Does setting aside the entire enquiry report and appointing a new enquiry officer amount to a second enquiry rather than a de novo enquiry?

Paragraph 5Perusal of the charges would show that case bundles were missing in the Court hall of the Subordinate Court, Dharapuram. Five original promissory notes were also missing. The writ petitioner was working as Grade II Bench Clerk in the said Subordinate Court. However, the first enquiry officer conducted a detailed enquiry by examining the documents and witnesses and made a finding that the charges relating to bundles missing in the Court hall are not proved. However, the findings of the enquiry officer is that the writ petitioner is responsible for dereliction of duty and negligence. Not satisfied with the findings of the first enquiry officer, the disciplinary authority ordered for a second enquiry. The findings made by the disciplinary authority in his order dated 21.10.2021 ordering de novo enquiry are that the report of the first enquiry officer is a haphazard report and would jeopardise the fair investigation and the litigant public. On the said ground, the first enquiry report has been scrapped. He ordered for a fresh enquiry. Though he ordered for a fresh enquiry, in the concluding paragraph, the disciplinary authority states that the enquiry report is set aside and a de novo enquiry is ordered. 5.1.Question arises whether the findings made by the disciplinary authority on the report of the first enquiry officer as well as setting aside of the first enquiry report and ordering for de novo enquiry is in accordance with the procedures contemplated under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 5.2.Two domestic enquiries on the same charge memo is impermissible. However, the disciplinary authority is empowered to disagree with the findings of the enquiry officer. If at all, there is any failure on the part of the enquiry officer to consider certain documents and evidences, then the disciplinary authority is well within his powers to disagree with the findings of the enquiry officer and by recording reasons for such disagreement, a show cause notice to be issued to the delinquent officer asking him to submit further explanation on the dissenting view. 5.3.De novo enquiry would arise only if there is any procedural or substantial error in conducting a domestic enquiry. If the disciplinary authority, on perusal of the enquiry report forms an opinion that there is a procedural violation or substantial error in appreciating documents and evidences or omission to follow certain mandatory procedures, then the disciplinary authority has to order for de novo enquiry from the place from which the error occurred. However, there cannot be any order to conduct a fresh re-enquiry. Fresh enquiry to be conducted from the place from which the error occurred. Even in such circumstances, the disciplinary authority need not set aside the entire enquiry report submitted by the enquiry officer. Therefore, the de novo enquiry cannot be ordered so as to conduct a fresh enquiry in entirety that will amount to conduct of second enquiry into the same set of charges and impermissible. 5.4.In the present case, the findings of the disciplinary authority that the enquiry report of the first enquiry officer is haphazard report and would jeopardise the fair investigation would show that the disciplinary authority has pre-determined the nature of the charges as well as the punishment and set aside the report of the first enquiry officer and ordered for second enquiry under the guise of de novo enquiry. The concept of de novo enquiry cannot be pressed for conducting a fresh second enquiry. There is a distinction between de novo enquiry and second enquiry. Error crept in during the course of enquiry or non consideration of certain material documents during the course of enquiry may lead to conduct of de novo enquiry from the place from which the error occurred. But, if the entire enquiry report is scrapped and the disciplinary authority order for a fresh enquiry by appointing a different enquiry officer, then this Court has no option, but to arrive at a conclusion that it is a case of second enquiry, which is impermissible under law. 5.5.The disciplinary authority not only stopped by scrapping the first enquiry report, but appointed a new enquiry officer as well as the presenting officer to conduct a fresh enquiry. The proceedings dated 21.10.2021 issued by the disciplinary authority on receipt of the first enquiry report is unambiguous that he has not only pre-determined the issue, but decided to conduct a fresh enquiry by appointing a new enquiry officer and a presenting officer. 5.6.Pursuant to the said order, the second enquiry officer conducted another enquiry on the same set of charges by re-examining the same witnesses and documents and made a finding that all the charges are proved against the writ petitioner. Accepting the findings of the enquiry officer, major punishment of dismissal from service was imposed vide proceedings dated 27.03.2023. In the appeal, the High Court modified the punishment of dismissal from service to that of stoppage of increment for one year with cumulative effect only on the ground that punishment of stoppage of increment for three years with cumulative effect was imposed on the co-delinquent, Muthulakshmi. On the said ground, the punishment of dismissal was modified. Even equal punishment was not granted. Lesser punishment was imposed on the writ petitioner. The entire procedure followed by the disciplinary authority as well as the appellate authority does not appear to be in consonance with the procedures established in conducting the departmental disciplinary proceedings under the Tamil Nadu Civil Service (Discipline and Appeal) Rules. Conclusion: