Dear all,
The process of termination for misconduct, as I read, is as follows:
Stage 1: Written Complaint [Allegations & Surrounding Facts]
Stage 2: Preliminary Enquiry [Whether there exists a prima facie case?]
Stage 3: Charge Sheet [Detailed Facts & Allegations + Should not be Vague + In Writing + Signed]
Stage 4: Enquiry Officer [Free from any bias or pre-conceived notions + Acquainted with the Procedures]
Stage 5: Show Cause Notice [Details of All Findings]
Stage 6: Punishment [Should not be construed as victimization or unfair labor practice]
Please guide me as to whether we need to inform any statutory or labor court regarding this. I am the only HR in the Company. How can I effectively carry out this process? Please guide as to who can be the enquiry officer and what should be the timeline for this process?
From India
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The process of termination for misconduct, as I read, is as follows:
Stage 1: Written Complaint [Allegations & Surrounding Facts]
Stage 2: Preliminary Enquiry [Whether there exists a prima facie case?]
Stage 3: Charge Sheet [Detailed Facts & Allegations + Should not be Vague + In Writing + Signed]
Stage 4: Enquiry Officer [Free from any bias or pre-conceived notions + Acquainted with the Procedures]
Stage 5: Show Cause Notice [Details of All Findings]
Stage 6: Punishment [Should not be construed as victimization or unfair labor practice]
Please guide me as to whether we need to inform any statutory or labor court regarding this. I am the only HR in the Company. How can I effectively carry out this process? Please guide as to who can be the enquiry officer and what should be the timeline for this process?
From India
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You need not inform any Labour Court regarding a domestic enquiry. Moreover, Employers shall have full powers to carry out a domestic enquiry and, based on the enquiry report, the Employer is free to initiate disciplinary action against the delinquent employee.
After receiving a complaint regarding allegations against an employee, these charges are to be framed in a proper format where all facts related to the case or complaint shall have to be well-documented and issued to the delinquent employee. For conducting a domestic enquiry, you need to appoint a person, preferably a Bar Council of India registered (legally qualified person) well-versed with domestic enquiry procedures to conduct the enquiry. There shall be a Presiding Officer (from management's side) and an MR (Management Representative). The delinquent employee has the right to represent his case along with a co-worker throughout the enquiry proceedings. Once the EO is appointed, it is his decision for the process time (how long the proceedings will take).
From India, Aizawl
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699After receiving a complaint regarding allegations against an employee, these charges are to be framed in a proper format where all facts related to the case or complaint shall have to be well-documented and issued to the delinquent employee. For conducting a domestic enquiry, you need to appoint a person, preferably a Bar Council of India registered (legally qualified person) well-versed with domestic enquiry procedures to conduct the enquiry. There shall be a Presiding Officer (from management's side) and an MR (Management Representative). The delinquent employee has the right to represent his case along with a co-worker throughout the enquiry proceedings. Once the EO is appointed, it is his decision for the process time (how long the proceedings will take).
From India, Aizawl
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I would like to add as follows:
Stage 1 & Stage 2: Not necessary to have a written complaint/preliminary enquiry in all cases. I am attaching a flow chart on the process of disciplinary action, which is self-explanatory.
Regarding your query about permission, reference should be made to Section 33(3) of the Industrial Disputes Act, 1947, which states that if an employer wants to take action against a protected workman during the pendency of a conciliation proceeding before the Conciliation Officer, Board, Arbitrators, Labour Court, Tribunal, or National Tribunal, he should obtain express permission from the conciliation Officer, Labour Court, or Tribunal, as the case may be.
From India, Mumbai
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Stage 1 & Stage 2: Not necessary to have a written complaint/preliminary enquiry in all cases. I am attaching a flow chart on the process of disciplinary action, which is self-explanatory.
Regarding your query about permission, reference should be made to Section 33(3) of the Industrial Disputes Act, 1947, which states that if an employer wants to take action against a protected workman during the pendency of a conciliation proceeding before the Conciliation Officer, Board, Arbitrators, Labour Court, Tribunal, or National Tribunal, he should obtain express permission from the conciliation Officer, Labour Court, or Tribunal, as the case may be.
From India, Mumbai
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As regards your query regarding permission, reference should be made to Section 33(3) of the Industrial Disputes Act, 1947, which states that if an employer wants to take action against a protected workman during the pendency of a conciliation proceeding before the Conciliation Officer, Board, Arbitrators, Labour Court, Tribunal, or National Tribunal, he should obtain express permission from the Conciliation Officer, Labour Court, or Tribunal, as the case may be.
This is a very important point.
From India, Pune
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This is a very important point.
From India, Pune
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---Disciplinary Action for an Act of Misconduct comprises of following Action-Steps---:
Stage-1:- Inevitable when Misconduct as defined in the Codified Service Rules or Certified Standing Orders, is Reported by Superiors or Colleague or an Outsider so authorized to file Complaint or Allegation (Incident Report, in writing) or for an act of Misconduct committed earlier comes to Light (may be related to a Misconduct not known earlier to Employer/Punishing Authority or unearthed now in course of and or arising out of business). Report of alleged Misconduct of Sexual Harassment can also be referred to by the Ministry of Women & Child Development based on Complaint filed on She-Box Portal or Any Person authorized under SHWW Act 2013;
In case, the Employer/Head of Institution does not have CSR or CSO, Disciplinary Action may stall be initiated as per our Hon’ble Supreme Court’s Ruling (1963) for Acts a) Which are Subversive of Discipline, be) Rowdy conduct in course of and or arising out of Employment/Working Hours, and c) for Conduct of such a nature that the delinquent Employee would not be regarded as worthy of employment;
Stage-2:-Preliminary Inquiry to find out facts, prima facie, is need-based activity/ exercise undertaken only when the Incident Report is vague or unclear or lacks Basic/elementary Data reg Date, Time, Place of occurrence of the incident/act of Misconduct alleged and some “speaking Details” of the alleged incident/occurrence are lacking. Prelim Inquiry is neither a ritual nor a rigmarole nor routine;
Stage-3:-Issuing Charge-Sheet or Show-Cause Notice or Explanation-Seeking Letter is most crucial, because Employer/Disciplining or Punishing Authority is exercising its Legal Authority/Discretion/Empowerment/ Prerogative/Privilege to discipline the Employee for alleged act of Misconduct which if proved may lead to Punishment;
The Charge-sheet etc must clearly communicate/convey to the delinquent Employee, her/his act/s of Misconduct for which s/he is liable to Punishment, hence s/he should submit her/his Written Explanation in defense and that which shall be forwarded to the Inquiry Officer/Committee to ascertain the Facts in a Proper Inquiry or an ex parte Inquiry held as per Principles of Natural justice and the Prescribed Procedure., and must also clearly convey that s/he shall be given/have all reasonable opportunity to defend her/his action during Inquiry Proceedings including Cross-examining the Testimonies and Evidence admitted. During Inquiry in her/his presence. The Charge-sheet must be signed by Authorized Signatory;
Stage-4:-On receipt of Written Explanation-in-defense, the Employer/Disciplining or Punishing Authority should issue an Office-Order appointing i) an Inquiry Officer /Committee, ii) a Management Representative who should present Employer’s / Management’s Case before the Inquiry Officer/Committee, and advising the Inquiry Officer/Committee to commence, conduct and conclude Inquiry Proceedings and submit an Inquiry Report with conclusive and definite Findings.
Care should be taken to not appoint Inquiry Officer who is a Legally Trained (Advocate, Lawyer or Pleader) otherwise the Employer and the Inquiry Officer/Committee shall be bound by the Laws (our SC’s Ruling in a Case Law)) to allow the Delinquent Employee to associate/ bring along a Lawyer to assist her/him during Inquiry Proceedings. It is prudent and worthwhile to appoint a Manager/an Officer in the Esta or better still a Former Manager who is Fully-familiar with i) Domestic Inquiry Procedures, ii) Order of Events to be followed during Inquiry, iii) Principles of Natural Justice, iv) Recording of Testimonies, verbatim under-oath, v) How to admit Documentary Evidence as Exhibits, vi) What is Cross-examination and when to allow it, vii) Why Not to allow “Leading Questions:, viii) How and When to proceed with ex parte Inquiry, ix) Competent in dealing with Trauma & Tantrums, Threats of Boycotting Inquiry on any pretext and such other Ticklish situations when the Delinquent Employee’s Union Office Bearers Assisting her/him start Cross-examining or Speaking on her/his behalf which is not allowed & proper etc.
If the Inquiry Officer/Committee is not Fair, Just and Proper in their Conduct, their Inquiry Report may be found Perverse, Ultra-vires, arbitrary etc, hence rejected. Also such conduct shall be treated as Offence punishable under the Laws.
It is noteworthy that the Supreme Court of India prescribed Six (06) Months’ Time Limit for completing Domestic Inquiry which in rarest of rare Case should be over within One Year from the Date of commencement of Inquiry Proceedings. The Time Limit for completing Inquiry Proceedings in SH Complaints, is Ninety (90) consecutive days;
Stage-6:- After the Inquiry Report is received, the Employer need to apply her/his Mind to the Findings and determine the Quantum of Punishment “Proportionate” to the Act of Misconduct and as per the CSR or CSOs and inform the Delinquent Employee about that in writing giving an Opportunity to submit her/his Representation, if any against the Proposed Punishment. The Representation must receive due consideration by the Disciplining Authority before awarding Final Order of Punishment including Termination.
However, the Internal Committee’s Report with conclusive and definite Findings and Recommendations are Final and Binding on the Employer;
Lastly, Domestic Inquiry or Managerial Inquiry is done under Industrial Employment (Standing Orders) Act 1946 and or Shops & Esta Act and is an internal matter. No Report or Information need be filed before any Inspectorate unless the matter is taken up before Labour Inspectorate or the Courts of Law. The Internal Committee has to furnish Data on No of Inquiries done by the IC during ongoing Calendar year in the IC Annual Report (Section-21& 22 of SHWW Act 2013).
All doubts, dilemmas shall be promptly clarified by Kritarth Team.
Hars K Sharan, XLRI Alumnus
Kritarth Consulting Team Free Lance Inquiry Officer
7.6.2020
From India, Delhi
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Stage-1:- Inevitable when Misconduct as defined in the Codified Service Rules or Certified Standing Orders, is Reported by Superiors or Colleague or an Outsider so authorized to file Complaint or Allegation (Incident Report, in writing) or for an act of Misconduct committed earlier comes to Light (may be related to a Misconduct not known earlier to Employer/Punishing Authority or unearthed now in course of and or arising out of business). Report of alleged Misconduct of Sexual Harassment can also be referred to by the Ministry of Women & Child Development based on Complaint filed on She-Box Portal or Any Person authorized under SHWW Act 2013;
In case, the Employer/Head of Institution does not have CSR or CSO, Disciplinary Action may stall be initiated as per our Hon’ble Supreme Court’s Ruling (1963) for Acts a) Which are Subversive of Discipline, be) Rowdy conduct in course of and or arising out of Employment/Working Hours, and c) for Conduct of such a nature that the delinquent Employee would not be regarded as worthy of employment;
Stage-2:-Preliminary Inquiry to find out facts, prima facie, is need-based activity/ exercise undertaken only when the Incident Report is vague or unclear or lacks Basic/elementary Data reg Date, Time, Place of occurrence of the incident/act of Misconduct alleged and some “speaking Details” of the alleged incident/occurrence are lacking. Prelim Inquiry is neither a ritual nor a rigmarole nor routine;
Stage-3:-Issuing Charge-Sheet or Show-Cause Notice or Explanation-Seeking Letter is most crucial, because Employer/Disciplining or Punishing Authority is exercising its Legal Authority/Discretion/Empowerment/ Prerogative/Privilege to discipline the Employee for alleged act of Misconduct which if proved may lead to Punishment;
The Charge-sheet etc must clearly communicate/convey to the delinquent Employee, her/his act/s of Misconduct for which s/he is liable to Punishment, hence s/he should submit her/his Written Explanation in defense and that which shall be forwarded to the Inquiry Officer/Committee to ascertain the Facts in a Proper Inquiry or an ex parte Inquiry held as per Principles of Natural justice and the Prescribed Procedure., and must also clearly convey that s/he shall be given/have all reasonable opportunity to defend her/his action during Inquiry Proceedings including Cross-examining the Testimonies and Evidence admitted. During Inquiry in her/his presence. The Charge-sheet must be signed by Authorized Signatory;
Stage-4:-On receipt of Written Explanation-in-defense, the Employer/Disciplining or Punishing Authority should issue an Office-Order appointing i) an Inquiry Officer /Committee, ii) a Management Representative who should present Employer’s / Management’s Case before the Inquiry Officer/Committee, and advising the Inquiry Officer/Committee to commence, conduct and conclude Inquiry Proceedings and submit an Inquiry Report with conclusive and definite Findings.
Care should be taken to not appoint Inquiry Officer who is a Legally Trained (Advocate, Lawyer or Pleader) otherwise the Employer and the Inquiry Officer/Committee shall be bound by the Laws (our SC’s Ruling in a Case Law)) to allow the Delinquent Employee to associate/ bring along a Lawyer to assist her/him during Inquiry Proceedings. It is prudent and worthwhile to appoint a Manager/an Officer in the Esta or better still a Former Manager who is Fully-familiar with i) Domestic Inquiry Procedures, ii) Order of Events to be followed during Inquiry, iii) Principles of Natural Justice, iv) Recording of Testimonies, verbatim under-oath, v) How to admit Documentary Evidence as Exhibits, vi) What is Cross-examination and when to allow it, vii) Why Not to allow “Leading Questions:, viii) How and When to proceed with ex parte Inquiry, ix) Competent in dealing with Trauma & Tantrums, Threats of Boycotting Inquiry on any pretext and such other Ticklish situations when the Delinquent Employee’s Union Office Bearers Assisting her/him start Cross-examining or Speaking on her/his behalf which is not allowed & proper etc.
If the Inquiry Officer/Committee is not Fair, Just and Proper in their Conduct, their Inquiry Report may be found Perverse, Ultra-vires, arbitrary etc, hence rejected. Also such conduct shall be treated as Offence punishable under the Laws.
It is noteworthy that the Supreme Court of India prescribed Six (06) Months’ Time Limit for completing Domestic Inquiry which in rarest of rare Case should be over within One Year from the Date of commencement of Inquiry Proceedings. The Time Limit for completing Inquiry Proceedings in SH Complaints, is Ninety (90) consecutive days;
Stage-6:- After the Inquiry Report is received, the Employer need to apply her/his Mind to the Findings and determine the Quantum of Punishment “Proportionate” to the Act of Misconduct and as per the CSR or CSOs and inform the Delinquent Employee about that in writing giving an Opportunity to submit her/his Representation, if any against the Proposed Punishment. The Representation must receive due consideration by the Disciplining Authority before awarding Final Order of Punishment including Termination.
However, the Internal Committee’s Report with conclusive and definite Findings and Recommendations are Final and Binding on the Employer;
Lastly, Domestic Inquiry or Managerial Inquiry is done under Industrial Employment (Standing Orders) Act 1946 and or Shops & Esta Act and is an internal matter. No Report or Information need be filed before any Inspectorate unless the matter is taken up before Labour Inspectorate or the Courts of Law. The Internal Committee has to furnish Data on No of Inquiries done by the IC during ongoing Calendar year in the IC Annual Report (Section-21& 22 of SHWW Act 2013).
All doubts, dilemmas shall be promptly clarified by Kritarth Team.
Hars K Sharan, XLRI Alumnus
Kritarth Consulting Team Free Lance Inquiry Officer
7.6.2020
From India, Delhi
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