IMPORTANT POINT
Disciplinary authorities cannot subject a government servant to repeated inquiries on the same charges without proper justification, and must follow established procedures.

JUDGMENT :

P.Krishna Kumar, J.

For the sake of convenience, the parties will be referred to as they are arrayed in O.P(KAT)No.306/2023.

2. While the respondent was working as a Junior Superintendent in the office of the District Police Chief, Kozhikode, a criminal case was registered against him alleging offences punishable under Sections 341, 324,447 r/w 34 of the Indian Penal Code. The allegation was that, he trespassed into the house of one Vasantha along with three others and attacked her and her children. A disciplinary proceeding was initiated against the respondent on the basis of the said incident. The defence of the respondent was that it was the consequence of a family dispute between his mother and his sister. As per Annexure A6, the enquiry officer found that it was not possible to establish the charge except through a scientific investigation ascertaining the involvement of the respondent.

3. Later, the respondent was served with another memo of charges for the very same allegations. Subsequently, the State Police Chief issued Annexure A11 order cancelling the earlier inquiry and appointing another enquiry officer (the Deputy Superintendent of Police, Kozhikode). The respondent challenged this order as well as the second memo of charges before the Kerala Administrative Tribunal. The State contended that subsequent proceedings cannot be termed as a de novo enquiry since the State Police Chief has cancelled the previous order of inquiry. It was also pointed out that the previous enquiry officer failed to examine and cross-examine all the witnesses and thereby flouted the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules,1960 (for short, ‘KCS (CC&A) Rules’).

4. The Tribunal found that subjecting a Government servant to disciplinary action for the second time on the very same charges itself is unconstitutional and it is violative of the provisions of the‘KCS (CC&A) Rules'. Thus the Tribunal set aside Annexure A7 second charge memo and Annexure A11 order directing a fresh inquiry.

5. The State challenges the said order mainly on the ground that, if the inquiry officer fails to follow the rule relating to the conduct of a disciplinary inquiry, it is open to the authority to order a fresh formal enquiry. According to them, Rule 15(7) of KCS (CC&A)Rules contemplates that the enquiring authority has to take such oral evidence as may be relevant and the Government servant shall be entitled to cross-examine the witnesses examined in support of the charge, but the enquiry authority has merely recorded the statements, not the evidence of the witnesses and hence in the light of the law laid down in Union Of India & Ors. v. P.Thayagarajan (AIR 1999 SC 449), there is no illegality in Annexure A1.

6. We heard the learned counsel on both sides. The finding of the Tribunal that there is no provision in the KCS(CC&A)Rules for setting aside an inquiry report and ordering a de novo inquiry is challenged by the State based on the law declared in Union Of India & Ors. v. P.Thayagarajan (supra). It is thus necessary to understand the ratio of the said decision for evaluating the correctness of the above finding. In Thyagarajan's case, the honourable Supreme Court was considering the propriety of an order passed by the disciplinary authority by which it set aside the enquiry report. Referring to the decision in K. R. Deb v. Collector Of Central Excise, Shillong (AIR 1971 SC 1447), it was argued before the honourable Supreme Court that the disciplinary authority has no power to set aside the enquiry report and order a fresh enquiry, referring to Rule 15 of the Central Civil Service (Classification, Control and Appeal) Rules, 1957. Explaining the circumstances in which K.R Deb was pronounced, the Supreme Court observed as follows:

“What is contemplated in Rule 27(c)(2) is that evidence material to the charge could be either oral or documentary and if oral,

(i) it shall be direct; (ii) it shall be recorded by the offic