Hello friends,
I need your valuable advice for my query below. During suspension pending enquiry proceedings, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on his behalf? Please provide sufficient court orders that authorize him to engage a lawyer.
Thank you,
Sreedevi
From India, Thiruvananthapuram
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1I need your valuable advice for my query below. During suspension pending enquiry proceedings, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on his behalf? Please provide sufficient court orders that authorize him to engage a lawyer.
Thank you,
Sreedevi
From India, Thiruvananthapuram
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The purpose of conducting a domestic inquiry is to allow or offer sufficient opportunity to the delinquent employee who is charged with misconduct. Normally, an ordinary employee is not well aware of the procedure and practices followed in the inquiry. Also, he may not have the skills to pose cross-questions to the management's witnesses and thus defend his case. Hence, the assistance of a co-worker or a union representative has been permitted by making specific provisions in the Model Standing Orders.
In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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The relevant provision of Model Standing order is attached
From India, Kolhapur
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From India, Kolhapur
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It is the general practice that an employee, along with the advocate, is allowed to deal with matters. However, it is not acceptable for the advocate to handle matters alone in the absence of an employee, unless the employee is physically or mentally unable to attend and deal with them. In the presence of an employee, the advocate can deal with all matters, inquiries, and related procedures completely.
From India, Bangalore
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From India, Bangalore
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Dear Sreedevi,
In the normal course of a domestic enquiry, the engagement of a lawyer by the delinquent employee is not allowed unless the rules for the conduct of such an enquiry permit it. I am attaching two judgments in this regard:
(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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In the normal course of a domestic enquiry, the engagement of a lawyer by the delinquent employee is not allowed unless the rules for the conduct of such an enquiry permit it. I am attaching two judgments in this regard:
(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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If the rules permit or if the management is represented by an advocate, then the employee is entitled to be represented by an advocate. This is the general rule. However, there are court rulings holding that if the charges are very complicated to defend, then an advocate can be allowed for compliance with natural justice.
If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
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If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
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Dear friends,
My opinion is that more than anything, the provisions of SO/Conduct & Disciplinary Rules which govern them have a say in the matter as other citations can apply to the specific cases relevant rather than suo-motto apply to all the cases. This is because every case will have certain specifics different from the others. Surprisingly, there are different judgments passed by various courts. As you could see from the attached citations, some are in favor and some are against, just because circumstances differ. So one has to approach based on the merits of each case.
I'm sure this would provide interesting reading to our friends who seek such things.
http://police.pondicherry.gov.in/pol...ASE%20LAWS.pdf.
From India, Bangalore
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My opinion is that more than anything, the provisions of SO/Conduct & Disciplinary Rules which govern them have a say in the matter as other citations can apply to the specific cases relevant rather than suo-motto apply to all the cases. This is because every case will have certain specifics different from the others. Surprisingly, there are different judgments passed by various courts. As you could see from the attached citations, some are in favor and some are against, just because circumstances differ. So one has to approach based on the merits of each case.
I'm sure this would provide interesting reading to our friends who seek such things.
http://police.pondicherry.gov.in/pol...ASE%20LAWS.pdf.
From India, Bangalore
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Dear friends,
It's generally accepted privilege for a charged employee to represent himself by a Union rep. Suppose the very same Union rep happened to be a Law graduate, if not a practicing Advocate being an employee or a non-employee but part of the Union, then how could the lawyer be denied to represent the charged/accused employee? I have come across many union office bearers who are not an employee per se but prominent politicians, practicing advocates, prominent labor leaders, sometimes retired employees, etc., who can still take part in such disputes and inquiries. They can also sign settlements, agreements on behalf of the Union/employees like wage settlements, conciliations, etc. Then, how can they be denied either assisting or participating in the inquiry? Some member Advocates in practice might like to contribute with their experiences.
From India, Bangalore
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It's generally accepted privilege for a charged employee to represent himself by a Union rep. Suppose the very same Union rep happened to be a Law graduate, if not a practicing Advocate being an employee or a non-employee but part of the Union, then how could the lawyer be denied to represent the charged/accused employee? I have come across many union office bearers who are not an employee per se but prominent politicians, practicing advocates, prominent labor leaders, sometimes retired employees, etc., who can still take part in such disputes and inquiries. They can also sign settlements, agreements on behalf of the Union/employees like wage settlements, conciliations, etc. Then, how can they be denied either assisting or participating in the inquiry? Some member Advocates in practice might like to contribute with their experiences.
From India, Bangalore
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Dear all,
The judicial dictum is well settled that the assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So, the assistance of an advocate is not by default and is to be allowed only where the Presenting Officer is a trained legal mind (like a practicing advocate or a prosecutor from the Police Establishment) and where the facts are too complicated and carry legal issues which have not been settled so far by the higher courts.
KK
From India, Bhopal
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The judicial dictum is well settled that the assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So, the assistance of an advocate is not by default and is to be allowed only where the Presenting Officer is a trained legal mind (like a practicing advocate or a prosecutor from the Police Establishment) and where the facts are too complicated and carry legal issues which have not been settled so far by the higher courts.
KK
From India, Bhopal
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One final point in this matter. If any of the members are preparing standing orders, make it in such a way that only a coworker can be allowed to assist the delinquent employee, and not an advocate or TU leaders. A coworker may be a TU executive, but it is of less consequence than an external leader who, in most cases, will be an advocate or a politician who will complicate the inquiry. The existing SOs can also be amended along these lines.
Varghese Mathew
Labour Law Adviser
09961266966
From India, Thiruvananthapuram
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Varghese Mathew
Labour Law Adviser
09961266966
From India, Thiruvananthapuram
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I wonder if the suggestion - Standing Orders should be made to allow only co-workers in an inquiry and nobody else. It seems the submission and certification of Standing Orders is not a joint task but a unilateral process of management, so that the management can include anything in them. Is it possible to prepare Standing Orders anything less than the Model S. O. prescribed by the government? Does the word "modification" mean curtailing of rights? Will the Certifying Authority certify such S. O. which is detrimental to the workers?
We must remember that whether there are Standing Orders or certain Rules of procedure, they cannot override the provisions and principles of law. In short, rules or S. O. are there to facilitate and not to restrict the provisions of the law.
When the principle of natural justice has to be strictly followed in the cases of a domestic inquiry, the procedure, rules, or standing orders are to be prepared to help and facilitate the principle and not to restrict the scope of the principle.
The provisions of Standing Orders do prevail, but when? When the charge is of a simple and uncomplicated nature. But when the same is complicated, of a serious nature and an ordinary man is unable to understand it and thus defend his case, then are we going to show the provisions of S. O. and reject the assistance of a legally trained person? In such circumstances, provisions of S. O. become redundant.
That's why a wise Inquiry Officer does not give much consideration or weight to such provisions of S. O and in spite of objections of management, takes a proper decision depending on the facts and circumstances of the case. Here strict interpretation of S. O. is not advisable but a liberal interpretation will help in the long run.
From India, Kolhapur
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We must remember that whether there are Standing Orders or certain Rules of procedure, they cannot override the provisions and principles of law. In short, rules or S. O. are there to facilitate and not to restrict the provisions of the law.
When the principle of natural justice has to be strictly followed in the cases of a domestic inquiry, the procedure, rules, or standing orders are to be prepared to help and facilitate the principle and not to restrict the scope of the principle.
The provisions of Standing Orders do prevail, but when? When the charge is of a simple and uncomplicated nature. But when the same is complicated, of a serious nature and an ordinary man is unable to understand it and thus defend his case, then are we going to show the provisions of S. O. and reject the assistance of a legally trained person? In such circumstances, provisions of S. O. become redundant.
That's why a wise Inquiry Officer does not give much consideration or weight to such provisions of S. O and in spite of objections of management, takes a proper decision depending on the facts and circumstances of the case. Here strict interpretation of S. O. is not advisable but a liberal interpretation will help in the long run.
From India, Kolhapur
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I made the suggestion because I was involved in drafting and getting certified two SO in the lines I suggested. Though the Kerala model SO states that a workman can be represented by an office bearer of his TU (he can be an outsider) and it is still administered. I have also seen many SO in Kerala in that way.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
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Varghese Mathew
9961266966
From India, Thiruvananthapuram
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Dear Varghese Mathew,
My intention was to comment on the attitude of many managements to narrow down or restrict the rights available or even to deny such rights given by statutes. There is more and more tendency of such nature, which I find alarming. If we observe the posts and queries on this site, they often refer to some unwritten rules and company policies that are neither documented nor tested against laws and regulations. It is essential for a good HR Manager to ensure that the right practices, procedures, and fair approaches are adhered to, followed, and maintained in their unit. Unfortunately, the current situation is far from ideal.
I appreciate your success in obtaining the certification for the draft of S.O. from the Officer. Such suggestions for discussions are always beneficial, leading to mutual benefits for all involved.
With warm regards, Adv. K. H. Kulkarni
From India, Kolhapur
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My intention was to comment on the attitude of many managements to narrow down or restrict the rights available or even to deny such rights given by statutes. There is more and more tendency of such nature, which I find alarming. If we observe the posts and queries on this site, they often refer to some unwritten rules and company policies that are neither documented nor tested against laws and regulations. It is essential for a good HR Manager to ensure that the right practices, procedures, and fair approaches are adhered to, followed, and maintained in their unit. Unfortunately, the current situation is far from ideal.
I appreciate your success in obtaining the certification for the draft of S.O. from the Officer. Such suggestions for discussions are always beneficial, leading to mutual benefits for all involved.
With warm regards, Adv. K. H. Kulkarni
From India, Kolhapur
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Thank you, Mr. Kulkarni.
From various posts in citehr, I also have the same feeling. Some of the practices in the new-gen companies are:
1. Appointment orders are not issued.
2. Illegal bonds/terms are signed.
3. F&F settlements, issuance of service/salary certificates, payments of statutory dues are not done/delayed due to non-compliance with the 'Company policy.'
4. Employees are not adhering to notice periods.
5. Employers are not agreeing to buy-back leave adjustment against the notice period.
Varghese Mathew
From India, Thiruvananthapuram
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From various posts in citehr, I also have the same feeling. Some of the practices in the new-gen companies are:
1. Appointment orders are not issued.
2. Illegal bonds/terms are signed.
3. F&F settlements, issuance of service/salary certificates, payments of statutory dues are not done/delayed due to non-compliance with the 'Company policy.'
4. Employees are not adhering to notice periods.
5. Employers are not agreeing to buy-back leave adjustment against the notice period.
Varghese Mathew
From India, Thiruvananthapuram
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Section 30 of the Advocates Act came into force on 15.6.2011. Parliament, in its wisdom, has given absolute rights to advocates. An advocate shall have the right to practice before any person authorized to take evidence. In a departmental inquiry, the inquiry officer has been empowered to take evidence. Hence, any provisions that bar the advocate are ultra vires to Section 30 of the Advocates Act, read with Article 19(5) of the Constitution of India. Various High Courts have held this, stating that any judgment prior to 2011 taking a contrary view is negated.
From India, Pune
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From India, Pune
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It is a question of the Advocate's absolute right under Section 30 of the Advocates Act. It is not a question of the right to defend the charged employee.
Advocate Sachin Salunke Ph. No. 9422016668/8421309116
, Pune-411046
From India, Pune
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Advocate Sachin Salunke Ph. No. 9422016668/8421309116
From India, Pune
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