There Is No Need Of Granting Hearing Opportunity To Delinquent Employee During Fact-Finding Inquiry: Orissa High Court

The Orissa High Court held that there is no need of granting an opportunity of hearing to a delinquent employee at the stage of fact-finding inquiry.

The Court held thus in a writ petition challenging the order of the Central Administrative Tribunal, Cuttack by which it declined to interfere with a show-cause notice.

A Division Bench comprising Justice S.K. Sahoo and Justice Chittaranjan Dash emphasised, “… we are of the view that the contention of the petitioner that the constitution so also the report of the F.F.C. is contrary to the CCS (CC & A) Rules deserves no merit. It is a settled position that a fact-finding inquiry is an administrative mechanism instituted for gathering and ascertaining the relevant and correct state of affairs. The nature of such inquiry is preliminary and not penal. Thus, given the nature of the inquiry, there is no need for granting even hearing to the petitioner, much less any opportunity for cross-examination.”

The Bench explained the difference between a disciplinary inquiry and a fact-finding inquiry. It elucidated that a fact-finding inquiry is conducted to ascertain the facts of the matter and it is not a full-fledged disciplinary inquiry. It added that, only after gathering the facts and after getting a report from the fact-finding committee, if the said facts require initiation of a disciplinary action, then only a disciplinary proceeding is undertaken.

“By its very nature, a fact-finding inquiry is not of penal character nor does it prescribe any penalty”, remarked the Court.

Senior Advocate Subir Parlit appeared for the petitioner while Central Government Counsel (CGC) B.S. Rayaguru appeared for the opposite parties.

Factual Background -

The petitioner challenged the show-cause notice as well as the Fact Finding Committee (FFC) report as illegal, arbitrary, and in violation of Central Civil Service (Classification, Control and Appeal) Rules, 1965 [CCS (CC&A) Rules]. The petitioner was working as Professor in the Department of Paediatrics Surgery in AIIMS, Bhubaneswar and joined the same in March 2018. After his joining, the petitioner along with other members of the Department, began to organize the academic activities and patient care protocols, whereby a schedule was finalized and responsibilities were divided among the members of the Department, but one of the members insisted on two separate units from the very day of his joining and because of such misunderstanding, there was hitch between the petitioner and that person. However, in December 2018, the Department was divided into two units. The petitioner via his email, had cautioned the administration that such division would lead to fragmented protocols and confusion in training of the students which would adversely impact patient care and ultimately the reputation of the institute.

After the bifurcation of the unit, the petitioner as the Head of the Department (HOD) continued to take clinical and teaching rounds, but the patient care appeared to be grossly inappropriate/non-standard/dangerous. As per the petitioner, complaints were lodged before the administration by the patient attendants and while the matter stood thus, an order was issued wherein out of the two bifurcated units of the Department of Paediatrics Surgery, one unit was headed by the petitioner and another by that person. Both incumbents were directed to report independently to the Director for all administrative and academic matters. Challenging such bifurcation, the petitioner approached the Tribunal and while the matter stood thus, FFC was constituted to ascertain facts regarding the complaints of faculty members about the alleged unprofessional conduct of the petitioner. Resultantly, a show-cause notice was issued and as the Tribunal refused to interfere in the same, the petitioner was before the High Court.

The High Court in the above context of the case, observed, “There should be not even an iota of confusion between a ‘disciplinary inquiry’ and a ‘fact-finding inquiry’. Both are neither analogous nor can be used interchangeably. … Otiose to mention, a fact-finding inquiry is not an ‘inquiry’ contemplated under Rule 14 of the CCS (CC & A) Rules.”

The Court added that the report of FFC provides a prima facie factual underpinning on the basis of which the disciplinary authority considers either to initiate a further ‘disciplinary inquiry’ as provided under Rule 14 of the CCS (CC & A) Rules for imposing major penalties or to drop the proceedings all together. It said that the fact-finding inquiry is at best can be said be in the nature of a ‘preliminary inquiry’.

“… the very nature of fact-finding inquiry makes it permissible to be held ex-parte and even without granting any opportunity of hearing to the concerned employee, which is imperative only in a disciplinary inquiry”, it noted.

Furthermore, the Court observed that the contention of the petitioner that the constitution so also the report of the F.F.C. is contrary to the CCS (CC & A) Rules, deserves no merit.

“It is a settled position that a fact-finding inquiry is an administrative mechanism instituted for gathering and ascertaining the relevant and correct state of affairs. The nature of such inquiry is preliminary and not penal. Thus, given the nature of the inquiry, there is no need for granting even hearing to the petitioner, much less any opportunity for cross-examination. It is only at the stage of inquiry that is contemplated under Rule 14 of the CCS (CC & A) Rules that an opportunity of hearing has to be granted”, it enunciated.

The Court said that, as the F.F.C. merely produced the facts for consideration before the disciplinary authority, the ball is sent to the court of such authority to take an appropriate call and to grant reasonable opportunity of hearing to the petitioner.

“… it seems that the inquiry is almost at the concluding stage. … we do not find any infirmity in the show-cause notice dated 04.02.2021 so also any illegality in the impugned order dated 12.03.2021 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack under Annexure-10 and therefore, it would not be appropriate and incumbent to disturb the statutory procedure and to superficially interfere at the fag end of the disciplinary proceeding”, it concluded.

Accordingly, the High Court dismissed the writ petition.

Cause Title- Dr. Kanishka Das v. Union of India and Others

Appearance:

Petitioner: Senior Advocate Subir Palit

Opposite Parties: DSGI P.K. Parhi, CGC B.S. Rayaguru, Senior Advocate S.K. Sarangi, and Advocate D. Lenka.

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