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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: P.THAYAGARAJAN

DATE OF JUDGMENT:       24/11/1998

BENCH: S.SAGHIR AHMAD, S.RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT Rajendra Babu.J. The respondent,  while  discharging  the  duties  as Asst.  Sub-Inspector in CRPF at Guwahati, was transferred to Jammu By order dated May 31, 1991 and he was relieved on the same day to enable him to proceed to Jammu.  The  respondent failed  to  report for duty at Jammu but had remained absent on the ground that he was not well and he had  been  advised to  take rest. He was served with memorandum of Charges. The gist of it is as under: 1.That he did not report for duty at the office of the IGP(OPS), CRPF, J&K, Srinagar on his tranfer/attachment  and did  not  proceed  to his new posting from present office as ASI(M) in GC, CRPF, Gauwahati and thereby committed  an  act of  disobedience  of  the  orders  of  his  superiors in the discharge of his duties in his capacity as a member  of  the force under Section 11(1) of CRPF Act, 1949; 2.That  he  committed an act of neglect of duty in his capacity as a member of the force inasmuch  as  he  remained absent  from  duty  from  June  1, 1991 to September 2, 1991 without proper permission from the competent  authority  and without  sufficient cause, reason or ground thereby violated Section II(1) of CRPF Act, 1949; 3.That he committed an act of misconduct by sending an application dated June 1, 1991 directly to IGP, NES,CRPF, in violation of the provisions contained in Para 3 of  Circular Order  No.  3/80 read with the decision of the Government of India in this regard. The  Enquiry  Officer  conducted  an  enquiry on the aforesaid charges and made  a  report  to  the  Disciplinary Authority.    The  Disciplinary  Authority  noticed  certain irregularities in the conduct of the enquiry which  were  of vital  nature, in particular, that the Enquiry Officer acted on the letters of one  U.N.Chaini,  who  was  a  witness  on behalf of the department and K.M.Verghese, who was a witness on behalf of the respondent on the basis of a representation made by  them stating the facts within their knowledge.  The concerned authority was  of  the  view  that  the  witnesses should  have  been  examined  in  person  and  the procedure adopted by the Enquiry Officer was contrary to the  relevant

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rules in  taking  their  letter  as statements.  The Enquiry Officer did  not  ascertain  the  facts  necessary  for  the conclusion of  the  case.    Therefore,  he  set  aside  the findings recorded by him and directed be novo enquiry by  an order  made  on  May  19,1995  which was communicated to the respondent on June 7, 1995.   Challenging  this  order,  the respondent  preferred  a  writ petition in the High Court of Guwahati.  The learned Single Judge directed issue  of  rule but  did  not grant any interim order on the basis that Rule 15 of the Disciplinary Rules enables the authority to  remit the  matter  to  the Enquiry Officer for further enquiry and that the power has been exercised  by  the  authority  under Rule 15 and mere use of expression "do Novo" will not change the tenor of the order.  A writ appeal was preferred against the  said  order  and  the  Division Bench of the High Court Granted  initially  an   interim   order   staying   further proceedings  in  the enquiry and thereafter by an order made on December 15, 1997 allowed the appeal by taking  the  view that in an appeal arising out of an order of punishment made by  the  Disciplinary  Authority  accepting or rejecting the conclusion reached by the enquiry authority,  the  appellate authority  could  direct a fresh or de novo enquiry and such power is not available to the Disciplinary Authority.  Thus, the  Division  Bench  set  aside  the  order  made  by   the Disciplinary Authority  on  June 6, 1995.  Hence this appeal by special leave. Shri   K.N.Rawal,   learned   Additional   Solicitor General,  appearing for the appellant, drew our attention to the  Central  Reserve  Police  Force  Rules,  1955  and   in particular to  Rule  27  thereof.  Detailed procedure is set forth therein.  Rule 27(c)(6) enables the Commandant, if  he himself  holds  the enquiry, to record his findings and pass orders where he has power to do so and if  the  enquiry  has been  held  by  any  officer  other than the Commandant, the officer conducting the  enquiry  shall  forward  his  report together  with the proceedings, to the Commandant, who shall record his findings and pass orders where he has power to do so.  He submitted that such  power  includes  power  to  set aside  findings  of  the  Enquiry  Officer  if  there is any serious infirmity in the conduct of an enquiry which may  be to the detrimental either to the interests of the department or  the  delinquent  official  and  in  such  a  case  it is certainly  open  to  the  Disciplinary  Authority  to  order further or  fresh  enquiry,  as the case may be.  He further submitted that the Disciptinary Authority has the  power  to record  his  findings  and  pass  appropriate orders in that regard and such a power is  inherent  in  such  Disciplinary Authority. Shri K.T.Tulsi, learned senior counsel appearing for the  respondent,  relied  upon the decision of this court in K.R.Deb Vs. Collector of Centrai Excise, Shillong  1971  (2) SCC  102, wherein, while interpreting Rule 15 of the Central Civil Services (Classification, Control and  Appeal)  Rules, 1957,  it  was  held  that the Disciplinary Authority has no power to set aside an earlier  enquiry  and  order  a  fresh enquiry. He submitted that this decision makes it clear that it  is  not  open  to the Disciplinary Authority to order to conduct a fresh enquiry in this matter. Therefore, he  urged that the view taken by the High Court is justified. In  order to satisfy ourselves of the correctness of the contentions raised on behalf of the parties,  we  called for   the   original  record  of  the  enquiry  and  of  the Disciplinary Authority and on going  through  the  same,  we find that letters addressed to the Enauiry Officer have been treated  as  statements  made before him of U.N.Chaini (PW2)

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and letter sent by K.M.Verghese, who was to be examined as a defence witness. 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  officer  conducting  the  enquiry himself  or  by  any officer; and (iii) the accused shall be allowed to cross examine the  witness.    When  reliance  is sought  to  be  placed on oral evidence of witnesses it will have to be obtained in the manner indicated in the said Rule and that the oral  statement  has  to  be  recorded  by  the officer  himself  conducting  the enquiry in the presence of the parties and it cannot be done in any other manner.   The procedure in taking letters as statements is in violation of Rule 27(c)(2).  Therefore the contention put forth on behalf of  the appellant and the reasons set forth in the course of the order setting aside the enquiry is justified.  What Shri Tulsi urged  with  reference  to  the  decision  in  K.R.Deb [supra]  is  that  there  is  no  power  in the Disciplinary Authority to set aside an earlier enquiry  and  to  order  a fresh enquiry.    We may, in particular, refer to para 12 of the said decision which is 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 particular case there has been  no            proper  enquiry  because  some serious defect has            crept  into  the  inquiry   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".  [p.105]            [emphasis supplied]. A careful reading of this passage will make it clear that this court notices that if in a particular  case  where there  has  been  no  proper enquiry because of some serious defect having crept  into  the  inquiry  or  some  important witnesses  were  not available at the time of the inquiry or were not examined, the Disclpinary  Authority  may  ask  the Inquiry   Officer   to  record  further  evidence  but  that provision would not enable the Disciplinary Authority to ser 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 resuit 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 present nature. The reasoning adopted by the Division Bench  of  the High Court  was  plainly  incorrect.    Whatever  may be the powers  of  the  appellate   authority,   the   Disciplinary

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Authority  will  have  to  be  satisfied  with the procedure adopted by the Enquiry Officer before passing an order.   It does  not stand the logic that in a given case the appellate authority  could  order  a  fresh  enquiry   and   not   the Disciplinary  Authority  at whose instance the enquiry began and which is not satisfied with the enquiry  held  for  some vital defects in the procedure adopted.  Therefore the order made by the High Court cannot be sustained.  The same stands set  aside  and  we  allow  the  appeal and dismiss the writ petition filed by the respondent. Considering the  fact  that  this  matter  has  been pending  before  the  authorities for a long time, we direct the appellant to complete the enquiry  as  expeditiously  as possible  but  within  three  months  from today and take an appropriate docision. The appeal is allowed in the aforesaid terms. No order as to costs.