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An enquiry officer was appointed by the Disciplinary authority for the conduct of a Domestic Enquiry against an Employee. The Enquiry Officer had conducted the enquiry and concluded that the employee is guilty of all charges. Another charge sheet had been issued to the same employee for similar misconduct. The same official had been appointed as the Enquiry Officer for the second charge sheet. Now, the employee has requested a change of enquiry officer, stating that the enquiry officer is biased because he had previously found him guilty of the same charges. Do we have to consider the request or deny it? What is the legal position? Kindly provide your views along with excerpts from case laws, please.
From India, Madras
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Hi, Before commenting on your issue, I would like to know under what circumstances management had to issue a second charge sheet on the same charges when they are already proved in a domestic inquiry?

Regards,
Anil Kaushik
Chief Editor, BUSINESS MANAGER

From India, Delhi
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Hi,

Thanks for the response. Both charge sheets are not for the same misconduct but similar misconduct, i.e., involvement in private business.

My query is: can the charged employee request a change of the enquiry officer on the grounds that he has been found guilty in the earlier charge sheet?

Regards,
ctraju

From India, Madras
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Hi,

Technically, the demand by the workman is not justified, and legally, you can reject his plea. I am yet to locate the case law on this subject. I will forward the same to you as soon as I locate it.

However, if I were in your position, I would appoint another Enquiry Officer rather than looking at the legality of the issue. Secondly, engaging in another business for the second time definitely may warrant, if proven guilty, capital punishment! I won't take any risk on such procedural matters.

Siva

From India, Chennai
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Dear friend,

Management has the inherent right to initiate disciplinary proceedings against an erring employee, appoint an enquiry officer, appoint a management representative, and pass orders after receiving the enquiry report. The disciplinary authority is not bound to accept the findings of the enquiry officer.

In this context, management has all the powers to reject the employee's demand regarding changing the enquiry officer. Simply because an employee is found guilty by the enquiry officer in an earlier matter of the same nature is not conclusive to say that the enquiry officer is biased against the employee, unless other factual matters are on record to indicate that the enquiry officer is not neutral.

Regards,

Anil Kaushik
Chief Editor, BUSINESS MANAGER
Email: akaushikus@yahoo.com
Phone: 09829133699

From India, Delhi
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I understand that the same person is involved in separate but similar misconducts. He was found guilty by EO. The said EO would have the knowledge of the delinquent's involvement in the earlier case, similar to the present one. Hence, findings may not be in tune with the principle of natural justice. When contested at a later stage, the court may find that the inquiry is vitiated.

Therefore, it is desirable to appoint another enquiry officer than taking a risk. (Be proactive)

HC. Subbaramu HR & Labour Law Consultant Bangalore

From India, Kochi
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Dear,

I agree with Mr. Anil Kausik; he is absolutely right. As Mr. Subbaramu has said, the court may vitiate this inquiry. My views are different. The court can vitiate any inquiry, but what is the legal position? The answer given by Mr. Kausik is absolutely correct.

From India, Delhi
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Domestic enquiry processes have evolved through several judgments on the subject. Legally, there is no bar appointing the same EO to handle another inquiry of the same person having the same or similar misconduct. Even in courts, criminals convicted of an earlier offense (say theft) cannot ask for a change of judge on the grounds that the judge already knew he was a thief and therefore he would be biased! It would be proper and in order that the Disciplinary authority receives the written objection, applies his mind carefully, passes a "Speaking order" rejecting or accepting the claim of attributed prejudice or bias. In either case, his order must be communicated in writing, and acknowledgment obtained from the delinquent employee.

Once this is done and is part of the proceedings, there is no danger of this being viewed adversely by any court on appeal. Many organizations cannot afford to keep changing the Enquiry Officer at the drop of a hat and for every objection raised by a charge-sheeted employee. This does not even qualify to be a minor infirmity. There are clear verdicts in which the courts have held that minor infirmities in the chargesheet or the process of inquiry would not vitiate the findings, conclusions, or the punishment order.

From India, Madras
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Dear all,

The procedures followed in the Law of Cromes are directed by CRPC. They are controlled by written laws. Whereas domestic enquiries are guided by the Principle of Natural Justice. We do not have codified written laws; they are developed by various judgments, especially by our honorable Supreme Court.

One principle of natural justice is that the Enquiry Officer should not have personal knowledge of the charges alleged against the delinquent employee. Hence, in the present case, it is desirable to appoint another Enquiry Officer. (We are all aware of how lenient the courts are towards labor.)

Thank you,
HC. Subbaramu,
Bangalore

From India, Kochi
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Dear Thiagaraju,

Effect of Perverse Attitude of Those Responsible for Investigation & Inquiry:

Good governance presupposes two pristine qualities on the part of the governor. These are, - the first quality being integrity or honesty of purpose and approach. The second and equally important characteristic is capacity or efficiency. Good faith consists of honesty plus care and attention. Even if there are no malicious content or inherent desire to inflict injury, the inquiry will not render justice unless objectivity and proper standards are observed in the inquiry process.

The PO is an honest person and he suffers no ill-will towards the charged officer, but he holds the honest, but perverse view that his duty is to prove the charges "somehow" and if he fails to achieve this, he is an under-performer.

Similarly, the inquiry officer feels that if the charges are proved, it is a case of defense failing and if the charges are not proved, then it is the management that is falling, and he has inherent responsibility to the management. So whenever the management fails, he makes a compromise and gives a verdict of fifty-fifty (mechanically holding some charges as proved and some as not proved).

Similarly, if the disciplinary authority were to presume that the more cases of "misconduct" that he is able to establish and effect punishments, it demonstrates the effectiveness of the system of preventive discipline.

The investigating officer is a typical fault finder. He thinks negatively that his job is to invent faults. He proceeds with the task with suspicion and mistrust occupied in his mind. He feels that he is sent to "catch the villain" and starts searching for the catch. He fills up the page laboring hard with several procedural "inexactitudes" that he can make out.

Or else, no investigation is conducted and on receipt of a complaint, the charged officer's comments are directly called for, and thereafter a charge sheet is straight away issued. But when it happens, what are the sources (evidences) for proving the charge sheet. This problem is left to the presenting officer to face.

What is the position of a charged officer in all these occasions? Can he expect to get undiluted justice?

- R. Kannan

Every organization has a different set of conduct rules and DA regulations. Hence there are no hard and fast rules regarding the methods adopted in changing or keeping the same Inquiry Officer. Reliance on case laws is also not needed because these are quasi-judicial functions; they do not operate under a Uniform Civil Code for all organizations.

The practices may differ from organization to organization. However, in order to give a fair and reasonable opportunity to the CSO (Chargesheeted Officer), we change the Inquiry Officer who had already held him guilty to avoid him sitting with a preconceived notion about the CSO.

Regards,

Chandrasekhar

From India, Hyderabad
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Sir, I have gone through all such discussions, and all are excellent. It is true that the management has the inherent right to appoint EO, MR, or even to accept or reject the findings of EO. The only plea is that if the EO is found guilty of the charge and it is proved, for that reason, a change of EO is not lawful. During the course of a domestic enquiry, it has to be kept in mind that the principle of natural justice is followed.

pkc3000

From India, Koraput
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Mere because EO had already held that charges were proved cannot be termed as bias, and it also can't be the ground for the change in EO. If any other reason is given, that might be highlighted here for our suggestions.
From India, Tiruchchirappalli
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Tamilnadu go with regard to change of domestic enquiry officer cannot be considered as industrial dispute act
From India, Chennai
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