ORDER
Narendra Nath Tiwari, J.
1. In this writ application the petitioner has prayed for quashing the entire departmental proceeding initiated against him by Resolution No. 603 dated 5.3.2004 (Annexure 5) being the second successive enquiry despite the exoneration of the petitioner as far back as in the year 1993, and also for directing the respondents to act in accordance with the enquiry report submitted by letter No. 1452 dated 5.7.2004 (Annexure 6) whereby even in such subsequent enquiry the charges levelled against him could not be proved by the Enquiry Officer. Subsequently, the petitioner filed an amendment petition during the pendency of this writ application which was allowed and by which he has further prayed for quashing the Memo No. 603 dated 5.3.2004 (Annexure 7) whereby the concerned respondents in stead of acting on the basis of the enquiry report submitted in the second enquiry, took a decision to initiate fresh enquiry (third enquiry) by appointing another Enquiry Officer.
2. The fact of the case in short is that the petitioner was appointed in class II cadre of the Bihar Education Service, on the recommendation of Bihar Public Service Commission in the year, 1985. After completing training, he was posted as Principal of Teachers’ Training School, Sasaram in 1986 where he was also given charge of Sub-Divisional Education Officer (SDEO). The petitioner was then transferred to the post of District Superintendent of Education, Aurangabad in the year 1991. At the time of reorganization of the State, he was posted as Deputy Director, Higher Education, Patna. Thereafter he was transferred to Jharkhandon 12.12.2001. After his transfer to the State of Jharkhand he was kept waiting for posting for about four months and thereafter was posted as Regional Deputy Director of Education (RDDE), Santhal Pargana at Dumka where he joined on 20.4.2002 and subsequently in June, 2004 he was transferred and posted as Officer on Special Duty (OSD), Jharkhand Academic Council, Ranchi. While the petitioner was posted as District Superintendent of Education, Aurangabad, he was served with a charge-sheet in “Prapatra Ka” vide letter No. 92 dated 30.7.1992 containing article of charges alleging, inter alia, that he as a member of the appointment committee had connived with the then D.E.O., Sasaram (Mr. K.N. Sharma) in making irregular appointments of clerk and peon (Class III & IV posts) and had helped Sri Sharma in serving his self and for such serious indiscipline why the petitioner be not dismissed from service (Annexure 1). The petitioner submitted his written reply denying the charges and stating, inter alia, that he was not at all involved in the process of appointment and he is not guilty of any charge and proceeding against him is fit to be dropped. After considering the said explanation of the petitioner, an order was issued by Memo No. 107 dated 13.5.1993 from Human Resources Deve- lopment Department, Government of Bihar under the signature of Deputy Secretary, mentioning therein that the charges against the petitioner have not been proved and the Government has taken decision to exonerate him from the charges (Annexure 2). The petitioner, thereafter, was given promotion to the junior selection grade by a notification dated 2.11.1999 (Annexure 3). However, the A.D.M., Rohtas had lodged an FIR against the petitioner without obtaining prior sanction from the Department being Sasaram P.S. Case No. 601/1991. The sanction was subsequently granted by Memo No. 9389 dated 9.7.2002 by the State of Bihar which has been challenged in the Patna High Court in Cr. Misc. No. 4372/2004 which is still pending. After the petitioner was allotted Jharkhand cadre, the Government of Jharkhand by its Memo No. 603 dated 5.3.2004 hastened to initiate a fresh departmental proceeding by serving memo of charges (Annexure 5) by reopening the matter, which was closed by exonerating the petitioner long ago. The petitioner filed reply and brought everything to the notice of the Enquiry Officer. The Enquiry Officer thereafter again inquired into the charges and also took note of the earlier records and submitted his report by letter No. 1452 dated 2.7.2004 with a finding that the charges against the petitioner could not be proved. In spit of the said finding of the Enquiry Officer, the concerned respondent did not pass any final order. The petitioner then took resort of this Court for the reliefs as first above mentioned. However, during the pendency of this writ application, the respondents issued an order by Memo No. 603 dated 5.3.2004 (Annexure 7) whereby third round of the enquiry has been sought to be initiated against the petitioner on same self charges by appointing a fresh Enquiry Officer which has been assailed by way of amendment in the writ application.
3. A counter affidavit has been filed on behalf of the respondents stating, inter alia, that the petitioner was an officer of Bihar Education Service who joined in the State of Jharkhand after the organization of the State of Jharkhand on 13.12.2001 pursuant to the tentative cadre allocation. The petitioner then waited for posting for about four months and thereafter he was posted as R.D.D.E., Dumka. In the meantime, from the relevant file it was found that the law department has sanctioned prosecution against the petitioner for his conspiracy in making irregular appointment of Class HI & IV posts during his posting as S.D.O., Sasaram. The matter was reviewed and a departmental proceeding was sought to be initiated by the State of Jharkhand and by Resolution No. 603 dated 5.3.2004 of the Human Resources Development Department, Government of Jharkhand, appointed an Enquiry Officer for the said purpose. In the said proceeding the Presenting Officer failed to produce relevant papers against the petitioner and the Enquiry Officer concluded the enquiry giving a report that the charges were not proved for want of relevant papers. It has been stated that a copy of Memo No. 107 dated 13.5.1993 issued by the Deputy Secretary-cum-the then Vigilance Officer, Education Department has been brought by the petitioner as an annexure to the writ application, whereby the petitioner has been shown exonerated from the charges, but the letter does not speak about any proceeding. However, a prosecution has been sanctioned by the Law Department, Government of Bihar and a letter has been sent to the Government to produce relevant records for proper examination at Government level and sometime is required to collect the records from the Bihar Government.
4. In reply to the interlocutory application by which it was sought to assail the order passed during the pendency of the writ application, for a fresh enquiry by appointing another Enquiry Officer, it has been stated that the erstwhile State of Bihar did not initiate any departmental proceeding rather only an explanation was called for from the petitioner; and as such the departmental proceeding was initiated by the State of Jharkhand by Resolution No. 603 dated 5.3.2004 and the then Director, Secondary Education, Mr. B.K. Sahu, IAS, was appointed as Conducting Officer and Shri S.K. Verma as Presenting Officer. The Conducting Officer then concluded the enquiry and submitted his report with the finding that the charges against the petitioner were not proved for want of relevant papers (Annexure 6). The said report was examined at the Government level and it has been decided that the charges are serious in nature and the same require further enquiry after procuring relevant records from the Government of Bihar, and for that purpose a Deputy Secretary of Human Resources Department has been deputed to collect the relevant records and in the light thereof a fresh enquiry has been ordered against the petitioner by Memo No. 3 dated 3.1.2005 (Annexure-B).
5. Mr. Rajesh Kumar, learned counsel appearing on behalf of the petitioner, challenging the legality of the impugned orders submitted that the charges imputed against the petitioner is related with the appointment of class III & IV posts of the period dating back to the year 1988 i.e. about 17 years old, which was made by a committee in which the petitioner was a member. The only allegation against him is that he connived with the then District Education Officer, Shri K.N. Sharma in making irregular appointments. The chargesheet in “Prapatra Kd’ was issued as far back as in the year 1992 (Annexure 1) by which the petitioner was asked to file his reply as to why he should not be dismissed. Thereafter the petitioner had filed reply and the charges were inquired into and the enquiry was conducted in favour of the petitioner by an order issued by the Human Resources Development Department holding that the charges against the petitioner could not be proved and the Government has taken decision to exonerate the petitioner from the charges. The said order was dated 13.5.1993 (Annexure 2) and the petitioner was sent to the State of Jharkhand cadre after its reorganization in the year 2002. The Government of Jharkhand initiated a fresh enquiry by serving a charge-sheet to the petitioners in “Prapatra Kd’. Thereafter the enquiry was conducted by the Enquiry Officer-cum-Director, Secondary Education, an IAS Officer. The Conducting Officer clearly found that the charges against the petitioner could not be substantiated in the inquiry. In spite of the same, the concerned respondent did not accept the same and now has ordered for a third inquiry by appointing a fresh Enquiry Officer. Learned counsel submitted that the petitioner cannot be subjected to repeated endless enquiries for the self same charges which could not be proved against the petitioner in earlier two enquiries. Learned counsel submitted that the repeated proceedings against the petitioner for the same charges is not permissible in law and the same is malicious, vexatious, illegal, without jurisdiction and are liable to be set aside by this Court.
6. Mr. R.N. Sahay, learned Senior S.C. II, on the other hand, submitted that earlier in the year 1992 the order was issued on the reply to the show-cause notice and actually the said Annexure 1 (Prapatra Kd) was not a charge-sheet. Learned counsel submitted that no document is available on record to show that the Annexure 2 was issued after holding enquiry. He submitted that fresh inquiry was ordered by the respondents after reviewing the documents received from the State of Bihar after the petitioner’s allocation to Jharkhand Cadre and there is absolutely no illegality, malice and bias in initiating the fresh inquiry. Regarding the enquiry report submitted by the Conducting Officer, the Director, Secondary Education, Jharkhand, it has been submitted that the same is not complete and the Conducting Officer should have waited till receipt of some more documents which were awaited from the Government of Bihar. A fresh inquiry has been ordered by appointing another Enquiry Officer vide Annexure 7 for that purpose and there is no illegality or infirmity in the order directing a fresh inquiry.
7. From perusal of Annexure 1, which is of the year 1992, it is evident that a charge-sheet was served on the petitioner with the covering letter which subject reads as follows :
“Shri Khagendra Kumar, Tatkalim Awar Pramandal Shiksha Padadhikari, Rohtas, Samprati Zila Shiksha Adhikshak Aurangabad Ke Virudh Aarope.”
And the contents followed :
Uparyukta Vishayak Zila Padadhikari, Rohtas Ke Patrank 1310 Dinank 15.4.1992 Ke Saath Prapt Aarop Patra Ki Pratilpi Sanlagna Kar Bhezte Hue Mujhe Anurodh Kama Hal Ki Aaropon Ke Sambandh Me Aap Apna Vinduwar Spastikaran Patra Prapti Ke Ek Paksha Ke Bhitar Nishchit Rup Se Uplabdh Karaye Anyatha Yah Samjha Jayega Ki In Aaropon Ke Sambandh Me Aapko Kuch Nahin Kahna Hal Tatha Ektarpha Yathochit Nlrnay Le Liya Jayega.
From the annexure to the said letter it appears that the charge sheet was issued in “Parpatra Ka” containing articles of charges and asking him as to why departmental proceeding be no initiated against him and he be not discharged from the services. From Annexure 2 it appears that Memo No. 107 dated 13.5.1993 an order was issued by the Human Resources Development Department, Government of Bihar wherein it has been clearly mentioned that the charges against the petitioner were not found proved and the Government has decided to exonerate him. From the said document, it is evident that there was a proceeding against the petitioner, the charge sheet was served, the petitioner submitted his written explanation and then the order exonerating him from the charges was passed by the Government. It is not the case of the respondents that the Annexure 2 is a forged document and that the same is not issued by the Government. Be that as it may, again in the second round of the inquiry, the petitioner was informed of the charges, he filed his written explanation, the inquiry was conducted, but no evidence could be brought against the petitioner to substantiate the charges and the Conducting Officer has clearly come to the finding that the charges against the petitioner could not be proved. The concerned respondent instead of passing any order on the basis of the said inquiry report has issued Annexure 7 by which the third round of inquiry has been sought to be initiated against the petitioner without any fresh material or evidence on record. The respondents failed to bring to the notice of this Court any provision of law under which repeated successive inquiry can be initiated in case of failure to prove the charges against the delinquent. It is well settled that once the inquiry is conducted by an Enquiry Officer, the Disciplinary Authority has to pass order either agreeing or disagreeing with the findings, recording his reasons in case of not agreeing with the findings. The respondents have contested the petitioner’s claim mainly on the basis that actually no charge-sheet was served in the year 1992 and there was no departmental proceeding, but from the documents as noticed above the said stand is absolutely baseless. In this case the Secretary, Human Resources Development Department, Government of Jharkhand, Mr. Ashok Kumar Singh, has also personally appeared and tried to justify the impugned order saying that in his opinion, Annexure 1 to the writ application was not the charge-sheet and the same was a show-cause notice to the petitioner asking an explanation and that the department has power to hold another inquiry and that the issuance of Annexure 7 (by which the fresh inquiry has been sought to be initiated for the third time) is justified. His loud voice in presenting the stand was something unusual and it was an utter dismay to hear baseless statements from an officer of the rank of the Secretary, contrary to the materials on record and legal provisions.
8. It is now well settled that the fresh inquiry cannot be conducted by appointing another Conducting Officer, reference can be made to the decision of the Supreme Court in K.R. Dev v. The Collector of Central Excise, Shillong, . In the instant case, on two earlier occasions two inquires were held on the same charges based on the same set of facts by appointing different Enquiry Officer and the petitioner was not found guilty. The third round of inquiry sought to be initiated against the petitioner by Annexure 7 is thus wholly illegal, arbitrary and unjustified and the same is not at all sustainable. The petitioner cannot be subjected to series of inquiry for the same set of allegations until someone call him guilty. The inquiry sought to be held by Annexure 3 is a matter related to the year 1988 and looking to its age also it is not proper to put the petitioner to further jeopardy by forcing him to take part in the third successive inquiry for the charges levelled against him about 18 years ago.
9. In view of the above discussions and consideration, it is held that the further proceeding against the petitioner is wholly arbitrary, illegal and vexatious. Annexure 7 is thus quashed. This writ application is allowed. However, there shall be no order as to costs. Appeal allowed.