Hello friends,
I need your valuable advice for my query below. During suspension pending enquiry proceedings, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on his behalf? Please provide sufficient court orders that authorize him to engage a lawyer.
Thank you,
Sreedevi
From India, Thiruvananthapuram
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2I need your valuable advice for my query below. During suspension pending enquiry proceedings, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on his behalf? Please provide sufficient court orders that authorize him to engage a lawyer.
Thank you,
Sreedevi
From India, Thiruvananthapuram
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The purpose of conducting a domestic inquiry is to allow or offer sufficient opportunity to the delinquent employee who is charged with misconduct. Normally, an ordinary employee is not well aware of the procedure and practices followed in the inquiry. Also, he may not have the skills to pose cross-questions to the management's witnesses and thus defend his case. Hence, the assistance of a co-worker or a union representative has been permitted by making specific provisions in the Model Standing Orders.
In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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The relevant provision of Model Standing order is attached
From India, Kolhapur
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From India, Kolhapur
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It is the general practice that an employee, along with the advocate, is allowed to deal with matters. However, it is not acceptable for the advocate to handle matters alone in the absence of an employee, unless the employee is physically or mentally unable to attend and deal with them. In the presence of an employee, the advocate can deal with all matters, inquiries, and related procedures completely.
From India, Bangalore
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From India, Bangalore
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Dear Sreedevi,
In the normal course of a domestic enquiry, the engagement of a lawyer by the delinquent employee is not allowed unless the rules for the conduct of such an enquiry permit it. I am attaching two judgments in this regard:
(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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In the normal course of a domestic enquiry, the engagement of a lawyer by the delinquent employee is not allowed unless the rules for the conduct of such an enquiry permit it. I am attaching two judgments in this regard:
(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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If the rules permit or if the management is represented by an advocate, then the employee is entitled to be represented by an advocate. This is the general rule. However, there are court rulings holding that if the charges are very complicated to defend, then an advocate can be allowed for compliance with natural justice.
If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
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If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
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Dear friends,
My opinion is that more than anything, the provisions of SO/Conduct & Disciplinary Rules which govern them have a say in the matter as other citations can apply to the specific cases relevant rather than suo-motto apply to all the cases. This is because every case will have certain specifics different from the others. Surprisingly, there are different judgments passed by various courts. As you could see from the attached citations, some are in favor and some are against, just because circumstances differ. So one has to approach based on the merits of each case.
I'm sure this would provide interesting reading to our friends who seek such things.
http://police.pondicherry.gov.in/pol...ASE%20LAWS.pdf.
From India, Bangalore
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My opinion is that more than anything, the provisions of SO/Conduct & Disciplinary Rules which govern them have a say in the matter as other citations can apply to the specific cases relevant rather than suo-motto apply to all the cases. This is because every case will have certain specifics different from the others. Surprisingly, there are different judgments passed by various courts. As you could see from the attached citations, some are in favor and some are against, just because circumstances differ. So one has to approach based on the merits of each case.
I'm sure this would provide interesting reading to our friends who seek such things.
http://police.pondicherry.gov.in/pol...ASE%20LAWS.pdf.
From India, Bangalore
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Dear friends,
It's generally accepted privilege for a charged employee to represent himself by a Union rep. Suppose the very same Union rep happened to be a Law graduate, if not a practicing Advocate being an employee or a non-employee but part of the Union, then how could the lawyer be denied to represent the charged/accused employee? I have come across many union office bearers who are not an employee per se but prominent politicians, practicing advocates, prominent labor leaders, sometimes retired employees, etc., who can still take part in such disputes and inquiries. They can also sign settlements, agreements on behalf of the Union/employees like wage settlements, conciliations, etc. Then, how can they be denied either assisting or participating in the inquiry? Some member Advocates in practice might like to contribute with their experiences.
From India, Bangalore
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It's generally accepted privilege for a charged employee to represent himself by a Union rep. Suppose the very same Union rep happened to be a Law graduate, if not a practicing Advocate being an employee or a non-employee but part of the Union, then how could the lawyer be denied to represent the charged/accused employee? I have come across many union office bearers who are not an employee per se but prominent politicians, practicing advocates, prominent labor leaders, sometimes retired employees, etc., who can still take part in such disputes and inquiries. They can also sign settlements, agreements on behalf of the Union/employees like wage settlements, conciliations, etc. Then, how can they be denied either assisting or participating in the inquiry? Some member Advocates in practice might like to contribute with their experiences.
From India, Bangalore
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Dear all,
The judicial dictum is well settled that the assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So, the assistance of an advocate is not by default and is to be allowed only where the Presenting Officer is a trained legal mind (like a practicing advocate or a prosecutor from the Police Establishment) and where the facts are too complicated and carry legal issues which have not been settled so far by the higher courts.
KK
From India, Bhopal
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The judicial dictum is well settled that the assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So, the assistance of an advocate is not by default and is to be allowed only where the Presenting Officer is a trained legal mind (like a practicing advocate or a prosecutor from the Police Establishment) and where the facts are too complicated and carry legal issues which have not been settled so far by the higher courts.
KK
From India, Bhopal
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One final point in this matter. If any of the members are preparing standing orders, make it in such a way that only a coworker can be allowed to assist the delinquent employee, and not an advocate or TU leaders. A coworker may be a TU executive, but it is of less consequence than an external leader who, in most cases, will be an advocate or a politician who will complicate the inquiry. The existing SOs can also be amended along these lines.
Varghese Mathew
Labour Law Adviser
09961266966
From India, Thiruvananthapuram
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Varghese Mathew
Labour Law Adviser
09961266966
From India, Thiruvananthapuram
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