The punishment should be decided in accordance with the standing orders applicable upon your industry. - S.K. Mittal 9319956443
From India, Faridabad
50From India, Faridabad
Mr. Mittal,
My query to you is, what happens if the activity specifically is not listed in the Standing Orders. The misconduct list is not (and can not) be comprehensive. For example, no one has a misconduct for 'Murder of employee in or out of the premises' (sorry taking a wild example)
So in this case, it is a criminal activity (carrying liquor in a dry state) and it may not be in the Standing Orders because no one ever thought it will happen. So does that mean the person can not be removed from the job for it? Or what clause or what reason should they use for it?
For example, in Central Model Standing Orders, the following only are Misconduct :
(a) wilful in subordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) theft, fraud or dishonesty in connection with the employer’s business or
property,
(c) willful damage to or loss of employer’s goods or property,
(d) taking or giving bribes or any illegal gratification,
(e) habitual absence without leave or absence without leave for more than 10 days,
(f) habitual late attendance,
(g) habitual breach of any law applicable to the establishment,
(h) riotous or disorderly behaviors during working hours at the establishment or any act discipline,
(i) habitual negligence or neglect of work,
subversive of
(j) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month.
(k) striking work or inciting others to strike work in contravention of the provision of any law, or rule having the force of law.
So, the person can be removed only if he repeatedly brings liquor into the factory in violation of Dry State law?
I hope there is a way out on this
From India, Mumbai
My query to you is, what happens if the activity specifically is not listed in the Standing Orders. The misconduct list is not (and can not) be comprehensive. For example, no one has a misconduct for 'Murder of employee in or out of the premises' (sorry taking a wild example)
So in this case, it is a criminal activity (carrying liquor in a dry state) and it may not be in the Standing Orders because no one ever thought it will happen. So does that mean the person can not be removed from the job for it? Or what clause or what reason should they use for it?
For example, in Central Model Standing Orders, the following only are Misconduct :
(a) wilful in subordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) theft, fraud or dishonesty in connection with the employer’s business or
property,
(c) willful damage to or loss of employer’s goods or property,
(d) taking or giving bribes or any illegal gratification,
(e) habitual absence without leave or absence without leave for more than 10 days,
(f) habitual late attendance,
(g) habitual breach of any law applicable to the establishment,
(h) riotous or disorderly behaviors during working hours at the establishment or any act discipline,
(i) habitual negligence or neglect of work,
subversive of
(j) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month.
(k) striking work or inciting others to strike work in contravention of the provision of any law, or rule having the force of law.
So, the person can be removed only if he repeatedly brings liquor into the factory in violation of Dry State law?
I hope there is a way out on this
From India, Mumbai
Before issuing charge memo, don't think of punishment. Do conduct the domestic enquiry following with principles of natural justice. If the charges levelled against the delinquent are proved, then you can award major punishment as per your Standing Orders. Suspension pending enquiry is advisable. Because it will send a warning message to the other employees who wants to commit misconduct. Before passing the order of dismissal, you have to verify that 2k disputes (in respect of the delinquent-union) are pending with the court or not?
From India, Madurai
From India, Madurai
Shri C M L Srivastava sir
He is working as fire man in fire & safety dept.
Ours is power plant and he is working in hazardous area.
He was transferring the hidden bottle from back side of pant to his pocket after frisking.
Thank you
From India, Gurgaon
He is working as fire man in fire & safety dept.
Ours is power plant and he is working in hazardous area.
He was transferring the hidden bottle from back side of pant to his pocket after frisking.
Thank you
From India, Gurgaon
Dear colleagues,
After perusing expert views of the learned colleagues above, I would advise the poster to consider the following:
1. The misconduct apparently committed by the concerned employee, as has emerged from the facts narrated, is only carrying / possessing foreign liquor bottle which is s criminal act as per the State's prohibition law. He was found to carry it in the back pocket during working hours while he was on duty at the security entrance by the security staff on duty. His breath analyser test was negative and he did not indulge in riotous, indecent behaviour in the state of drunkenness. Therefore, he needs to be booked under an appropriate charges contained in the Standing Orders and domestic enquiry ordered and completed having regard to the principles of the natural justice.
The question of the punishment will have to be decided after the charges are proved, gravity of the same , aggravating and extenuating circumstances if any as well as his past record.
The action of dismissal , if taken, is bound to be challenged in the Labour court and therefore, foolproof case has to be made out keeping in mind variety of legal aspects as all the issues will be wide open before the court right from fairness of the enquiry, it's merit, punishment whether in proportion to the gravity of the misconduct etc.
To give deterrent message to other workers, it would be an appropriate action if the concerned employee is placed under suspension pending the enquiry as well as examining whether he can be proceeded against parallelly for this misconduct under the Gujrat Prohition law.
Hope you have benefit of the advice from the competent labour lawyer.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
After perusing expert views of the learned colleagues above, I would advise the poster to consider the following:
1. The misconduct apparently committed by the concerned employee, as has emerged from the facts narrated, is only carrying / possessing foreign liquor bottle which is s criminal act as per the State's prohibition law. He was found to carry it in the back pocket during working hours while he was on duty at the security entrance by the security staff on duty. His breath analyser test was negative and he did not indulge in riotous, indecent behaviour in the state of drunkenness. Therefore, he needs to be booked under an appropriate charges contained in the Standing Orders and domestic enquiry ordered and completed having regard to the principles of the natural justice.
The question of the punishment will have to be decided after the charges are proved, gravity of the same , aggravating and extenuating circumstances if any as well as his past record.
The action of dismissal , if taken, is bound to be challenged in the Labour court and therefore, foolproof case has to be made out keeping in mind variety of legal aspects as all the issues will be wide open before the court right from fairness of the enquiry, it's merit, punishment whether in proportion to the gravity of the misconduct etc.
To give deterrent message to other workers, it would be an appropriate action if the concerned employee is placed under suspension pending the enquiry as well as examining whether he can be proceeded against parallelly for this misconduct under the Gujrat Prohition law.
Hope you have benefit of the advice from the competent labour lawyer.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Vinayak,
I asked this before, but I need to repeat it.
This specific act of carrying alcohol and of generally violating any law is not there in most standing orders. As I have stated earlier, it is not even in the model standing orders.
In such a case what happens? How can you hold him guilty of misconduct that is not on the standing orders?
But the intent of the legislation and of the management is not to let him go on account of the fact that he has been caught only once.
So how exactly should the domestic enquiry and the punishment be undertaken. What is the ground (or rule) to be done under?
From India, Mumbai
I asked this before, but I need to repeat it.
This specific act of carrying alcohol and of generally violating any law is not there in most standing orders. As I have stated earlier, it is not even in the model standing orders.
In such a case what happens? How can you hold him guilty of misconduct that is not on the standing orders?
But the intent of the legislation and of the management is not to let him go on account of the fact that he has been caught only once.
So how exactly should the domestic enquiry and the punishment be undertaken. What is the ground (or rule) to be done under?
From India, Mumbai
Dear CiteHR member Shri Salil Menon ji,
I exhibit thanks for the information provided about the delinquent employee and about the industry the case relates to. My opinion is as under:
1. All the Contributing Experts have given advice relevant to the issue. It is apparent that for and against views are available for a better discretion and decision.
2. Now coming to the merits of the case from the side of Management I will emphasize that a Fireman, working in Fire Dept. in a power plant, is expected to be highly disciplined, highly vigilant and must be alert all the time during his duty hours to guard the plant against any mishappening. Attempt of a Fireman in the incident of bringing a foreign liquor inside the premises of a power plant is a threat to the safety and security of the plant. It could endanger his own life and the lives of other employees on duty at that point of time. Such an act can be categorised as a misconduct of gross indiscipline which is a good and sufficient cause to launch disciplinary proceedings against the delinquent Fireman.
3. The said employee may be suspended immediately pending inquiry. The charge sheet should be drafted carefully, statements of witnesses should be recorded and got signed by them, names of witnesses need to be ascertained. After obtaining the reply to the charge sheet from the employee, an Inquiry Officer and a Presenting Officer may be appointed. The IO should be some officer other than the Disciplinary Authority himself.
4. The IO should complete the inquiry on fast track in accordance with prevailing rules, and if rules are not there, in accordance with principles of natural justice and submit the inquiry report to the Disciplinary Authority.
5. The Disciplinary Authority will examine the findings of IO and evidence on record and then take a decision in accordance with the gravity of misconduct.
6. It would be premature to say as to what penalty should be imposed after receipt of inquiry report. The decision may be left to the prerogative of the Disciplinary Authority. It would be improper to comment on this aspect as it amounts to influencing the mind of the authorities.
7. Matter also needs to be reported to the local police being violation of prohibition law as applicable to the State. Law will take its own course. There is no bar on simultaneous proceedings in department and in police.
Hope this answers your queries. However if any other point is there the same will be welcome.
With best regards to all Contributing Experts,
Expressing my thanks,
Chandra Mani Lal Srivastava
Master Consultant & Disciplinary Proceedings Expert
/ 9315516083
New Delhi/23.012022/9:58 pm
From India, New Delhi
I exhibit thanks for the information provided about the delinquent employee and about the industry the case relates to. My opinion is as under:
1. All the Contributing Experts have given advice relevant to the issue. It is apparent that for and against views are available for a better discretion and decision.
2. Now coming to the merits of the case from the side of Management I will emphasize that a Fireman, working in Fire Dept. in a power plant, is expected to be highly disciplined, highly vigilant and must be alert all the time during his duty hours to guard the plant against any mishappening. Attempt of a Fireman in the incident of bringing a foreign liquor inside the premises of a power plant is a threat to the safety and security of the plant. It could endanger his own life and the lives of other employees on duty at that point of time. Such an act can be categorised as a misconduct of gross indiscipline which is a good and sufficient cause to launch disciplinary proceedings against the delinquent Fireman.
3. The said employee may be suspended immediately pending inquiry. The charge sheet should be drafted carefully, statements of witnesses should be recorded and got signed by them, names of witnesses need to be ascertained. After obtaining the reply to the charge sheet from the employee, an Inquiry Officer and a Presenting Officer may be appointed. The IO should be some officer other than the Disciplinary Authority himself.
4. The IO should complete the inquiry on fast track in accordance with prevailing rules, and if rules are not there, in accordance with principles of natural justice and submit the inquiry report to the Disciplinary Authority.
5. The Disciplinary Authority will examine the findings of IO and evidence on record and then take a decision in accordance with the gravity of misconduct.
6. It would be premature to say as to what penalty should be imposed after receipt of inquiry report. The decision may be left to the prerogative of the Disciplinary Authority. It would be improper to comment on this aspect as it amounts to influencing the mind of the authorities.
7. Matter also needs to be reported to the local police being violation of prohibition law as applicable to the State. Law will take its own course. There is no bar on simultaneous proceedings in department and in police.
Hope this answers your queries. However if any other point is there the same will be welcome.
With best regards to all Contributing Experts,
Expressing my thanks,
Chandra Mani Lal Srivastava
Master Consultant & Disciplinary Proceedings Expert
New Delhi/23.012022/9:58 pm
From India, New Delhi
Dear Saswat and contributing colleagues,
Assuming that , Model Standing Orders are applicable to this establishment, the act of the deliquent employee, will fall within the generic clause " The act subversive of good discipline and good bahavior" listed in the MSO. along with "habitual " breaching the rules ( provided the concerned employee had indulged in it more than three occasions which has to be factually verified with documents and then booked under this clause).
It is not necessary that all the specific acts of misconducts such as " possession of liquor while on duty " should be included in the misconducts in the Certified/ MSO list. The generic clause referred to the above, is generally invoked alondwith specific acts, if any, in the chargesheet.
The chargesheet needs to be well worded with the facts and the domestic enquiry proceeded with. The EO and disciplinary authority, have to be seperate , independent and enquiry has to be conducted strictly according to the principles of natural justice.
As regards, punishment aspect, it is premature to give specific advice on the type and gravity unless the report of the EO is made available.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Assuming that , Model Standing Orders are applicable to this establishment, the act of the deliquent employee, will fall within the generic clause " The act subversive of good discipline and good bahavior" listed in the MSO. along with "habitual " breaching the rules ( provided the concerned employee had indulged in it more than three occasions which has to be factually verified with documents and then booked under this clause).
It is not necessary that all the specific acts of misconducts such as " possession of liquor while on duty " should be included in the misconducts in the Certified/ MSO list. The generic clause referred to the above, is generally invoked alondwith specific acts, if any, in the chargesheet.
The chargesheet needs to be well worded with the facts and the domestic enquiry proceeded with. The EO and disciplinary authority, have to be seperate , independent and enquiry has to be conducted strictly according to the principles of natural justice.
As regards, punishment aspect, it is premature to give specific advice on the type and gravity unless the report of the EO is made available.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
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