SCC 102.

In the afore-noted case, it was held that further inquiry can be directed but only if the situation warrants so but the Rules [in that case, the provisions of the Central Civil Services (Classification, Control & Appeal) Rules, 1957 were being analyzed] do not contemplate holding of a fresh inquiry on the ground that the earlier inquiry was not proper or that the report did not appeal to the Disciplinary Authority.

10. Similarly, in Union of India -Vs- K.D. Pandey & Anr. :: (2002) 10 SCC 471, the Supreme Court, while drawing a distinction between a second inquiry and further inquiry on the same set of charges and materials on record, clearly held that second inquiry is not permissible and if such a process is allowed, the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the Disciplinary Authority and it would be an abuse of the process of law. [Also refer to – Vijay Shankar Pandey -Vs- Union of India & Anr. :: (2014) 10 SCC 589; Bidyut Buragohain -Vs- State of Assam :: 2005 (3) GLT 457 and Union of India & Ors. -Vs- P. Thayagarajan :: (1999) 1 SCC 733].

11. The Disciplinary Authority did not record any reason for a de novo inquiry or change of the Inquiry Officer.

12. As noted above, even if further inquiry was needed for coming to a right conclusion, the Disciplinary Authority was under an obligation to record his reasons.

No order passed by any authority is sustainable in the eyes of law, which is bereft of reasons. Recording of reasons is an integral facet of fairness, transparency and accountability. There is no finding of the Disciplinary Authority of the inquiry being vitiated or justification for a de novo inquiry or reason for changing the Inquiry Officer. Such an order is manifestly arbitrary.

13. While defending the afore-noted remand and a de novo inquiry as well as change of the Inquiry Officer, Mr. P. Nayak, learned Additional Advocate General, Assam has submitted that it was only at the instance of the appellant/proceedee that such a decision was taken and the Inquiry Officer was changed for the reason that the erstwhile Inquiry Officer had retired. He further submitted that the representation of the appellant clearly suggested that the entire inquiry proceeding was vitiated.

14. The records do not demonstrate so. That apart, consent or request of the proceedee cannot confer jurisdiction on the authority to act contrary to the Rules.

15. Merely on the asking of the proceedee, an enquiry report cannot be discarded without assigning reasons as that would amount to allowing the leeway to a proceedee to control the ultimate conclusion of the Departmental Proceeding. That apart, the flaws in the proceeding ought not to be allowed to be plugged by resorting to remand or a fresh/de novo inquiry.

A second bite at the cherry is impermissible. There are judicial precedents, which approve of the remand but only from the stage where the vulnerability is evident.

16. We are thus of the considered view that the order for a de novo inquiry along with change of the Inquiry Officer is unwarranted and unsustainable in the eyes of law and must be quashed.

17. We order accordingly.

18. The decision of the Disciplinary Authority as well as the Notification dated 12.01.2023 are set aside and the order dated 14.06.2024 passed by the learned Single Judge, refusing to interfere with the order of de novo inquiry and change of the Inquiry Officer, is also quashed.

The Disciplinary Authority is directed to pass a fresh order on the report submitted by the Inquiry Officer, either agreeing or disagreeing with such report.

19. Since a long time has been consumed in conclusion of this Departmental Proceeding, we hope and trust that the Disciplinary Authority shall take a reasoned decision within a period of 60(sixty) days from the date of receipt of the certified copy of this judgment, a copy of which decision shall promptly be furnished to the appellant as well.

20. With the above observation and direction, the writ appeal stands allowed.