This article is written by Asgar Ali, pursuing a Diploma in Industrial and Labour Laws from LawSikho.com. Here he discusses “Who is Empowered to Commence Investigation for Violations of Standing Orders?”.
Standing Order in any organisation can be defined as a written procedure in standard form as established by employer involving his employees, a trade union with a purpose to bring uniformity in working conditions of workers as per the legislative provision, duly approved by the appropriate government.
Standing Order Act came into effect on 23 April 1946 with the title “The Industrial Employment (Standing Orders) Act, 1946. This act obliges the employer to define and issue uniform working conditions of employment in his Industrial establishment in case of one hundred people or more than a hundred workers are employed on any day of the previous year.
A Model Standing order is always helpful in avoiding certain Industrial disputes and discriminations as this act promote equal opportunities and conditions to the workers. In a Model Standing Orders of an organisation, the following matters can be prescribed:
- Classifications of workers i.e. permanent, probationers, apprentices, temporary or badlis etc.
- Conditions of recruitment, staffing of workers, shift working, information of leaves and holidays, attendance, late coming, short leaves, the procedure of applying leaves to authorities etc.
- Requirement to enter and exit from certain gates, liability to get searched at the security gate.
- Certain Rights and Liabilities of Employer as well as workers, trade unions
- Inquiry, Investigations, disciplinary actions i.e. to issue charge sheet against the violator.
- Suspension or dismissal for misconduct, for the act or any omission which constitutes misconduct.
- Termination, superannuation, separation from the company and the notice thereof to be given by employer and workmen
- Any other matter as prescribed by the appropriate government, law lords ( i.e. in Vishakha Judgement, Honourable Supreme Court ordered employers to constitute an ICC ( Internal complaint committee) for redressal of complaints relating to sexual harassment against women at work)employer, workmen or trade union in that organisation.
The contents of any Standing Order once after it is finally certified under the Act, required to be exhibited by the establishment at its prominent places in English and in a language understood by the majority of workers working in that establishment on proper notice boards. The Area where standing order to be displayed shall be such locations where the majority of workers are gathered for their routine job executions i.e. Main gate of organisation, Notice boards nearby attendance punching area, Canteen etc. Such display may be shop areas also where workers perform their daily work activities.
Objectives of Standing Orders in any Organisation:
- To enforce uniform working conditions in all organization so that workers’ working rights can be maintained.
- To communicate the working conditions of an organisation to the common worker in his own language for his awareness about certain Dos and Don’ts related to his conditions of employment.
- To STOP the employer to change work conditions at his choice or with prejudice ignoring workers’ rights at the workplace once a Standing Order is duly certified by the appropriate government.
- To minimise frictions between management and workers and hence to avoid certain industrial disputes.
Violation of Standing Order
Violation means an action of disrupting applicable rules. In general terms, the violation of Standing order in any organisation is understood “causing misconduct”. There are several types of misconducts i.e. late coming, abusing, quarrelling, theft, sexual remarks over female co-worker etc.
In compliance matter of any Certified or Model standing order, the violation can be on the part of employees and on the part of the employer also.
Procedure of investigation within an organisation:
Within an organization, there is a set procedure of investigation in case any misconduct is caused by any workman. Also, there is a set procedure of defining “Misconduct” and dealing with that misconduct, process of Inquiry/investigation, authority to commence investigation, process of investigation, summoning to respondent/witness/plaintiff, recording daily order sheet, commencing hearing process as per rules and as per natural justice, collecting evidences and decision taken or penalty imposed i.e. censure, written apology from aggrieved, withholding next promotion/next increment, demotion or recovery of loss from salary of wrongdoer employee etc. All these clauses are mentioned step by step in a Model or certified standing order of an organisation.
Officer/authority empowered to investigation within the organisation:
Within an organization, in case of violation is caused by any workman, then power to perform Inquiry or investigation against him is given to following:
- Inquiry Officer: An Inquiry officer may be any that person who has been appointed to perform an inquiry of misconduct caused by an accused employee and presents relevant matters, facts and evidence before the Management of that organisation. An Inquiry officer may be one, more than one or in place of inquiry officer, there may be an Inquiry Committee keeping in view the gravity of the misconduct.
Rule of bias must be borne in mind of the employer at the time of appointment of an Inquiry Officer or committee thereof. The principle that No one can be a judge in his own case is also known as the rule of bias. In essence, it implies that any interested party shall not play a role in decision making.
Hence, the common rule is that an Inquiry Officer should not be a witness in the proceedings; otherwise, it shall be a corollary of Rule of bias.
There are three kinds of bias which are considered as important:
- Personal Bias: One may be personally interested in the outcome of the case. If one is required to act as the complainant as well as the decision making authority, it is understood that the outcome is likely to be biased
- Pecuniary bias: Any person who has a monetary interest in an issue should not deal with the case.
- Bias of subject matter: One who has certain strong notions/ views about certain subjects might not be suitable for deciding issues relating to that subject. For example, one having strong male prejudiced views may not be suitable for dealing with issues relating to harassment of women employee and he cannot be suitable as an appointed inquiry officer against women harassment cases.
- Management: Management is the apex body of an organisation which covers organisation’s Occupier/ Managing Director or any person authorised on behalf of Occupier/Managing Director to whom the powers of decision making has been delegated. Management of an organisation presents and authorises their HODs/ Directors / Works In charges to head Certain Committees within that organisation and declares them competent authority/ presiding officer within the internal context of their organisation.
- Committees: Every such committee which has been constituted for bringing the harmony, justice and discipline in an organisation for working people, as well as employer and which fulfils applicable legal requirements behind its constitution can be termed as a committee. In the context of Standing Order Act, There are various types of committees i.e. Works Committee, ICC, (Internal Complaint Committee – intended to prevent, hear, investigate and decide sexual harassment cases against women workers. It is important to mention that Presiding Officer of ICC shall be a lady employee who is working on the senior level in the organisation), Discipline committee etc. which are empowered to perform an investigation of any misbehaviour or violation caused by workmen.
- Trade Union: Trade union of workers is also empowered to investigate certain matters as per standing orders because trade unions play active roles in works committee, Safety Committee, Disciplinary Committee, Internal Complaint Committee etc. In every relevant condition, the communication and participation of president / general secretary of the company are obligatory as workers’ representative.
Officer/authority empowered to investigation outside the organisation:
On the other hand, if the violation is caused by an employer by non-fulfilment of laid down procedure of certified / model standing order then following authorities are empowered to commence investigation against the employer of that organisation:
- Industrial Tribunal/ National Tribunal: In case, the matter is of National Importance, the National / Industrial Tribunal is empowered to investigate, hear and decide the cases related to violation matters caused by an employer in payment of wages, gratuity, bonus, overtime payments as per rules, violation of shift work timings, shift durations, holidays, and leaves as per certified standing orders. Industrial Tribunal is also empowered to hear the matters related to violation caused by the employer in the classification of grades as laid down in certified standing order under the Act.
- Labour courts: Labour court can investigate, hear and decide the matters related to application, change in standing orders, interpretation of Standing Order, any order enforced by employer contrary to the legal rights of workers, any order of employer to whom workers are not agreed, matters related to lockout of organisation caused by employer and strikes caused by labour. Labour court can also investigate the matter of wrongful dismissal/ wrongful discharge of any worker/ dismissal without giving him one month’s notice or salary in lieu of notice period and holds the power to decide the case by reinstating the employment of such aggrieved worker with payment of all applicable compensations from the account of the employer.
- Certifying Officer/Appellate Authority: Certifying officer(Joint Labour Commissioner /Assistant labour Commissioner)of territorial area where the organisation is located, receives the draft standing order from employer and forwards its copies to concerned trade union/ workmen of that organisation demanding their objection duly reduced in writing, if any within a stipulated time period (say 15 days). He also holds the power to investigate in case any objection is received to him related to draft standing orders submitted by the employer. As prescribed by Appropriate Government in compliances of applicable labour statutes, all certifying officers and Appellate authorities hold the power of Civil court for the purpose of – Receiving and collecting pieces of evidence related to the case, administering oaths, enforcing the attendance of concerned witnesses and compelling the discovery or production of things.
Legal Consequences (Penalty over Employer) for violation of Standing order Act:
- Section 13(1) presents that any employer who gets failed to submit a draft standing order as required by Section 3 , or who amends or modify his standing orders other than in proportion to Section 10, he shall be liable to be punished by a fine which may be extended up to rupees Five Thousands (INR 5,000/- ) and in situation of a regular offence, he shall be liable to be punished with further fine up to rupees two hundred (INR 200/-) for each day after the first failure from which that offence was continued.
- Section 13(2) presents that any employer who performs any act contravening to the standing order which is finally certified under this Act for his business establishment, then he shall be punishable with fine which may be extended up to Rupees One Hundred ( INR 100/-) and in the case of repeat offence, he shall be punishable with a further fine which may be extended up to Rupees Twenty Five (INR 25/-) for every day after the first failure from which that offence was continued.
- It is obligatory for an employer to display Standing orders at the entrance of the establishment/ prominent place where the majority of workmen get accumulated i.e. time office/punching machines/ gate entry etc. failing to do so shall be understood as a contravention of Section 13(2) of Act.
Moralities of Investigation or Inquiry:
In an Investigation or Inquiry, there must be a fair investigation and rules of Natural Justice must be obeyed. The Audi ‘Alteram partem’ the other side too is the core part which must be complied by presiding officer of investigation Committee.
Audi Alteram Patem which is basically a protection against an uninformed administrative action comprises within itself a number of rights. This rule implies that the accused person has the following rights (in case any Inquiry or investigation against him/her ):
(a) To know what the charges have been framed against him/her and what is/are the basis
(b) He/ She can inspect documents and present his/her consent or objection related thereto
(c) He/ She hold the authority to know the evidence/source of evidence
(d) He/ She can cross-examine the witnesses and lead evidence
The Examination/ cross-examination of Complainant, respondent and Witness(es) and Fact-Finding, daily Sheet progress, Constitution and decision of the committee, all relevant process must be transparent and documented within the prescribed format as per procedures as most important as per “Rule of Laws”. As a Whole, Justice must be done with seen to be done during every investigation or inquiry.
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