Point of Law: Action to initiate a de novo enquiry on the same charges after completion of the earlier enquiry culminating with findings of exoneration of the petitioner is wholly without jurisdiction and accordingly declared as non est in law.

JUDGMENT :

Much water has flown, however, the same error is being committed in spite of the law being settled with respect to the issue at hand. The question of law which has arisen for determination is that whether a disciplinary authority can direct a de novo enquiry against a delinquent after the enquiry conducted against him had culminated in a report favourable to him. The said question has been answered on a number of occasions and the settled law is that such action is forbidden as not contemplated by law. It is a different matter that it would still be open to the disciplinary authority to differ with the views of the Enquiry Officer which are favourable to the delinquent and in that event, there is a requirement of affording an opportunity by issuing a notice to represent on the tentative action of the Disciplinary Authority not to accept the findings favourable to the delinquent. However, law has been settled by laying down that if a de novo enquiry is permitted, the same would result in an unending process whereby the disciplinary authority would be at liberty to remand the matter for such de novo enquiry unless a report to the liking of the Disciplinary Authority is given by the Enquiry Officer. Apart from the fact that such action is not contemplated by law, the same would be in gross violation of the principles of natural justice.

2. To better appreciate the issue, it would be convenient to narrate the facts of the case in brief.

3. The petitioner is a retired Government servant. He had joined the Assam Financial Service in the year 1992 and during the relevant time in the year 2015, he was holding the post of Financial Adviser, Handloom, Textile and Sericulture Department of the Government of Assam. Vide an order 21.07.2015, the petitioner was placed under suspension on the principal ground that two opposite views in a file\ was recorded which was in violation of the order of the Hon'ble Chief Minister and was in ignorance of all financial procedure and Rules regarding procurement/supply of yarn/blanket which was recommended for administrative approval and financial sanction on the same day i.e., 09.03.2015. It is the case of the petitioner that though he was reinstated in service, a show cause notice dated 29.07.2016 along with a statement of allegation was served upon him which was just two days prior to his date of retirement from service which was 31.07.2016. Being unsatisfied with the reply, an enquiry was conducted in which evidence was adduced by the parties. The said enquiry had culminated in a report dated 22.08.2019 wherein a finding was arrived at that the charges against the petitioner could not be proved. However, on furnishing of the said report, the disciplinary authority had issued a second charge sheet dated 30.09.2020 based on the same set of allegations. It is the case of the petitioner that the impugned action of the Department in contemplating to conduct a fresh enquiry apart from being ex facie, illegal and arbitrary is also in gross violation of Rule 21 (b) (ii) of the Assam Services (Pension) Rules, 1969. Accordingly, the writ petition has been filed.

4. I have heard Shri BK Das, learned counsel for the petitioner whereas the contesting Finance Department, Assam is represented by Shri R Borpujari. The respondent no. 1-State of Assam is represented by Shri Rahul Dhar, learned State Counsel whereas the Accountant General, Assam is represented by its Standing Counsel, Shri Rupak Dhar.

5. Shri Das, learned counsel for the petitioner has drawn the attention of this Court to the show cause notice dated 29.07.2016 which contains four numbers of charges. The said show cause notice was stated to have been served under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereafter the Rules, 1964) read with Article 311 of the Constitution of India. Without even going to the merits of the charges, the learned counsel has submitted that the timing of issuing the show cause notice is crucial i