Excelsior Correspondent
SRINAGAR, Feb 15: The Central Administrative Tribunal (CAT) has set aside the fresh enquiry initiated on the same charges to which the employee has been exonerated and recorded that the de-novo (Fresh) enquiry on the same set of charges is illegal and bad in law.
The two-judge bench headed by Chairperson of CAT Manjula Das while quashing and setting aside the de-novo order sheet and the enquiry said the same on the same set of charges is not permissible under law. CAT however, left it open for the authorities to proceed with the further enquiry from the point whereof from the irregularity supervened.
“If fresh enquiry is allowed, there is possibility that evidence in the enquiry found to be in favour of the charged officer can be wiped off. Justice should not only be done, but seen to have been done. It is the cardinal principle of law that no one should be vexed twice for the same offence”, CAT bench recorded.
The applicant Saif-ud-din Dar had filed a petition before the High Court in the year 2018, and on reorganization of the State, the said petition has been transferred to the CAT bench of Srinagar challenging therein the de-novo charge sheet and enquiry.
He was facing trial in FIR No.80/2004 under Sections 420, 468, 471 RPC of Police Station, Crime Branch, Srinagar. Subsequently, the challan in the FIR was filed before the competent court of law and he was acquitted of the charges levelled against him, vide trial court judgement dated 10.09.2016.
After acquittal from the criminal proceedings by the competent court of law a departmental enquiry was initiated and a charge-sheet was served upon him by the Dy. Commandant IRP 1st Bn, Reasi, and a detailed reply to the said charge-sheet has been submitted. Thereafter, the Dy. Commandant in his findings, recommending that the applicant-Dar may be exonerated from the charges levelled against him and all departmental benefits to which he was otherwise entitled, may also be awarded to him as per rules because he remained on duty during the course of trial/ investigation.
It is despite exoneration of the applicant, the Additional Director General of Police, Armed J&K Srinagar issued communication dated 26.12.2017 directing the Dy. Commandant to conduct de novo enquiry against the him and accordingly, a charge-sheet was issued against the applicant dated 17.02.2008 directing him to file reply to the charges levelled against him which he challenged before the court on the ground that the respondents are estopped from initiating de novo enquiry against him, which is against the rules and law on the subject.
Underscoring the essence of ‘Further enquiry & Denovo Enquiry’ CAT said in further enquiry, whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. But if it is de novo enquiry, whatever was recorded at the earlier enquiry would not form part of the enquiry file which is likely to prejudice the government servant facing the charge.
“If it is allowed, if the disciplinary authority finds that the evidence at the enquiry is in favour of the charged officer, can wipe them off by ordering a de novo enquiry to be commenced with a clean slate. That is not the legislative intent in framing the rule itself”, CAT recorded.
“Jurisprudence does not allow a second trial on the same facts in the name of de novo enquiry, once the person has been found to be not guilty due to lack of evidence. The de novo enquiry is not permissible under the law is a trite law”, CAT further added.
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