In this article, Naba Khan of Aligarh Muslim University & Prashant Sharma of IIMT & School of Law, G.G.S.I.P.U discusses how to conduct Disciplinary Enquiry and what are the administrative rules to be followed under the Industrial Establishment (Standing Orders) Act and Rules, 1946.
A disciplinary enquiry is carried out, based on the principles of natural justice, whenever any employee commits any misconduct, in order to decide the fate of their employment. 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 disciplinary 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.
Administrative Rules for Disciplinary Enquiry
The Principle of Natural Justice
The management of the industrial establishments must satisfy the principles of natural justice while maintaining a neutral attitude towards the workmen. The delinquent employee must be apparently informed about the charges levelled against him and shall be provided with an opportunity to be heard so he can refute them and establish his innocence. He must be given an occasion to cross-examine the witnesses in his defence and evidence at the enquiry should be adduced in his presence. The punishment awarded, if proven guilty, should be in proportion to the misconduct committed. These principles of natural justice are specified in Sections 2(b), 5(2), 10A (2) and 13A of The Industrial Employment (Standing Orders) Act, 1946.
In Union of India vs. T. R. Verma, 1957 AIR 882 (1958 SCR 499), the court laid down that the principles of natural justice require the charge sheeted employee shall have an opportunity of adducing the relevant evidence and that the evidence of the employer should be taken in his presence; he should be given the opportunity of cross-examining the witnesses examined on behalf of the management, and that no materials should be relied upon against him without giving him an opportunity to explain to them. Following the procedure, the evidence recorded at an enquiry is not open to attack.
Right to Make Representation
A delinquent workman should have a right to represent against the findings recorded in the enquiry report to the disciplinary authority. The right has been laid down in the case of Union of India vs. Mohd. Ramzan Khan, 1991 AIR 471, 1990 SCR Supl. (3) 248.
Procedure for a Disciplinary Enquiry
Fig 1: Procedure for a Disciplinary Enquiry
The principle of natural justice clarifies that no man shall be punished or condemned without giving an opportunity to justify himself. The Industrial Tribunals, based on this, have laid down the following procedure:
In a landmark judgment of Amulya Ratan Mukharjee 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 departmental 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.”
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.
In Sur Enamel and Stamping Works (P) Ltd. vs. Their Workmen,1963 SC 1914, 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. (see here)
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.
Appointment of Enquiry Officer
Saran Motors Pvt. Ltd., New Delhi Vs. Vishwanathan 1964 11.LLJ 139, it was observed that:
- “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. (see here)
- The Enquiry Officer has the obligation to explain the procedures of enquiry and chargesheet against the concerned workman.”
Suspension Pending Enquiry
- In the case where a workman who is placed under suspension by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance in accordance with the provisions of Section 1O-A of the Industrial Employment (Standing Order) Act, 1946 which provides:
“Where any workman is suspended by the employer pending inquiry into complaints or charges or misconduct against him, the employer shall pay to such workman subsistence allowance:
- at the rate of 50% of the wages which workman was entitled to immediately preceding the date of such suspension, for the first 90 days of suspension and;
- at the rate of 75% of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.”
Explanation by Employee
After a charge sheet has been served on the accused workman, he may send his explanation cum reply in this manner:
- admitting the charges and pleading for mercy.
- denying the charges in totality.
- requesting for more time to submit the explanation.
Notice of Enquiry
On receipt of the charge sheet, the employee sends his reply to the Authority. If the Authority found the reply to be unsatisfactory, he may get a show cause notice from the Authority. This procedure is applied in the case of Associated Cement Co. Ltd vs. Their workmen and Other 1964 65 26 FJR 289 SC. (see here) which further states that:
“The workman should be given due intimation of the date on which the enquiry is to be held so that he has an opportunity to prepare his defence at the enquiry.”
Supply of relevant materials
Management may ask for any document in proof of charge. So, according to the
principles of natural Justice, such copies of those documents should be supplied to the delinquent workman. A workman who is to answer to charge must not only know the accusation but also the testimony by which the accusation is supported as enumerated in the case of Meenglass Tea Estate vs. workmen, 1963 11, L.L.J, 392 (S.C.) (see here)
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.
Further, some general rules for examination of the witness are mentioned in the judgment of Tata Engineering and Locomotive Co. Ltd. vs. S.C. Prasad, (1969) 11 L.L.J. 799 (S.C.) (see here)
It was observed by the Hon’ble Supreme Court that:
- “If the allegations mentioned in the charge sheet are denied by the workman in the domestic enquiry proceedings, the onus for proving those allegations will be upon the shoulders of the management and;
- the witnesses, called by the Management, must be allowed to be cross examined by the workman and;
- the workman must also be given a reasonable opportunity to examine himself and can add any further pieces of evidence that he might choose in support of his plea.”
Report of Enquiry Officer
- Once the employer and the workman have been heard, the Officer is required to prepare a reasoned enquiry report which contained every findings in the enquiry and submit it with the Authority.
- Lastly, it is the duty of an enquiry officer to send the Report to the Accused.
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.