Labour Laws Domestic Enquiry PDF

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MCT's College of Education & Research

Project Labor Laws: Domestic Enquiry

Submitted by : Deepali Rajesh Shinde Roll No.98 LLB-First Year Batch Year 2019-20

Contents 1

Domestic Enquiry: Conceptual Analysis....................................................................................3

2

Concept of Misconduct:..............................................................................................................4

3

Procedure for a Domestic Enquiry:............................................................................................5

4

Basic Principles for Domestic Enquiry:.....................................................................................5 4.1

Natural Justice in Domestic Enquiry.................................................................................5

4.1.1

Preliminary Enquiry:..................................................................................................6

4.1.2

Essentials of a Fair Enquiry:.......................................................................................6

4.1.3

Charge and Charge Sheet:...........................................................................................6

4.1.4

Service of the Charge Sheet:........................................................................................6

4.1.5

Suspension:...................................................................................................................6

4.1.6

Explanation:.................................................................................................................7

4.1.7

Notice of Enquiry:........................................................................................................7

4.1.8

Enquiry:........................................................................................................................7

4.1.9

Fact findings:................................................................................................................7

4.1.10

Examination of Witnesses:...........................................................................................7

4.1.11

Decision:.......................................................................................................................7

4.1.12

Service of the Order:...................................................................................................7

4.2

Conclusion............................................................................................................................8

4.3

Case Laws:...........................................................................................................................9

Domestic Enquiry 1

Domestic Enquiry: Conceptual Analysis “Domestic” (from the Latin word ‘domes’ – means ‘house’) has an adjective meaning, ‘belonging to the house’ or ‘remaining much at house’ or ‘relating to internal affairs’ or ‘private’ (as opposed to public) and enquiry (inquiry) means ‘making investigation/examination of facts/principles’ or ‘searching/seeking information by asking questions’ or ‘asking what, whether, how, why, etc. It also means ‘search for truth’. Thus, ‘domestic enquiry’, in the context of Industrial management as opposed to Government management of legal function – means management’s search for truth or otherwise of facts/circumstances/allegations /charges alleged by it against its employees. No specific clauses are provided with respect to the procedure of the disciplinary enquiry except the Industrial Employment (Standing Order) Rules that provide lists of acts and omissions considered as misconduct for the purpose of industrial establishments not being in coal mines and for the purpose of industrial establishments being in coal mines. The Industrial Establishment (Standing Orders) Act is applicable to the ‘Industrial Establishments’ employing a hundred or more employees, while the rest are on the discretion of State Government. The establishments that are not covered by the Standing Orders Act frame their rules prescribing acts and omissions, known as the Service Rules. In recent years, however, courts have laid down various principles that indicate the correct procedure to be followed and basic formalities to be observed by the employer in such cases. The Domestic Enquiry is carried out by the disciplinary committee of the respective establishment in relation to the matters of misconduct of the employees. Such committee generally comprises of:  Workers Representative, such as the member of Trade Union, as specified under Rule 14 (4) (b-a) of the Industrial Employment (Standing Orders) Central Rules, 1946.  Employers Representative, such as the head of the department where the workman was employed, and  An Independent Officer, i.e. an enquiry officer.  An internal hearing, to ascertain the guilt of the workmen of the alleged misconduct, is conducted by the administrative officer. Domestic Enquiry is mandatory in order to dismiss an employee; however, it is not necessary for suspending him by way of punishment.

2

Concept of Misconduct: Discipline, indeed is the very basis of a well-organized and established enterprise. It forms the backbone of the industrial management. With the establishment of relationship of employer and employees, certain Code of Conduct for mutual relationship develops. Discipline connotes observance of the prescribed rules of conduct or mode of life. It implies willingness to work and conforming to the established rules. Obedience of lawful orders is contemplated under the contract of service. Discipline is a behavioural question concerning human resources. Disciplinary action is one of the major causes of industrial dispute. The root cause of disciplinary action is a misconduct. Hence, it is important to understand what precisely amounts to misconduct. ‘Misconduct’ has not been defined either in the Industrial Disputes Act, 1947 or in Industrial Employment (Standing Orders) Act, 1946 under which most of the Standing orders governing conditions of services are framed. Misconduct relating to work i.e. non-performance of negligence of duty, absence without leave or overstaying sanctioned leave without permission, unauthorized absence from the place of work, disregards of safety equipment and procedure, guidelines. Misconduct relating to discipline i.e. insubordination or disobedience whether alone or in combination with others, disobedience of the lawful orders of the superior, striking work or inciting others to strike work, go slow, gherao, etc. Misconduct relating to integrity i.e. theft, fraud or dishonesty, giving false information, misappropriation of employers money, etc. Clause 14(3) of the Industrial Employment (Standing Order) Central Rules, 1946 provides for the act and omissions which shall be treated as Misconducts.

3

Procedure for a Domestic Enquiry:

4

Basic Principles for Domestic Enquiry:

4.1

Natural Justice in Domestic Enquiry A domestic enquiry is a quasi-judicial proceeding and as such one of its essential requirement is that the rules of natural justice have to be observed in holding it. Rules of Natural Justice is meant to those basic Principles of Justice which are founded on Equity and reason and without which no Justice can be done. Rules of Natural Justice is a matter of substance, not of form. It includes two basic principles of Equity: a. No one shall be a judge in his own cause (nemo judex in propria causa sua) i.e. he must not have anything like personal interest in the case. b. No decision shall be given against a party without affording it a reasonable hearing (audi-alterem partem).

4.1.1

Preliminary Enquiry: It is a customary and in complicated case, it is desirable to have a Preliminary Enquiry/Investigation into the allegation/accusations against a workman, for finding out whether there is any prima facie case justifying initiation of formal proceedings. It is not necessary that the workman should be present while the preliminary enquiry is being conducted. It may start on the complaint being lodged by one workman against another workman, or on a complaint by the supervisor under whom the workman is working. The necessity to conduct a preliminary enquiry depends on the nature of the offence and it is not necessary in all cases where misconduct is alleged.

4.1.2

Essentials of a Fair Enquiry: The procedure of the domestic enquiry which is generally accepted has been evolved and governed by three facts viz. the service rules/standing orders, the method followed by courts of law and the principles of natural justice. An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges levelled against him (ii) the witnesses are examined ordinarily in the presence of the employee in respect of the charges (iii) the employee is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter and (iv) the enquiry officer records his findings with reason for the same in his report.

4.1.3

Charge and Charge Sheet: The domestic enquiry starts the moment the charge sheet is issued to a workman. Charge sheet or show cause notice is meant to appraise the concerned workman with the details of the misconduct alleged against him. The charge sheet should mention the misconduct committed, the date and time of its commission and relevant section of the standing orders under which the misconduct falls. Charge sheet is issued calling upon the employee to submit his written explanation within a specified period of time.

4.1.4

Service of the Charge Sheet: If the workman is present, charge-sheet should be handed over to him in the presence of witness after explaining the contents of it in a language known to him. If the delinquent workman is absent or refuses to accept the charge-sheet, it should be sent to his last address under registered post with acknowledgement due. If he refuses to accept it or if it comes back undelivered the employer should display the charge sheet on the notice board, if such provisions exists in the service rules otherwise, the charge-sheet has to be published in a local newspaper with wide circulation.

4.1.5

Suspension: An employer may suspend a workman on finding that the misconduct is grave or serious in nature. The presence of the workman on the workplace, if considered dangerous for the society and maintenance of order and discipline in the establishment or it is greatly apprehended that he may tamper with the evidence, the delinquent workman may be suspended. The suspended workman shall get the subsistence

allowance in accordance with the Sec 10 A of the Industrial Employment Standing Orders Act. 4.1.6

Explanation: The explanation given by the worker within the given time has to be considered.

4.1.7

Notice of Enquiry: If the explanation is found unsatisfactory, a notice giving the time, place and date of the enquiry together with the name of the enquiry officer has to be served on the worker. The enquiry officer must not be the one who has issued the charge-sheet because it is a principle or natural justice that a person is disqualified to act as a judge if he is a party to the dispute.

4.1.8

Enquiry: At the appointed time, on the appointed date and place the enquiry will commence by the enquiry officer in the presence of charge sheeted workman. At the commencement of the enquiry the enquiry officer should explain the charge sheet to the worker. If the charge-sheeted workmen pleads innocence, the enquiry should be preceded. If he pleads guilty in writing, the enquiry need not be preceded.

4.1.9

Fact findings: On completion of the enquiry, the enquiry officer is required to submit his findings to the authority authorized to take disciplinary action. He should state in his report the charges as well as the explanations given to them. The enquiry officer should not recommend any punishment in his findings.

4.1.10 Examination of Witnesses: There is no provision of law under which the Enquiring officers holding domestic enquiries can compel the attendance of witnesses as under the Codes of Civil Procedure or Criminal Procedure. 4.1.11 Decision: The higher management, such as manager or director, for taking disciplinary action shall consider the findings and if he accepts the findings of guilt, he should inflict appropriate punishment in accordance with the standing orders.

4.1.12 Service of the Order: Any order of punishment should be served on the charge-sheeted workman and this completes the procedure for domestic enquiry.

4.2

Conclusion Any act or omission of an employee, whether amounts to the misconduct or not, is to be governed in accordance with the provided list in the Industrial Establishments (Standing Order) Rules. Although no statute or law specifically lays down the procedure to conduct the disciplinary enquiry, the various judgements of the Industrial Tribunals, however, have laid down a basic idea of the procedure that ought to be followed while conducting such an enquiry. The prime principle that is to be taken care throughout the procedure of the enquiry is the principles of the natural justice that shall be ensured at every step and action to assure the delivery of justice.

4.3

Case Laws:

1)

Amulya Ratan Mukherjee Vs. Eastern Railway, (1962) LLJ- 11- 540, Cal- H.C It observed by the Hon’ble High Court of Calcutta that: “Before making a charge, the Authorities are entitled to have a preliminary investigation or a “Fact-Finding enquiry” when they receive a complaint from an employer. This is not considered to be a formal enquiry at all and in such an enquiry, no rules are observed. There can be ex-parte examination or investigation and ex-parte report. All this is to enable the authority to apprise themselves of the real facts and to decide whether the employee should be charge-sheeted. But the Domestic enquiry starts from the charge sheet. The charge sheet must be specific and must set out all the necessary particulars. It is no excuse to say that the delinquent who had knowledge of previous proceedings should be taken to have known all about the charge sheet.”

2)

Sur Enamel and Stamping Works (P) Ltd. vs. Their Workmen,1963 SC 1914 The workman in the appellant company, was served with a notice on October 23, 1959, in which it was alleged that a number of articles had been spoiled due to his faults, and he was asked to show cause why the company should not take disciplinary action against him. In the enquiry held against him nobody except himself was examined to prove the charge. He was confronted with the reports of the superior and other persons made behind his back and simply asked why these persons would be making the reports against him falsely. On November 11, 1959, an order was made by the management dismissing him from the service of the company "for causing wilful insubordination or disobedience whether alone or in combination with another or others, for any orders of the superior of the management". The Industrial Tribunal, to which the dispute was referred, was of the view that the rules of natural justice had not been followed by the domestic tribunal; and after examining the evidence adduced before it the Tribunal came to the conclusion that there was no sufficient material to hold that D was guilty of insubordination or disobedience for which the dismissal order purported to have been made, or in respect of the alleged damage done to the company's property. The Tribunal accordingly set aside the order of the dismissal and directed D's reinstatement. The appellant challenged the validity of the order of the Tribunal on the ground, inter-alia, that it was not open to the Tribunal to go behind the finding arrived at by the domestic tribunal. Held that if an industrial employee's services are terminated after a proper domestic enquiry held in accordance with the rules of natural justice and the conclusions reached as the enquiry are not perverse, the Industrial Tribunal is not entitled to consider the propriety or the correctness of the said conclusions, But, where, as in the

present case, there was no proper enquiry, the Tribunal was justified in ignoring the findings of the domestic tribunal. An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges leveled against him, (ii) the witnesses are examined-ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to crossexamine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report. The Hon’ble Supreme Court, in an attempt to lay down the procedure for conducting an enquiry for industrial adjudication, provided that an enquiry cannot be said to have been properly held unless: 

the workman proceeded against must be informed clearly of the charges levelled against him;



the witnesses must be examined in the presence of the workman;



the workman must be given a fair opportunity to cross-examine the witnesses including himself if he so wishes; and;



the Enquiry Officer must record his findings with reasons in his report.

Generally, standing orders provide the manner of serving the charge sheet on the workman concerned and where it is prescribed the procedure should invariably be followed. It can be given personally or by post to the delinquent worker. 3)

Saran Motors Pvt. Ltd., New Delhi Vs. Vishwanathan 1964 11.LLJ 139 In the domestic enquiry held by the appellant, Saran Motors (Private). Ltd., against two of its employees, Vishwanath and Saran Singh, it was vitiated that the enquiry officer began and conducted the enquiry with a bias against the employees and in favour of the appellant. It was observed that: The Enquiry Officer should be properly and duly authorised by the competent authority to hold a domestic enquiry into the charges alleged against an employee. Any person, even an outsider, may be appointed as an enquiry officer, provided rules or Standing Orders do not bar such an appointment. The Enquiry Officer has the obligation to explain the procedures of enquiry and charge sheet against the concerned workman.”

4)

Associated Cement Co. Ltd. Vs The Workmen And Anr:

An industrial dispute arose in regard to the dismissal of certain workmen. It was referred for adjudication to the Industrial Tribunal. There were three domestic enquiries. One of them was conducted by officers, who had themselves witnessed the alleged misconduct. The enquiries were challenged on the ground that they were held in violation of the principle of natural justice and the procedure adopted in conducting them was not fair. The Industrial Tribunal came to the conclusion that the enquiries were not conducted in accordance with the principle of natural justice. Held i. that the enquiry conducted by the eye witnesses was not in accordance with the principles of natural justice as the enquiry officers had themselves witnessed the alleged misconduct of the workmen. Domestic enquiries should be conducted by such officers of the employer who are not likely to import their persona...