ORDER
1. The petitioner was working as Assistant Engineer -(Electrical ) in the services of the respondent-Board. He was placed under suspension on the ground that he demanded from Khaja Bahadur Hussain an amount of Rs, 1,500/- as illegal gratification for shifting the service line, and it was further said that the petitioner had accepted the first instalment of Rs. 1,000/- from the said complainant. An Enquiry Officer was appointed to enquire into the charges levelled against the petitioner in the complaint by Khaja Bahadur Hussain One Sri Suryanarayana, Divisional Engineer of the Respondent-Board was appointed as Enquiry Officer. He submitted his report on 23-5-90. It is contended that in the said report, conclusions favourable to the petitioner were reached. After the report was submitted to the Disciplinary Authority, the Disciplinary Authority instead of accepting the report and taking further steps on the report according to the Rules, took an extraordinary step by appointing another Enquiry Officer for holding a de novo enquiry. The suspension of the petitioner continued, M.A. Rahman, Superintending Engineer, was appointed as the second Enquiry Officer on 24-9-90. A fresh charge-sheet was issued to the petitioner by the second Enquiry Officer. Petitioner submitted his explanation to the said charge-sheet. As M.A. Rahman was transferred in the meantime, another officer by name D.V. SubbaRao was appointed as Enquiry Officer to conduct the enquiry by order dated 26-11-90. the petitioner submitted his reply on 27-11-90, and the Enquiry Officer submitted his report on 27-6-91 to the Disciplinary Authority i.e., the Secretary, Vidyut Soudha. A show-cause notice was issued to the petitioner by the respondent proposing to impose punishment of dismissal from service. The petitioner in answer to the said show-cause notice submitted his reply. The respondent considered the reply and passed a final order on28-9-91 dismissing the petitioner from service. The petitioner preferred an appeal to the Chairman of the respondent-Board. The Chairman considered the appeal and partly allowed it by order dated 28-10-91. By the said order, though the petitioner was found guilty of the charge framed against him, the dismissal of the petitioner from service was modified and was reduced to stoppage of three increments with cumulative effect, and the period of suspension was treated as 'dies non'.
2. The petitioner has challenged the said order dated 28-10-91 by filing the present writ petition.
3. The respondent vide its counter admitted the factual statements made in the petition. The main contention of the learned counsel for the petitioner is that it was not permissible for the respondent to hold successive enquiries against him. There is no power vested with the respondent-Board to ignore the result of the first enquiry and to start a de novo enquiry. Apart from lack of such power, there was no reason given in the instant case for appointing a fresh enquiry officer. Even on ground, the second enquiry was vitiated and has resulted in harassment of the petitioner. On the other hand, the learned counsel for respondent-Board submits that it is open for the Disciplinary Authority to direct holding of further enquiry or fresh enquiry de novo if it found that irregularities were committed in conduct of enquiry by the Enquiry Officer, It is contended that the Enquiry Officer in the first enquiry conducted against the petitioner did not take into consideration the material which was available against thepetitioner, and that resulted in deficiency in the first enquiry. It was therefore, permissible for the Disciplinary Authority to order a de novo enquiry to cure the deficiencies. Further more, it is contended that the petitioner had participated in the second enquiry, and it is not open for him to challenge the punishment which was given to him as a result of the second enquiry.
4. The basic question that would arise for consideration in the circumstances is whether the respondent -Board has any power to direct a de novo enquiry when the enquiry against a delinquent was almost complete, and when the Disciplinary Authority could have taken action on the said enquiry report, but instead of taking action has avoided acting on the report for certain reasons, though there is nothing to show that earlier enquiry was vitiated as such.
5. For understanding the correct position, it is necessary to refer to the relevant provisions of the A.P.S.E.B. Employees Revised Conduct Regulations and Discipline & Appeal Regulations (for short 'the Regulations'). Regulation 10(1) and (2) of A.P.S.E.B. Employees Discipline and Appeal Regulations reads as follows:
10. Procedure for imposing penalties:--
(1) No order imposing on a member of a service a penalty specified in items (i) (ii), (iii), (v) and (ix) of Regulation 5 shall be passed except after.
(a) The member of the service is informed in writing by the authority competent to impose the penalty of the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken, and is given an opportunity to make any representation he may wish to make to such authority; and
(b) Such representation, if any, is taken into consideration by the authority competent to impose the penalty.
(2)(a) In every case where it is proposed to impose on a member of a service any of the penalties specified in items (iv), (vi),(vii) and (viii) in Regulations 5, the authority competent to impose the penalty shall appoint an enquiry officer, -who shall be superior in rank to the person whom it is proposed to impose the penalty, or shall itself hold an enquiry either sou motu or on a direction from a higher authority. In every such case the grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required, within a reasonable time, to file a written statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. The person charged may, for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify, provided the enquiry officer may, for reasons to be recorded in writing refuse such permission, if in his opinion, such records are not relevant for the purpose or it is against public interest to allow access thereto. On receipt of the statement of defence within the specified time or such further time as may have been given, an oral enquiry shall be held if such an enquiry is desired by the person charged or is decided upon by the enquiry officer or is directed by the competent authority. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted and the persons charged shall be entitled to cross-examine the witnesses, give evidence in person and to have such witnesses called as he may wish, provided that the enquiry officer may, for special and sufficient reason to be recorded in writing, refuse to file, call a witness. After the oral enquiry is complete, the person charged shall be entitled to file, if he so desires, any further written statement of his defence. If no oral enquiry is held and the person charged desires to be heard in person, a personal hearing shall be givento him. The Enquiry Officer shall, on completion of the enquiry or the personal hearing of the person charged or both, forward the proceedings of the enquiry to the authority competent to impose the penalty unless he is himself such an officer. The proceedings shall contain the charges framed against the person charged along with the grounds of charge, written statement filed in defence. If any, a sufficient record of the evidence adduced during the oral enquiry, a memorandum of the point urged by the person charged during the personal hearing, if any, a statement of the findings of the enquiry officer on the different charges and the grounds therefor.
In the above Regulation, there is no provision which permits or justifies the disciplinary authority to ignore the report submitted by the enquiry officer only for the purposes of taking further steps to get over the unpalatable report, submitted by the Enquiry Officer. Regulation 10(1) relate as to how the enquiry shall proceed in the first instance, and Regulation 10(2) relates to the procedure, when after an enquiry is completed how the proposed punishment shall be imposed. The regulation also provides that the enquiry officer shall be superior in rank to the person on whom the penalty is proposed to be imposed. If the disciplinary authority itself decides to hold an enquiry, the question of appointment of enquiry officer does not arise at all. In the instant case, the first enquiry officer appointed, was admittedly superior in rank to the delinquent officer i.e. the petitioner. There is no other material on record to show that there was any basic infirmity which had crept in when the first enquiry officer conducted the enquiry. Neither this Regulation nor any other Regulation gives any power to the disciplinary authority to ignore the report of the enquiry officer, submitted to it and to direct de novo enquiry.
6. The teamed Counsel for the petitioner brought to my notice the decision of the Supreme Court in the case of K.R. Deb v. Collector, Central Excise, Shillong, : (1971)ILLJ427SC in which the facts are almost similar to that of in the instant case. Rules regarding holding of disciplinary enquiry were also somewhat similar. The Rules in that case were Central Civil Services (Classification, Control and Appeal) Rules, 1957. Rule 15 was the one for consideration in that case. The Supreme Court found that the said Rule did not contemplate any successive enquiry as such. In Paragraph 13, the Supreme Court observed as follows;:
'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 enquiry or some important witnesses were not available at the time of the inquiry or were not examined 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'.
7. It is thus clear that the Disciplinary Authority has enough powers if it disagrees with the report of the Enquiry Officer, to reconsider the evidence itself and come to its own conclusions. In the instant case also the disciplinary authority had sufficient power to reconsider the evidence if it thought that the consideration was not proper. The Regulations do not contemplate that if the disciplinary authority wants that enquiry should be concluded in a particular manner then it can change the Enquiry Officers, without assigning any reason for achieving the end of obtaining a report from the Enquiry Officer in a particular manner. The Supreme Court in the aforementioned case had occasion to deal with such contingency also and pointed out that a suspicion arose that the disciplinary authority was determined to get adverse report against the appellant. Same is the position in the instant case.
8. The learned Standing Counsel for the respondent- Board contended that it was permissible in a departmental proceeding to appoint fresh Enquiry Officer to hold a de novo enquiry when the enquiry suffers from certain defects. For this purpose, he drew my attention to the decision of this Court in P. Mohan Rao v. Dy. I.G. of Police, Hyderabad, 1975 (1) APLJ 114. No doubt, this Court in the said case observed that in certain circumstances it will be open for the disciplinary authority to appoint a fresh Enquiry Officer and direct a de novo enquiry. However, the circumstances under which such step can be taken have also been illustrated. As far as that case is concerned, there was basic infirmity committed in the first enquiry. What had happened was the charges which wereissued to the delinquent were issued by a person who had no authority to impose the penalty. The Rules themselves prescribed that charges should be issued by a person who was competent to impose penalty, and not by the Enquiry Officer. The charge was, however, issued by the Enquiry Officer, and not by the competent disciplinary authority. Thus, there was basic infirmity in the initiation of the enquiry itself. It was in that background that this Court held that the enquiry at the hands of the first Enquiry Officer was vitiated, and it was perfectly legal for the disciplinary authority to direct a de novo enquiry against the petitioner by issuing afresh charge by the competent authority i.e., the Disciplinary Authority. In the instant case, it is not the contention of the respondent-Board that there was any basic infirmity, which had crept in completing the enquiry by the first Enquiry Officer. In view of this true legal position, it is clear that appointment of second Enquiry Officer in the instant case was unjustified, and it was apparently meant to harass the petitioner by holding successive enquiries against him.
9. The order by which the second enquiry was appointed in the instant case was vide Memo.No.OP/DME/S.II /318-Q1/90 dated 24-9-90. The said order does not give any reason whatsoever for appointing a fresh Enquiry Officer. The relevant portion of the order is to the following effect:
'The orders issued appointing to Sri M. Suryanarayana, Divisional Engineer/ MRT/Karimnagar as Enquiry Officer in the memo 1st cited are hereby cancelled and the E.R. submitted by him in the reference 2nd cited is set aside. The following revised orders are issued'.
Certain directions were given to the fresh Enquiry Officer. However, there is absolutely no reason given for cancellation of the enquiry report submitted by Sri M. Swyanarayana. The learned Standing Counsel for the respondent-Board then submits that from the record it is possible to find out as to what reasons prevailed upon the Disciplinary Authority for appointing a fresh and a new Enquiry Officer for holding de novo enquiry. He refers to the noting dated 11-9-90 in the record, produced before the Court. In the said noting, it is observed ' the E.G. has held that charge is not proved, on several extraneous considerations, not really relevant to the issue. Several attempts have been made to prove that the complainant's statements are not given, and that the methods adopted by the complainant to shift the meter to the floor mill (proposed by him in his daughter's name) are not fair means etc. Several lacunae, involving the issue of transfer of service, are being advanced to disprove. The main allegation of demand and acceptance of the bribe, it appears from the deposition of the complainant and mediators before the E.O., are sufficient to hold the charge of acceptance of Rs.500/- as bribe in the current trap case as proved. In relation to the second mediator's report....'. It is thus clear that the noting shows that the disciplinary authority did not like the report submitted by the first Enquiry Officer and thought that the material was not sufficient for submitting a report against the delinquent. This does not provide a good legal ground for ordering a de novo enquiry. As pointed out already, it was perfectly permissible for the disciplinary authority to consider the report and to come to its own conclusion by disagreeing with the Enquiry Officer. But it is not justified for the disciplinary authority to direct fresh or de novo enquiry merely because it wanted a report in a particular manner againstthe petitioner. The Disciplinary Authority, evidently did not want to take the responsibility on its own to take a contrary view on the basis of the evidence collected and produced before the Enquiry Officer.
10. In Stale of Assam v. J.N. Roy Biswas, : (1976)IILLJ17SC , it was observed by the Supreme Court that 'once a disciplinary case is closed, the Government cannot restart the exercise in the absence of specific power to review or revise, vested by Rules in some authority'. It was said, ' the basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry'. It was also stated at another place that 'absence of power under a rule inhibits a second enquiry by the Disciplinary Authority after the delinquent had once been enquired into'. It is clear that the said observations apply with equal force to the present case also.
11. In the result, I find that the second enquiry order was totally unjustified, and has resulted in grave prejuice to the petitioner. The learned Standing Counsel for the respondent-Board tried to contend that the petitioner had taken part in the second enquiry, and therefore, it is not open for him to challenge the result of the second enquiry. This contention is not accurate. The petitioner did not participate in the second enquiry without demur. The petitioner had in written statement taken exception before the second enquiry officer about the holding of a de novo enquiry. Thus, his participation was conditional and without prejudice to his rights. It cannot be said that he had waived his right to challenge the said enquiry,
12. In the circumstances, I think that the writ petition deserves to be allowed. The holding of second enquiry was bad and unwarranted. The holding of second enquiry is set aside. It will of course be open for the Disciplinary Authority to proceed on the basis of the report of the first enquiry officer from the stage at which the said enquiry was stopped. It appears that the first enquiry report was submitted to the Disciplinary Authority.The Disciplinary Authority may proceed further from that stage according to the Regulations, if it so thinks it proper.
13. The writ petition is accordingly allowed subject to the observations made above. No costs.