Punishment to Employee
Any punishment of suspension or dismissal can be imposed after conducting a ‘Domestic Enquiry’. Principles of natural justice have to be followed. Termination of an employee without following principles of natural justice is violative of Article 21 of Constitution - D K Yadav v. JMA Industries Ltd. 1993(67) FLR 111 (SC) = 1993 LLR 584 = 1993 AIR SCW 1995 = (1993) 3 SCC 259 = 1993(3) SCALE 39 = JT (1993) 3 SC 617 = 1993(2) LLN 575 (SC).
For proper conduct of enquiry (1) Employee should be informed of charges leveled against him (2) Witnesses should be ordinarily examined before him. (3) The employee should be given fair opportunity to cross examine the witnesses, including himself (4) The enquiry officer should record his findings with reasons. – Sur Enamel v. Workmen (1964) 3 SCR 616 = (1963) 2 LLJ 367 (SC) * Calcutta Dock Labour Board v. J Imam (1965) 3 SCR 453 = 1965(2) LLJ 112 (SC).
The workman is issued with a ‘Show Cause Notice’ giving details of charges of misconduct against him. He has to give his reply. Then, enquiry into charges is conducted by an ‘Enquiry Officer’ appointed by Management. Such ‘Enquiry Officer’ can be an employee of the company or an outsider. The workman can defend himself before the Enquiry Officer or he can be defended by his co-worker or a Union Representative. The workman is not allowed to engage a lawyer to defend his case. After enquiry, the ‘Enquiry Officer’ has to give his findings and state whether he finds the workman ‘guilty’ or ‘not guilty’. He should give reasons for his views. However, the ‘Enquiry Officer’ should not give his opinion about the punishment that should be imposed on the workman. Copy of the report of Enquiry Officer has to be given to the workman. - UOI v. Mohd Ramzan Khan - (1991) 1 SCC 588 = AIR 1991 SC 471 = JT (1990) 4 SC 456 = 1990(2) SCALE 1094 = 1991 I CLR 61 (SC). The workman has right to state his case on the basis of ‘Enquiry Report’ e.g. the workman may agree that he is guilty but may plead for leniency, or he may point out discrepancies in the report of ‘Enquiry Officer’. After the reply of workman, the authorised Manager will go through enquiry papers, report of Enquiry Officer and observations/reply of workman on the report of Enquiry Officer. The Authorised Manager will then issue suitable order. The ‘Disciplinary Authority’ should not be lower in rank or grade than the ‘Appointing Authority’
From India, Bahadurgarh
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51Any punishment of suspension or dismissal can be imposed after conducting a ‘Domestic Enquiry’. Principles of natural justice have to be followed. Termination of an employee without following principles of natural justice is violative of Article 21 of Constitution - D K Yadav v. JMA Industries Ltd. 1993(67) FLR 111 (SC) = 1993 LLR 584 = 1993 AIR SCW 1995 = (1993) 3 SCC 259 = 1993(3) SCALE 39 = JT (1993) 3 SC 617 = 1993(2) LLN 575 (SC).
For proper conduct of enquiry (1) Employee should be informed of charges leveled against him (2) Witnesses should be ordinarily examined before him. (3) The employee should be given fair opportunity to cross examine the witnesses, including himself (4) The enquiry officer should record his findings with reasons. – Sur Enamel v. Workmen (1964) 3 SCR 616 = (1963) 2 LLJ 367 (SC) * Calcutta Dock Labour Board v. J Imam (1965) 3 SCR 453 = 1965(2) LLJ 112 (SC).
The workman is issued with a ‘Show Cause Notice’ giving details of charges of misconduct against him. He has to give his reply. Then, enquiry into charges is conducted by an ‘Enquiry Officer’ appointed by Management. Such ‘Enquiry Officer’ can be an employee of the company or an outsider. The workman can defend himself before the Enquiry Officer or he can be defended by his co-worker or a Union Representative. The workman is not allowed to engage a lawyer to defend his case. After enquiry, the ‘Enquiry Officer’ has to give his findings and state whether he finds the workman ‘guilty’ or ‘not guilty’. He should give reasons for his views. However, the ‘Enquiry Officer’ should not give his opinion about the punishment that should be imposed on the workman. Copy of the report of Enquiry Officer has to be given to the workman. - UOI v. Mohd Ramzan Khan - (1991) 1 SCC 588 = AIR 1991 SC 471 = JT (1990) 4 SC 456 = 1990(2) SCALE 1094 = 1991 I CLR 61 (SC). The workman has right to state his case on the basis of ‘Enquiry Report’ e.g. the workman may agree that he is guilty but may plead for leniency, or he may point out discrepancies in the report of ‘Enquiry Officer’. After the reply of workman, the authorised Manager will go through enquiry papers, report of Enquiry Officer and observations/reply of workman on the report of Enquiry Officer. The Authorised Manager will then issue suitable order. The ‘Disciplinary Authority’ should not be lower in rank or grade than the ‘Appointing Authority’
From India, Bahadurgarh
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Principles of natural justice are based on the Roman law 'Jus naturale' meaning "Hear the other side" and that "no man should be the judge of his own cause."
The Supreme Court in various court decisions has laid down the principles to be followed before visiting any employee with a punishment. The Standing orders lay down the procedures to be followed in dealing with disciplinary cases.
The basic steps to be taken are:
1. Issue of charge sheet/show cause notice
2. Consideration of the reply of the charged employee by the Disciplinary authority
3. If the reply is not found satisfactory, appointment of Enquiry Officer
4. Consideration of the case by the enquiry officer
a. Complainant to be heard first and cross-examined
b. Complainant's witnesses to be heard one by one and cross-examined by defense/charged employee/co-worker
c. Defense witnesses to be examined one by one and cross-examined by the prosecution
d. Charged employee may examine himself (if he chooses to) and be cross-examined by prosecution
5. Submission of the enquiry report by the Enquiry Officer to the Disciplinary Authority
6. Consideration of the report by Disciplinary Authority and communication to the charged employee
7. Reply by the charged employee
8. Consideration of the reply of the charged employee and the final decision of DA.
With the above steps, the principles of natural justice are deemed to have been followed.
Cyril
From India, Nagpur
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The Supreme Court in various court decisions has laid down the principles to be followed before visiting any employee with a punishment. The Standing orders lay down the procedures to be followed in dealing with disciplinary cases.
The basic steps to be taken are:
1. Issue of charge sheet/show cause notice
2. Consideration of the reply of the charged employee by the Disciplinary authority
3. If the reply is not found satisfactory, appointment of Enquiry Officer
4. Consideration of the case by the enquiry officer
a. Complainant to be heard first and cross-examined
b. Complainant's witnesses to be heard one by one and cross-examined by defense/charged employee/co-worker
c. Defense witnesses to be examined one by one and cross-examined by the prosecution
d. Charged employee may examine himself (if he chooses to) and be cross-examined by prosecution
5. Submission of the enquiry report by the Enquiry Officer to the Disciplinary Authority
6. Consideration of the report by Disciplinary Authority and communication to the charged employee
7. Reply by the charged employee
8. Consideration of the reply of the charged employee and the final decision of DA.
With the above steps, the principles of natural justice are deemed to have been followed.
Cyril
From India, Nagpur
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Can you quote the Judgements referred therein. I agree with u. Reference quote.... Regards Arun K Mishra
From India, Bahadurgarh
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From India, Bahadurgarh
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There are hundreds of decisions on the subject. Unfortunately, the reference material is not here with me in Australia. You can refer to Labour Law Journals or any book on Domestic Enquiry. In fact, the different principles of natural justice have been evolved based on judicial pronouncements.
Cyril
From India, Nagpur
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Cyril
From India, Nagpur
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Charged Employee has a right for a charge sheet or any other disciplinary document to be served on him in his preferred language, that is, English or Hindi as per his desire in case "statutory & mandatory" Rules of official language (Rajbhasha Niyam) 1976 are applicable to the place of work. The Official Languages (Use for Official Purpose of the Union) RULES, 1976 (As Amended, 1987)
G.S.R 1052 - In exercise of the powers conferred by section 8, read with sub-section (4) of section 3 of the Official Languages Act, 1963 (19 of 1963), the Central Government hereby makes the following rules, namely; 7. Application, representations etc. -
(1) An employee may submit an application, appeal, or representation in Hindi or in English.
(2) Any application, appeal, or representation referred to in sub-rule (1) when made or signed in Hindi shall be replied to in Hindi.
(3) Where an employee desires any order or notice relating to service matters (including disciplinary proceedings) required to be served on him to be in Hindi, or as the case may be, in English, it shall be given to him in that language without undue delay.
From India, Ajmer
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G.S.R 1052 - In exercise of the powers conferred by section 8, read with sub-section (4) of section 3 of the Official Languages Act, 1963 (19 of 1963), the Central Government hereby makes the following rules, namely; 7. Application, representations etc. -
(1) An employee may submit an application, appeal, or representation in Hindi or in English.
(2) Any application, appeal, or representation referred to in sub-rule (1) when made or signed in Hindi shall be replied to in Hindi.
(3) Where an employee desires any order or notice relating to service matters (including disciplinary proceedings) required to be served on him to be in Hindi, or as the case may be, in English, it shall be given to him in that language without undue delay.
From India, Ajmer
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Hi Dear Cyril, akm18, and revribhav,
Thanks a ton for such wonderful posts of yours. I have an academic query; hope you can clarify the same.
In the scenario where an employee submits his resignation by fax before receiving a suspension notice, and subsequently the management lodges a criminal case against the employee, when the employee receives a notice for an inquiry, he claims that the inquiry is void ipso facto due to the alleged prejudice of the inquiry officer (as the officer had filed a police case on behalf of the company). Despite this, the inquiry is conducted ex parte, resulting in the termination of the employee. However, the proceedings and findings of the inquiry are not shared with the employee.
After the court rules in favor of the employee, can the termination or the findings of the inquiry (though belatedly) be challenged? What would be the appropriate forum for this challenge?
Thank you in advance.
From India, Delhi
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Thanks a ton for such wonderful posts of yours. I have an academic query; hope you can clarify the same.
In the scenario where an employee submits his resignation by fax before receiving a suspension notice, and subsequently the management lodges a criminal case against the employee, when the employee receives a notice for an inquiry, he claims that the inquiry is void ipso facto due to the alleged prejudice of the inquiry officer (as the officer had filed a police case on behalf of the company). Despite this, the inquiry is conducted ex parte, resulting in the termination of the employee. However, the proceedings and findings of the inquiry are not shared with the employee.
After the court rules in favor of the employee, can the termination or the findings of the inquiry (though belatedly) be challenged? What would be the appropriate forum for this challenge?
Thank you in advance.
From India, Delhi
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Hi Dear Cyril, akm18, and revribhav,
One important thing that skipped my attention previously is: is it mandatory for an organization to submit to the appropriate authority the findings of the inquiry report? Can the appropriate authority also hear out the employee in the eventuality of proceedings being ex parte, especially if there are documentary proofs indicating that concerns about the fairness of the inquiry were raised well in advance before the initiation and prosecution of the inquiry in the instant case? Kindly provide your valuable inputs.
Thanks once again.
From India, Delhi
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One important thing that skipped my attention previously is: is it mandatory for an organization to submit to the appropriate authority the findings of the inquiry report? Can the appropriate authority also hear out the employee in the eventuality of proceedings being ex parte, especially if there are documentary proofs indicating that concerns about the fairness of the inquiry were raised well in advance before the initiation and prosecution of the inquiry in the instant case? Kindly provide your valuable inputs.
Thanks once again.
From India, Delhi
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Check LisCheck List ofr Disciplinary Proceedings Domestic Enquiry 11 Sep 09.doc
DOMESTIC ENQUIRY.ppt