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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248We 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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