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HANDLING DISCIPLINARY MATTERS LEGALLY AND EFFICIENTLY.

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Presentation on theme: "HANDLING DISCIPLINARY MATTERS LEGALLY AND EFFICIENTLY."— Presentation transcript:

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2 HANDLING DISCIPLINARY MATTERS LEGALLY AND EFFICIENTLY

3 MISCONDUCT IMPROPER OR BAD CONDUCT IMPROPER OR BAD CONDUCT MISBEHAVIOUR MISBEHAVIOUR MISDEMEANOR MISDEMEANOR DELINQUENCY DELINQUENCY WRONG DOING WRONG DOING TRANSGRESSION TRANSGRESSION ADULTERY ADULTERY TO MANAGE BADLY TO MANAGE BADLY

4 DISCIPLINE SYSTEMATIC TRAINING RESTRAINT RESPECT ORDER CONTROL OBEDIENCE REGULATION CORRECTIVE PUNISHMENT

5 DISCIPLINARY ACTION DOMESTIC ENQUIRY AN INTERNAL INFORMAL PROCESS OF INVESTIGATING AN ACT OF MISCONDUCT OF AN EMPLOYEE AN INTERNAL INFORMAL PROCESS OF INVESTIGATING AN ACT OF MISCONDUCT OF AN EMPLOYEE WHEN REQUIRED WHEN REQUIRED WHY REQUIRED WHY REQUIRED BY WHOM REQUIRED BY WHOM REQUIRED FOR WHOM REQUIRED FOR WHOM REQUIRED

6 ESSENCE OF DOMESTIC ENQUIRY L E F T L = LEGAL E = EFFICIENT, ETHICAL F = FAST T = TRANSPARENT

7 PROCESSES OF DOMESTIC ENQUIRY FIRST INFORMATION ABOUT THE ACT OF MISCONDUCT SHOW CAUSE NOTICE / CHARGESHEET EXPLANATION OF WORKMAN EXPLANATION SATISFACTORY – MATTER CLOSED EXPLANATION NOT SATISFACTORY – DOMESTIC ENQUIRY APPOINTMENT OF ENQUIRY OFFICER RECORDING OF ENQUIRY PROCEEDINGS

8 ... PROCESSES OF DOMESTIC ENQUIRY REPORT / FINDINGS OF ENQUIRY OFFICER RECEIPT OF ENQUIRY REPORT BY THE COMPETENT AUTHORITY SUPPLYING COPY OF ENQUIRY REPORT TO DELINQUENT FOR HIS COMMENTS ON IT EVALUATION AND APPLICATION OF MIND ON THE ENQUIRY REPORT AND ON COMMENTS OF THE DELINQUENT IF ANY BY THE COMPETENT AUTHORITY SHOW CAUSE NOTICE TO WORKMAN ABOUT PROPOSED PUNISHMENT PUNISHMENT

9 WHAT IS A CHARGESHEET A MEMO OF ACCUSATIONS VIOLATION OF SERVICE CONDITIONS / RULES / REGULATIONS ETC. BY THE EMPLOYEE

10 WHY ISSUE A CHARGESHEET NO ACTION CAN BE TAKEN AGAINST ANY WORKMAN FOR AN ACT OF MISCONDUCT UNLESS HE HAS BEEN ISSUED A CHARGESHEET TO AFFORD A FAIR AND PROPER OPPORTUNITY TO THE DELINQUENT AS PER PRINCIPLES OF NATURAL JUSTICE TO PUT FORWARD HIS DEFENCE AGAINST THE CHARGES LEVELLED AGAINST HIM

11 ESSENTIALS OF A VALID CHARGESHEET SPECIFIC ACCURATE DETAILED CLEAR UNAMBIGUOUS...

12 ... ESSENTIALS OF A VALID CHARGESHEET CONTAIN ALL DETAILS REFER STANDING ORDERS CAREFULLY MENTION DATE, TIME, PLACE OF INCIDENT USE WORD ‘ABOUT’ WHEN TIME OF INCIDENT IS TO BE MENTIONED USE WORD ‘HABITUAL’ IF SO MENTION CORRECT DISOBEDIENCE / VIOLATION MENTION DOCUMENTS YOU WANT TO RELY UPON...

13 ... ESSENTIALS OF A VALID CHARGESHEET USE WORD ‘ ILLEGAL’ IF SO USE SAME WORDS OF ABUSE / THREAT ETC. MENTION CORRECT CLAUSE OF MISCONDUCT FROM STANDING ORDERS / SERVICE RULES DO NOT MENTION ABOUT PROPOSED PUNISHMENT

14 AUTHORITY COMPETENT TO ISSUE CHARGESHEET A PERSON WHO IS COMPETENT TO APPOINT AND DISMISS EMPLOYEES A PERSON DULY AUTHORISED AND DELEGATED WITH THIS AUTHORITY

15 EXPLANATION BY EMPLOYEE IMPORTANT BUT NOT ESSENTIAL IT IS A RIGHT OF EMPLOYEE EXPLANATION NOT MANDATORY BRFORE INITIATING DOMESTIC ENQUIRY EMPLOYEE MAY – – ACCEPT THE CHARGES – PLEAD GUILTY – PLEAD MERCY – REFUTE CHARGES – PLEAD GUILTY BUT EXPLAIN CIRCUMSTANCES – ASK MORE TIME TO SUBMIT EXPLANATION – NOT SUBMIT EXPLANATION...

16 ... EXPLANATION BY EMPLOYEE WITHIN STIPULATED TIME AS PER STANDING ORDERS / SERVICE CONDITIONS WITHIN REASONABLE TIME EXTRA TIME REQUEST SHOULD BE GRANTED TO AVOID CHARGE OF DENIAL OF OPPORTUNITY

17 SUSPENSION IT IS A TEMPORARY DEPRIVATION OF ONE’S NORMAL POSITION, PRIVILEGES, FACILITIES, FUNCTIONS ETC. PENDING ENQUIRY IT IS TO AVOID ANY TAPMERING / DAMAGE BY EMPLOYEE IT IS TO AVOID CONTINUANCE OF INDISCIPLINE IT IS RESORTED TO WHEN EMPLOYEE’S CONTINUANCE WILL BE PREJUDICIAL TO THE INTEREST OF THE ORGANISATION IT IS NOT REDUCTION IN RANK IT IS PROSPECTIVE, NOT RETROSPECTIVE IT SHOULD NOT BE FOR INDEFINITE PERIOD

18 SUSPENSION / SUBSISTANCE ALLOWANCE AS PER STANDING ORDERS / SERVICE CONDITIONS / TERMS OF EMPLOYMENT 50% UPTO 90 DAYS, 75% AFTER 90 DAYS IF DELAY NOT ATTRIBUTABLE TO EMPLOYEE (Sec. 10-A of I.E.(S.O.)Act,1946 MISCONDUCT PROVED, EMPLOYEE DISMISSED – NO WAGES FOR SUSPENSION PERIOD EMPLOYEE REINSTATED – ENTITLED FOR WAGES NO WAGES IF EMPLOYEE ABSENT DUE TO DETENTION ENTITLED TO WAGES IF SUSPENDED...

19 ... SUSPENSION / SUBSISTANCE ALLOWANCE SUSPENSION ALLOWANCE INCLUDES ALL ALLOWANCES DOMESTIC ENQUIRY WITHOUT PAYMENT OF SUBSISTANCE ALLOWANCE WILL BE VITIATED STARVING EMPLOYEE CAN NOT DEFEND HIMSELF SUSPENSION NOT A PUNISHMENT PAYMENT OF SUBSISTANCE ALLOWANCE SUBJECT TO NOT TAKING EMPLOYMENT BY EMPLOYEE

20 APPOINTMENT OF ENQUIRY OFFICER E.O. IS A DELEGATE OF DISCIPLINARY AUTHORITY E.O. CAN BE APPOINTED BY THE COMPETENT AUTHORITY OFFICER OF ESTABLISHMENT CAN BE E.O. E.O. SHOULD BE PERSON OF OPEN MIND AND NOT BIASED AGAINST THE DELINQUENT E.O. SHOULD BE AN OFFICER OF REASONABLY HIGHER STATUS COMMANDING RESPECT AMONG EMPLOYEES...

21 ... APPOINTMENT OF ENQUIRY OFFICER AN ADVOCATE AS E.O. IS CONSIDERED TO BE AN IDEPENDENT, IMPARTIAL, UNBIASED AND RESPONSIBLE PERSON NO MAN SHOULD BE A JUDGE OF HIS OWN CAUSE (NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA) JUSTICE SHOULD NOT ONLY BE DONE BUT MANIFESTLY AND UNDOUBTEDLY SHOULD SEEM TO HAVE BEEN DONE A PERSON WHO HAS PERSONAL KNOWLEDGE OF THE INCIDENT SHOULD NOT BE AN E.O. A PARTNER IN A SMALL ESTABLISHMENT CAN BE AN E.O.

22 OBJECTION BY DELINQUENT AGAINST ENQUIRY OFFICER NOT AN INDEPENDENT PERSON BIASED PERSON NOT APPOINTED BY COMPETENT AUTHORITY E.O. HIMSELF IS A WITNESS TO THE INCIDENT MANAGEMENT’S PAID AGENT OLD ENMITY WITH DELINQUENT CHANGE THE ENQUIRY OFFICER

23 NOTICE OF ENQUIRY REASONABLE / ADEQUATE NOTICE TO BE GIVEN TO DELINQUENT SERVICE OF NOTICE COULD BE BY HAND / BY REGD. A.D. POST SERVICE OF NOTICE SHOULD BE ENSURED BEFORE PROCEEDING FURTHER RETURNED LETTER IS NOT SERVICE OF COMMUNICATION EVADING TO TAKE DELIVERY IS NOT REFUSAL TO TAKE DELIVERY NOR IT IS SERVICE OF DELIVERY ENDORSEMENT OF POSTMAN IS REBUTTABLE DELIVERY TO OTHER MEMBER OF FAMILY NOT GOOD DELIVERY...

24 ... NOTICE OF ENQUIRY NORMALLY E.O. SHOULD SEND NOTICE IN SOME SITUATIONS MANAGEMENT MAY ALSO SEND NOTICE WHEN DELINQUENT DENIES HAVING RECEIVED OR REFUSED DELIVERY OF LETTER, ONUS TO PROVE DELIVERY COMES ON MANAGEMENT WHEN SERVICE / COMMUNICATION TO DELINQUENT IS NOT COMPLETE, MANAGEMENT SHOULD PUBLISH IN LOCAL DAILY NEWSPAPER

25 REPRESENTATION OF DELINQUENT BY A LAWYER REPRESENTATION THROUGH A LAWYER NOT A RIGHT DEPENDS ON STANDING ORDERS / SERVICE CONDITIONS DEPENDS ON CIRCUMSTANCES OF THE CASE WHEN MATTER IS COMPLICATED WHEN MANAGEMENT IS REPRESENTED BY A LEGALLY TRAINED PERSON REFUSED FOR FEAR OF CAUSING COMPLICATIONS AND DELAY

26 RECORDING EVIDENCE IN ENQUIRY E.O., M.R., DELINQUENT, D.A. TO MARK ATTENDANCE IN THE BEGINNING AND AT THE END OF EACH PAGE. WITNESSES ALSO TO SIGN AT APPROPRIATE PLACES. STRICT RULES OF EVIDENCE NOT APPLICABLE IN DOMESTIC ENQUIRY PRINCIPLES OF NATURAL JUSTICE CAN NOT BE IGNORED ENQUIRY NEED NOT BE DONE AT ONE FIXED PLACE ONLY ENQUIRY PROCEEDINGS SHOULD BE RECORDED IN TRIPLICATE, ONE COPY EACH FOR E.O., M.R. AND DELINQUENT DELINQUENT SHOULD BE GIVEN COPIES OF DOCUMENTS RELIED UPON BY MANAGEMENT...

27 ... RECORDING EVIDENCE IN ENQUIRY DELINQUENT HAS RIGHT TO ASK FOR MORE DOCUMENTS RELEVANT FOR HIS DEFENCE STATEMENTS OF MANAGEMENT WITNESSES SHOULD BE RECORDED FIRST AND IN THE PRESENCE OF DELINQUENT DELINQUENT SHOULD BE GIVEN OPPORTUNITY TO CROSS EXAMINE MANAGEMENT WITNESSES IF DELINQUENT DOES NOT CROSS EXAMINE THE MANAGEMENT WITNESS, IT SHOULD BE RECORDED BY THE E.O. M.R. MAY ASK QUESTION FROM WITNESS FOR CLARIFICATION AFTER COMPLETION OF MANAGEMENT WITNESSES, E.O. SHOULD ENQUIRE FROM M.R. IF HE HAS NO OTHER WITNESSES, AND SHOULD RECORD THIS...

28 ... RECORDING EVIDENCE IN ENQUIRY AFTER COMPLETION OF MANAGEMENT EVIDENCE, THE DELINQUENT WILL LEAD HIS EVIDENCE M.R. WILL CROSS EXAMINE DELINQUENT’S WITNESSES. IF HE DOES NOT, E.O. SHOULD RECORD THIS WHEN DELINQUENT’S EVIDENCE IS COMPLETE, E.O. WILL ASK THE DELINQUENT IF THERE ARE NO OTHER WITNESSES AND WILL RECORD THIS IN EACH PROCEEDING E.O., M.R., DELINQUENT AND HIS REPRESENTATIVE HAVE TO MARK THEIR ATTENDANCE AND SIGN ON EACH PAGE OF THE ENQUIRY PROCEEDINGS E.O. WILL CLOSE THE ENQUIRY PROCEEDINGS...

29 ... RECORDING EVIDENCE IN ENQUIRY A WITNESS IS CONSIDERED NEUTRAL UNLESS THERE IS MATERIAL TO PROVE HIS ENMITY WITH DELINQUENT RELATIONSHIP WITH MANAGEMENT DOES NOT NEGATE A WITNESS IF HIS DEPOSITION IS FAIR AND TRUE THERE IS NO RULE TO DISREGARD THE EVIDENCE OF LONE WITNESS IF THERE ARE MANY WITNESSES, THERE IS NO NEED TO EXAMINE EACH AND EVERY WITNESS...

30 ... RECORDING EVIDENCE IN ENQUIRY PROCESS OF CROSS-EXAMINATION IS VERY IMPORTANT TO TEST THE VERACITY OF WITNESSES WITNESSES SHOULD BE CROSS-EXAMINED IN THE PRESENCE OF DELINQUENT PROCEEDINGS SHOULD BE RECORDED IN LOCAL LANGUAGE / ENGLISH / HINDI WHICH IS EASILY UNDERSTOOD BY EMPLOYEE

31 PRINCIPLES OF NATURAL JUSTICE NO PERSON CAN BE HELD GUILTY WITHOUT INFORMING HIM THE CHARGES AGAINST HIM NO PERSON CAN BE HELD GUILTY WITHOUT GIVING HIM FAIR AND PROPER OPPORTUNITY TO EXPLAIN HIS DEFENCE NO PERSON CAN BE A JUDGE OF HIS OWN CAUSE

32 EX-PARTE ENQUIRY WHEN EMPLOYEE REFUSES TO PARTICIPATE IN ENQUIRY WHEN EMPLOYEE DOES NOT TURN UP IN ENQUIRY DESPITE ALL EFFORTS OF SERVICE / INTIMATION BY MANAGEMENT WHEN EMPLOYEE REFUSES TO CROSS EXAMINE WITNESSES WHEN EMPLOYEE WALKS OUT OF ENQUIRY

33 ENQUIRY REPORT ENQUIRY OFFICER WILL SCRUTINIZE, ASSESS, EVALUATE, CORROBORATE, JUSTIFY AND CONCLUDE BASED ON ALL DOCUMENTS, STATEMENTS AND ALL RELEVANT INFORMATION FROM THE ENQUIRY PROCEEDINGS RECORDED BY HIM AND BY APPLYING HIS UNBIASED, IMPARTIAL, FAIR AND JUDICIOUS MIND AS PER PRINCIPLES OF NATURAL JUSTICE, AND WILL PREPARE HIS ENQUIRY REPORT / FINDINGS AND WILL SUBMIT THE SAME ALONGWITH ALL DOCUMENTS TO THE DISCIPLINARY AUTHORITY ENQUIRY OFFICER IS REQUIRED TO SUBMIT HIS FINDINGS ONLY WHETHER THE DELINQUENT HAS BEEN PROVED GUILTY, PARTLY GUILTY OR NOT GUILTY...

34 ... ENQUIRY REPORT HE SHOULD NOT RECOMMEND ANY PUNISHMENT IN CASE THE DELINQUENT IS FOUND GUILTY FINDINGS OF A DOMESTIC ENQUIRY BASED ON SUSPICION, SURMISE OR CONJECTURES IS BAD IN LAW

35 INVITING COMMENTS A COPY OF THE ENQUIRY REPORT / FINDINGS PREPARED AND SENT BY THE ENQUIRY OFFICER WILL BE PROVIDED TO THE DELINQUENT FOR HIS COMMENTS ON IT, IF ANY, TO BE SENT BY HIM WITHIN A STIPULATED TIME PERIOD. IN CASE THE DELINQUENT GIVES SOME EXTENUATING REASONS AND POINTS OUT FLAWS IN THE FINDINGS OF THE ENQUIRY REPORT OF THE ENQUIRY OFFICER, THE DISCIPLINARY AUTHORITY WILL WEIGH THE ENQUIRY REPORT IN LIGHT OF SUCH COMMENTS OF DELINQUENT AND TAKE HIS ACTION. IF THE DELINQUENT DOES NOT SUBMIT ANY COMMENTS, THE DISCIPLINARY AUTHORITY WILL TAKE FURTHER ACTION IN THE MATTER ON THE BASIS OF FINDINGS OF THE ENQUIRY OFFICER INVITING COMMENTSNON SUPPLY OF COPY OF ENQUIRY REPORT TO DELINQUENT IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AS WELL AS PROVISIONS OF ARTICLES 14 AND 21 OF CONSTITUTION

36 PUNISHMENT IN CASE THE DELINQUENT IS ABSOLVED OF THE CHARGES BEING NOT PROVED IN THE ENQUIRY OR PARTIALLY PROVED, OR WHEN COMMENTS OF DELINQUENT ARE ACCEPTED BY DISCIPLINARY AUTHORITY, HE WILL NOT BE INFLICTED ANY PUNISHMENT OR WILL BE INFLICTED PUNISHMENT IN PROPORTION TO THE PARTIAL GUILT PROVED, AS THE CASE MAY BE. IN CASE THE CHARGES ARE PROVED AGAINST THE DELINQUENT OR THE COMMENTS OF DELINQUENT ARE NOT ACCEPTED BY THE DISCIPLINARY AUTHORITY, APPROPRIATE DISCIPLINARY ACTION AS PER STANDING ORDERS / SERVICE CONDITIONS ETC. WILL BE INFLICTED ON THE DELINQUENT.

37 KINDS OF PUNISHMENT PREVENTIVE RETRIBUTIVE CORRECTIVE

38 PURPOSE OF PUNISHMENT TO PREVENT RECURRENCE OF ACTS OF MISCONDUCT BY SAME EMPLOYEE OR BY OTHERS IN FUTURE TO ENFORCE / MAINTAIN DISCIPLINE IN ESTABLISHMENT TO SEND MESSAGE OF FEAR OF LOSING JOB IN CASE SOME GROSS MISCONDUCT IS COMITTED BY ANY EMPLOYEE, AND THUS KEEP THEM AWAY FROM ANY ACT OF MISDEMEANOR TO RUN THE ESTABLISHMENT COORDIALLY, PEACEFULLY AND EFFICIENTLY

39 FAIRPLAY IN PUNISHMENT PUNISHMENT SHOULD BE JUST, FAIR AND IN PROPORTION TO THE ACT OF MISCONDUCT PROVED PUNISHMENT SHOULD NOT BE ARBITRARY, VINDICTIVE, MALA FIDE, LESS OR EXCESSIVE PUNISHMENT SHOULD BE AWARDED BY TAKING ALL FACTORS INTO CONSIDERATION PUNISHMENT SHOULD BE AWRDED BY THE DISCIPLINARY AUTHORITY AFTER APPLYING HIS JUDICIOUS MIND A DELINQUENT CAN NOT BE HELD GUILTY SIMPLY ON PRESUMPTIONS...

40 ... FAIRPLAY IN PUNISHMENT SINCE FINDINGS OF DOMESTIC ENQUIRY CAN TAKE AWAY THE LIVELIHOOD OF DELINQUENT, THE ENQUIRY OFFICER SHOULD APPLY HIS OWN MIND VERY JUDICIOUSLY IN WRITING HIS REPORTDOMESTIC ENQUIRY IS A QUASI JUDICIAL ENQUIRY AND THUS IT MUST SHOW REASONS FOR ITS CONCLUSION

41 TERMINATION SANS ENQUIRY IN EXTREME / EXCEPTIONAL CIRCUMSTANCE WHEN IT IS NOT PRACTICALLY POSSIBLE TO CONDUCT AN ENQUIRY, MANAGEMENT MAY RECORD SUCH CIRCUMSTANCES AND REASONS BEFORE TERMINATING THE EMPLOYEE. MANAGEMENT MAY LEAD EVIDENCE BEFORE THE COURT IN SUCH CIRCUMSTANCES IF SO REQUIRED

42 SECTION 11-A OF I.D. ACT, 1947 AND POWERS OF LABOUR COURTS / TRIBUNALS ONCE THE EMPLOYEE IS PROVED GUILTY OF THE CHARGES LEVELLED AGAINST HIM IN A DOMESTIC ENQUIRY, THE JURISDICTION TO AWARD PUNISHMENT RESTS WITH THE MANAGEMENT WHEN A DOMESTIC ENQUIRY IS CONDUCTED FAIRLY, PROPERLY AND AS PER PRINCIPLES OF NATURAL JUSTICE, NORMALLY LABOUR COURTS / TRIBUNALS DO NOT INTERFERE WITH THE PUNISHMENT AWARDED BY THE MANAGEMENT...

43 ... SECTION 11-A OF I.D. ACT, 1947 AND POWERS OF LABOUR COURTS / TRIBUNALS IN EXTREME CASES WHERE THE COURT FEELS THAT THERE IS A CASE OF VICTIMISATION OR UNFAIR LABOUR PRACTICE AND PUNISHMENT IS DISPROPORTIONATE TO THE ACT OF MISCONDUCT, IT MAY INTERFERE WITH THE PUNISHMENT LABOUR COURT / TRIBUNAL IS CLOTHED WITH POWER TO RE-APPRAISE THE EVIDENCE IN DOMESTIC ENQUIRY AND SATISFY ITSELF WHETHER THE SAID EVIDENCE RELIED UPON BY THE MANAGEMENT ESTABLISHED THE MISCONDUCT ALLEGED AGAINST THE CONCERNED EMPLOYEE

44 THANK YOU !


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