Axiomatic Truth

8/14/2019 Axiomatic Truth

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A HAND BOOK FOR H.R. MANAGERS

ARTICLE ON

AAAA XIOMATIC TTTT RUTH DDDD ISCIPLINEIN THE OOOO RGANISATION

By

P.B.S. KUMARB.Sc,MA(PM),MA(Ind.Eco.).MBA(HR),BGL,DLL,PGDPM


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AXIOMATIC TRUTH DISCIPLINE IN THE ORGANISATION

1. INTRODUCTION :

Discipline is the force that prompts an individual or a group to observe the rules,regulations and procedures which are deemed to be necessary for the attainment of anobjective, it is force or fear of force which restrains an individual or a group from doingthings which are deemed to be destructive of objective. It is also the exercise of restraintor the enforcement of penalties of the violation of group regulations. It is like anaxiomatic truth that no organization can flourish without proper and conduciveatmosphere of discipline.

Discipline is defined in dictionary meaning as as mode of life in accordance with rules.The concept of industrial discipline arises from this definition while the purpose is to

ensure that order and place are preserved in an organization by enforcing a mode of lifein accordance with the laid down rules.

The aims and objects of discipline are :

To obtain a willing acceptance of the rules, regulations and procedures of anorganization so that organizational goals may be achieved.To import any element of certainty despite several differences in informalbehavioural patterns and other related changes in an organization.To develop the spirit of tolerance among employees and a desire to makeadjustments.To give an seek direction and responsibility.To create an atmosphere of respect for the human personality and relations, andTo increase the working efficiency and morale of the employees so that theirproductivity is stepped up, the cost of production brought down, and the quality ofproduction improved.

Discipline in general speaking in three ways.

The first one is known as self-discipline:-

It refers to ones efforts at self-control for the purposes of adjusting oneself to certainneeds and demands. This form of discipline is bases on psychological principles.First, punishment seldom produces the desired results, often it producesundesirable results. Second, a self-respecting person tends to be a better that onewho is not.


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The Second one is Principle is the necessary condition of orderly behaviour:-

This refers to discipline as the condition which must exist for any orderly behaviour

in an organization through efforts that build up morale and high spirits.The Third principle considers discipline as a judicious process:-

Based on training and punishment. Its purpose is not a change past behaviour butto prevent its recurrence in future. It is a process of training a worker so that he can

develop self-control and can become more effective in his work.

Discipline, in part, is an attitude of mind, product of culture and particular environmentwhich impels an individual to willingly co-operate in the observance of the rules of the

organization to which he belongs. This conformity and willingness to work for theobjective of his organization have to come from within, through at times they may haveto imposed by an external agency. To get the things in the organization in a successfulattainment of goals, it may be punitive or a big stick approach which imposes a penaltyor punishment, if the rules and regulation, which have been laid down by anorganization, are ignored or disobeyed.

2. CAUSE OF INDESCIPLINE :

Before coming to the important aspect of the ways to ensure the maintenance ofdiscipline, it is necessary to know the causes of indiscipline. Some of the causes thathave been enumerated are:

A) Job Satisfaction :

Non-placement of right person on the right job which is suitable forhis qualification, experience and training.

B) Lack of proper Training :

Undesirable behaviour of senior officials, who may have set a pattern of behaviourwhich they expect their subordinates to follow, but their expectations are belied,and an infringement of rules follows.

C) Lack of proper Communication Skills:

Lack of upward communication, as result of which the thoughts, feelings and reactionsof employees cannot be conveyed to the top management. This generally leadsto aggressive or rebellious behaviour.


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D) Lack of Leadership Qualities :

Leadership which is weak, flexible, incompetent distrustful of subordinates is often aninstrument which makes for the creation of indiscipline among employees.

E) Lack of proper supervision:Lack of properly drawn rules and regulations and also absence of good supervisors.

F) Psychological and Sociological reasons :

The divide and rule policy of the management, as a result of which friction andmisunderstanding are created among the employees which destroy their team spirit.Also misunderstanding rivalry and distrust among workers and supervisors which leadsto fellow feeling , a widespread sense, of injustice, or apathy on the part ofmanagement.

G) Lack of proper Working Environment :

Bad working conditions, inborn tendencies to flout rules, discrimination in the matters ofselection, promotion, transfer and placement and improper coordination, delegation ofauthority and fixing of responsibility.

The success of any rules of discipline depends on the existence of a high degree ofcooperation between the employers and employees, on faith an belief in on anothersmotives. Disciplinary measures have serious repercussions on employee, they should,therefore, be based on certain principles so that they may be fair, just and acceptableto employees and their representatives. As far as possible, all the rules should beframed in cooperation and collaboration with the representatives of employees. Therules should be appraised at frequent and regular intervals to ensure that they are andcontinue to be appropriate, sensible and useful. The rules should vary with changes inthe working conditions of employees. They should be uniformly enforced if they are toeffective. They must be applied without exception and without bending them or ignoringthem in favour of any worker.

Before taking any disciplinary action, it should be made sure to get and keep adequaterecords of misconducts and warnings. It is always better to let the subordinate fullyexplain what happened and why it happened. It may then be discovered whether therewere mitigating circumstances or that he was not aware of the rules, or that the personhad conflicting orders or even permission to break the rule for some reasons. Gettingfacts is a good management practice, especially when defending the decision tosuperiors, arbitrators and others. Although there is no hard and fast procedure to befollowed to maintain the discipline but in each case and situation it has to be judiciousand should be based on the principles of natural justice.


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3. GUIDE LINES FOR INITIATION OF DISCIPLINARY ACTION:

I. CHARGE-SHEET

The object of the Charge - Sheet is to tell the delinquent what he is supposed or allegedmisconduct during his employment. Under the Industrial law, there is no form prescribedfor a Charge-Sheet hence it becomes more important to draft it more carefully withprecision and clarify. The framing of a Charge-Sheet being the first necessity for disciplinary action and it is the main pillar for record purpose.

The Charge-Sheet should also take care to mention the particulars of time, place,

occurrence and the manner in which the incident alleged to have taken places so as toremove vagueness and make the charge definite by mentioning these essentialfactors.(Just like a provisions in the vegetable soup) :

ESSENTIAL INGREDIENTS :

A Charge Sheet being root of the disciplinary action. When vague,will vitiate the whole proceeding hence the penalty imposed on

delinquent will be quashed.

The object of a charge sheet is that the delinquent must know what he ischarged with and have the adequate opportunity to mete the charges and todefend himself by giving a proper explanation.

A delinquent employee must be provided with the copies of the documents asrelied upon by the Disciplinary Authority and the burden, to show that non-supply of documents required by the delinquent did not cause any prejudiceto him, lies upon the Disciplinary Authority.

Failure to enclose the list of witnesses along with the charge memo will violatethe Conduct Regulations, hence the entire disciplinary proceedings will be

vitiated when it is so stipulated.


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GUIDENCES :

The Charge-Sheet must be specific and must set out all the necessaryparticulars. It will serve no useful purpose at all to presume that the employee isfully informed of the charges because of any previous proceeding against him.

Any warnings that might have been given to a workman previously or from timeto time or that his attention had been drawn to any fault, lapses on his partpreviously can, by no means, take the places of a regular enquiry.

Vague accusation, which the workman could not possibly follow, should not bemade in the charge sheet.

The Charge Sheet must accurately and precisely state whether the act ofcommission or omission constituting misconduct is in violation of any StandingOrder or not. The test is whether the charge conveys to the employeeconcerned, the exact nature of misconduct in a way that would enable him tomete the charge.

Where, for instance, the charge is for unauthorized collection of subscription onthe work premises, the purpose for which such a subscription was collected neednot be stated. But the time, date and place i.e. when and where the collectionwas made must be clearly mentioned.

When, under the Standing Orders or service rules, and act such as absencewithout leave, late attendance, negligence or disobedience is misconduct, whenit is committed habitually then in such a case the word, habitual forms andessential constituent of the charge and must be expressly mentioned in thecharge sheet.

If the charge is for arrogant conduct towards a superior, then it must be so statedin the charge sheet given in the occasion on which the misconduct wascommitted and in respect of which particulars.

When an employee is charged for habitually disobeying the instructions, then

each set of disobedience on his part must be separately mentioned in details inthe charge sheet.

When an employee is charged for using objectionable and offending language,then the actual words used must be stated in the charge sheet.


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Principles of natural justice require that the person charged should knowprecisely the nature of the offence so that he may be able to explain what he has

to say about it an prove innocence in the matter. Vague allegations should beavoided while drafting a charge sheet.

MODEL PRO-FORM FOR GENERAL CHARGE-SHEET

To

Mr./ Ms..Emp.No.Designation..

It is reported against you that on ________(date) at ________(time) you_____ (mentionclearly the act or acts of misconduct alleged).

The acts, as alleged above to have been committed by you, amount to misconductwhich, if proved, would warrant serious disciplinary action against you.

Accordingly, you are hereby required to show cause within _______ days of the receipthereof as to why you should not be dismissed or other wise punished.

Should you fail to submit your explanation as required, It will be presumed that youadmit the charges and have no explanation to offer and the matter will be disposed ofwithout any further reference to you.

Since the charges, leveled against you, are of grave and serious nature, you are herbysuspended pending further proceedings and final orders in the matter.

The receipt of this letter should be acknowledged.

AHTOHRISED SIGNATORY


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II. DOMESTIC ENQUIRY

The domestic enquiry in a private employment is that of mistrust which arises

essentially because the Charge-Sheet is given by the employer and the enquiry is alsoheld by an officer or an outsider appointed by the employer. As such the employer isrepresented both, the prosecutor and the Judge. A suspicion of bias is inevitable in sucha situation. This is the main reason that the delinquent employees do not have faith inthe enquiry officer. They participate reluctantly and take every possible step to frustratethe enquiries. They raise number of objections right from the validity of the appointmentof enquiry officer. They also demand to be represented either by a lawyer or the unionleaders. They ask for a number of documents whether relevant or not. Also, thedelinquent employees or their representatives do not restrict the cross-examination ofthe witnesses and the enquiry officer has to take a decision under the givencircumstances. Even when the enquiries are held by top bureaucrats or the judicial

officer, one flaw or the other can be found which vitiates the whole enquiry. An attemptis made to clarify various aspect which should be taken care while holding an enquiry.

GUIDELINES FOR HOLDING AN ENQUIRY:

A domestic enquiry is held by an Enquiry Officer who is not a Judge but at thesame time the Principles of Natural Justice have to be complied with so thatproper opportunity is given to the charge-sheeted employee Ex.: to be heard,to cross- examine the witnesses, to produce his document, with witnesses andhimself.

The enquiry officer should neither be the Disciplinary Authority nor in any wayconnected or witness to the misconduct(s).

An advocate can also be appointed as an Enquiry Officer.

When an Enquiry officer is appointed from the establishment, he should preferablybe superior in status of the charge-sheeted employee.

The notice for holding of enquiry with time, date and venue of enquiry be sent bythe Enquiry Officer to the charge-sheeted employee and to the Management byRegistered A.D. Post . A personal delivery of the notice through a messenger canbe appropriate when the charge-sheeted employee has not been placed undersuspension.

While fixing the hearing o enquiry, the charge-sheeted employee be givenreasonable time for appearance so that he could prepare his defence.


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First of all, the attendance of the parties including the Enquiry Officer, charge-sheeted employee and the management representative are to be recorded andduly signed by them to this effect in the proceedings or the order sheet, if madeseparately.

The whole procedure be carried out in good faith and without any bias or intent ofmalice.

For the sake of brevity, the abbreviations are used as EO (Enquiry Officer) , CE(Charge-Sheeted employee), MR (Management Representative),CER ( Charge-Sheeted employees Representative) and MW (Management Witnesses) 1,2and so on. CEW (charge-Sheeted employees Witnesses) 1,2 and so on.The documents which are produced are to be exhibited as Exh.No. 1,2and ..Management documents also be exhibited like that.

The Enquiry Officer should refrain from asking leading or probing questions to thecharge-sheeted employee.

The Management Representative be asked by the Enquiry Officer to produce thelist of witness along with documents which should be duly exhibited (by exhibitionof the documents it mean it is construed that they from part of the proceedings inthe enquiry).

The enquiry proceedings be recorded in triplicate Ex.: one copy for the EnquiryOfficer, one for charge-sheeted employee and the third copy to the ManagementRepresentative.

The Representation in the enquiry by a lawyer is not permitted unless the ServiceRules or the Standing Orders or Regulations of the Establishment so providewhereas the Charge Sheeted Employee can be advised to be represented byany of his co-employees.

If the management representative as a legally trained person, the charge-sheetedemployee can have representation through a lawyer of his choice.

The charge-sheeted employee and / or his representative be given an opportunityto cross examine the witnesses and the evidence should be recorded as producedby the Enquiry Officer. Thereafter, the charge-sheeted employee be asked toproduce his witnesses and himself, The Management representative be given anopportunity to cross examine the witnesses of the Management


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Every page of the proceedings be signed by EO, CE and MR. If there is anyobjection either by the CE or MR, it should be dealt by asking the comments of theother party.

The next date and time for recording of evidence be duly recorded in the enquiryproceedings or the order sheet. If made separately, and signatures of both Ex: CEand MR be obtained at the enquiry proceedings.

The adjournment, when sought by the CE or CER, be given by the EO even if therequests to this effect are opposed by the MR.

The Management Representative should be asked to cross-examine thewitness(es) and if he cross examinees the witness(es), it should be recorded. If theManagement Representative does not want to cross examine the witness(es), theEnquiry Officer should record this in the following manner.

After the enquiry proceedings are concluded, the Enquiry Officer should give hisfindings of the facts, evidence oral as well as documentary, by dealing with thesalient features of the evidence on the record. The Enquiry Officer should givefinding as to whether the charge has been proved or not or partly proved, as thecase may be.

The Enquiry Officer should not recommend any punishment to be imposed uponthe charge sheeted employee by the Disciplinary Authority.

The charge sheeted employee be allowed to cross examine the Managementwitnesses and call his own witnesses.

The charge-sheeted employee be given ample interpretation facilities if thelanguage of enquiry is not his own.

The following is the model enquiry proceedings


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___________________ (Signature of MR)

________________________________________

(Signature of the enquiry officer with date & stamp)

If some clarification are to be sought from the witness in support the charges MR mayput specific clarifications, and these clarifications must be recorded in the enquiryprocedure. Re-examination should be permitted only if there is any ambiguity.

Some procedure is to be adopted for recording the other witness. When witness of themanagement are examined, the enquiry officer should record the statement of themanagement representative to the effect that the management has no other witness toprove, hence he closes the evidence.

___________________________ (Signature of MR)

Date__________________

When the examination of the witness of the management in support of the charge(s) isover, the EO should record the statement of the MR to the effect that the managementhas no other witness to produce, hence he closes his evidence.

_____________________________ (Signature of the concerned worker)

Date______________

When the examination of witness of the Management in support of the charge(s) isover, the concerned worker be asked to make a statement or proceed with hisevidence.

_____________________________ (Signature of the concerned worker)

Date_________________

__________________________________ (Signature of workers representative)

Date_________________


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_____________________________ (Signature of the MR)

Date__________________

________________________________ (Signature of the concerned worker)After the statement of the concerned worker is recorded, the enquiry officer should askthe managements representative whether he would like to cross-examine the worker orhis witness (es).

Qs.______________ As.______________

So on and so forth

Date_____________ ________________________ (Signature of concerned worker)

________________________________ (Signature of workers representative)

_________________________ (Signature of MR)

Date_______________

If the managements representative has no questions to ask from he concerned worker,a statement to this effect should b recorded in this manner:

Opportunity given to the managements representative to cross-examine the concernedworker, but he had no questions to ask from the concerned worker.

Thereafter the concerned worker should be asked to produce his witness(es).WorkersWitness (W.W.1)Statement of Shri___________________(name, designation and address)Ticket No.__________etc (if any)(Record the statement)

________________________ (Signature of the witness)


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Read over, explained and admitted that the statement of W.W.1 has been recorded inmy presence.

______________________

(Signature of worker)Date__________ _________________ (Signature of the EO)

Date__________

The MR should be asked to cross-examine the witness (es) and if he cross-examines

the witness (es), it should be recorded. If the MR does not want to cross-examine thewitness (es), the EO should record this in the following manner:

The MR does not want to cross-examine the witness(es), of the worker despite anopportunity given to him to this effect.

_______________________________ (Signature of the MR)

Date___________

_______________________________ (Signature of the concerned officer)

Date___________ -

______________________________ (Signature of workers representative)

Date___________

In a domestic enquiry, no arguments are required t be advanced by either of the partiesafter producing evidence for or against. The EO, should thereafter submit his writtenfinding to the management.

Finding/Report of the EO

In the matter of charge sheet No._______dated______issued byM/S___________hereinafter referred to as Management toShri______________(hereinafter referred to his concerned worker)


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PRESENT

____________________________ (Name & designation of the EO)

APPEARANCES

1. Shri________________(MR)2. Shri________________(concerned worker)3. Shri________________(representative of the concerned worker)


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REPORT

This report is the subject matter of the enquiry instituted by

M/S_____________hereinafter called the Management againstShri____________hereinafter called the Concerned worker and arises out of thecharge(s) framed against him in the charge-sheetNo._________dated_________whereby the Management has leveled the chargeswhich, in brief are as under:

(Briefly narrate the charges)

since the concerned worker has denied the charges, the MR who was directed toproduce the evidence in support of the charge(s) has produced the followingdocuments:

(Herein give the detail and description of the documents.)1.________________ 2.________________ 3.________________

the management has further produced oral evidence by producing_______witness, whohave stated__________(number)

(herein narrate in seriatum the important points of evidence of the Management)

the concerned worker has produced the following documents:1.__________ 2(herein give the detail and description of the documents)3.___________

the worker concerned has produced oral evidence by producing__________witnesswho have stated___________(number)

(herein narrate in seriatim the important points of evidence of the witnesses of theconcerned worker)

Finding (Report of the enquiry)Guidelines for preparing the findings/report by the EO

1. It should be self-contained2. The facts be stated briefly and embody the reasons for the conclusions arrived at3. The conclusion should be based on the evidence led by the parties4. There should be no perversity5. There should not any bias or partiality6. The EO should not recommend the punishment even when the charges as leveled are proved against the

delinquent employee.7. The report of the enquiry officer must be a speaking order in the sense the conclusion is to be supported by

reasons.


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4. MODEL FORMS

PRO-FORMA FOR A LETTER TO THE ENQUIRY OFFICER FOR CONDUSCTING ENQUIRY AND CONVEYING HIS ACCEPTANCE

To

Mr. / Ms..

Sir / Madam,

The Management has issued a charge-sheet to one of the employees calling for hisexplanation thereto. The explanation, has been found to be as unsatisfactory. The

Management has decided to hold an enquiry by giving an opportunity to the delinquentemployee to defend himself.

The Management has decided to appoint you as an Enquiry Officer and we need yourformal approval which may kindly be conveyed at your earliest.

Please be assured that the Management will extend full co-operation in this context andMr. / Ms. Has been appointed as its representative.

Thanking you,

Yours Sincerely,For & on behalf of the Management

Authorised Signatory

CC: Mr./ Ms.---------------------------, you are appointed as Managements Representativeto co-ordinate with the Enquiry Officer.

Note : After the disciplinary authority decides to order an enquiry, it may hold the same itself or appoint anEnquiry Officer for that purpose in the absence of a provision to the contrary in the in the service ordiscipline rules concerned. The Enquiry Officer functions only as a delegate of the disciplinary authority,

whose conclusions and recommendations may or may not find favour with the disciplinary authority.

The prerequisites of a person to be Enquiry Officer may thus be summarized as under.:(a) The appointment of the Enquiry Officer should be made by an authority competent to take

disciplinary action against the workman concerned.(b) Before making the appointment of a person to act as Enquiry Officer, it must be seen that he is a

person with open mind, a mind which is not biased against the workman concerned.(c) A person to be Enquiry Officer must be a Responsible Officer or High Status commanding

respect from the workman. He should not be a person of lower status and should not be judge inhis own cause.


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PRO-FORMA FOR A NOTICE TO THE CHARGE-SHEETED EMPLOYEE FOR HOLDING ENQUIRY:

To

Mr./ Ms.Emp.NoDesignation..

Ref: Your explanation dated ..in response to the charge-sheetdated

We are in receipt of your explanation dated.in response to the charge-sheetdated..After careful consideration of your explanation, which has been foundunsatisfactory, it is considered desirable and necessary to conduct an enquiry into thecharges leveled against you. You are hereby informed that the enquiry will beconducted by Sri.who has been entrusted with assignment to hold theenquiry.

You are, therefore, directed to attend and participate in the enquiry proceedings with allthe necessary document, evidence and witness (es) that you may seek to rely upon inyour defense. You are further intimated that if you fall to attend the enquiry proceedingswithout sufficient cause, the enquiry will be proceeded ex-parte without notice to you.

For & on behalf of the Management



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DRAFT OF NOTICE AFTER RECIEPT OF ENQUIRY REPORT

To------------------------------------------------------------------

This has reference to the charge sheet dated __________ issued to you and theenquiry held thereafter. We have since received the report of the enquiry officer,wherein the charges leveled against you have been proved.

Before we consider the findings of the enquiry officer, you are hereby given anopportunity as to what you have to say o the findings. You are given a period of threedays to submit your reply. In case we do not hear from you within the stipulated timeperiod, necessary action will follow, without further reference to you.

Manager/ Competent Authority


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NOTICE OF DISCHARGE TO AN EMPLOYEE

To _______________ _______________ _______________

This has reference to the charge sheet dated_________ issued to you & enquiry held

thereafter. We have duly considered the report of the enquiry officer and are satisfiedthat the charges as leveled against you have been proved against you in the enquiry.

In view of the serious nature of misconduct committed by you & fully proved againstyou, it has been decided to dispense with your services. However, on compassionategrounds considering extenuating and aggravating circumstances, the management,instead of dismissing you from services has decided to impose lesser punishment ofdischarge on you with immediate effect from____________

Your final payment of dues including wages for 1 month in lieu of notice will be made toyou in the office on or before____________ during office hours on any working dayafter you hand over the charge.



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ORDER OF DISMISSAL

To _______________ _______________ _______________

We have received the enquiry report that was held on_______________ against youconsequent to the charge sheet dated______________. After going through theproceedings of the enquiry, we find that the charges have been proved against you.

Since the charge (s) committed by you is/are of serous nature, the appropriatepunishment is dismissal from service. You are therefore, hereby dismissed from servicewith effect from ____________ you can collect your dues, if any, and settle youraccount on any working day during the office hours from Accounts Department.

Manager/ Authorised person with designation

C.C : - The Accounts Deptt. for information if necessary action.


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ORDER OF REDUCTION IN RANK

To _______________ _______________ _______________

Your past conduct and service records reveal that you have no initiative or sense ofresponsibility. Frequently, you have stayed away from duty & neglected your work. Time

& again you were warned/ reprimanded but there has been no improvement. We triedour best to motivate you to take interest in the work & to observe regularity & punctualitybut of no avail. You have been as careless as ever & have refused to perform yourduties seriously. Your carelessness has not caused the work to suffer but it is also likelyto effect the discipline among other members of the staff.

Under circumstances we are of the concerned opinion that the post held by you entailsgreater responsibility that you can shoulder as you lack necessary initiative, which isrequired for the post. Therefore, we hereby give you 1-month notice to relieve you fromthe present post and instead assign you post of____________ with immediate effectfrom_______________. This post entails lesser responsibility & we feel that you will beable to perform your duty more satisfactorily in this capacity. However, you will beentitled to only those benefits and salary that the post caries.

We must also make it clear that if you fail to show marked improvement & continue toconduct yourself in the way you have been doing, we shall be constrained to dispensewith your services after holding enquiry, if necessary.

Manager/Authorized person with designation

C.C: - The Accounts deptt for information & necessary action.


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ORDER OF WITHOLDING ANNUAL INCREMENT/(S)

To _______________ _______________ _______________

In continuance of the charge sheet dated_____________ issued to you & the Enquiryheld into the charges, this is to inform you that we were satisfied that you are found

guilty of the charges leveled against you and severe punishment includingdismissal/discharge can be inflicted upon you.

However, on going through your past record & considering the nature of the misconductby you the undersigned decide that this time a milder punishment will meet the ends of

justice. Therefore, it has been decided to withhold your annual incrementfor___________year/years.

During the period for which your annual increment is being withheld the managementwill watch your performance and conduct and if found satisfactory the grant ofincrement/ increments to you will be reconsidered on the expiry of the said period.

Manager/ Authorized person with designation

C.C: - The Accounts deptt for information & necessary action.


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ORDER OF IMPOSING FINE AS A PUNISHMENT

To _______________ _______________ _______________

This is in continuance of the charge-sheeted dated__________ issued to you & theenquiry held in pursuance thereof. As a result of the enquiry, the management is

satisfied that the charges leveled against you amply proved.On the bases of the charges proved against you, dismissal from service would be ratherappropriate in the ordinary course but in consideration that this for the first time that youhave been found guilty of the charge, the management decides to afford you anopportunity to improve yourself & instead of awarding the extreme penalty, impose uponyou a fine of Rs._________ as punishment.


Date: -

C.C: - The Accounts Dept


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PROFORMA SUGGESTED FOR A CHARGE SHEET TO AN EMPLOYEE FORHABITUAL ABSENTEEISM

TO

Following are the charges against you:

Perusal of your attendance record reveals that you are in habit of absenting yourself

from your duties without any information and proper sanction of leave. Your absenteespells are on an increase and your absentee record for the preceding ________yearsare reproduced hereunder.MONTH DATES NO. OF DAYS OF

UNAUTHORIZEDABSENCE

________ __________ _______________XXX XXX XXXXXX XXX XXX

You have been verbally advised to improve you attendance record and not to indulge inunauthorized absence from duties. But despite these verbal advises/reprimands andassurance given by you, you have not shown any improvement in your attendance.

The above act of habitual absence on your part constituted major misconduct undercertified standing orders of the company applicable to you and also affects the work ofthe company.

You are hereby required to submit your explanation, if any to this charge-sheet within 3days from its receipt failing which it will be presumed that you have no explanation tooffer and the management will be free to take any action that may be deemed proper inyou case.

For _________________________

(Authorized Signatory)


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5 . THE IMPORTANCE OF Sec.9-A NOTICE OF CHANGE IN INDUSTRIALDISPUTIES ACT, 1947.

Under this section No employer, who purposes to effect any change in the conditionsof Service applicable to any workman in respect of any matter specified in the IVthSchedule of the I.D. Act., shall effect such change or changes;

(a) Without giving to the workmen likely to be affected by such change a notice inthe prescribed manner of the nature of the change or changes proposed to beeffected ; or

(b) Within 42 days of giving such notice ;Provided that no notice shall be required for effecting any such change orchanges.

(a) Where the change is effected in pursuance of any settlement or award or(b) Where the workmen likely to be affected by the change are persons to whom the

Fundamental and Supplementary Rules, Civil Services (Classification, Controland Appeal) Rules, Civil Services (Temporary Service) Rules, Revised LeaveRules, Civil Services Regulations. Civilians in Defence Services (Classification.Control and Appeal) Rules of the Indian Railway Establishment Code or anyother rules or regulations that may be notified in this behalf, by the appropriateGovernment in the Official Gazette apply.


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PRO-FORMA FOR NOTICE FOR CHANGE UNDER SECTION 9-A OF THE INDUSTRIAL DISPUTES ACT, 1947;

ON LETTR HEAD OF THE ORGANISTION

CHANGE OF EMPLOYEES SERVICE CONDITIONS NOTICE(UNDER Sec. 9-A)

In accordance with section 9-A of the Industrial Disputes Act, 1947, we hereby givenotice to all concerned that it is our intention to effect the change specified in theannexure, with effect from.(it should be after expiry of 21 days) in theconditions of service applicable to workmen in respect of the matters specified in theIVth Schedule to the said Act.

Yours Sincerely,For & on behalf of the Management


CC: To1. Secretary of the Registered Trade Union.2. Dy. Commissioner of Labour.3. Asst. Commissioner of Labour.

ANNEXURE 2FORM B

There has been erratic electric supply on Sunday when the weekly off day is observed.On representation made to the Authorities under the Electricity Board, the Managementhas been allowed to change the weekly of Sunday to Monday and as such all theworkers are notified that after expiry of the notice period, they will have to work onSunday instead of Monday.

NOTICE : Any employer intending to effect any change in the conditions of service applicable to any workman inrespect of any matter specified in the Fourth Schedule (to the Act) shall given notice of such intention in Form-E.

The notice shall be displayed conspicuously by the employer on a notice board at the main entrance to theestablishment in the Managers Office besides that it will be sent to the concerned workmen individually moreparticularly when there is no trade union.

Provided that where any registered trade union of workmen exists, a copy of the notice shall also be served byregistered post on the Secretary of such union.


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6. COMPLAINTS AND ITS DISPOSAL

1. A written complaint is desirable to initiate disciplinary proceedings.2. Disposal of complaints by factory manager.(a) Non-performance of duty(b) Insubordination(c) Disobedience

PRELIMINARY ENQUIRY

1. Purpose of holding preliminary enquiry

2. When preliminary enquiry is to be held.

3. Preliminary enquiry is not compulsory.

4. Preliminary enquiry is not judicial in character.

5. Preliminary enquiry can be ex-parte.

6. Preliminary enquiry is of informal character.

7. Preliminary is not substitute of departmental enquiry.

8. Failure to take part in preliminary enquiry does not prejudice delinquentworkman.

9. Report of the preliminary enquiry is not part of the formal enquiry.

10. Decision after preliminary enquiry.

11. Informal corrective methods after preliminary enquiry.

12. Right of the worker to get copy of preliminary enquiry and statement of

witnesses.

CHARGE-SHEET AND ITS DRAFTING

1. Absence of charge sheet violates the principle of natural justice.

2. Whether explanation should be called before issuing charge sheet.


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3. Who can issue charge sheet?

(i) Appointing authority or any other higher authority,(ii) Charge sheet can be issued by disciplinary authority.

(iii) Officer other than appointing/disciplinary authority can issue charesheet if authorized by rules.(iv) Charge sheet can be issued with consent or approval of appointing or

disciplinary authority.

4. Vagueness of the charges: charges should not be vague.

5. There is no particular form of charge sheet.

6. Whether show-cause notice can be charge sheet?7. Drafting of charge sheet and its essential ingredients.

8. Amendment in charge sheet.

9. Time to reply to charge sheet.

SERVICE OF CHARGE SHEET

1. Whether C.S. should be sent by post if refused.

2. Employer should give addresses of workers as required under Factories Act.

3. If registered letter is refused by addressee it amounts to service.

4. Endorsement not met or not turned up to take delivery of the letter is noservice.

5. No service if registered letter delivered to someone else.

6. Putting up on the notice board is no service.

7. Sending copies of charge sheet to labor department or unions is no service.


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8. Proof of Service: If sent through peon or watchman, then his evidence ismaterial. AD must be produced unless AD receipt is produced before theauthorities, a presumption of registered letter having been served cannot betaken. GURBACHAN SINGH V/S YAGYASU RE-ROLLING MILLS 2001(4) LLN1157 (P&H HC)

9. Provision of service of charge sheet in standing order will prevail.

10. When charge sheet is not served by court, in absence of any provisions in thestanding orders, it should be published in some local newspaper in someregional language.

REPLY OF CHARGE SHEET AND ITS CONSIDERATION

1. It is within the discretion of the discretionary authority to initiate the enquiry.

2. Even if no reply to charge sheet is received, it is incumbent for the employer tohold enquiry.

3. Whether reply of charge sheet should be considered by the enquiry officer.

CONFESSION : -

A. Confession or admission of misconduct obviates holding of enquiry. There can besimple termination on receive of such reply to the charge sheet

B. Confessional statement should be scrutinized with caution.

C. Confession should be in terms of misconduct.

D. Confession should be interpreted as a whole.

E. Confession should be unconditional and unqualified.

F. Confession should not be secured by threat or coercion or inducement.

G. Confession subsequent to dismissal whether can be relied upon?

ADMISSION : If admission does not amount to confession then it can be used inevidence.

APOLOGY : It should be unconditional with confession and admission whereworker denies the charges and also backs for burden then his confession is notsufficient to dispense with enquiry.


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7. GRIEVANCES AND GRIEVANCE HANDLING

1. Grievances or conflicting thoughts are part of industrial life.

2. It is essential to bring this conflict to the surface.

3. All conflicts cannot be eliminated but their exposure will contribute towards theirreduction.

4. Such exposures lead to adjustments and further improved organizationaleffectiveness.

METHODS OF BRINGING CONFLICT TO SURFACE

1. Grievance procedure2. Direct observation3. Suggestion boxes4. Personal counselor5. Exit interviews6. Miscellaneous channels

GREIVANCE

(A) Dissatisfaction is any state or feeling of discontent

(B) Dissatisfaction orally made known by one employee to another is acomplaint.

(C) A complaint becomes a grievance when brought to the notice of themanagement.

According to Fillipo, The term would include any discontent and dissatisfaction thataffects organizational performance. It can either stated or unvoiced, written or oral,legitimate or ridiculous.

(a) A complaint is a discontent that has not assumed importance.(b) A complaint becomes grievance when the employee feels that

injustice has been committed.


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CHARACTERISTICS OF GRIEVANCES

(i) It may be unvoiced or expressly stated.

(ii) It may be written or oral(iii) It may be valid, legitimate or untrue or false.(iv) It may relate to the organizational work.(v) An employee may feel an injustice has been done.(vi) It may affect the performance or work.

Grievances generally give rise to unhappiness, frustration, indifference, discontent, poormorale, and poor efficiency THAT IS CHANGE IN ATTITUDE, PERCEPTION ANDBEHAVIOR.

TYPES OF GREIVANCE(a) Visible grievances(b) Hidden grievances

An employee may feel that there has been an infringement of his rights.

Grievances exist in the minds of individuals.

Grievances may be concerning employment, working conditions, change of serviceconditions, biased approach, non-application of principle of natural justice, work loadsand work norms.

NEED FOR GRIEVANCE PROCEDURE

(i) Identification and analysis of grievances, nature nod causes.(ii) Helps at formulating and implementing the policies and programmes.(iii) It is problem solving, dispute-settling mechanism.(iv) Strengthen good industrial relationship.(v) It detects the flaws in working conditions and helps to take corrective

measures.(vi) Build good morale, maintains code of discipline.(vii) Brings uniformity in handling grievances.(viii) It develops faith of employees.(ix) Reduces personality conflicts.(x) It acts as a pressure valve.(xi) Provides judicial protection to the employees.(xii) Provides avenues to present the problems.


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8. MISCONDUCT AND DISCIPLINARY ACTION

WHAT IS MISCONDUCT?

Any act or omission on the part of an employee which is a breach of any duty, obligation

or assignment arising under or flowing from any law or contract of employment orservice rules or standing orders, settlements or awards or improper conduct or wrongfulbehavior is a misconduct.

TYPE OF MISCONDUCTS

Minor Misconducts

The following acts or omission on the part of an employee shall amount to minormisconduct:

1. Late coming2. Absence from duty without leaves for a period of less than six days3. Loitering, gossiping in department during working hours4. Failure to ware tight clothes/specified uniform.5. Negligence of duties or neglect of work.

Major Misconducts

The following acts or omission on the part of an employee shall amount to majormisconduct:

1. Willful insubordination or disobedience of any lawful and reasonable order of asuperior.

2. Going on legal strike or abetting, inciting, instigation.3. Willful slowing down in performance in work or instigation there of.4. Theft, fraud or dishonesty in connection with the employers business or

property.5. Taking or giving bribes or any illegal gratification.6. Habitual absenteeism without leave for more than 10 consecutive days or over

staying the sanctioned leave without sufficient grounds.7. Habitual breach of any standing order or any law applicable to establishment.8. Collection without the permission of the manager or any money within the

premises of establishment.9. Engaging in trade within the premise sof establishment.10. Drunkenness, Riotous, Disorderly or indecent behavior on the premises of the

establishment.11. Commission of any acts subversive of discipline or rude behavior on the

premises of the establishment.12. Habitual neglect of work or habitual negligence.13. Canvassing for union membership or collection of union funds within the

premises of the establishment.


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14. Willful damage to work in process or any property of te establishment.15. Holding meetings inside the premises of establishment without the permission of

the manager.16. Disclosing to any unauthorized person any information in regard to the

processes of the establishment.

17. Gambling within the premises of establishment.18. Smoking or spitting on the premises of the establishment, where it is prohibited.19. Failure to observe safety instructions notified by the employer or interference

with the safety devices.20. Distributing or exhibiting within the premises of establishment and bills,

pamphlets and posters.21. Refusal to accept a charge sheet order or other communication served in

accordance with the standing orders.22. Unauthorized possession of lethal weapon in the establishment.

PENALTIES FOR MINOR MISCONDUCTWarning, fine, passing adverse entry in service records, recovery of loss of goods forwhich the concerned workman is accountable, recovery from wages of the whole or partof any loss caused by the workman through negligence.

PENALTIES FOR MAJOR MISCONDUCTS

The following penalties may be imposed for good and sufficient reasons if an employeefound guilty of major misconduct.

Warning or censure, withholding of increment, fine, stopping promotion, demotion,suspension, discharge, dismissal, vacation of company quarter or any other punishmentwhich the manager may deem fit.

PROCEDURE FOR AWARDING PENALTIES FOR ACTS OF MINOR MISCONDUCT

Where allegation of misconduct against the workman are of minor nature, he is calledupon the position verbally or otherwise. The manager or his authorized representativeafter hearing the concerned workman will decide if the workman deserves anypunishment an if so pass orders accordingly. It is not necessary to hold enquiry in suchcases.


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PROCEDURE AND CONDUCT OF ENQUIRY

1. The I.D Act or any other law does not prescribe any procedure to be followed bythe employer in domestic inquiry.

2. In the absence of any statutory provision, the domestic enquiry do need notconfirm to all the requirements of judicial proceedings, they however, must satisfythe essentials of principle of natural justice.

3. The guiding principle therefore, is that domestic enquiry should be conductedwithout bias and by giving the delinquent employee an opportunity for adequatelypresenting his case.

4. Apart for compliance with the rules and principles of natural justice, the domesticenquiry must be held honestly and bonafidely.

COMPLIANCE WITH RULES1. In holding enquiry standing order in industrial employment should be followed as

the standing orders have force of law and constitute statutory terms ofemployment.

2. In holding enquiry statutory rules framed for the purpose should also be followed.3. The enquiry must be conducted by an authorized person.

SUSPENSION PENDING ENQUIRY

A workman who committed a major misconduct may be placed under suspension by themanager. A workman under suspension shall not leave the town during the period ofsuspension without prior permission of the manager. A workman who placed undersuspension pending enquiry shall be entitled during the period of such suspension tosubsistence allowance in the following manner:

(a) From the date of suspension till the date he replies to the charge sheet isreceived by the manager (nil.)

(b) For the first 30 days from the date of receipt of reply of the charge sheet50% of the normal wages and dearness allowance.

(c) For the next 30 days--- @ 60% of the normal wages and dearnessallowance

(d) From the 91 st day onwards--- @ 75% of normal wages and dearnessallowance.

The workman shall not be entitled to subsistence allowance in case he takes upemployment during the period of suspension.


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CHARGE SHEET AND ENQUIRY

A) A workman against wage misconduct is alleged and is placed under suspension

shall be served with a charge sheet within a week from the date of suspension.The charge sheet should be specific and give full details for the charges leveledagainst him. The date, time and place of incident should be mentioned in thecharge sheet. When the misconduct depends on offending language, then actualwords used should be specified in the charge sheet. The workman shall be calledupon to submit his explanation within 48 hours, which may be extended for 6days for sufficient reason on request in writing from the workman concerned.

B) If the workman admits the charges against him, no enquiry need to be held and itshall be open to the manager to award punishment as he deems proper withoutholding the enquiry.

C) If the workman does not submit his written explanation or explanation submittedby him are not found to be satisfactory or if he denies the charges allegedagainst him, an enquiry shall be held.

D) The workman concerned in enquiry shall sign at the end of each statementrecorded in his presence. Such workman may be assisted by another workmanof his choice but he must be working in the company.

E) The enquiry may be conducted either by the manager or any officer or personappointed by him for the purpose.

F) The manager shall appoint an enquiry officer and management representative forthe purpose of conducting domestic enquiry.

G) Copy of the charge sheet along with all relevant documents should be handedover to the enquiry officer.


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BIAS IN DEPARTMENTAL ENQUIRIES

A domestic enquiry must be held by an unbiased person. The bias in its proper

significance is departure from the standard of even-handed justice which the lawrequires from those who occupy judicial office the doctrine of bias:

1. No man shall be judge in his own case.

2. Justice shall not only be done but manifestly and undoubtedly seem to be done.

APPRECIATION OF EVIDENCE

1. Even though the onus of proving the guilt rest on the management, the

probability or otherwise of the version of incident put forth by he workman has tobe taken into consideration in determining his guilt and it cannot be altogetherignored.

2. The E.O. while appreciating the evidence should take care that the chargesagainst the delinquent workman should no deemed to be proved merely on thefacts that the worker could not put up strong defense.

3. If the employee has not produced any defense during enquiry, it cannot give riseto any presumption that whatever the employer witness states is correct.Disposition of the witnesses has to be judged on their merits.

4. It is not necessary to prove motives behind the act of misconduct.

5. While appreciating the evidence the E.O. should be extra careful for thedisposition of chance witnesses.

6. The E.O. should not simply disbelief the witness or think unreliable, as thewitnesses are a close relation of either party. Similarly, merely that middle andsenior level officers depose for the management and the workers for thedelinquent employee is no reason to disbelief them.

7. The E.O. while appreciating the evidence should be conscious of the fact that thecredit of a witness does not depend upon his status. Truthfulness is not themonopoly of persons who are rich and who hold high status.

8. it is not necessary that there should always be one witness to prove any charge.The reason is that the evidence weighed and not counted.


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FINDINGS OF ENQUIRY

1. The whole object of holding a domestic enquiry against a delinquent workman isto enable EO to decide upon the merits of charges leveled against the employee.It is therefore, essential that the EO should submit the enquiry report indicatingclearly his conclusion and reasons in support thereof.

2. The EO should not hold anyone guilty of the charges on suspicion. Suspicion,however reasonable, is not sufficient to punish the employee.

3. EO should not give the findings on assumption of facts and circumstances notsupported by evidence on record.

4. The findings of the enquiry should be based upon the enquiry records and theEO should not impose his own knowledge of things while writing the report.

5. The EO is not justified in parting extraneous consideration while writing theenquiry report.

6. While writing the findings, EO cannot omit from considering any material onrecord. When EO disbelieves the worker and his witnesses he should givesufficient reasons.

7. The EO should bear in mind that the interpretation of document is a question oflaw. Admission of document thereof should be distinguished from the admissionof the contents of the document.

8. EO should not give findings outside the scope of the enquiry. The scope of theenquiry is limited to the charges as mentioned in the charge sheet.


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9. FLOW CHARTS FLOW CHART OF DRAFTING OF CHARGE SHEET

It is the first formal document containing the Articles of charge leveled against thedelinquent employee, enabling him to file his statement of defense against these charges by

specific date.

CHARGE SHEET OF TWO TYPES

MAJOR PENALTY MINOR PENALTY

CONSISTS OF MEMORANDUMWITH 4 ANNEXURES:

ANNEX I: Definite articles of chargeANNEX II: Imputation of misconductANNEX III: List of documentsANNEX IV: List of witnesses

CONSISTS OF MEMORANDUMWITH STATEMENT OFIMPUTATION ANDMISCONDUCT

COPIES OF LISTED DOCUMENTSSHOULD BE GIVEN ALONG WITH

CO. TO FILE WRITTEN STATEMENT OFDEFENSE AGAINST THE CHARGES BYTHE STIPULATED DATE

CHARGE SHEET SHOULD CONTAIN

Each chargeexpressed inclear & preciseterm. Separatecharge for eachallegation

Rules to bementionedcorrectly

Chargesframed n alanguageunderstood bythe delinquentofficial.

Each article of charge to beaccompaniedby a separatestatement of imputation

The proposedpenaltyshould not bementioned inthe chargesheet


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FLOW CHART OF DISCIPLINARY PROCEEDINGSNot entertained Complaint rejected droppedAdmin action*

Pursued Pursued

A. Major penalty A. Minor PenaltyB. Minor penalty B. ExonerationC. Exoneration C. Administrative actionD. Administrative action*

INDEX

IRO: INDUSTRIAL RELATIONS OFFICERDA: DEISCIPLINARY AUTHORITYDEF.A : DEFENSE ASSISTANTIO: INQUIRY OFFICERPO: PRESENTING OFFICEREC: EXAMINATION-IN-CHIEFCE: CROS-EXAMINATIONRE: RE-EXAMINATIONCO: CHARGED OFFICIALDOCS: DOCUMENTS

*ADMINISTRATIVE ACTION1. System improvement 2.Advisory Memo 3.Caution Memo 4. Warning 5.Recordable Warning

ComplaintPreliminaryinvestigation

IROinvestigation

IROfinding

DAsdecision

MAJOR PENALTYAction

MINOR PENALTYAction

Statement of imputation of

misconduct

Representationto thestatement of imputations

Decisionby DA

Preliminaryhearing of appointmentby Def. A

Appointmentby IO/PO

Witnessstatement of

Chargesheet

Inspection of docs& defensestatements

Regularhearing

Prosecution caseEC/CE/RE

Defense caseEC/CE/RE

Copy of inquiryreport to CO

Inquiry reportWrittenbrief by PO& Def.A

Mandatoryquestions

Representation of CO

Decision by DA


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FLOW CHART OF DISCIPLINARY PROCEEDINGS

STAGE 1:

STAGE 2:

STAGE 3:

STAGE 4:

STAGE 5:

Written complaint (report of misconduct)

Preliminary enquiry

If there is no prima facie, dropthe case

Suspension pendingEnquiry if necessary

Order for payment of subsistence allowance

If the situation does not warranthis immediate suspension, theemployee will be on duty andwe get on to the next stage.

Framing charge sheet under Standing Orders

SERVING CHARGE SHEETDirect serviceRegd. Post/U.P.CNotice boardsNewspapers


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STAGE 6:

Major penalty minor penalty indecent exoneration

Proceed no further enquiryenquiry

Award/punishment

Caution/memo

STAGE 7:

STAGE 8:

STAGE 9:

STAGE 10:

Study the reply given by the charge sheeted employee

If he does not plead guilty andthe reply is unsatisfactory,proceed with the enquiry.

If the charge sheeted employeepleads guilty and reply issatisfactory

Appointment of enquiryofficer & presenting officer.

If the employee does not report forenquiry, ex-parte enquiry

ENQUIRY PROCEEDINGS

Enhancement orreduction of subsistence allowance

EN UIRY REPORT

SERVING ENQUIRY NOTICE:Direct service/Regd. Post/UPC

Notice boards/newspapers

If the employee is fond not guilty,exoneration & suspension revokal letter


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STAGE 11:

STAGE 12:

STAGE 13:

STAGE 14:

STAGE 15:

STAGE 16:

STAGE 17:

STAGE 18:

STAGE 19:

If the charge(s) are proved, check the past record and if anyconciliation or adjudication proceedings are going on, check Industrial Disputes Act provisions, check whether protected

workman.

Final show cause notice before punishment, if provided underrules

Study the reply given by the employee to final show-cause notice

Give clarifications, if any asked for in reply to final show causenotice

Punishment order

Appeal by the accused employee

Reply to appeal after review and final punishment order

Implementation of punishment order and closing the file

Contest the case if referred to conciliation/adjudication


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REGULAR HEARING (ORAL ENQUIRY)

(A) PRESENTATION OF PROSECUTION CASE

Examination of prosecution witness

Exam In-Ch. ByP.O. if anywitness turnshostile, PO to gethim declaredhostile & withIOs permission,cross-exam himand ask loadingquestions

CrossexambyCO/Def . A

Re-exambyPO

Questionsfrom IO if necessary,at any timeduringenquiry &if so, he isto allowcross-

examine toboth the

arties.

Documentsplaced onrecords andmarked asexhibits

(B) PRESENTATION OF DEFENSE CASE

Examination of defense witnesses

Exam-in-ch byCO/Def.A

Cross-exam byPO

Re-exambyCO/Def

Questions fromIo if necessary,at any timeduring inquiry &if so, he is toallow cross-exam too boththe parties

Defensedocumentplaced onrecord andmarked asexhibits

CO. MAY GET HIMSELF EXAMINED IN HIS OWN DEFENSE

If he does then,

Exam-in-ch by Def.A.if no Def. A then suomoto can make astatement

Cross examby PO

Re-examby CO/Def.A

If he does not

then,

IO to ask mandatoryquestions

Oral enquiry closes


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(D) SUBMISSIONOF BRIEFS & REPORTS OF IO

First by Prosecution with a copy to CO

Then, Defense to give the brief within the stipulated time

(E) EVALUATIONOF BOTH THE BRIEFSON THE BASIS OF:

Judicious & objective approachwithout the rigorous procedure of courts.

Assessment of evidence on thebasis of preponderance of probability and not that of beyondreasonable doubt

For each stage IO to give his findings whethera charge is:

PROVED NOT PROVED PARTIALLYPROVED

Report of IO goes to DA along with extra copy for CO.


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FLOW CHART OF ENQUIRY PROCEEDINGS OF MAJOR PENALTY CASES

DA APPOINTS

INQUIRY OFFICER

Receives appointmentorders

Check records

Fixes preliminary enquiryand issues notice

Charges read out inpreliminary hearing

If not admitted by DA

Directs CO to give

a) Name of Def.A if not already doneb) List of defense documentsc) List of defense witnesses

Fixes the date of regular hearing

Direct P.O to produce witness

Oral enquiry starts

PRESENTINGOFFICER

Presents the case onbehalf of management

Presents the listeddocuments for inspectionand taking on record.


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9. List of witness proposed to be produced by the management should be suppliedbefore the start of the enquiry.

10. The concerned employee should be allowed to take the assistance of anotheremployee in accordance with the provisions of Service Rules or Standing Orders.

But he cannot be allowed to engage an Advocate unless the Presenting Officerpitted against him as an Advocate or he is otherwise a legally trained person orwhen complicated questions or fact of law is involved.

11. All the documents sought to be relied upon by the management to prove thecharges be placed on the record, at the outset.

12. The basic and cardinal principle is that one who has to prove the charge has tolead the evidence first. As the management has leveled the charges, it is its dutyto prove the same. The common mistake is that in the course of the enquiryproceedings the evidence of the delinquent employee is recorded first. This

vitiates the whole enquiry.13. At the outset, the Enquiry Officer should read out and explain to the concerned

employee the contents of the charge-sheet and ask him whether he admits ordenies the charges. If he admits the charges leveled against him, it is notnecessary to proceed further with the enquiry, but to record his statement.

14. When the concerned employee does not admit the charges, the enquiry has toproceed further. The witnesses of the management are to be examined in thepresence of the employee and he should be given full opportunity to cross-examine them.

15. The employee proceeded against should be given fair and reasonableopportunity to produce witnesses and documents in support of his defense. If hedoes not want to produce any evidence, his statement should be recorded to thateffect.

16. Witnesses should be examined in such a manner that a witness cannot hearwhat the previous witness has said.

17. If the delinquent employee wants either to inspect the documents or thestatements of the witnesses or to take notes or to have relevant extracts or makecopies thereof, this should not be denied. The basic idea is not to conceal butreveal the relevant information.

18. After the completion of production of evidence by both the parties, the EnquiryOfficer may hear the Presenting Officer and the delinquent employee or theenquiry Officer may permit them, if they so desire, to file written brief of theirrespective cases.


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19. Findings of the Enquiry Officer should be based only on the evidence recorded.

20. Evidence, either oral or documentary, which is not produced before the EnquiryOfficer in the presence of the employee, should not be relied upon to prove thecharges.

21. No material should be relied upon the delinquent employee without his havingbeen given an opportunity of explaining the same.

22. The Enquiry Officer should not be influenced by any fact which might have cometo his notice in his personal capacity or by any other extraneous considerations,in arriving at the decision regarding the guilt or other wise of the accusedemployee.

23. Reasons given by the Enquiry officer for his findings should be adequate thoughthe benefit of doubt theory has little application in domestic enquiries.

24. The report of the Enquiry officer should be a speaking one. That is to say, hemust give reasons for his findings.

25. Findings of the Enquiry Officer on each of these should be clear, precise andwithout any ambiguity.

26. The report of the Enquiry Officer should give a clear impression that he isimpartial and free from bias. Bias means an operative prejudice towards one sideor the other.

27. The employee if suspended should be paid due subsistence allowance. In thecse of Capt. M Paul Anthony v/s Bharat gold mines 1999 (82) FLR 627, theSupreme Court has termed non-payment of subsistence allowance, duringsuspension, slow poisoning and this vitiates the enquiry.


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11 . CRIMINAL PROCEEDINGS V/S DEPARTMENTAL ENQUIRY

1. When misconduct is offence then choice is with the management to prosecute or

start enquiry,2. It is not necessary to stay departmental proceedings during proceedings before

criminal court.

3. If departmental proceedings on the same charge is not stayed by the criminalcourt, it does not amount to contempt of court.

4. Departmental enquiry should not be stayed during police investigation.

5. Employer can await the decision of the criminal proceedings.

6. Employer is not liable to wait till the final outcome of the criminal case.

7. If the worker starts criminal proceedings, he cannot insist that departmentalproceedings should be stayed.

8. Whether strike should be declared illegal before departmental proceedings.

9. If enquiry is held and the worker is dismissed then, subsequent acquittal bycriminal court does not affect.

10. When a person is convicted then it justifies the dismissal order.

11. Effect on departmental action when conviction is set aside.

12. Whether departmental enquiry can be held after acquittal.

13. Whether acquittal by criminal court is binding on the disciplinary authority.

M. PAL ANTHONY V/S BHARAT GOLD MINES AND ORS 1999 FLR (627) & LLR(499) SC


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12. NOTES ON INDUSTRIAL EMPLOYMENT (STANDING ORDERS)ACT, 1946

The Industrial Employment (Standing Orders) Act applies to every industrialestablishment wherein one hundred or more workmen are employed or wereemployed on any day of the preceding twelve months. It can be extended even toestablishments whose employment of labour is less than one hundred and it doesnot apply to an industry to which Cl.VII of the Mumbai Industrial RelationsAct,1946 applies or to any industry to which the provisions of the Madhya PradeshIndustrial Workmen (Standing Orders) Act, 1959 applies. In other words, normallythe Standing Orders have to be drafted by the employer and their certificationobtained under the Act wherever establishment employs more than one hundredworkmen. In Section 1 (3) the certifying authority is Dy. Commissioner of Labourin the respective jurisdiction. The employer should required to define with

sufficient precision the conditions of employment under them and to make suchcondition known to workmen employed by them. In case the employer fails to gethis standing orders certified, the respective State Model Standing Orders willbecome applicable. It is advisable that instead of applying the model standingorders the employer should get the standing order certified. The standing orderswhich are certified under Industrial Employment (Standing Orders) Act becomepart of the statutory terms and conditions of service between the employer andemployees.

Any Term or condition of service which is contrary to the standing orders, certifiedunder the Industrial Employment (Standing Orders) Act, 1964 if incorporated inthe letter of appointment be implemented or acted upon. If the standing ordersmake it obligatory to hold an enquiry into an act of misconduct before dispensingwith the services of the delinquent employee then such a provision cannot becircumvented by having a resort to the terms in the appointment letter providingremoval without enquiry.


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13. DRAFT STANDING ORDERS OF M/S.___________________

1.

a) APPLICATION AND SCOPE :

i) These orders shall apply to all employees of M/s. Arani Agro Oil Industries

Limited.

ii) These orders shall come into force with effect.............

b) RULES REGULATIONS AND NOTICES :

The company may formulate such rules and regulations not inconsistent with these

Standing Orders, and post such Notices as it may from time to time consider necessary.

The rules, regulations, or notices shall apply to the whole, or to any section or sections of

the Company's Employees as may be notified in the said Rules and Regulations and every

workman shall obey the Rules and Regulations applying to this section.

c) THE COMPANY'S RIGHTS :

The Company's rights relating to fines and deductions under the Payment of Wages Act,

1936 and rules made thereunder shall not be effected or prejudiced by the terms of these

Standing Orders.

d) THE WORKMEN RIGHTS :

These Standing Orders shall not deprive the workman of their right to resort to legal

proceedings under any existing law for the time being in force.

e) AMENDMENTS:

The Company may from time to time, amend these orders in accordance with theprovisions of the Industrial Employment (Standing Orders) Act, 1946 or any amendmentthereof.


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2. DEFINITIONS :

In these orders, unless there is anything repugnant to the subject or context :

a) "Company " means the______________________________, situated at Administrative

Offices and Corporate Offices Branches of the Company wherever they are located.

b) " Management " means Managing Director, and/or Executive Director and/or President,

and/or Vice-President and/or General Manager of Factory or any other person authorised to

act on his or on their behalf or on behalf of the company from time to time.

c) "MANAGER " means the Factory Manager as noticed under the Factories Act, 1948 and

any other Officers nominated by the Company as the Manager, for the purpose of these

Standing Orders.

d) "FACTORY " means the __________________ or any similar Factory situated at or

at any other place where the company may start

e) "MUSTER ROLL" includes the attendance register or Muster Roll or Muster Rolls

normally maintained at the time office or any other place specified by the Management for

the purposes of recording the attendance of the employees before the commencement of

work.

f) " ATTENDANCE " means presence of the workman concerned at the place or places

where he is required to report for getting his attendance and continuance of his presence at

the place of his work throughout the period of the shift or office work.

g) "TIME OFFICE " is a place in the premises where every workman is required to appear

for marking his attendance before and after his duty each day in the manner prescribed

from time to time by the management.

h) "WORK MAN " means any person employed in the establishment within the meaning of

Section 2(i) of the Industrial Employment (Standing Orders) Act, 1946.

i) "WORK PREMISES " means the Factory ____________________ or any

site, its Administrative Office premises and percents thereof or any other place of work

where a workman is deputed to work.

j) "HABITUAL " means involving repetition of any of commission or omission for more

than 3 times in a period of 12 calendar months.


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k) "WAGE RATE" means rate of pay per day to per calendar month.

l) "MASCULINE" shall include "Feminine" unless otherwise stated and the "Singular" shall

include the "Plural", wherever the context so requires and vice versa.

m) "NOTICE BOARD" shall mean the Board or any place in or at the main entrance of the

________________________ factory or at any other Conspicuous place in the Factory,

where notices meant for workman are ordinarily displayed.

n) "NOTICE" shall means a notice in writing required to be given or posted or displayed for

the purposes of these standing orders.

3. CLASSIFICATION OF WORKMEN:

a) Regular/Permanent b) Probationer c) Temporary d) Badlie) Casual f) Apprentice g) Trainee h) Stipend.

a) REGULAR/PERMANENT : A Regular/Permanent workman is one who is appointed as

such by a written order of the management who has been engaged on a permanent basis

and includes any person who has satisfactorily completed a probationary period or

extended period of probation.

b) PROBATIONER : Means a workman who is provisionally employed to work in a

permanent vacancy and who has not completed satisfactory service of probation including

absence due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or

involuntary closure of establishments, provided, in any particular case, the management

may extend the period of the probation of any workman upto a further period not

exceeding 12 months if they are not satisfied with the work and or conduct of any

workman during the period of probation. In any case where the period of probation is

extended, the concerned workman shall be informed in writing at least one week before the

normal date of the completion of probation and in the absence of any intimation, the

workman shall be deemed to have satisfactorily completed the probation on the normal

date.

If a permanent workman is employed as probationer (in a higher post) or a vacancy he may

at any time during the probationary period be reverted to his substantive post without

notice.


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During the period of probation aforesaid the workman's suitability to work and

performance at his job shall be remainder with him by the superior at least once before he

is confirmed or discharged.

c) TEMPORARY WORK : Means a workman who is employed for any work of causalnature and who has been issued a casual card by the Company.

d) CASUAL WORKMAN : Means a workman who is employed for any work of causal

nature and who has been issued a casual card by the Company.

e) APPRENTICES : Means a person who is undergoing apprenticeship training in a

designated trade in terms of the Apprenticeship Act 1961 and the rules framed thereunder.

f) TRAINEE : Means a person engaged to undergo training in the training programme

initiated by the management. After completion of the training successfully, he will begiven a certificate to that effect. The trainee may be paid stipend or may not be paid any

stipend by the management. The management may fix the period of training programme

which may not exceed one year. The satisfactory completion of training does not impose

upon the management to absorb the trained person in the organisation. The management

may absorb the trainee in the organisation at their sole discretion after the training

programme is completed provided the management feels that he is suitable and also there

is a vacancy existing as on the date. In case the management cannot provide him with a

job, he will be given a certificate to the effect that he has undergone training successfullyin the organisation fit to be absorbed.

The Management can terminate the training period of a trainee without as signing any

reason whatsoever.

h) STIPEND : Means remuneration paid to the persons concerned which cannot be treated as

a 'wages' as defined in various labour enactments and precedents.

4. IDENTITY CARD :

a) Every workman shall be given Identity Card bearing his photograph, name, token No., and

any other particulars deemed necessary by the company and all other workman will be

issued appropriate Identity Card.

b) Every workman shall always wear on his person during the working hours of the Company

and shall show his Identity Card to the Security Personnel at the gate when entering and


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leaving the Factory or on demand at any time by the security or any other authorised

person to produce it while the workman is inside the work premises.

c) The Identity Card shall not be transferable nor assignable.

d) In case any workman looses his Identity Card he must immediately report in writing to the

Issuing Authority for issue of New Card on payment of Rs.5.00 towards the cost of Identity

Card.

e) The Identity Card issued to any workman shall be surrendered by him on the termination of

his services, or during period of suspension to the Issuing Authority.

f) Any workman who has forgotten to bring his card shall report such lapse to the Security

Personnel who may issue to him a temporary card/permit on that particular day only and

permit him to enter the Factory/Company . At the time of leaving the company it shall beduty of the workman to surrender the temporary card/permit to the Security Personnel.

5) ENTRY, EXIST AND SEARCH :

a) All workmen shall enter and leave Farm, Factory, Hatchery, Feed Mill or work premises

only by the gate or gates provided for the purposes by the Company. The gate or gates

may be closed during the working hours at the discretion of the Company and the workman

must not leave the Premises without prior permission in writing from appropriate authority

in the form of a gate pass which shall be shown at the gate.

b) On entering or leaving the Factory/Company or work premises and at any time while on

duty, all workmen are liable to be searched by the persons deputed at the discretion of the

Company. Female employees will be searched by female searcher who may be appointed

for that purpose by the Company, provided that no such search shall be conducted except

in the presence of one other person of the same sex as the workman concerned.

c) Any workman who has been granted leave, laid off, suspended, discharged, resigned or is

not working for any other reasons, shall leave the work premises immediately. In case theworkman does not leave the work premises in the aforesaid events, the company shall be at

liberty to take appropriate steps for his removal from the work premises and shall take such

action as presented under the standing orders.

d) The Company has the right to remove from those searched, any articles belonging to the

company or such other articles as the company may consider would endanger the personnel


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or property of the company and seize the articles found with him as deemed to be the

property of the company. He shall also be liable to disciplinary action in terms of these

standing orders.

6. PUBLICATION OF WORKING HOURS :

The period and hours of work for all classes of workmen in each shift shall be displayed in

English and Telugu in the Notice Board of the establishment and every workman shall

observe such periods and hours compulsorily.

The periods and hours of work for all classes of workmen in each shift will be signaled by

means of a whistle or siren or bell but will not entitle worker to attend late or depart early.

7. PUBLICATION OF HOLIDAYS AND PAY DAYS :

a) Notices specifying the weekly holidays under section 52 of the Factories Act 1948 and

such other days observed and declared by the Company from time to time as Holidays shall

be displayed in the Notice Board.

b) The day or days on which wages will be paid shall be displayed on the Notice Board.

c) All workmen shall be paid wages on a working day on or before the expiry of the 7th day

after the expiry of the work period in respect of which the wages are payable.

d) All such notices required to be posted under these standing orders, when posted on theNotice Board shall be deemed to have been served on the workman for whom they are

required to be informed.

8. PUBLICATION OF WAGE RATES :

a) Notices specifying the rates of wages payable to all categories of workmen shall be

displayed in English and Local Language on the Company's NOTICE BOARD.

b) An unclaimed wage day (i.e, a day on which wage due to a workman and not paid on the

usual pay day for want of claim) shall be notified on the Notice Boards along with the

notices to be displayed.

c) The unclaimed amount of wages due to a workman shall be paid on the unclaimed wage

day following the day on which a substantiated claim was presented by the workman or on


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his behalf by his legal representatives provided that such claim is submitted within one

year from the date the claim falls due.

8. NOTICE & METHOD OF POSTING :

General Notices required by these standing orders shall be deemed to be sufficient given or

served if posted on the Notice Boards maintained for such purposes and in case of

absentees, if these concern the individual worker or worker who is/are about and are not of

general nature, shall be sent to their last recorded or known address under certificate of

posting.

9. SHIFT WORKING :

a) Shift working will be regulated in accordance with the provision of the Factories Act.

More than one shift may work in a Department or any Section of a Department at thediscretion of the Company. Notices showing the shifts working in each Department shall

be pasted on the Notice Board. It is open to the company to change the number of shifts

and the shift hours depending on the exigencies of work.

b) Workman shall be liable to the transferred from one shift to another at the discretion of the

Company.

c) Shift working may be discontinued or reduced giving a notice as per Section 9A of the

Industrial Dispute Act, 1947 at the discretion of the company. Permanent workmenaffected by such discontinuance or reduction in the number of shifts will be treated in the

manner as provided for in the Industrial Dispute Act and Rules thereunder.

d) No notice of 21 days for discontinuance of any shift shall be necessary if as a result of the

discontinuance of any shift, no regular workman is discharged.

10. ATTENDANCE AND LATE COMING :

a) All workmen shall be at the work spot at the time fixed and notified under standing order

No.6 and register attendance in the manner prescribed. Workmen shall be liable to be shut-

out and treated as absent if they are not at work spot at the schedule time. However,

workmen who come late may be admitted for work at the discretion of the company

subject to wage deduction for the time of absence from duty as per Payment of Wages Act,

1936 and as amended from time to time.


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b) Workmen shall be allowed 5 (five) minutes grace t

Axiomatic Truth

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