When initiating disciplinary action against any employee the Principles of Natural Justice have to be followed. For suspending an employee by way of punishment or warning or censuring an employee there is no need for a domestic enquiry. But for dismissing an employee, Domestic Enquiry is a must. The disciplinary action process has to be initiated as per the Standing orders, Service rules or terms and conditions of service of employment.
There are Two Fundamental Principles of Natural Justice:
No man can be condemned unheard.
No man can be a judge of his own case.
If the Principles of Natural Justice are violated, the Domestic Enquiry becomes vitiated and courts are bound to set aside the order of dismissal/termination. Therefore, it is essential that in the conduct of Domestic Enquiry, the procedure and the Principles of Natural Justice have to be followed meticulously.
How to frame a Show Cause Notice.
How to frame a Charge Sheet.
The Charge Sheet has to be precise, very clear and should be unambiguous. If the Charge Sheet is vague, the enquiry becomes defective and an enquiry conducted on a defective Charge Sheet is no enquiry in the eyes of law. The day, time and place of the incident have to be mentioned in the Charge Sheet. Short summary of the incident has to be mentioned. The name of the persons involved in the incident has to be mentioned very clearly. The charges levelled against the employee in the Charge Sheet have to be mentioned as per the Standing Orders. The employee has to be given an opportunity to Cross-examine the Management’s witnesses and examine his own witnesses in his own defense. He shall also be given an opportunity to be defended by a co-workmen or an office-bearer of the Union of which he is a member. He should be told very clearly that if he does not attend the enquiry on the date, time and place specified, the enquiry shall be conducted ex-parte and any decision arrived as a result of such an ex-parte enquiry shall be binding on him.
Notice of Enquiry.
The Charge Sheeted employee (CSE) has to be intimated about the date, time and place of the enquiry.
Service of Charge Sheet/ Show Cause Notice.
Proceedings of the Enquiry.
The following persons have to be present on the first date of the enquiry:
The Enquiry Officer
The Management Representative (MR)
The Charge Sheeted Employee (CSE)
The Defence Representative (DR)
The Management Representative (MR) has to produce the copy of the Charge Sheet, Show Cause Notice, if any, the explanation of the Employee to the Charge Sheet/ Show Cause Notice.
At the outset of the Enquiry, the Enquiry Officer has to ask the employee whether he has received a copy of the Charge Sheet, whether he has understood the contents of the Charge Sheet and whether he accepts the charges levelled against him. Thereafter, the Enquiry Officer has to explain the procedure that shall be followed in the Enquiry i.e. the examination of witnesses of the Management followed by Cross-examination. Thereafter, the employee will be given an opportunity to examine his own witnesses in his defense and Cross-examination of the witnesses will be done by the Management Representative.
The proceedings of the enquiry will be conducted in the language understood by the employee. Copy of the proceeding have to be signed by all the parties present in the enquiry and a copy of the proceeding has to be given to the employee on the same day.
After the examination-in-chief and cross-examination of witnesses is completed, the witness shall be discharged from the enquiry. Thereafter, the Enquiry Officer shall ask the Charge Sheeted Employee (CSE) whether he wants to give his defence statement. The enquiry will thereafter be declared as closed.
Report and Findings of the Enquiry Officer.
In the Report, the Enquiry Officer will mention the brief summary of the proceedings and thereafter submit his findings in which he will mention whether the misconduct alleged against the employee is proved or not and the reasons for the same. He is not supposed to recommend the punishment that is to be awarded to the employee. The Report and Findings of the Enquiry is submitted to the Management and the Management will decide the quantum of the punishment that is to be given to the employee.
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Personnel & professional who deal or intend to deal with labour laws related matters
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