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TMI Blog2018 (3) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... cting a further inquiry and simultaneously, for appointing some other Inquiry Officer and another Presenting Officer, despite the inquiry having been duly conducted, by giving an opportunity to both sides of leading evidence as per the list of witnesses and list of documents. The Tribunal has rightly held that such a procedure cannot be termed as a ‘further inquiry’ but for all effect and purposes, a fresh inquiry or a de novo inquiry as a ‘further inquiry’ is required to be held from the stage at which any infirmity in the procedure would have crept in, which is not the case herein. Even such a ‘further inquiry’ has to be done by the same Inquiry Officer unless and until the said Inquiry Officer is unavailable or incapacitated to conduct the entire inquiry. The learned Tribunal cannot be faulted in holding that under Rule 15(1) of the CCS (CCA) Rules, 1965, the Disciplinary Authority may remit the case to the same Inquiry Officer and not to a new Inquiry Officer. Petition dismissed with costs quantified as ₹ 10,000/-. - W.P.(C) 1000/2015 & CM No.1762/2015 (stay) - - - Dated:- 9-3-2018 - MS. HIMA KOHLI AND MS. PRATIBHA RANI JJ. Petitioners Through: Ms. Mrinalini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords during the course of the Inquiry. (iv) IO has not mentioned in her report about any written brief filed by the Presenting Officer during the course of the Inquiry. Therefore, it is not clear whether the PO had submitted any written brief or not. (v) IO in her report mentioned that the Presenting Officer had not advanced any evidence to counter or rebut the evidence produced by the CO. (vi) In the light of the above facts further examination is required whether CO had left the Headquarters without obtaining permission from his controlling officer. 5. On the same date i.e. on 25.09.2013, by two separate orders with the same number, in exercise of powers purportedly conferred upon it by sub-rule (2) read with sub-rule 22 of Rule 14 of the CCS(CCA) Rules, 1965 and sub-rule 5 (c), the Disciplinary Authority appointed a new Inquiry Officer (Mr.D.N.Panda, Member (Judicial) CESTAT) as well as a new Presenting Officer (Sh.V.P. Pandey, Court Master, CESTAT) in place of the earlier Presenting Officer (Sh.Rah Kumar, SPS, CESTAT). The inquiry was remitted back to the aforesaid IO, for further inquiry. 6. The aforesaid action of the petitioner/Union of India w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unauthorized absence from duty and was his absence from the headquarters during his period of suspension with the prior approval of the competent authority. The Enquiry Officer, after a detailed enquiry in the matter held that those charges have not been proved. Under Rule 15(1) of the CCS (CCA) Rules, 1965, the Disciplinary Authority has the power to remit the case to the Inquiring Authority for further enquiry and report. The further enquiry to be held so is to be from the stage from which any infirmity in the procedure has occurred and not a de-novo enquiry. Such an enquiry has to be done by the same Enquiry Officer and not by appointing another Enquiry Officer. The Disciplinary Authority cannot go on holding enquiry against a delinquent employee till the desired report is given by the Enquiry Officer. Rule 15(1) ibid clearly says that the Disciplinary Authority may remit the case to the Inquiring Authority and not to a New Inquiring Authority. Without specifying the stage from which further enquiry is to be commenced or not entrusting the further enquiry to the same Enquiry Officer except for the reason that the said Enquiry Officer is not available or incapacitated to hold enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature. 14. When we apply the principles laid down by Hon'ble the Supreme Court, it emerges that the disciplinary authority has noticed in paras 3 and 4 of its order dated 18.1.2007 (supra) that during inquiry, the prosecution docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted by the CO during the Inquiry, which would lend support to his claims. The IO did not call for such records during the course of the Inquiry. iv) IO has not mentioned in her report about any written brief filed by the Presenting Officer during the course of the Inquiry. Therefore, it is not clear whether the PO had submitted any written brief or not. v) IO in her report mentioned that the Presenting Officer had not advanced any evidence to counter or rebut the evidence produced by the CO. vi) In the light of the above facts further examination is required whether CO had left the Headquarters without obtaining permission from his controlling officer. NOW THEREFORE the President, in exercise of the powers conferred by Rule 15(1) of the CCS(CCA) Rules, 1965, remits the Inquiry Report back to IO for further Inquiry, taking into consideration all the above facts. 13. The reasons given by the Disciplinary Authority for remitting the inquiry, have been dealt with and rejected by the Tribunal for the following reasons:- ..We have also perused the departmental file. According to the Disciplinary Authority, the Enquiry Officer did not examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire inquiry. The learned Tribunal cannot be faulted in holding that under Rule 15(1) of the CCS (CCA) Rules, 1965, the Disciplinary Authority may remit the case to the same Inquiry Officer and not to a new Inquiry Officer. 16. The procedure adopted in this case has the effect of a fresh or a de novo inquiry and not a further inquiry , as sought to be projected by the petitioner before the Tribunal and before this Court. The Tribunal has relied upon the decision of the Supreme Court in K.R.Deb vs. Collector, Central Excise, Shillong reported as AIR 1971 SC 1447, wherein it was held that there is no provision in Rule 15 (ibid) for completely setting aside previous inquiries on the ground that the report does not appeal to the Disciplinary Authority. We enlarge the view expressed by the Tribunal that the reasons given by the Disciplinary Authority to remit the case to another Inquiry Officer, without specifying any defect in the previous inquiry or pointing out any witnesses left to be examined during the inquiry proceedings, the reasons recorded in the orders dated 25.09.2013 for remitting the matter back for further inquiry and further, appointing another Inquiry Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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