Domestic enquiry

disciplinary action

1/28 Documents & Tips - Sharing is our passion

Share This Page

  1. Anjum Nabi
    disciplinary action
    Transcript Header:
    Domestic enquiry
    Transcript Body:
    • 1. Objective: To highlight the procedure for a fair and proper domestic enquiry as per requirements of law.
    • 2. Why we go for domestic enquiry ? In today’s context no employer can discharge or dismiss a delinquent workman even for a serious misconduct without following an elaborate procedure fortaking disciplinary action.
    • 3. It is only when the workmen is found guilty of the charge in an enquiry conducted as perthe principal of natural justice, that the employer after following the procedure can punish him as perthe company’s standing orders. Principal of natural justice : • No man shall be the judge in his own cause • Both sides shall be heard.
    • 4. Rules of natural justice : • the employee proceeded against had been informed clearly of the charges leveled against him. • The witnesses are examined ordinarily in the presence of the employee in respect of the charges • The employee is given fair opportunity to cross- examine the witnesses • The employee has been given reasonable opportunity to defend.
    • 5. Suppose the employer has dismissed/ discharged a workmen after following the procedure, conducting a fair and proper enquiry. Now the question is whetherhis decision can be challenged? The answer is yes. Decision can be challenged by the workmen under section 2-A of the ID Act, 1947 by raising an industrial dispute and forthis he need not have support of any trade union or other workmen. However, if an employee is not a workman he can not raise industrial dispute underthe IDAct.
    • 6. The question of bonafides (genuine) may be raised and it will be open to the court to consider whether the employer had acted bonafide or was actuated by the desire to victimize the workman. The tribunal orLC may interfere into quantum of punishment (11-A-I.D.Act), may order reinstatement of the workerwith back wages Now again you have to prove the genuineness of the your decision. In case tribunal finds that management was motivated or has acted with unnecessary harassment, or there was victimization or unfair labor practice than what ?
    • 7. The management will be guilty of committing basic errorof the fact. Basic errorof fact If the findings at the enquiry is based on extraneous (irrelevant) matter or if the workman is found guilty and punished on a charge not disclosed in the charge sheet
    • 8. Steps Involved In The Procedure For Disciplinary Action A. Issue Of The Charge-sheet  It is advisable to obtain a written complaint before issuing a charge-sheet and as far a possible conduct a preliminary enquiry.  The charge-sheet should be drafted in a clear and unambiguous language.  Wherever possible, the relevant clause of the company’s standing orders should be mentioned.  If the charges are related to a incident, the date, time, place of occurrence should be mentioned.  The charge sheet framed should be signed by the disciplinary authority. If the charge sheet is vague, whole enquiry will be
    • 9. The charge-sheet framed should be served personally, if possible, and acknowledgement to that effect should be obtained from him. IN CASEHEIS ON LEAVEORREFUSES TO ACCEPTTHE CHARGE-SHEET The same should be sent to his local and home addresses by registered post with acknowledgement due and getting his refusal attested by two witnesses. IN CASE HE REFUSES TO TAKE DELIVERY OR CHARGESHEET IS RETURNED UNSERVED WITH THE REMARKS OF THE POSTAL AUTHORITIES The same should be kept intact without opening and the charge-sheet should be displayed on the notice boards oraction should be taken as per provisions in the standing orders. Also, the contents of the charge-sheet may be published in a local news paper having wide publicity.
    • 10. B. SUSPENSION PENDING ENQUIRY WHY SUSPENSION DURING PENDING ENQUIRY ? This is required when management considers that his physical presence might endanger the safety of other workman or if it is apprehended that he might intimidate (Scare) others or tamper with the evidence. In such case subsistence allowance should be paid as per law.
    • 11. C. CONSIDERATION OFTHE EXPLANATION AFTER A CHARGE-SHEET HAS BEEN SERVED, WITHIN THESPECIFIED TIMEFOR REPLY, HOWHEMAY REACT?
    • 12. * Admitting the charges and requesting for mercy * Denying the charges and requesting for an enquiry * Not submitting any explanation at all • Requesting for more time to submit explanation. • Giving an ambiguous orobscure reply.
    • 13. D. NOTICEFORTHEENQUIRY After consideration of the explanation of the charge- sheeted employee or when no reply received with-in the specified time limit, the management should issue an office order appointing an enquiry officer or an enquiry committee, to hold the enquiry of the charge- sheet. He can be an official of the company oreven an outsider, but care should be taken to appoint only such a person who is neither a witness nor personally connected or interested in the matter WHO CAN BEAN ENQUIRY OFFICER?
    • 14. The enquiry officer. WHO WILLISSUETHEENQUIRY NOTICE? The date, time and place of the enquiry, asking the workman to present himself with his witnesses/documentary evidence if any, for the enquiry. Representative may also be allowed as per Standing orders. WHAT SHOULD BE THE CONTENTS OF THE ENQUIRY NOTICE? If sufficient cause in advance is produced, new date should be given otherwise ex-party enquiry may be conducted. IFWORKMAN FAILS TO ATTENDTHEENQUIRY ?
    • 15. Not less than 48 hours from the date of receipt of the notice of the enquiry. HOW MUCH TIME SHOULD BE GIVEN TO THE WORKMAN BEFORETHEENQUIRY IS HELD?
    • 16. E. HOLDING OFTHEENQUIRY WHATIS THEBASIC OBJECTIVE? This is to find out whether the workman is guilty of the charges leveled against him in the charge-sheet, ornot. In doing so, the enquiry officer gives the workmen a reasonable opportunity to defend himself by cross- examining the witness/ documentary evidences etc. produced against him. The workman can also make an statement apart from what he stated in reply to the charge-sheet.
    • 17. IT IS FOR THE MANAGEMENT TO PROVE THE CHARGES AGAINST THE WORKMAN BY PRODUCING EVIDENCEDURING THEENQUIRY, AND ITIS NOTTHE WORKMAN WHO HAS TO PROVEHIS INNOCENCE. UNLESS MANAGEMENT SIDE HAS BEEN ABLE TO PROVE THE CHARGE AGAINST THE WORKMAN, HE SHALLBECONSIDERED“NOTGUILTY” IT IS OF FUNDAMENTAL IMPORTANCE THAT JUSTICE SHOULD NOT ONLY BE DONE, BUT SHOULD MANIFESTLY AND UNDOUBTEDLY BE SEEN TO BE DONE. THEDILEMMA
    • 18. F. THEENQUIRY WHO SHOULDBEPRESENT? * THEENQUIRY OFFICER * THE MANAGEMENT REPRESENTATIVE * THE CHARGE - SHEETED WORKMAN (AND HIS REPRESENTATIVE, IF ANY)
    • 19. G. THEPROCEDURE * Record the date, time and place of enquiry, name of the persons present and obtain their signatures on the sheet. * Read out and explain the charge and reply of the charge-sheet to the workman and get his confirmation to that effect. (In case workman has not accepted the charges in reply to the charge-sheet, he should be asked if he pleads guilty of the charges. If charge is admitted, that should be recorded and signatures of all concerned with date should be taken).
    • 20. * Explain the workerconcerned the procedure to be followed during the enquiry 1. The management representative will produce witness/ documentary evidence /exhibits in support of the charge and the workman concerned will have opportunity to cross- examine. 2. Thereafter, he will be given opportunity to produce witness/ documentary evidence /exhibits and the MRwill have a right to cross-examine them. 3. He will have further opportunity to make a statement, if any, in his defense. 4. At any stage of enquiry, the Enquiry Officer can seek clarification from any witness or the charge-sheeted workman by putting questions.
    • 21. * Witness in support of the charge are to be examined one by one in the presence of the charge-sheeted workman and he should be given opportunity to cross-examine them. IN CASE CHARGESHEETED WORKMEN DECLINES TO CROSS-EXAMINE ANY WITNESS OR HE HAS NO FURTHER QUESTIONS TO ASK DURING THE CROSS EXAMINATION OFA WITNESS WHATIS TO BEDONENEXT? AN ENDORSEMENT TO THAT EFFECT SHOULD BE MADE BY THEENQUIRY OFFICER
    • 22. * Now, charge-sheeted workman should be asked to produce his own witness one by one and the MRshould be allowed to cross-examine them. * The charge-sheeted workman should be asked to give his statement after witnesses have been examined and cross-examined. IN CASE CHARGESHEETED WORKMEN DECLINES TO PRODUCEANY WITNESS/DOCUMENTARY EVIDENCE, OR TO GIVEANY STATEMENT WHATIS TO BEDONENEXT? THE ENQUIRY OFFICER SHOULD MAKE A RECORD TO THAT EFFECT IN THE ORDER SHEET AND OBTAIN SIGNATUREOFALLCONCERNED.
    • 23. IF THE ENQUIRY REMAINS INCOMPLETE IN THE FIRST SITTING AND SOME MORE WITNESSES ARE REQUIRED TO BEEXAMINED WHATIS TO BEDONENEXT? It may be continued next day or on any other day mutually agreed by both sides. In such cases, the enquiry officer should record the same in the order sheet and obtain signatures of all concerned.
    • 24. SIGNATURES WITHDATE * ON EACHPAGEOFENQUIRY PROCEEDINGS - THECHARGE-SHEETEDWORKMAN - HIS REPRESENTATIVE, IFANY - MANAGEMENTREPRESENTATIVE - ENQUIRY OFFICER SHOULD ALSO SIGN ON EACH PAGE AFTER ENDORSING THAT THE STATEMENT HAS BEEN RECORDED BY HIMAND EXPLAINED TO THEPARTIES IN THEIRLANGUAGEBEFORETHEY WEREASKEDTO SIGN. IN CASEWORKMEN REFUSES TO SIGN ? THE ENQUIRY OFFICER SHOULD MAKE AN ENDORSEMENT TO THAT EFFECTANDGETITATTESTEDBY OTHERPRESENT
    • 25. H. THEENQUIRY REPORT AFTER ENQUIRY IS OVER, THE ENQUIRY OFFICER IS REQUIREDTO MAKEAN “APPRECIATION” OFTHEEVIDENCE ON RECORDTO DRAWHIS OWN CONCLUSION. IF THERE IS NO COLLOBORATIVE EVIDENCE ON A PARTICULAR POINT OR WHEN THERE IS CNFLICTING EVIDENCES ? THE ENQUIRY OFFICER HAS TO GIVE HIS OWN REASONS FORACCEPTING ORREJECTING THEEVIDENCE. The enquiry report should clearly indicate whether the charges leveled against the workmen are proved or not. The conclusion should be logical and based only on the evidences brought out during the enquiry.
    • 26. I. FINALDECISION OFTHEPUNISHING AUTHORITY Before taking a decision on the findings of the enquiry officer, the punishing authority is required to furnish a copy of the enquiry officer’s report to the concerned workman even if he agrees with the findings. Afterconsidering gravity of the misconduct, the past record of the workman, he may pass an order on the quantum of the punishment after recording his reasons for the same in writing. An order in writing is passed to that effect clearly mentioning the charges proved with date from which order is to become effective and is communicated to the charge-sheeted workman.
    • 27. CONCLUSION Though laws are pro labor and it is difficult to take disciplinary action against any workman but it dose not mean that a sense of despair (hopelessness) should prevail in ourminds with regard to disciplinary matters. If a domestic enquiry is fairly and properly held without any prejudice or bias after following the principal of natural justice, and the management had not acted with malice or prejudice while deciding about the quantum of punishment, there is no reason why management’s decision, if challenged, should be reversed by the tribunal. THANKYOU
    View More