eep disciplinary action

8/4/2019 EEP Disciplinary Action

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Welcometo

Executive Education Programon

Effective Discipline& Discipline Management

Law & Procedure of DisciplinaryActions in IndustryBy

Dr. N. Y. Phadnis

Professor -IMT-Nagpur


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Discipline in Industry

Observance of Norms & Rules- Duty/Job related &Behaviour at Work Place or in relation to employment.

Maintenance of Discipline- a prerequisite for success ofIndustry.

Positive Discipline & Self Discipline is preventive innature & is achieved through Human Relationsapproach, Education, Counseling, Motivation & sound HRPractices.

Negative Discipline is curative & punitive in nature & isenforced through Disciplinary Action & Punishment forMisconduct committed by an employee.

The Program focuses on Negative aspects of Discipline &its Effective Management.


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Misconduct

Mis- Bad/Wrong/Improper

Conduct- Behaviour/Deed/Action.

Misconduct is not necessarily a crime or an offenceunder the penal laws.

Crime/Offence in relation to employment is amisconduct.

Acts of commission & omission expressly stated in thestanding orders or service rules as misconducts.

It is desirable to provide a exhaustive list of misconductsin certified Standing orders or service Rules.


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Case Law on Misconducts

Delhi cloth & General Mills Vs WorkmenAIR 1970 SC 919.

Mulchandani Electrical & Radio Industries1975 II LLJ 391 SC

Mahendrasingh Dhantwal Vs HindustanMotors Ltd AIR 1976 SC 2062

M/s Glaxo Laboratories AIR 1984 SC 505.


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Sexual Harassment at Work Place

It is a misconduct whether provided under SO ornot.

Deemed to be incorporated as misconduct understanding orders/service rules as per Apex court

judgment in Vishakha Vs State of Rajasthan-AIR1997 SC 3011. (Detail guidelines laid down)

Also a crime/offence u/s 209,354 & 509 of IPC. Case Law- Apparel Export promotion council-

1999 LLR 169 SC. & Saudi Arabian Airlines- 1999LLR 329 (Bom)


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Disciplinary Action in Industry

is not regulated by

Indian Evidence Act.

Civil Procedure Code (CPC)

Criminal Procedure Code (Cr. P. C) The Technical Rules of above 3 laws not

applicable to disciplinary action.

The rules or principles of natural justicecontained in these laws does apply.


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Nature of Domestic Enquiry.

It is an Internal Fact Finding enquiry by the employerinto the allegations/charges of misconduct committed byan employee.

Not a Judicial Enquiry. (Absence of Judicial

Powers/Authority & Procedure) Treated as Quasi- Judicial i.e. to be held with judicious

mind & approach & by observing Principles of NaturalJustice.

There is no set or prescribed form of conducting DE. Should be held as per the procedure if any under SO.


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Principles of Natural Justice

(Un-codified & Flexible) No one should be Judge in his own cause. Hear the other Side. (No one to be condemned

unheard) Fair, Transparent & Orderly Procedure. Reasonable & Adequate opportunity to defend

the charges (of misconduct) given to delinquentat every stage of Enquiry.

Due consideration of material on record by

Enquiry Officer & Disciplinary Authority. Acid test for violation of PNJ is prejudice caused

to delinquent or denial of justice.


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Case Law on PNJ

D.K. Yadav Vs JMA Industries 1993 SCC(L&S) 723

State Bank of Patiala Vs S.K. Sharma 1996II CLR 29 SC.

Syndicate Bank Vs Venkatesh GumraoKurati 2006 I CLR 783 SC

A. Sudhakar Vs PMG Hyderabad 2006 IICLR 27 SC


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Nature & Status of Standing Orders

(Model or Certified) Is a statutorily imposed contract between employer &

employees but not a statute by itself.

SO have statutory force & binds employer & employees.

SO should also be consistent with PNJ.

Binding & enforceable so long as not violating theLabour Laws & Case Laws (Law overrides the Standingorders when inconsistent & conflicting)

SO are not binding on Judiciary (Courts)

To be read into contract of service & terms of servicecontract (Appointment letter) and overrides theappointment letter to the extent of inconsistency.


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Case Law on SO

Rajasthan State Transport Vs Krishnakant1995 II CLR 180 SC. (Para 13, 18 & 35)

D.K. Yadav Vs JMA Industries 1993 SCC(L&S) 723

May & Baker Ltd Vs Kishore Icchaporia1991 II CLR 176 Bom.HC


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Disciplinary Action & Domestic

Enquiry (Steps) Report/Complaint or Notice of Misconduct. Suspension of employee (pending enquiry)

(if desirable)

Preliminary Investigations and/or show-causenotice (if necessary) Charge-sheet calling for explanation. Consideration of delinquents reply.

Decision to hold enquiry & appointment of EO.&PO (MR) Notice of Enquiry to Delinquent.


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DA & DE (steps) contd.

Enquiry Proceedings- Recording of Evidence. (As per theProcedure of SO & PNJ)

Preparation & Submission of Enquiry Findings Report byEO to DA.

Furnishing copy of ER to delinquent inviting comments. Due Consideration of Enquiry Record, comments & Past

service record (of delinquent) by the disciplinaryauthority.

Second Show cause notice (if expressly stated in SOotherwise not necessary)

Communication of Punishment Order to delinquent & itsimplementation.


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Suspension Pending Enquiry

(Optional) If warranted. Should be done in case of serious acts of misconduct. Entry & Working of employee is prohibited in the interest of an

organization. It is not a punishment.

Insisting on daily reporting & marking attendance serve twopurposes & employers convenience is served. Employer-Employee Relationship continues. Suspension/Subsistence Allowance to be paid as per Sec.10-A of

IESO Act. (which overrides SO) (% of contractual salary & not Basic+DA alone)

Less payment or No Payment of SA vitiates Enquiry. SA-Should not be linked with Attendance of suspended employee.


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Suspension as Punishment

Not during the enquiry but at the end ofenquiry on finding guilty.

With full loss of pay for limited period notexceeding maximum days mentioned inSO or rules applicable.

Technically & Legally amounts to break inservice & re-appointment but generallynot enforced due to feasibility.


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Preliminary Enquiry

(Optional)

If necessary/required.

Collection of Information & Evidence to fixresponsibility (to book an employee).

Its not a regular DE & Participation ofDelinquent is not necessary & required.

Delinquents Statement should not be insisted

upon. Out come of PE is a decision whether to issue

Show-Cause Notice/Charge-sheet or not.


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Charge-sheet or Show-Cause

Notice Is mandatory. Is starting of Regular Domestic Enquiry. Opportunity to reply must be given (within minimum 72

hours time to reply)

Charges must Specific/Precise with full particulars ofdate, time, place, persons involved, incident alleged &allegations made.

Relevant clauses of SO must be mentioned. Must be in writing & signed by competent authority.

Insufficient particulars or vague charges vitiates enquiry. Translation of charge-sheet in local language necessary

if employee does not understand English. Proof of Service of Charge-sheet is must.


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Notice of Enquiry

It can be a part of charge-sheet if Show-causenotice calling for reply was given earlier.

Should be issued generally after consideringdelinquents reply to charges & after decision to

hold enquiry. Should communicate decision to hold enquiry &

must give name of Enquiry officer & date, time& place of Enquiry.

Should ask & assure employee to be defendedby an assistant as per rules & to attend enquiry. Copies of documents & list of management

witnesses should be attached.


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Enquiry Officer

EO can be either an Internal officer or anOutsider including an Advocate.

Charge-sheeting authority or Disciplinary

authority can also be an EO however it isdesirable not to appoint them as EO

EO should be an unbiased & impartial person &should be above in rank than that of delinquent

employee. Appointment of PO i.e MR is optional but

desirable.


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EO

Evidence of the Management in support ofthe charges should be recorded first.

Defense Evidence should be recordedafter Managements Evidence.

Should not recommend punishment in ER.

ER should be a Speaking Report EO does not have judicial powers but

should act judiciously.


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Appearance of Advocate in DE

Can hold Enquiry as Enquiry Officer.

No right to delinquent employee even if EO is anAdvocate.

If MR/PO is an Advocate or legally trained officer then

delinquent gets right. OR If charges are serious or complicated & legal expertise is

necessary to defend then Advocate should be allowed.

To follow the express provisions of SO or State law as

applicable. Appearance of Advocate in DE is not a matter of Legal

Right & Rule. It is an exception which is situation based.


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Criminal Trial Vis--vis DE

Can proceed simultaneously (No bar)

Level/degree of Proof required aredifferent.

Punishments have no bearing on eachother.

Desirable/Advisable to stay DE or reinstate

employee only if 1) employee is acquittedwith honour & 2) The Charges & Proof inboth proceedings were identical.


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Effect of No Enquiry or Defective

Enquiry

Is an Unfair Labour Practice under MRTU& PULP Act in Maharashtra (Item 1(f) ofschedule IV)

Prohibited u/s 27 of MRTU & PULP Act.

Courts exercise powers under sec. 28 & 30of ULP Act & sec. 11-A of ID Act.

Hindustan Lever Cases- 1993 LIC Bom.HC& 1995 II CLR 823 SC.


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Land Mark Court Rulings

Charge-Sheet- Firestone Tyre Co- AIR 1981 SC 1626. Enquiry Officer & Enquiry Procedure- A.K. Kraipak VS UOI-AIR 1970

SC150, Delhi Cloth & General Mills (2 Cases)- 1972 I LLJ 172 SC &AIR 1972 SC 2128.

Representation of Parties- Krishna chandra tandon Vs UOI- AIR1974 SC 1589.Crescent dyes case- 1993 I CLR 253 SC

Enquiry Procedure vis--vis Court procedure- UOI Vs Tulsiram Patel-AIR 1985 SC 1416.

Enquiry Vis--vis Criminal trial- Food corporation of India-AIR1991SC 1115.

Copy of Enquiry Report- UOI Vs Mohd. Ramzan Khan- AIR 1991 SC

762 SC & ECIL case- 1994 LIC 762 SC. Judicial Control- Fire stone Tyre co- AIR 1973 SC 1227. &

Hindusthan Lever Case- 1995 II CLR 823 SC.


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Triple Test or Mantra of Fair &

Proper Disciplinary Action.

Follow the express rules prescribed underStanding orders (model or certified)

Observe PNJ when rules under SO aresilent or terms of appointment are notclear.

Ensure that No prejudice and denial ofjustice is caused to an employee by youractions & decisions.


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Thank You.See you---


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Legal Aspects of

EmploymentHR Elective

Term-IV


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Legal Aspects of Employment

(LAE)

It basically covers Labour and/or IndustrialLaws?

The apt title is Industrial Labour Laws.

Laws dealing with Labour employed &working in Industry.

Also covers the legal issues & implications

relating to terms of employment arisingout of contract of and for employment.

Also called as employment laws.


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Nature of Labour/Industrial Law

A combination of Social Security & Welfare law+ Criminal/Penal Law.

For Employees- It is social justice, social security& welfare law. (Beneficial & Protective Law)

For Employers- It is Penal/Criminal law. Creates Rights & Obligations for both

employees & employer but more legal rights foremployees & more statutory obligations for

employers. Liberal interpretation favouring Labour Class &

hence Pro-labour legislation.

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