Title: How to Conduct Domestic Inquiry Lawfully Error-Free
In India, no worker/employee can be lawfully discharged from service/terminated from employment/muster roll without the following legally-compulsory action steps:
1. Without issuing a proper written charge-sheet or explanation letter containing:
a) The act of misconduct alleged against him or her,
b) Date, time, and place of occurrence of the alleged acts of misconduct,
c) Without giving him or her a reasonable opportunity to submit his or her reply/explanation in writing within the stipulated time, and
d) Without the issuing authority/punishing authority applying his or her mind to the reply/explanation submitted in his or her defense.
2. Without ordering and conducting a fair and proper domestic inquiry/internal inquiry in accordance with the principles of natural justice, as well as the procedures laid down by the apex court/judiciary for such domestic/internal inquiries which includes:
i) The punishing authority duly appointing, in writing, either an inquiry officer (one person) or an inquiry committee (comprising of more than one person) and asking him/her or them to conduct a fair and proper inquiry into the alleged acts of misconduct as per laid down procedures and submit an inquiry report in writing with definite and conclusive findings.
ii) The inquiry officer or committee must give all reasonable opportunities to the charge-sheeted employee to defend his/her actions, including his or her inalienable right to produce/examine all documentary evidence and/or witnesses in his or her defense and right to be represented by his or her co-worker or representative/official of the union of which he or she is a member, giving him or her opportunities to cross-examine the evidence and witness produced/examined by the employer (management through the management's representative).
Employee/management or the inquiry officer/committee cannot deny the charge-sheeted employee an opportunity to be represented/assisted by a lawyer/advocate/legally trained person if and when the employer/management associates a lawyer/advocate/legally trained person of its/their choice, so allowed to be present during the inquiry proceedings.
Also, there are certain do's and don'ts to be ideally followed by:
i) Inquiry officer or inquiry committee,
ii) Charge-sheeted employee,
iii) Management representative,
iv) Charge-sheeted employee's representative/union office-bearer, as the case may be, and above all
v) Employer/management/punishing authority.
The moot point is:
1. How many of us associated with disciplinary action or conducting inquiry are actually aware of the laid down procedures?
2. How many of us employer/management/punishing/disciplining authority are really and genuinely following the inquiry procedures?
3. How many of us are fully aware of the meaning, purpose, and application of the principles of natural justice while conducting domestic inquiries?
Conducting inquiry casually and/or without following laid down procedures have invariably resulted in the judiciary declaring the inquiry held and inquiry report submitted and disciplinary action taken as null and void, a sham, and in cases awarded reinstatement.
Clarifications welcome.
Sharan, XLRI Alumnus,
6th October 2017
From India, Delhi
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214In India, no worker/employee can be lawfully discharged from service/terminated from employment/muster roll without the following legally-compulsory action steps:
1. Without issuing a proper written charge-sheet or explanation letter containing:
a) The act of misconduct alleged against him or her,
b) Date, time, and place of occurrence of the alleged acts of misconduct,
c) Without giving him or her a reasonable opportunity to submit his or her reply/explanation in writing within the stipulated time, and
d) Without the issuing authority/punishing authority applying his or her mind to the reply/explanation submitted in his or her defense.
2. Without ordering and conducting a fair and proper domestic inquiry/internal inquiry in accordance with the principles of natural justice, as well as the procedures laid down by the apex court/judiciary for such domestic/internal inquiries which includes:
i) The punishing authority duly appointing, in writing, either an inquiry officer (one person) or an inquiry committee (comprising of more than one person) and asking him/her or them to conduct a fair and proper inquiry into the alleged acts of misconduct as per laid down procedures and submit an inquiry report in writing with definite and conclusive findings.
ii) The inquiry officer or committee must give all reasonable opportunities to the charge-sheeted employee to defend his/her actions, including his or her inalienable right to produce/examine all documentary evidence and/or witnesses in his or her defense and right to be represented by his or her co-worker or representative/official of the union of which he or she is a member, giving him or her opportunities to cross-examine the evidence and witness produced/examined by the employer (management through the management's representative).
Employee/management or the inquiry officer/committee cannot deny the charge-sheeted employee an opportunity to be represented/assisted by a lawyer/advocate/legally trained person if and when the employer/management associates a lawyer/advocate/legally trained person of its/their choice, so allowed to be present during the inquiry proceedings.
Also, there are certain do's and don'ts to be ideally followed by:
i) Inquiry officer or inquiry committee,
ii) Charge-sheeted employee,
iii) Management representative,
iv) Charge-sheeted employee's representative/union office-bearer, as the case may be, and above all
v) Employer/management/punishing authority.
The moot point is:
1. How many of us associated with disciplinary action or conducting inquiry are actually aware of the laid down procedures?
2. How many of us employer/management/punishing/disciplining authority are really and genuinely following the inquiry procedures?
3. How many of us are fully aware of the meaning, purpose, and application of the principles of natural justice while conducting domestic inquiries?
Conducting inquiry casually and/or without following laid down procedures have invariably resulted in the judiciary declaring the inquiry held and inquiry report submitted and disciplinary action taken as null and void, a sham, and in cases awarded reinstatement.
Clarifications welcome.
Sharan, XLRI Alumnus,
6th October 2017
From India, Delhi
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First & foremost without written complaint. How can you miss that!
From India, Mumbai
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From India, Mumbai
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