Judgment:
(Writ Petition under Article 226 of the Constitution of India)
1. By this petition, the petitioner impugns the legality and validity of the order dated 9-9-2008 (Annexure - P/6) passed by the respondent No.2 whereby and whereunder de novo enquiry against the petitioner was ordered.
2. The facts, in nutshell, as projected by the petitioner, are that initially the petitioner was appointed as Constable in Central Industrial Security Force (for short "CISF") on 10-9-1993. Thereafter, he was sent for training in the Regular Training Centre, CISF Unit, Badwa. On 27-4-1994 the petitioner was posted at CISF, Unit Goa and thereafter, from July, 1998 to 30-7- 2004 the petitioner was posted at Reserve Battalion, Badwa. Subsequently, by order dated 11-8- 2004 the petitioner was transferred from Badwa to CISF Unit BSP, Bhilai.
3. During the posting of the petitioner at CISF Unit BSP, Bhilai, the petitioner was placed under suspension vide order dated 28-3-2008 (Annexure - P/1) in contemplation of the proposed Departmental Enquiry (for short "DE"). The petitioner was served with a charge sheet on 9-5-2008. Thereafter, by order dated 28/29-5- 2008 (Annexure - P/2), the Deputy Commandant, CISF BSP, Shri R.B. Singh was appointed as Enquiry Officer and Shri Jashwant Singh was appointed as Presenting Officer vide Annexure - P/3. The departmental enquiry was conducted on 5th, 10th, 16th, 17th, 21st, 26th, 27th and 30th June, 2008 and 5th, 8th, 11th and 14th July, 2008. On 30-7-2008 (Annexure - P/4) the petitioner was given a copy of brief note submitted by the Presenting Officer. On 9-8-2008 (Annexure - P/5), the petitioner submitted written brief and lodged his objection. Enquiry report was submitted thereafter. Subsequently, without there being any provision, by order dated 9-9-2008 (Annexure - P/6) de novo enquiry has been initiated against the petitioner in an illegal and arbitrary manner. Thus, this petition.
4. Shri Tamaskar, learned counsel appearing for the petitioner, would submit that the de novo enquiry could have been ordered if the enquiry officer would have exonerated the delinquent, but in the case on hand, the de novo enquiry has been ordered to fill the lacuna. Shri Tamaskar would further submit that since the relevant rules do not provide for a de novo enquiry, the order passed by the Disciplinary Authority is illegal and the same deserves to be quashed. 5. On the other hand, Ms. Fouzia Mirza, learned Assistant Solicitor General appearing for the Union of India/respondents, would submit that the de novo enquiry is not against the rules. Rule 36 (21) (i) of the Central Industrial Security Force Rules, 2001 (for short "the Rules, 2001") provides that the Disciplinary Authority, if it is not itself the inquiring authority, may, consider the records of inquiry and record its findings on each charge. The Disciplinary 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 this rule as far as may be. On the basis of the aforesaid provision the order for de novo enquiry was rightly passed.
6. Ms. Fouzia Mirza would further submit that the respondent No.2 after going through the record of departmental enquiry and enquiry report came to the conclusion that the charge No.2 has been proved without any material available on record; the presenting officer has asked leading questions to departmental witnesses and the presenting officer has not tried to find the truth of other charges except charge No.3. Therefore, to undo the wrong committed during the departmental enquiry, it became necessary to hold a de novo enquiry, otherwise the petitioner will never be punished for heinous crime and misconduct of committing theft of materials for whose security he had been deployed. Thus, the petitioner is not entitled to any relief and the petition may be dismissed. 7. I have heard the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
8. A charge sheet containing as many as three charges was served on 9-9-2008. However, a copy of the charge sheet has not been filed by the petitioner. Thereafter, after holding proper enquiry, enquiry report was submitted to the Disciplinary Authority. The Disciplinary Authority after having examined the enquiry report and other documents observed as under :
"04 ( OTHER LANGUAGE)
05- ( OTHER LANGUAGE)
06- (( OTHER LANGUAGE)”
9. On perusal of the reasons recorded by the Disciplinary Authority before ordering a fresh enquiry, it cannot be held that de novo enquiry was to establish charges, which have not been found proved in the enquiry report, as admittedly in the enquiry report all the charges, leveled against the petitioner, have been found proved. There was a procedural deficiency in the conduct of enquiry. Thus, a fresh enquiry was ordered.
10. Rule 36 (21) of the Rules, 2001 deals with the procedure for imposing major penalties. Rule 31 (21) (i) (ii) reads as under :
"36. Procedure for imposing major penalties.-
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(21) (i) The Disciplinary Authority, if it is not itself the inquiring authority, may, consider the records of inquiry and record its findings on each charge. The Disciplinary 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 this rule as far as may be.
(ii) The Disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.
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11. There is a clear provision that if the Disciplinary Authority is not itself the enquiry authority, it may consider the records of inquiry and record its findings in writing and thereafter, the matter may be remitted to the enquiry authority for further inquiry and after holding the further enquiry, the report be again submitted. Thus, the only contention of the petitioner that there is no provision to hold a `de novo' enquiry cannot sustain. There is not much difference between further enquiry and `de novo' enquiry, in the facts of the present case. Enquiry was ordered under Rule 36 (21) (i). The enquiry cannot be held as `de novo' fresh enquiry, as it comes within the definition of `further enquiry', which is permissible under provisions of the Rules, 2001. Thus, the impugned order remitting the matter for further enquiry cannot be flawed. Accordingly, the impugned order is clarified.
12. As a result, with the abovestated clarification, the writ petition is disposed of.
13. No order asto costs.