Disciplinary Actions in Corp Orates

8/2/2019 Disciplinary Actions in Corp Orates

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DISCIPLINARY ACTIONS IN

CORPORATES

Assignment - 01

Malay (215111044)

Santhosh (215111045)

Venkatesh (215111046)

Tilak (215111048)

Deepak Prince (215111049)

Sathyanarayanan (215111050)


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Table of Contents

What is Misconduct? .............................................................................................................................. 3

Types of Misconducts ............................................................................................................................. 3

Minor Misconducts ......................................................................................................................... 3

Major Misconducts ......................................................................................................................... 3

Penalties for Minor Misconduct ..................................................................................................... 4

Penalties for Major Misconduct ...................................................................................................... 4

Flow chart of stages in determining Disciplinary Action......................................................................... 5

Determine Probable Level of Misconduct ...................................................................................... 6

Appears to be Minor Misconduct ................................................................................................... 7

Address with Informal Discussion ................................................................................................... 7

Arrange appropriate support .......................................................................................................... 7

Appears to be Serious/Gross Misconduct....................................................................................... 8

Advise Employee of Potential Misconduct ..................................................................................... 9

Consider Suspension ..................................................................................................................... 10

Formal Investigation ..................................................................................................................... 11

Disciplinary Charges Issued ........................................................................................................... 13

Disciplinary Meeting ..................................................................................................................... 15

Decision ......................................................................................................................................... 15

Appeal ........................................................................................................................................... 15

Final Outcome ............................................................................................................................... 16

No Further Action ......................................................................................................................... 17

Justification of Non-Attendance by Worker ......................................................................................... 17

Role of the Management Representative ............................................................................................. 18

Production and inspection of documents ............................................................................................. 18

Bias in departmental enquiries ............................................................................................................. 18

Appreciation of evidence ...................................................................................................................... 19

Principles of Natural Justice .................................................................................................................. 19


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What is Misconduct?

Any act or omission on the part of an employee which is a breach of any duty, obligation orassignment arising under or flowing from any law or contract of employment or service rulesor standing orders, settlements or awards or improper conduct or wrongful behavior is a

misconduct.

Types of Misconducts

Minor Misconducts

The following acts or omission on the part of an employee shall amount to minor misconduct:

1. Late coming2. Absence from duty without leaves for a period of less than six days3. Loitering, gossiping in department during working hours4. Failure to wear tight clothes/specified uniform.5. Negligence of duties or neglect of work.

Major Misconducts

The following acts or omission on the part of an employee shall amount to major misconduct:

1. Wilful insubordination or disobedience of any lawful and reasonable order of asuperior.

2. Going on legal strike or abetting, inciting, instigation.3. Wilful slowing down in performance in work or instigation thereof.4. Theft, fraud or dishonesty in connection with the employers business or property.5. Taking or giving bribes or any illegal gratification.6. Habitual absenteeism without leave for more than 10 consecutive days or over

staying the sanctioned leave without sufficient grounds.

7. Habitual breach of any standing order or any law applicable to establishment.8. Collection without the permission of the manager or any money within the premises

of establishment.

9. Engaging in trade within the premises of establishment.10.

Drunkenness, Riotous, Disorderly or indecent behaviour on the premises of theestablishment.

11.Commission of any acts subversive of discipline or rude behaviour on the premises ofthe establishment.

12.Habitual neglect of work or habitual negligence.13.Canvassing for union membership or collection of union funds within the premises of

the establishment.

14.Wilful damage to work in process or any property of the establishment.15.Holding meetings inside the premises of establishment without the permission of the

manager.

16.Disclosing to any unauthorized person any information in regard to the processes ofthe establishment.

17.Gambling within the premises of establishment.


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18.Smoking or spitting on the premises of the establishment, where it is prohibited.19.Failure to observe safety instructions notified by the employer or interference with

the safety devices.

20.Distributing or exhibiting within the premises of establishment and bills, pamphletsand posters.

21.Refusal to accept a charge sheet order or other communication served in accordancewith the standing orders.22.Unauthorized possession of lethal weapon in the establishment.

Penalties for Minor Misconduct

1. Warning2. Fine3. Recovery of loss of goods for which the concerned workman is accountable4. Recovery from wages of the workman any loss caused by him through negligence.

Penalties for Major Misconduct

1. Warning or censure,2. Withholding of increment3. Fine4. Stopping promotion5. Demotion6. Suspension7. Discharge8. Dismissal9. Vacation of company quarter or any other punishment which the manager may deemfit.


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Flow chart of stages in determining Disciplinary Action


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Determine Probable Level of Misconduct

Once the likely level of misconduct has been determined, the employer will be able to

determine what action to take next.

The nature of the misconduct will be obvious in some occasions, but as the disciplinarypolicy will only include the type of conduct that could fall into each category, it will be

necessary for an employer to make a reasonable judgement in many cases of suspected

misconduct.

These will be determined according to the nature of the company, as some matters may be

more important in some workplaces, and a failure to follow these requirements could be more

of a disciplinary offence in these circumstances.

Typical examples of misconduct could include:

Minor (breaches of the rules or required standards, but not of an nature seriousenough to warrant dismissal or more formal action initially)

o Poor Time-keepingo Personal use of telephones, etco Regular or unauthorised absenceso Failure to act on a reasonable instructiono Poor performance

Serious (breaches of the rules or required standards of a nature serious enough towarrant dismissal in some instances)

o Insubordinationo Continued poor performance after appropriate support & trainingo Incapability due to drugs or alcoholo Serious misuse of computers of other equipmento Repeated incidents of minor misconduct

Gross (breaches of the rules or required standards of a nature serious enough towarrant dismissal in all instances)

o Serious insubordinationo Theft or Fraudo Violence or bullyingo

Serious breach of confidenceo Serious neglect of health & safety procedures

Repeated offences of minor misconduct may also be treated as serious misconduct. However,

its important to remember, this is misconduct for which there have been charges brought

against the employee informal action (when formal disciplinary charges are not applied)

does not count, and it is only repeated minor misconduct for which charges has been brought

when repeated minor misconduct should be treated as serious misconduct.


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Appears to be Minor Misconduct

In cases of minor misconduct, it will often be practical & sensible to deal with this

informally. This will not lead to any formal action being taken against the employee, and

unless there is further misconduct when a more formal approach should be considered

this issue should not be held against the employee in the future except of course if there isa repeat offence, the employer should ensure formal action follows.

Employers should be cautious not to use the option of an informal discussion instead of more

formal action simply to avoid being too heavy-handed. Formal disciplinary action for minor

misconduct is not heavy-handed, and with the appropriate action taken, should a further

incident arise the employer will now be ready to consider if this should be escalated to

serious misconduct.

Where formal charges are brought against the employee, it will be important that these are

still documented & the employee has a clear knowledge of this. Despite the apparent

contradiction, even the issuing of a verbal warning should be reiterated in writing this willsimply advise that a verbal warning has been issued, but will not increase the level or status

of the disciplinary penalty.

In cases where the employer considers formal action is appropriate, the employer should

commence the process by advising the employee of the potential misconduct, and proceed

with an appropriate investigation from there. In other cases, the concerns should simply be

addressed as part of any good management process, with an informal discussion about the

incident.

Address with Informal Discussion

In most cases of minor misconduct, the employee may have had no intention of misconduct,

and may not even have realised their actions were misconduct.

Once the area of concern has been identified, it will often be possible to deal with this

through appropriate support for performance or attendance issues, either providing more

training or making reasonable adjustments in the workplace that could help improve

attendance.

Arrange appropriate support

Whatever the outcome of the disciplinary processwhether summary dismissal (dismissal onthe spot), dismissal with notice (serve out the notice period before the dismissal takes effect),

a lesser disciplinary penalty, or no disciplinary penalty the employer has a responsibility to

their employee, and should ensure appropriate support is provided.

If you have decided to summarily dismiss, you should ensure the employee is able to gather

any personal belongings in a manner that causes the least difficulties. This may involve a

supportive approach as they return to their workplace, but as this will often be in full view of

colleagues, it would often be better to arrange a quieter time to arrange this if practical.

Employers should take care to ensure the employee is only removing their own property, but

you should try to act sensitively in observing any packing the employee finds necessary, as


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you dont want to portray any more level of distrust than is appropriate & necessary in the

circumstances.

Where dismissal is preceded by notice, the employer should ensure the employee is given

appropriate support & responsibilities through the remaining term of their employment the

appointment is continuing, and work appropriate to the contract & grade should continue tobe assigned, although this may be restricted where necessary & appropriate to the disciplinary

action.

Where a lesser penalty has been issued, if this involves for example a demotion, the employer

should help the employee settle into the new role, and adapt to the lack of responsibility or

increased management attention associated with this position. In other cases, the employer

should remember that disciplinary action is aimed principally at improving performance, and

continue to support & promote the necessary improvement in the future conduct of the

employee.

If no disciplinary penalty is issued, the employer will still need to acknowledge thedifficulties & stress a disciplinary procedure will have had on an employee. It is imperative

that the employer provides the necessary support for employees that have been considered for

disciplinary action, and ensure they understand the employer needs to investigate suspected

offences although this is not an assumption of guilt on the employee by itself.

Appears to be Serious/Gross Misconduct

Cases that appear to be serious or gross misconduct must never be ignored. Equally, it is

important for employers not to jump to conclusions or otherwise make assumptions about the

perceived misconduct, let alone reach any conclusions about the likely outcome of the case.

At this stage, there is a suspicion that the employees conduct is inappropriate, but until thematter has been properly looked into, employers should assume nothing, and not determine

the actual, or even likely, outcome.

In the most serious circumstances, employers should consider suspension now, but this will

be rare, with a real & genuine risk to the interests of the company suspected.


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Advise Employee of Potential Misconduct

As you have determined that there is possible or probable misconduct, it is only appropriate

you alert the employee to this. Natural justice & good employment relations require you togive the employee notice of the issues you suspect they are guilty of; any concerns that this

notice will allow an employee to prepare an excuse or otherwise hide the facts, or adjust their

conduct should not deter this.

As the notice of suspected disciplinary action is what the investigation will be based on, and

the employees input will be to comment on this, it is important that this is clear &

unambiguous: rather than writing you are being investigated for poor time-keeping, expand

this to provide examples that support this you apparently arrived at 10:10 on Monday, 1

December, and 10:30 on Tuesday

The letter should also make clear that this is alleged misconduct for reasons that may notyet be obvious, it is possible that there will be perfectly reasonable explanations for the


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conduct. Therefore, you should make clear that this is not a disciplinary charge, but an

investigation into a disciplinary matter; a charge will follow if necessary.

In all cases for which you have issued a disciplinary charge, you will then need to conduct an

investigation.

Consider Suspension

During the disciplinary process, employers will need to actively consider whether suspension

is appropriate. This decision does not need to be taken at the start of the process, it can be

reached at any stage that it seems appropriate, if information comes to light that justifies the

same.

Suspension during a disciplinary process is not a disciplinary penalty in itself. It is an option

available, normally applied only for gross misconduct, that temporarily removes the

employee while disciplinary matters are investigated & the facts determined. As this is not a

penalty, employers should normally continue to pay the employee for the time suspended which should be as brief as possible, and certainly no longer than a week.

CIRCUMSTANCES JUSTIFYING SUSPENSION

1. Where the continuance of the employee may endanger industrial peace or security.2. Where continuance of the employee may prejudice investigation-tampering

documents/witnesses.

3. Where the continuance of the employee may be against the interest of industry or itsemployees.

4.

Where preliminary enquiry into allegations has revealed a prima facie casejustifying criminal or departmental enquiry, which are likely to lead to his

conviction or/ dismissal.

5. Where the employee is suspected to have engaged himself in activities prejudicial tothe interest of the security of the company.

Even in the above circumstances, an employee may be placed under suspension inrespect of offence of the following type if the statutory rules provide provisions forsuspension:

(a)An offence of conduct involving moral turpitude.(b)Corruption, embezzlement, theft or misappropriation of company money.(c)Serious negligence resulting in considerable loss to the company.(d)Desertion of duty(e)Deliberate refusal to carry out written orders.(f) Where the continuance of the employee at workplace may endanger

industrial peace and harmony and peace as well.

Thus power of suspension should be exercised by the competent authorities withcircumspection, care and after due application of mind. The suspension is not a punishmentand courts have repeatedly held that an employer has an absolute right to place an employeeunder suspension.


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Formal Investigation

A disciplinary investigation does not always need to be exhaustive in its nature, leaving no

stone unturned; these should be reasonable, given the nature of the alleged misconduct & all

other circumstances.

A charge of minor misconduct will not require an investigation as intense as a charge of gross

misconduct; although the employer should still be satisfied they have investigated sufficiently

to hold a reasonable view of what happened. A charge of gross misconduct will often require

the most intense investigation this could justify dismissal, even as a first offence, so its

important the employer has reasonable grounds to support this actionalthough even then, in

some instances this could be brief if the evidence available is strong & the employee does not

offer a convincing explanation for their conduct. It is normally preferable wherever possible

to have the investigation conducted independentlythe manager that will make any decision

based on the findings of the investigation should, wherever possible, arrange for another

manager or someone external to gather the facts impartially, and present these in a balanced

manner: remember, the investigation is intended to gather facts, not make or influence thefinal decisions.

Once an investigation has been concluded, the employer should decide what action to take

against the employee. This will either be to treat the matter as minor misconduct that can be

dealt with by an informal discussion; to proceed with disciplinary charges against theemployee (in these cases, employers should again consider whether suspension is

appropriate); or to conclude that there is insufficient evidence to proceed.

GUIDELINES FOR HOLDING ENQUIRY

An enquiry cannot be said to be properly held unless:

1. The employee proceeded against has been informed clearly of the charges levelledagainst him.

2. The witnesses are examined in the presence of the concerned employees in respect ofthe charges.

3. The employee is given a fair opportunity to cross-examine the witnesses4. He is given a fair opportunity to produce defence witnesses including himself if he so

wishes on any relevant matter.

5. List of the prosecution witnesses and documents relied upon the management aresupplied upon the concerned employee.

6. The enquiry is conducted by an unbiased man.7. Rules and principles of natural justice are complied with.8. The enquiry officer reports his findings with treason for the same.


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Disciplinary Charges Issued

If an employer holds a reasonably based view that there is a disciplinary charge to answer,

the full details of this should be set-out in writing to the employee. The letter should also

invite the employee to a disciplinary meeting, and fully explain their rights in regard to this.

It is the first formal document containing the Articles of charge levelled against the

delinquent employee, enabling him to file his statement of defense against these charges by

specific date.


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ESSENTIAL INGREDIENTS OF A CHARGE-SHEET

1. A charge sheet must specify the charges in clear language with full particulars.2. The facts in the C.S must disclose the misconduct with which the employee is

charged.

3. The language of the C.S. must be clear, precise, unambiguous and free fromvagueness.

4. The charge sheet should not contain unnecessary matters.5. The use of abbreviations mainly etc. etc or any other document should be

avoided.

6. Date, time and place of incident must be mentioned in the C.S. and word aboutmust be used while mentioning time.

7. In case of disobedience, the order disobeyed must be mentioned,8. In case of theft, full particulars of the goods stolen must be given.9. In case of misappropriation, the amount misappropriated must be given.10.In case of go slow, all particulars showing go-slow must be given.11.If previous record of the employee is relied upon to show his habit, then its particulars

must be given.


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12.When misconduct depends upon offending language then actual words used bespecified in the charge.

Disciplinary Meeting

A disciplinary meeting should be arranged, wherever possible at a time mutually convenientto all parties. In a small number of cases, the employee will claim all dates/times offered are

inconvenient to them, or any companion. In these instances, the employee should suggest a

suitable time within a reasonable time-scale (five days is typically fine although this may

vary for different circumstances), but where agreement cannot be reached, the employer

should set a final date, and advise the employee that the meeting will proceed without them if

necessary.

It will be important, even if cases for which the employee does not attend, to proceed with a

disciplinary hearing. This will typically involve a minuted record that the managers were

present, and considered the investigation & any other information available to them, and also

decided whether to proceed on the basis of that, or give the employee a further opportunity toattend a meeting (providing the manager has been flexible & given the employee a reasonable

opportunity to attend a meeting, giving a further opportunity will not normally be necessary).

Decision

The employer should reach their decision only on the facts of the case, as far as reasonably

established. It is important not to allow prejudices or other suspicions to influence the

decision-making.

Employers should remember always to act consistently: there will be unique elements to any

case, but in cases with predominantly the same issues, any actions or penalty should besimilar.

The employer should consider the current record of the employee in making any decision: a

disciplinary warning will normally be exhausted after a period of time, so unless current these

should not be considered in any decision.

In cases of gross misconduct, the decision may be to dismiss for a first offence. In other

cases, dismissal will be exceptional, although it may be appropriate in some circumstances

for serious misconduct.

The decision should be reached as promptly as possible after the disciplinary hearing (while

taking sufficient time to reflect on anything said at the hearing), and should be advised in

writing to the employee.

Appeal

Disciplinary procedures should always include an opportunity for an appeal, wherever

possible to a more senior person than that who took the initial decision; in the smallest

companies, this may not be possible, in which case a suitably qualified independent person

may be brought in to hear this. Where the same manager needs to hear the appeal, theyshould act as impartially as possible from their earlier decision.


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The appeals process is not an opportunity for the employee to present new evidence, but for

the employer to consider whether the original process was fair & reasonable in all the

circumstances.

The appeal should be set out in writing, and should give clear details of what is being

appealedthe findings, the disciplinary penalty, or both.

Where the findings are being appealed, the main focus of the appeal should be to consider the

original disciplinary process, and whether this was reasonable in all the circumstances. If the

employer is satisfied this was, the appeal can be dismissed; if there is a reasonable argument

that the investigation should have covered more, consideration should be given to upholding

the appeal, and arranging a further investigation.

Where the disciplinary penalty is being appealed, the main focus of attention should be

whether the original decision was reasonably made & was appropriate in all the

circumstances. If this is not to be found so, the original decision should be substituted;

otherwise the appeal may be dismissed although the manager may still reduce the initialpenalty if they consider it appropriate in the circumstances of the cases. This will normally be

the final outcome in the case, so it is important to ensure you are comfortable with the

decision being reached.

The decision from the appeal should be a reasonable one in all the circumstances (the

confidence of the management responsible for earlier actions should not undermined,

although bringing in a wider perspective & the knowledge of a more senior manager can

assist the other manager in their judgement for future cases; overturning a decision on appeal

does not mean the original decision was necessarily wrong in the circumstances). This should

be reached as soon as possible & notified to the employee in writing.

In cases where a dismissal has been overturned, the employer should consider appropriate

support in getting the employee back into their employment with minimum fuss or

unnecessary attention.

Final Outcome

The employee will have no further appeal internally at this stage, so before this final decision

is reached, the employer should satisfy themselves that all procedures have been properly &

fully followed; the disciplinary penalty is appropriate in the circumstances; and they would

be confident in defending this at an employment tribunal in case the employee elect to take aclaim.

The final outcome should never be pre-determined, but will be a decision reached when all

the facts have been considered in a balanced manner. After the appeal, it could be the case

that the original decision is upheld, the decision is set aside, or the decision is substituted with

an alternative decision.

The decision needs to be reached in a reasonable time-scale, but should never be rushed out.

Instead, as soon as the appeal has been received, the person due to make the final decision

should set-aside sufficient time to consider & absorb all the facts before reaching a decision.


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As soon as a decision is reached, this should be put in writing and provided to the employee.

Given the difficulties the employee has gone through in this whole process, the employer

should be supportive & considerate when delivering this final decision: rather than leave an

envelope on the employees desk, give notice to the employee of when the decision is likely

to be available, and book a meeting to deliver the letter in person. While not legally

obligatory, these little steps will at least help to demonstrate that the employer has beenconsiderate in their processes, not crassly reaching decisions & then casually letting the

employee know these.

Regardless of the outcome, the employer should continue to be supportive of the employee.

No Further Action

In some instances, your suspicions of misconduct will prove to be unfounded either the

matter of concern was not actually as first perceived, or there were acceptable explanations

for this that mean formal disciplinary penalties are not appropriate.

Employers should notify the employee as soon as possible when a conclusion has been

reached that no further action is necessary the employee will often be concerned about the

threat of disciplinary action, so as soon as it is known that no further action will be required,

this should be communicated to the employeeideally, you should speak to the employee to

advise them of the conclusion but always confirm this in writing.

It will still be important to keep full records of the matter, noting that nothing further

occurred as well as the reasons for this decision. Employment tribunals will always look for

& expect consistency from employers you cant treat one employee differently to another

for the same offence and with the same circumstances. Having records to support your

decision not to pursue action in any given instance will assist employers in defending theiractions, should another employee bring a claim to an employment tribunal the employer

will be able to explain the reasons why the cases were not equal, and why action was justified

in one but not another case.

Justification of Non-Attendance by Worker

1. Absence on account of protest is not justified. Even if some facility is denied theworker is not justified to withdraw from the enquiry.

2. If certain documents or copies are not supplied to the workman and he withdraw fromthe enquiry, it is not justified and enquiry could proceed ex-parte.

3. When a request of worker for being represented by an outsider or an advocate isdisallowed, he cannot walk out and if he does so, ex-parte proceeding is valid.

4. If absence is on account of genuine illness and he has asked an adjournment on deathgrounds, it must be granted.

5. If an employee is on sanctioned leave and seeks adjournment on that ground, it mustbe granted.

6. If an employee is on hunger strike and it is not possible for him to defend himself,adjournment must be granted.

7. Adjournment is sought on the plea that the workman fears physical assault, theadjournment may not be granted.

8. Enquiry can be held on a holiday also and in the absence an application ofadjournment, the enquiry officer is competent to proceed ex-parte.


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9. Enquiry can be held even at night in case the concerned works day and night.Grant of adjournment s discretion of the enquiry officer, but as such a discretion must be

exercised in a judicial and reasonable manner. An employee cannot be compelled to attend

enquiry. If an employee does not attend an enquiry, then it can be held ex-parte but he cannot

be charged for disobedience of orders.

Role of the Management Representative

1. In departmental enquiries, the punishing authorities play a dual role. The saidauthority or its nominee conducts the enquiry on behalf of the management and

judges the action of the delinquent employee.

2. The role of management representative is similar to the case of public prosecutor ashe also conducts and pleads the case of management.

3. The role of MR is to conduct the case fairly and with full sense of responsibility.4. It is not the duty of the MR to suggest any falsehood or suppress any facts.5. The MR is also not expected to produce evidence, which stands to demolish his own

case.

6. The role of MR can only be discharged properly if he is equipped with the fullknowledge of the case. The MR should also have the basic knowledge or procedure

and process of domestic enquiry as well as to carry out the cross-examination of the

charge sheeted employee as well of his defence witnesses.

Production and inspection of documents

When the charge sheeted employee thinks that certain document is likely to be useful for his

defence and is in the possession of the management when he can apply for its production.

1. When a document is used against an employee, it should be disclosed to him.2. Records of preliminary investigation if relied upon the management should be

disclosed to the employee.

3. Documents having no evidentiary value need not be disclosed.4. If no reliance is placed on a document during enquiry then it need not to be disclosed.5. Documents necessary for cross-examination or defense should be made available if

asked for.

6. If no prejudice is caused to the delinquent employee by non-production of documents,enquiry is not vitiated.

7. Inspection of documents can be given as an alternative to production of documents.Bias in departmental enquiries

A domestic enquiry must be held by an unbiased person. The bias in its proper

significance is departure from the standard of even-handed justice which the law requires

from those who occupy judicial office the doctrine of bias:

1. No man shall be judge in his own case.2.

Justice shall not only be done but manifestly and undoubtedly seem to be done.


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Appreciation of evidence

Even though the onus of proving the guilt rest on the management, the probability or

otherwise of the version of incident put forth by the workman has to be taken into

consideration in determining his guilt and it cannot be altogether ignored.

1. The E.O. while appreciating the evidence should take care that the charges against thedelinquent workman should not deemed to be proved merely on the facts that the

worker could not put up strong defence.

2. If the employee has not produced any defence during enquiry, it cannot give rise toany presumption that whatever the employer witness states is correct. Disposition of

the witnesses has to be judged on their merits.

3. It is not necessary to prove motives behind the act of misconduct.4. While appreciating the evidence the E.O. should be extra careful for the disposition of

chance witnesses.

5. The E.O. should not simply disbelieve the witness or think unreliable, as the witnessesare a close relation of either party. Similarly, merely those middle and senior levelofficers depose for the management and the workers for the delinquent employee is

no reason to disbelief them.

6. The E.O. while appreciating the evidence should be conscious of the fact that thecredit of a witness does not depend upon his status. Truthfulness is not the monopoly

of persons who are rich and who hold high status.

7. It is not necessary that there should always be one witness to prove any charge. Thereason is that the evidence weighed and not counted.

8. The E.O. should not consider the events subsequent to incidence for which anemployee was charge sheeted.

9. In domestic enquiry the Doctrine of Benefit of Doubt is not applicable. Therefore, anE.O. is under obligation to arrive at conclusion of facts.

10.It is not the concern of the E.O. as to whether the act mentioned in the charge sheethas been proved or not.

11.E.O. is not interested with the power of imposing the punishment. His duty ends withthe finding of facts.

12.While drafting enquiry report, specific findings should be given on each charge and incase of each person.

13.The finding should be specific and E.O. should come to conclusive findings of guilt.Principles of Natural Justice

The Industrial Disputes Act, 1947 lays down that conduct of domestic enquiry in utterdisregard of the principles of natural justice is an unfair labour practice. Therefore, theprinciples of Natural Justice need to be kept in mind during the enquiry proceeding: of coursestrict rules of Civil Procedure Code and of Evidence Act do not apply to domestic enquiry.

Natural justice is a term, which summarizes certain minimum standards of fairness to secure

justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice

is varying one and all that it implies is that that there should be a fair deal for all concerned.

Natural justice has no straight jacket and application of its principles would depend upon

facts and circumstances of a particular case. There cannot be an exhaustive list of principles


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of Natural Justice. However, broadly speaking, the following rules of natural justice are of

universal application: -

1. Audi alterm partem i.e. hear the other party. It means that no one should bepunished without the proper opportunity of being heard. The employee proceeded

against should be informed clearly of the charges levelled against him.

2. Nemo judes in cause sua i.e. no man can be the judge of his own case. Toillustrate, the Inquiry Officer should not be a complainant or a witness of the alleged

misconduct.

3. Justice must not only be done but should also seem to be done. Therefore, the wholeconduct of the Enquiry Officer should be transparent, honest and in good faith.

4. The procedure with regards to disciplinary action prescribed in the Service Rules orStanding Orders must be followed both in letter and in spirit.

5. The notice of enquiry should be given sufficiently in advance. If the enquiry is startedstraight away without giving such notice to enable the person charged to prepare his

defence, the enquiry would be in violation of the principles of natural justice.

6. The enquiry should be conducted in the language understood by the employeesproceeded against.

7. The enquiry should be conducted in an orderly manner and not with haste.8. The employee proceeded against should be informed on the very outset, about the

accusations against him in as clear and specific terms as practicable.

9. List of witness proposed to be produced by the management should be suppliedbefore the start of the enquiry.

10.The concerned employee should be allowed to take the assistance of anotheremployee in accordance with the provisions of Service Rules or Standing Orders. But

he cannot be allowed to engage an Advocate unless the Presenting Officer pitted

against him as an Advocate or he is otherwise a legally trained person or when

complicated questions or fact of law is involved.

11.All the documents sought to be relied upon by the management to prove the chargesbe placed on the record, at the outset.

12.The basic and cardinal principle is that one who has to prove the charge has to leadthe evidence first. As the management has leveled the charges, it is its duty to prove


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the same. The common mistake is that in the course of the enquiry proceedings the

evidence of the delinquent employee is recorded first. This vitiates the whole enquiry.

13.At the outset, the Enquiry Officer should read out and explain to the concernedemployee the contents of the chargesheet and ask him whether he admits or denies the

charges. If he admits the charges leveled against him, it is not necessary to proceed

further with the enquiry, but to record his statement.

14.When the concerned employee does not admit the charges, the enquiry has to proceedfurther. The witnesses of the management are to be examined in the presence of the

employee and he should be given full opportunity to cross-examine them.

15.The employee proceeded against should be given fair and reasonable opportunity toproduce witnesses and documents in support of his defense. If he does not want to

produce any evidence, his statement should be recorded to that effect.

16.Witnesses should be examined in such a manner that a witness cannot hear what theprevious witness has said.

17.If the delinquent employee wants either to inspect the documents or the statements ofthe witnesses or to take notes or to have relevant extracts or make copies thereof, this

should not be denied. The basic idea is not to conceal but reveal the relevant

information.

18.After the completion of production of evidence by both the parties, the EnquiryOfficer may hear the Presenting Officer and the delinquent employee or the enquiry

Officer may permit them, if they so desire, to file written brief of their respective

cases.

19.Findings of the Enquiry Officer should be based only on the evidence recorded.20.Evidence, either oral or documentary, which is not produced before the Enquiry

Officer in the presence of the employee, should not be relied upon to prove the

charges.

21.No material should be relied upon the delinquent employee without his having beengiven an opportunity of explaining the same.

22.The Enquiry Officer should not be influenced by any fact which might have come tohis notice in his personal capacity or by any other extraneous considerations, in

arriving at the decision regarding the guilt or other wise of the accused employee.

23.Reasons given by the Enquiry officer for his findings should be adequate though thebenefit of doubt theory has little application in domestic enquiries.


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24.The report of the Enquiry officer should be a speaking one. That is to say, he mustgive reasons for his findings.

25.Findings of the Enquiry Officer on each of these should be clear, precise and withoutany ambiguity.

26.The report of the Enquiry Officer should give a clear impression that he is impartialand free from bias. Bias means an operative prejudice towards one side or the other.

27.The employee if suspended should be paid due subsistence allowance. In the case ofCapt. M Paul Anthony v/s Bharat gold mines 1999 (82) FLR 627, the Supreme Court

has termed non-payment of subsistence allowance, during suspension, slow poisoning

and this vitiates the enquiry.