The very basis of any well organized
establishment is discipline and the management must take prudent measures in
upholding this. Disciplining
a workman is one of the key methods of curtailing disputes amongst them and achieving
maximum productivity.
However, the power to supervise this
discipline should not be used as tool to arbitrarily dismiss or punish a
workman, which would be indeed be very unfair to them. Every establishment is
expected to maintain Model Standing orders or Standard Standing Orders which
lay down the bye laws of the industry including those dealing with misconduct
and discipline.
With the growing importance of human
rights, its enforcement and the notions of equality and fairness for all, law
has made it necessary for an employer to work in a just and fair manner towards
its workers knowing that it is the weaker party in industrial relations. It is
for this purposes its mandatory for employers to hold domestic enquiries.
It has been held by
Hon’ble Supreme Court of India in Hombe Gowda Educational Trust v. State
of Karnataka, stated that giving managers the power to punish a workman
according to law, even if the punishment may result in some hardship is
important. But, one needs to bear in mind that conducting disciplinary
proceedings against a workman is most controversial and often lead to long
drawn-out cases. Hence, the management of any industrial establishment must
cautiously approach such proceedings and strictly follow the procedure laid
down by judicial precedents.
Concept
of Domestic Enquiry
Domestic enquiry is similar to a trial in a court of law,
but while a trial in a court is for crimes done against society, domestic
enquiry is conducted for offences committed against the establishment for
misconduct, punishable under the standing orders/rules and regulations of the
organization.
Further, while
a trail in a court is in accordance with the criminal procedure code, civil
procedure code, evidence act, the domestic enquiry is conducted in terms of
what is known as 'Natural Justice'. Also, the enquiry officer while examining
the evidence and pronouncing on the guilt is not authorized to penalize the
employee. It is only the employer or the appointing authority also known as
notified disciplinary authority who can pronounce the penalty.
Domestic enquiry is not considered as a legal requirement
under the Industrial Disputes Act, or other substantive laws such as the
Factories act, Mines Act, etc. but has been provided under the standing orders
to be framed in the Industrial Employment (Standing Order Act) 1946. As a
result it is now well-established that such standing orders have the force of
law and constitute statutory terms of employment.
The case law established over a long period has made it
obligatory for the employers to hold a fair and just enquiry to prove the
misconduct before awarding any serious punishment.
Dismissal
of an employee without holding a fair and just domestic enquiry amounts to the
violation of the principles of natural justice and is frowned upon by the
Labour Courts/Industrial Tribunals and adverse conclusions may be drawn against
the employer not holding a domestic enquiry, in so much so that the dismissal
without holding a domestic enquiry is deemed to be illegal.
In Sur
Enamel and Stamping Works (P) Ltd. v. Their Workmen, the
hon’ble Supreme Court of India in an attempt to lay down the procedure for
conducting an enquiry for industrial adjudication provided that: (a) the
workman proceeded against must be informed clearly of the charges leveled
against him; (b) the witnesses must be examined in the presence of the workman;
(c) the workman must be given a fair opportunity to cross-examine the witnesses
including himself if he so wishes; and (d) the Enquiry Officer ("Officer")
must record his findings with reasons in his report.
Principles of Domestic Enquiry
1.
Rule of Natural
Justice must be observed.
2.
The delinquent is
entitled to a just hearing.
3.
He can call for his
own evidence.
4.
Cross-examine any
witness called by the prosecution.
5.
Where rules are laid
down, the procedure of such rules must be followed.
6.
Disclose to the
employee concerned, the documents of records and offer him an opportunity to deal with it.
7.
Do not examine any
witness in the absence of the employee.
8.
The enquiry officer
is at liberty to disallow any evidence after recording the reasons in writing.
Keeping this in mind the above
mentioned Principles, the following steps for conducting an enquiry against a
workman need to be followed:
a) Preliminary enquiry:
When an act of misconduct has been committed and the
Disciplinary Authority ("Authority")
receives a complaint, it may conduct a preliminary
enquiry. This enquiry is conducted before the charges are framed and is not
part of a domestic enquiry. At this stage the management carries out
investigations prior to launching enquiries against the workman, and determines
whether there is sufficient material evidence to initiate domestic enquiry. The
law with respect to preliminary investigation is, if the employer makes the
enquiry it is not incumbent upon him to call for the explanation of the workman
before serving the charge-sheet, since it may be used as a ploy for dishing out
the defence of the workman. However, it is pertinent to note that the evidence
recorded in a preliminary enquiry cannot be used in domestic enquiry because
the workman has not had the opportunity to defend himself against such
evidence. Upon conclusion of the preliminary enquiry, if the workman is found
innocent, the employer need not undergo the following procedure. In such cases,
the employer is only required to issue a show cause notice to the workman.
However, if the workman is found guilty, the management has to hold a proper
enquiry before dismissing him, which can be initiated only by supplying him
with a charge-sheet.
Chargesheet
Domestic enquiry commences once a charge-sheet is issued
to the workman. A charge-sheet essentially contains detailed particulars of the
misconduct, specific charges against the workman and the relevant clauses of
the Standing Order under which the workman is liable to the punished. It is
pertinent to note that the charge-sheet is to be sent by the employer to the
workman by registered post and in case it is returned un-served, the employer
must get the charges published in the local newspaper in the regional language
understood by the workman.
Explanation
Pursuant to
service of the charge-sheet, the workman must be given an opportunity to submit
an explanation to the Officer with respect to the alleged act or omission
leading to misconduct. Accordingly, he must be granted reasonable time towards
submitting the explanation and the enquiry must not be concluded unless this
time period has expired. It is pertinent to note that there are no defined
parameters of what constitutes "reasonable time period," and it
depends on the facts and circumstances of each case, nature of charges, nature
of proposed actions, etc.
Enquiry
Report
Once the employer
and the workman have been heard, the Officer is required to prepare a reasoned
enquiry report and submit it with the Authority. This enquiry report must also
be supplied to the workman upon conclusion of the enquiry. Since the Officer's
may not be well acquainted with the law, minor discrepancies in the report
which have no bearing on the decision may well be overlooked by the judiciary.
The
Authority finally decides the matter and the penalty to be imposed, in case it
agrees with the findings of the Officer. If the Authority does not agree with
the findings it records its own findings based on the evidence on record. While
doing so, if the Authority does not agree with the Officer's finding that the
accused workman is not guilty, it may afford another opportunity to the workman
to defend himself. However, once the Authority decides to impose punishment, it
must be communicated to the workman at the earliest.
The
decision of the Authority is appealable, provided the Standing Orders allow the
appellate Authority created by the management to hear the matter again. The
decision of the appellate Authority was final and binding upon the parties, and
the domestic enquiry would be deemed concluded. However, this position has
changed since the inception of section 11-A in the Act.
Impact
of section 11-A of the Act
The
significance of domestic enquiries has reduced due to the introduction of
section 11-A in the Act and the finding of the SC in The
Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The
Management, wherein it was held that even if no enquiry
or defective enquiry had been conducted by the management of the industrial
establishment, the parties can adduce evidence before the Industrial Tribunal ("Tribunal")
to prove their stand. Thus, before section 11-A was
introduced and a valid enquiry was conducted, the Tribunal could only interfere
with the decision of the management on the following four grounds: (a) want of
good faith; (b) unfair labour practice; (c) violation of principles of natural
justice by the management; and (d) the finding is not based on the material evidence.
However, post the amendment, the jurisdiction of the Tribunal/Labour Court can
interfere with the decision of the Authority, even if the enquiry is conducted
on the principles of natural justice. Therefore, in case of both, valid enquiry
following the principles of natural justice or no enquiry being conducted, the
Tribunal/Labour Court is empowered to set-aside the decision of the management
or modify the punishment awarded to the workman. This in turn means that the
amendment has granted the Tribunal/Labour Court extensive power which might be
misused. If the employer or the workman is not satisfied with the decision of
the Tribunal/Labour Court, they may further appeal before a high court by
invoking writ jurisdiction.
Conclusion
Under the present system an Officer
does not inspire the confidence of the delinquent workman as the charge-sheet
is given by the employer and the Officer is also appointed by the employer.
This frustrates the very essence of natural justice. Therefore, the law should
provide a panel of Officers consisting of retired judges and labour law
practitioners. They should be empowered with quasi-judicial powers while
holding enquiries. Accordingly, due weightage will be given to the findings of
such Officers and the number of industrial disputes will reduce.
Further, due to the extensive power of
the interference of the Tribunal/Labour Court under section 11-A of the Act
followed by an appeal before the high court, the significance of holding a
valid domestic enquiry is overlooked in industries. The rationale is that the
industry is averse to get involved with cumbersome procedures when the
Tribunal/Labour Court is fully empowered to re-examine the case on merits. This
undermines the entire process of industrial adjudication. Towards maintaining
balance, if a valid enquiry is held, misconduct is proved and accordingly
punishment is imposed, then the Tribunal/Labour Court should decline to
interfere with the decision. Such a shifting of some degree of control back
into the hands of the management will greatly help the cause of industrial
discipline in India.
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