1. TOPICS – THIS SESSION Domestic Enquiry Principles of Natural Justice
Drafting of Charge Sheet
Who should issue a Charge Sheet?
The Charge Sheet Proper
Service of charge sheet to Workmen
Suspension pending enquiry
Who should hold the enquiry?
Representation of employee
Leading of Evidence
Punishment
Types of Punishment
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2. Domestic Enquiry
Whether in the private or public sector no employee can be dismissed unless a proper departmental enquiry is held as per the provisions under the Industrial Employment (Standing Orders Act 1946). There are no laid down rules for holding domestic enquiries but over a period of time various courts and tribunals have laid down that the domestic enquires should be based on the principle of natural justice.
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3. Principles of Natural Justice
Maxims on which the principles of natural justice are based
Nemo debet esse judex in propria causa ( meaning thereby no one should be judge in his own cause)
audi alteram partem (here the other side).
In other words :-
1) The person should have an opportunity the know the allegations against him
2) He should be given a fair opportunity of being heard
3) Decision should be made in good faith
4) A man should not be a judge of his own cause
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4. Drafting of Charge Sheets
The domestic enquiry is a fact finding exercise and cannot be acquitted with the principle of charge sheet as in criminal law. However, absence of a charge sheet violates the principle of natural justice.
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5. Who Should Issue A Charge Sheet?
a) The appointing authority or any other higher authority has power to issue charge sheet.
b) Charge sheet can be issued by the disciplinary authority.
c) Charge sheet can be given by competent authority through others.
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6. The Charge Sheet Proper
There is no particular form of charge sheet, however,
(i) the charge sheet should be simple,
(ii) the act of misconduct should be described if possible verbitium,
(iii) each incident should be a separate charge,
(iv) make mention of specific name and the offence,
(v) mention section or rule constituting the misconduct,
mention clearly the date and time of misconduct,
when misconduct depends upon offending language then actual word used should be specified in the charge sheet.
where misconduct is habitual the word “habitual” must be mentioned.
the charge sheet must be in the local language.
the language of the charge sheet should not show that the employee is guilty.
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7. Service of Charge Sheet to Workmen
As far as possible the charge sheet should be served by hand and acknowledgement taken. Incase the workmen refuses to accept charge sheet then the provision of standing orders must be followed for service i.e.
send the charge sheet by Regd. AD,
If register letter is refused by the addressee it amounts to service
the charge sheet can be served by putting on the notice board.
where there is no provision of standing order for the service of charge sheet it should be published in the local newspaper.
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8. Suspension Pending Enquiry
In the case of an act of serious misconduct or where the competent authority thinks that a workmen should be suspended pending enquiry the charge sheet can mention that the employee is suspended enquiry in terms of the provision of the standing orders and during the suspension period the workmen will be entitled to subsistence allowance as per provision of the standing orders. Suspension pending enquiry is not a punishment
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9. Who Should Hold The Enquiry?
The competent authority may appoint any other officer of the company to hold the enquiry as long as the officer concerned is not connected in any way with the act of misconduct and is not biased.
HOLDING OF ENQUIRY
An enquiry must be held even when the workmen in the written explanation accepts the charges as this would eliminate any pressure on the workmen to accept charges. Where the workmen inspite of given adequate opportunity does not present himself before the enquiry officer the enquiry should be proceeded with exparte. The proceeding of the enquiry should be recorded by the enquiry officer. The enquiry officer can use his discretion for grant of adjournment. During the proceeding of the enquiry the enquiry officer can only ask question in clarification and cannot ask leading questions.
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10. Representation Of Employee
An employee can be represented at the enquiry by a co-worker as per the provisions of the Standing Orders.
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11. Leading of Evidence
Generally, the management witnesses are required to lead the evidence before the officer. Once the statement of witness is recorded the employee can cross examine the witnesses. Any documents presented before the enquiry officers should be passed on by the enquiry officer to the delinquent workmen for his examination. After the witnesses in favour of the charges are produced the workmen should produce his witness. The workmen has a right to cross examine his own witness and can produce any documents in his favour. At the end of examining of each witness the proceeding of the enquiry should be read out by the enquiry officer and after ascertaining that it has been understood by the workmen and the witness as the case may be the signatures of all concerned should be taken.
On conclusion of the enquiry the enquiry officer shall submit his report based on the evidence lead before him and the detailed report alongwith the proceedings of the enquiry should be forwarded to the competent authority.
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12. Punishment
After reviewing the report of the enquiry officer the punishing authority can ask for a second explanation from the workmen as to why the worker should not be punished for the act of misconduct. Thereafter the punishing authority can issue the order of punishment.
Whilst ordering the punishment its is incumbent of all the punishing authority to take into consideration the past record of the employee.
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13. Types of Punishment
Depending upon the gravity of the charge the punishing authority may issue an order of punishment in line with the Standing Orders. Generally, standing order have the following kind of punishment:-
Warning
Suspension by way of punishment
Discharge simple citer
Dismissal
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