23 Domestic Enquiry

Learning Objectives

After completing this session, you will be able to:

  • explain the concept of discipline followed in organization.
  • descrbe the procedure for Disciplinary Action.

In the interest of maintaining good order and discipline in his establishment an employer has in inherent right to suitably punish a delinquent employee. However, with the emergence of modern concepts of social justice, this inherent right has come to be concepts of social justice; this inherent right has come to be subjected to certain restrictions so as to protect an employee against any sort of vindictive or capricious action. The employer is, therefore, required to follow certain principles and procedures before he can award any to his employee. It is very essential that the correct procedure is followed by the employer to ensure that his punishment order is not upset, later on by any Industrial Tribunal on technical grounds, should it be made the subject matter of an industrial dispute. Except to a certain extent in the Industrial Employment (Standing Orders) Act, 1946, there is little or no specific provision in any statue relating to industrial law in this country prescribing in detail the correct procedure as such, which should be followed before awarding punishment to an employee. However, in recent years there has been a gradual emergence of a body of principles resulting from the decisions of the various Industrial Tribunals, as well as High Courts and the Supreme Courts indicating the basic formalities to be observed and the correct procedure to be followed by the employer in such cases.

What Constitutes Misconduct?

In every general term, an act or conduct of an employee, which is

a) Prejudicial or likely to be prejudicial to the interest of the employer as also that of the other employees;

b) Inconsistent or incompatible with the normal norms of discharge of his duty;

c) Such that it makes it unsafe and undesirable for the employer to retain him/her in service;

d) Such that the employer cannot rely on his/her faithfulness; or

e) Such that it amounts to insubordination to such a degree as to be incompatible with the employer – employee relationship; may be termed as misconduct.

Principles of Natural Justice

a) An opportunity must be given to the delinquent employee to refute the charges and to establish his innocence; this can be done only when he is told in unambiguous terms what is the charge leveled against him.

b) An opportunity to conduct his defence must be available to him by cross-examining witnesses in support of the charge leveled against him and by allowing him to examine witnesses in his own defence.

c) The enquiry against the delinquent employee should be fair and should be conducted by an impartial person.

d) The evidence at the enquiry should be adduced in the presence of the employee charged.

e) Punishment awarded should not be out or proportion to the misconduct committed.

Procedure for Disciplinary Action

It would thus be seen that it is an elementary principle of natural justice that no man/woman should be condemned or punished without being given an opportunity to explain the circumstances obtaining against him. Based on this elementary principle of natural justice, Industrial Tribunals in which India by their various awards have come to indicate an elaborate procedure involves the following important steps:

Steps

  1. Issue of a letter of charge to the employee calling upon him to submit his explanation.
  2. Consideration of explanation.
  3. Giving a notice of an Enquiry into the charges, if the explanation is not found satisfactory.
  4. Holding of a full-fledged Enquiry giving all facilities to the employee for being heard.
  5. Recording of the findings by the Enquiry Officer.
  6. Consideration of the enquiry proceedings and the findings by the authorities empowered to take a decision and make the final order of punishment.
  7. Informing the employee of the punishment decided to be awarded to him.

 Punishments: Kinds of Punishments 

  1. Dismissal
  2. Discharge
  3. With holding increments
  4. Demotion to a lower grade
  5. Suspension

Discharge

As a normal rule punishment should be commensurate with the gravity of misconduct. Thus a worker found guilty of an act of gross misconduct like theft, assault, etc., may be justifiably awarded the extreme punishment of dismissal, while a worker found guilty of ac act of minor misconduct like unpunctuality may be warned or censured. In the establishments to which the Industrial Employment (Standing Orders) Act is applicable, the various punishments that may be awarded are specified in the Model Standing Orders or the Certified Standing Orders and as such no punishment other than that so specified can be awarded. For instance, punishment by way of withholding of an increment or demotion cannot be awarded unless they are allowed by the Standing Orders, applicable to the establishment.  Similarly if service rules have been framed for an establishment, the punishment to be awarded should be in conformity with the said rules. In the establishments where Standing Orders Act is not applicable, the Management has discretion to award any appropriate punishment for a particular misconduct subject to the obvious qualification that the punishment should not be unduly excessive.

Dismissal

Dismissal the extreme punishment. Infliction of this extreme punishment on an employee would be justified if any conduct on the part of an employee may be deemed to be incompatible with the faithful discharge of his duties, and it is considered undesirable or against the interest of the employer to continue him in employment. On the basis of the above principle serious misconduct like willful insubordination, riotous and a disorderly behaviour, dishonesty, willful negligence of wok, would justify dismissal of an employee.

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