Not Mandatory To Give Opportunity Of Hearing To Delinquent Employee In 'Fact Finding Inquiry': Orissa High Court

The Orissa High Court has held that an inquiry conducted by a fact find committee is an administrative mechanism which is instituted only to ascertain facts on the basis of which a disciplinary inquiry is contemplated and thus, there is no need to provide opportunity of hearing to the delinquent employee at such stage.Differentiating between 'fact finding inquiry' and 'disciplinary inquiry', the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash held –“…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.”Factual BackgroundThe petitioner was working as the Head of the Department (HOD) in the department of Pediatric Surgery, AIIMS, Bhubaneswar. While posted as such, some complaints were made against him for which a Fact Finding Committee (FFC) was constituted to ascertain the facts.The FFC submitted its report and on the basis of such report, a show-cause notice was issued to the petitioner. Being aggrieved by such issuance of show-cause notice, he approached the Central Administrative Tribunal impugning both the show-cause notice and the FFC report.The Tribunal, however, did not find any fault either with the FFC report or the show-cause notice. Rather, it merely ordered the respondent authorities to provide relevant documents to the petitioner, if he seeks the same. Impugning such order of the Tribunal, the petitioner filed this writ petition.Issues for ConsiderationThe High Court, considering the facts of the case, framed the following issues to be answered:(i) Whether the 'Show-Cause Notice' issued to the petitioner is justified?(ii) Whether the report of the F.F.C. is in violation of CCS (CC & A) Rules and hence, deserves to be quashed?Court's ObservationsTo answer the first question, the Court reproduced the definition of 'show-cause' as given in the Black's Law Dictionary. It held that when a 'show-cause notice' is issued to someone, he is called upon to show reasons as to why a proposed action should not be taken against him.“In other words, show-cause notice requires the noticee to render an explanation against a proposed action/sanction/punishment. Needless to say, the noticee, more often than not, is required to furnish his response based upon and considering the facts which have been alleged against him and also which he believes are in his favour. Issuance of show-cause notice is therefore the first step in the staircase of a proposed disciplinary action and not the whole staircase itself,” it added.The Bench referred to the decision of the Apex Court in the cases of Union of India v. VICCO Laboratories and State of U.P. v. Brahm Datt Sharma to hold that when authority has the power in law to issue the show-cause notice, it would not be open to the person, asked to show-cause, to approach under Article 226 of the Constitution at the stage of notice. So far as the challenge to the show-cause notice on the ground of it being an exact 'facsimile copy' of the FFC report was concerned, the Court held that:“The F.F.C. is an administrative mechanism which is usually constituted for ascertaining the facts and it is on the basis of these facts that a show-cause notice is issued. Therefore, if there are some similarities in the report of the F.F.C. and the show-cause notice, there is hardly any reason to doubt the impartiality of the disciplinary authority and the F.F.C. being genus and the issuance of show-cause notice being the species, it is but normal to have some analogous character.”Thus, it was of the view that there is no illegality or impropriety in issuance of the show-cause notice to the petitioner.In order to answer the second question as to whether the FFC was in violation of the CCS (CC & A) Rules, the Court was of the considered opinion that the inquiry conducted by FFC is not an inquiry contemplated under Rule 14 of the aforesaid Rules.“For better understanding, it may further be stated that report of the F.F.C. 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. The fact-finding inquiry is at best can be said be in the nature of a 'preliminary inquiry',” it held.Referring to numerous decisions of the Supreme Court, the Court observed that it is only at the stage of inquiry under Rule 14 of the CCS (CC & A) Rules that an opportunity of hearing has to be granted. As the FFC merely produced the facts for consideration before the disciplinary authority, such authority has to take an appropriate call and to grant reasonable opportunity of hearing to the petitioner.Thus, it held that there was no violation of the Rules in constituting the FFC for finding out the facts and issue show-cause...

Not Mandatory To Give Opportunity Of Hearing To Delinquent Employee In 'Fact Finding Inquiry': Orissa High Court

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