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
47Any 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
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 dicsions has laid down the principles to be followed before visiting any emplyee with a punishment. The Standing orders lay down the procedures to be followed in dealing with disciplianay cases.
The basic steps to be taken are:
1 Issue of charge sheet/show cause notice
2 Consideration of reply of the charged emploee by the Discipliany
authority
3.If reply not found satisfactory, appointment of Enquiry Officer
4.Consideration of case by the enquiry officer
a. Complainant to be heard first and cross examined
b. Comlainants witnesses to be heard one by one and cross
examined by defence/charged employee/co worker
c. Defence witnesses to be examined one by one and cross
examined by prosecution
d. Charged employee may examine himself ( If he chooses to) and
be cross examined by prosectution
5. Submission of enquiry report by the Enquiry Officer to Discipliany Authority
6. Consideration of report by Discipl. Authority
and communication to Charged employee
7. Reply by charged employee.
8. Consideration of reply of charged emplyee and final decision of DA.
With the above steps the principles of natural justice are deemed to have been followed.
Cyril
From India, Nagpur
The Supreme Court in various court dicsions has laid down the principles to be followed before visiting any emplyee with a punishment. The Standing orders lay down the procedures to be followed in dealing with disciplianay cases.
The basic steps to be taken are:
1 Issue of charge sheet/show cause notice
2 Consideration of reply of the charged emploee by the Discipliany
authority
3.If reply not found satisfactory, appointment of Enquiry Officer
4.Consideration of case by the enquiry officer
a. Complainant to be heard first and cross examined
b. Comlainants witnesses to be heard one by one and cross
examined by defence/charged employee/co worker
c. Defence witnesses to be examined one by one and cross
examined by prosecution
d. Charged employee may examine himself ( If he chooses to) and
be cross examined by prosectution
5. Submission of enquiry report by the Enquiry Officer to Discipliany Authority
6. Consideration of report by Discipl. Authority
and communication to Charged employee
7. Reply by charged employee.
8. Consideration of reply of charged emplyee and final decision of DA.
With the above steps the principles of natural justice are deemed to have been followed.
Cyril
From India, Nagpur
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 priciples of natural justice have been evolved based on judicial pronouncements.
Cyril
From India, Nagpur
Cyril
From India, Nagpur
Chartged Employee has a right for 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 (RajabhaSha 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
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
Hi Dear Cyril, akm18 and revribhav,
Thanks a tonne for such wonderful posts of yours. I have a academic query hope you may be clarify the same.
In case an employee before getting the suspension notice submits his resignation by fax, subsequently (the management lodges a criminal case against the employee as well) when he gets a notice for enquiry he replies that the enquiry is ipso facto void as the enquiry officer is prejudiced (as he has lodged police case by and on behalf of the company). Still the enquiry is conducted ex party and results in termination of employee (but the proceedings and findings of the enquiry has not been furnished to the the employee). After the verdict being in favour of the employee by the Court order can the termination or finding of the enquiry (albiet belatedly) could be challanged. What would be the appropriate forum kindly give your inputs.
Thanking you in advance
From India, Delhi
Thanks a tonne for such wonderful posts of yours. I have a academic query hope you may be clarify the same.
In case an employee before getting the suspension notice submits his resignation by fax, subsequently (the management lodges a criminal case against the employee as well) when he gets a notice for enquiry he replies that the enquiry is ipso facto void as the enquiry officer is prejudiced (as he has lodged police case by and on behalf of the company). Still the enquiry is conducted ex party and results in termination of employee (but the proceedings and findings of the enquiry has not been furnished to the the employee). After the verdict being in favour of the employee by the Court order can the termination or finding of the enquiry (albiet belatedly) could be challanged. What would be the appropriate forum kindly give your inputs.
Thanking you in advance
From India, Delhi
Hi Dear Cyril, akm18 and revribhav,
One important thing skipped my attention previously is it mandatory for an organization to submit to the appropriate authority the finding of the enquiry report and whether the appropriate authority can also hear out the employee in the eventuality of proceedings be ex party and there are documentary proof to the effect that well in advance aspirations about the fairness of the enquiry were alleged before initiation and prosecution of the enquiry in the instant case. Kindly give your valuable inputs.
Thanks once again.
From India, Delhi
One important thing skipped my attention previously is it mandatory for an organization to submit to the appropriate authority the finding of the enquiry report and whether the appropriate authority can also hear out the employee in the eventuality of proceedings be ex party and there are documentary proof to the effect that well in advance aspirations about the fairness of the enquiry were alleged before initiation and prosecution of the enquiry in the instant case. Kindly give your valuable inputs.
Thanks once again.
From India, Delhi
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