DOMESTIC ENQUIRY BEFORE DISMISSAL OF WORKMEN

DOMESTIC ENQUIRY BEFORE DISMISSAL OF WORKMEN

Author: KAVYA S,
3rd Year BA LLB,
CHRIST (DEEMED TO BE UNIVERSITY).
Abstract
       Disciplining a workmen is one of the key methods of curtailing the disputes amongst them to achieve maximum productivity. The term domestic enquiry with regard to human resource management is the search of truth, facts or circumstances concerning the changes which is alleged by the employer against his employee. And enquiry is also taken by the management when the employee commits any kind of misconduct in his work. Domestic enquiry has acquired a substantial significance in industrial adjudication. The Supreme Court has also declared the importance of proper enquiry in many cases, that nothing should happen when the enquiry is held or after it is completed and before the order of dismissal is passed, because it may become the criticism that the enquiry was held as an empty formality. But now at present situation, the entire scenario under the existing judicial decisions has changed where the management has no power to dismiss the employee on the basis of misconduct in work without proving it and without giving him the reasonable opportunity to defend himself in a proper domestic enquiry. This can be conducted in accordance of the Standing orders of the industrial establishments. A tribunal holding the domestic enquiry does not depend upon the rules of procedure as mentioned in Civil Procedure Code, Evidence Act or Limitation Act, but the tribunal may adopt its own rules of procedure. It is not necessary that the industrial establishments will always adopt the fair rules and regulations to guide those who have to hold the such enquiries for the benefit of such employees. In the absence of such rules, the authority holding such enquiry must act fairly and follow certain well known principles of natural justice.
This paper focuses on requirements of holding domestic enquiry with respect to indiscipline on the part of workmen, the procedure to be followed, the impact of Section 11-A of Industrial Disputes Act, 1947, stages of enquiry and principles of natural justice and the relating case laws.
Keywords :- Tribunals, Natural justice, Employment termination, Labour jurisdiction

Definition of Misconduct

       The term ‘Misconduct’ is not defined anywhere under the legislations of labour laws in India,  the Supreme Court in the case of  State of Punjab v. Ram Singh,[1]held that when certain elements like moral turpitude, wrongful behaviour, wilful character, doing a forbidden act, or transgression of well established rules of action or code of conduct can result in misconduct. But, SC further stated that misconduct does not include a mere error of judgement, carelessness or negligence in performance of duty.
The Central Government has also prescribed Model Standing Orders,[2]which provides some instances about misconduct like, (a) wilful insubordination or disobedience of any lawful and reasonable order of a superior; (b) theft, fraud or dishonesty of the employers business or property; (c) wilful damage or loss to employers goods or property; (d) taking or giving bribes; (e) habitual breach of any law applicable to the industrial establishment; (f) riotous or disorderly behaviour during working hours at the industrial establishment; (g) habitual negligence or neglect of work; (h) repetition of any act or omission will result in imposition of fine up to maximum of 2% of the monthly wages; (i) involving in strikes or encouraging others to strike from work is the violation of  provision of any law; and (j) sexual harassment.
But the State Government does not prescribe standing orders, they categorise the act or omission
done by the employee as misconduct based on the facts and circumstances of the case. And the act or omission should have the rational connection with the employment of workman and the relationship with his employer.[3]

    1)    Framing and issuing of a charge sheet :

The Supreme Court has said that charge is an accusation made against a person with respect to the act committed or omitted but not the accusation or information which is mentioned in abstract.

Essential elements of charge sheet :

 a)     it should be in writing with proper wording;

b)    it should clearly state the nature of offence, time, place and date of the commission of acts, but the charges which is mentioned in charge-sheet should not be vague;
c)     should clearly state the standing orders under which the person who has committed the act is liable for punishment;
d)    the charge-sheet should also state the punishment which should be imposed upon the person if the charge against him is proved;
e)     the charge-sheet should be issued under the signature of disciplinary authority but not under the signature of enquiry officer;
f)      should contain the time, place and date of enquiry and also the name of the enquiry officer.
There should be atleast two witnesses present during issuance of charge-sheet to the concerned workman personally. In case of his acceptance, his signature or tumb impression should be obtained on the duplicate copy as token of him received the original copy of the charge-sheet. If the workman refuses to accept it or he is absent then it should be sent to his last known address by registered post. The charge-sheet is said to be delivered when it is reached to the workman and returned without his unacceptance. The Supreme Court in case of Bata Shoe Co. Ltd v. Ganguly, has said that if the registered letter is not delivered or returned to the company then it should be published in a local newspaper mentioning the name and other details about the workman who was involved in the misconduct.[4]

      2)    Enquiry proceedings :

In domestic enquiry, the principle of criminal jurisprudence that the same person cannot be prosecutor and judge does not apply strictly. The enquiries need not be conducted with criminal proceedings but there should be considerations of fair play and natural justice. In, principles of natural justice it says that the person is not qualified to be judge if he is party to the dispute. And also the enquiry officer should not act in biased manner i.e., in favour or against either of the parties.  

       3)    Findings :

After completion of enquiry, the enquiry officer should submit his findings to the authority concerned to take disciplinary action. The report should include all the facts and circumstances of the case, recorded evidences during the enquiry, explanations and charges given to them. Perverse findings or findings without any basis should not be submitted. The enquiry officer should sign the findings, but he should not give any recommendations for punishment in his findings.

      4)    Decision :

Next the officers in higher management such as works manager, general manager or director will look into the findings that are submitted to them and after considering them if they find the workman guilty, award appropriate punishment in accordance with standing orders. The previous misconduct on record should also be taken into consideration when awarding the punishment, but no punishment can be given to the workman on the grounds that are not stated in the charge-sheet.
      5)    Service of the order :
Enquiry is complete only when the order of punishment is communicated to the offender in writing.

Suspension pending enquiry

       The Industrial Employment (Standing Orders) Central Rules, 1946 says that when any disciplinary proceeding against a workman is viewed or is pending or any criminal proceedings for the offence committed by him is under investigation or under trial and if the employer is satisfied that the workman has committed the misconduct then he can place the workman under suspension, by order in writing, suspend him with effect from such date as specified in the order. The workmen will be provided with a statement mentioning the reason for his suspension within a week from the date of suspension. A workman during the period of such suspension, will be provided with subsistence allowance.[5]
In the case of Mritunjai Singh v. State of U.P,[6]the Allahabad High Court has held that in every contract of employment the employer has a power to suspend an employee. This power is given to the government than to any private employer. By making this rule the power under the contract of service cannot be taken away.

Principles of Natural Justice

      The principles of natural justice is laid down in every courts because when conducting  the domestic enquiry they should not act in partial manner but there should be application of fair play.
There are number of rules laid down for the protection of rights of individual against any arbitrary procedure adopted or decision given by judicial or quasi-judicial bodies.
The main principles of natural justice :
                          I.          Nemo debet cesse judex in propria causa (no man shall be judge in his own cause)
Under this rule, a person is disqualified to act as judge ,
·       if he is party to dispute;
·       if he has any interest in dispute before him;
·       if he is interested in the result of dispute;
·       imparts his knowledge into the decision, i.e., he cannot be a judge and witness at the same time;
·       if he does not act on his own decision or acts on the saying of others.
                        II.          Audi alteram partem(hear the other side)
The judge has to give opportunity for the party to show evidence before passing judgement.
The person who is involved in act should have reasonable opportunity of presenting his case and the administrative authority have a duty not to act much judicially but to act fairly.
The Supreme Court in case of Sur Enamel and Stamping Works Ltd v. Their Workmen,[7]has said that the enquiry cannot be said to be proper unless, 
a)     the employee who is charged has been informed about the charges levelled against him;
b)    the witnesses are examined in the presence of the employee;
c)     the employee should be given a fair opportunity to cross-examine the witness;
d)    fair opportunity to examine the witness including himself in defence if he wishes;
e)     findings are recorded by the enquiry officer with reasons in his report.
In Tata Oil Mills v. Workmen[8], it was held that if the domestic enquiry was not done in regard to the principles of natural justice and a reasonable opportunity is not given to the employee to show evidence in support of his evidence, then it will be a valid ground for the “tribunal to discard the findings of domestic enquiry” was elaborated by Gajendragadkar, C.J.

Impact of Section 11-A of Industrial Disputes Act

      Section 11-A talks about the powers of labour courts, tribunals and national tribunals to discharge or dismiss the workmen. Under this section, the labour court or tribunal has been given the authority to set aside the order of dismissal or discharge if it is satisfied that the order was not justified. The importance of domestic enquiries has been reduced after introducing Section 11-A by the Central Act, as we can find in the case of The Workmen of Firestone Tyre and Rubber Co. of India (Pvt) Ltd v. The Management,[9]the Supreme Court held that even if no enquiry or defective enquiry has been conducted by the management of the industrial establishment, but still the parties can submit evidence before the Industrial Tribunal to prove their stand.
Before introducing section 11-A and a valid enquiry was conducted, the tribunal was able to interfere with the decision of the management only on the four grounds: (a) want of good faith; (b)violation of principles of natural justice by the management; (c) unfair labour practice and (d) finding not based on the material evidence. Therefore if the valid enquiry is not based on the principles of natural justice then the tribunal or labour court can set aside the decision of management or modify the punishment given to the workman. By this we can see that the amendment has provided the tribunal or labour court with extensive powers which can be misused.
If the employer or the workman is not satisfied with the deci
sion of the Tribunal or Labour Court, then they can appeal before a High Court by invoking the writ jurisdiction.

Conclusion

       In the present system as we can see that the very essence of natural justice is affected , because the officer does not inspire the confidence of the delinquent workman as the charge-sheet which is given by the employer and the officer for enquiry is also appointed by him. Therefore there is a need of panel of officers consisting of retired judges and labour law practitioners to be provided by law with quasi-judicial powers for holding enquiries. Consequently, this will reduce the number of industrial disputes and more importance will be given to the findings of such officers.
As we can see under Section 11-A of the act, which provides extensive powers to the Tribunals or labour courts followed by appeal before the High Court, due to this the significance of domestic enquiry is overlooked in industries. Tribunal or labour court is fully empowered to re-examine the case on merits. This defines the entire process of industrial adjudication. During the valid enquiry, if the misconduct on the part of the employee is proved and punishment is imposed on him then the tribunal or labour court cannot interfere or decline such decision. This  shift in the control back into the hands of management will help to promote or maintain the industrial discipline in India.     


[1] AIR 1992 SC 2188
[2] “Standing Orders” are the rules of conduct for workmen in the industrial establishment. The Industrial Employment (Standing Orders) Act, 1946 need employers of all industrial establishments to define the conditions of employment under them
[3] Issue Viii, “Domestic Enquiries in Industrial Adjudication Introduction”,  PSA Leg, (2010).
[4](1961) I L.L.J. 303 (S.C.).
[5] A.M. Sarma, “Domestic Enquiry”, Journal of the Indian Law Institute, Vol.20, No.1, pp. 122-132 (1978).
[6] (1971) I L.L.J, 597 (All.).
[7] (1963) 1 I L.L.J, 367 (S.C.).
[8] AIR 1965 SC 155.
[9] AIR 1973 SC 1227

Leave a Comment