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TRANSCRIPT
CHAPTER 1
INTRODUCTION
To succeed in any walk of life, discipline is foremost essential and is the minimum
basic principle for a successful life. Discipline is the very basis of well organized,
stabilized and enlightened society. Ordinarily, the term discipline means orderly
or prescribed conduct or more precisely, conformity to a pattern of behaviour set
forth in a particular system.
The growth of industrialization in the country brings in its wake the labour
problems. While initially common law doctrines and theories one of which was
‘laissez faire’, there was a completed dominance of the Master over the servant.
There was hardly any chance of labour being united and putting their terms to
employer and therefore the problems of indiscipline and misconduct never took
place otherwise labour was thrown out immediately from the employment. Now
with the considerable growth and development of industrial law and the
upcoming of professional management and organized labour movement, the
contractual relationship regarding employment has undergone considerable
change and the subject of discipline in the social life of the community is gaining
the attention of many thinkers particularly in the field of industry, where the
problem of discipline is equally important.
Industry needs discipline and efficiency to survive and prosper. Labour needs
security of employment. Modern industrial jurisprudence has evolved principles
to reconcile the interests of both i.e. employers and employees. The
management as well as the workmen now recognize that their respective
interests are not in conflict with each other but are mutually complementary. It is
all a matter of adjustment between superficially conflicting claims.
1
Disciplinary machinery comes into operation as soon as there is breach of
discipline. In taking the disciplinary action in the event of misconduct against the
delinquent employee, the management should have the object to improve future
behaviour and not to over-penalise and also not to be so unduly easy, that it may
lead to a series of broken rules as the old age saying, “sparing the rod, spoils the
child” has its industrial application as well.
While initiating such proceedings no amount of technicality can, however,
substitute the basic need of observance of Principles of Natural Justice. Infact a
thorough knowledge of the proceedings will only reduce the chances of
miscarriage of justice and which might over-rule the clause in this respect.
However, the Law of Master and Servant has lost much of its rigour in modern
times and some of the misconducts are no longer considered sufficient for
dismissal of an employee, unless there are aggravating circumstances to justify
such dismissal. It may be seen from the Model Standing Orders that some of the
misconducts enumerated therein are quite new. It is but natural that the concept
of misconduct would change with the change of times1.
The courts have also, in exercise of their power of judicial review, sought to
ensure justice for both, master and servant. They have supported bona fide and
logically sound disciplinary action and at the same time, protected the employees
against victimization or unfair labour practice or violation of the principles of
natural justice or baseless or perverse findings or when there has been want of
good faith on the part of employers.
Now, before an employer can punish a worker for a misconduct, he must pay due
regard to the principles of natural justice because after the insertion of S. 11A in
1 K.P. Chakravarti, Domestic Enquiry & Punishment, ,3rd Ed. 2009, P.
2
the I.D. Act, the management’s function and power of management to direct its
internal administration which includes the enforcement of discipline of the
personnel has become restrictive. The management requires taking utmost care
in exercise of managerial powers as now the Labour Court or Tribunal can
substitute its own judgment for the judgment of the management and can
reappraise the evidence led before the enquiry officer in the proceedings and
also reduce the punishment awarded by the management.
Under these circumstances, after a case calling for disciplinary action, the
management should thoroughly examine the enquiry proceedings and alternative
penalties must be considered and should be chosen, if appropriate, which results
in fair and fearless action of the management.
The awards of the Labour Courts, Tribunals and Judicial dictas of higher courts
have also filled many gaps in the formulation of proper and valid enquiry
procedure.
The present study on the subject of Disciplinary proceedings is an attempt to
make a modest, fine and concise understanding for an employer in taking
disciplinary action against any of his employee in the event of commission of
misconduct by an employee.
The Supreme Court observed in Hombe Gowda Education Trust & Another v.
State of Karnataka2, that the recent trend of Supreme Court as regards industrial
relation elucidates, to balance interests of workmen and employers, instead of
short sightedly protecting interest of workmen alone, as in the earlier approach,
which had caused a setback to discipline at the Workplace/Industrial
Undertaking.
2 2006 SCC (L& S) 133
3
Held, it may not be proper to allow employees to break the discipline with
impunity. Our country is governed by rule of law and all actions, therefore must
be taken in accordance with law.
4
CHAPTER 2DISCIPLINE
Discipline is the very basis of well organized, stabilized and enlightened society. In
common language, it connotes a system of rules of conduct or mode of life in
accordance with rules. The word ‘disciple’ from which it is derived literally means
‘pupil.’ The proper primary meaning of the word ‘discipline’ is the relationship
which ought to subsist between employer and employee.
The term “discipline” has no statutory definition and as such it has a wide variety
of meanings in different contexts.
Good discipline means orderly conduct of affairs by the members of an
organization who adhere to its necessary regulations because they desire to
cooperate harmoniously in forwarding the ends which the group has in view and
willingly recognize that to do this, their own wishes must be brought into
reasonable unison with the requirements of the group in action.3
According to H.E. Fordick, “No horse gets anywhere until it is harnessed. No
steam power drives anything until it is confined.” Similarly no growth in
production is possible unless there is discipline in the industry.
According to Professor F. N. Bakara4, “Good human relationship cannot and
should not always be just sweetness and light. To be good it should have spine
and firmness.”
Good discipline would require better performance from both the management
and the employees. The important requirements of such a good discipline are:-
3 Ordway Tead, Readings in Personnel Administration. The New Discipline, P. 389-90 c.f. 4 Prof. F.N. Bakara, Discipline and Disciplinary Actions in Modern Industries,
5
i. The foremost thing is to see that every member of the organization
knows just what is expected of him and to have the members of the
group and his superior no less than himself support him in seeing that
it is done.
ii. The disciplinary plan including the statement of rules, and imposition
of penalties should gradually be shard by the employees in an
organized way.
iii. The rules and regulations must be (a) as few as possible, (b) as simple
as possible, (c) as explicit as possible.
iv. The rules should be considered as means and not end. There should be
periodical reviews of the rules.
v. The rules should be widely publicized and communicated to the
employees.
vi. There must be consistency and fairness in the application and
enforcement of the rules. Those who are responsible for enforcement
of the rules must themselves respect them. Preferably there should be
an agreed procedure of appeal, chance for statement and hearing of a
case, and final decision by an impartial domestic tribunal.
vii. If a rule is infringed frequently, the real cause of such infringement
must be looked into.
viii. Penalties and punishments should be devised on the theory of
constructive correction and not vindictiveness. The emphasis should be
on a plan of rewards for compliance with rules rather than on the
penalty features. Justice should be tempered with mercy and
humanism, patience and understanding.5
5 An Evaluation of two approaches to Discipline in Industry, P. 393.
6
The gravity of discipline in the man’s life depends upon his common
understanding, subjective satisfaction and environment in which he has been
brought up. Industrial indiscipline and misconduct is a reflection of social
behaviour of industrial worker in general.
A disciplined and efficient worker is not only an asset to the industry but is
prerequisite for industrial progress. While industrial conflicts not only cause
losses to employers and employees but also badly hamper the economics of a
country and lead the country from saturated point to starvation.
It is important to remember that there are various causes which lead to slacking
of discipline like a tyrant supervisor, financial worries, diseases or family
problems, drunkenness, uncongenial living and working conditions, lack of job
satisfaction, etc. These are some of the factors which influence employee’s
conduct both outside and inside the factory. In addition to these causes, today
cause of indiscipline in the industry is due to multiplicity of unions and plethora
of labour legislations. An off-shoot of this intra union revelry is a new disturbing
phenomenon manifested in the growing incidence of violence and indiscipline. To
overcome this problem the strict law should be made in formation of union
which could result better responsibility on the part of union.
POSITIVE AND NEGATIVE ASPECT OF DISCIPLINE6
In its positive aspect, it implies a conscious endeavour to regulate one’s
behaviour in accordance with a set of rules governing conduct in a given
situation. To state more explicitly ‘discipline’ implies that a person should behave
with such propriety and decorum as the pattern of society or a particular system
or situation demands. Whatever may be the system or situation – whether
6 Chakravarti, K.P.
7
working in a factory or office or fighting on the battle-field, the basic
requirements of discipline are the same – i.e. orderliness and obedience to rules.
Discipline also implies a capacity for co-operation and coordinated action.
Discipline does not mean slavish submission to the will of a master. It connotes
willing obedience and sacrifice of certain personal freedom in the interests of the
general good. It also means ‘involvement’ in doing something in co-operation
with others. It means harnessing the will to a well-coordinated channel of action.
In its negative aspect, it implies that one should not do any act contrary to the
prescribed code of conduct. In this context, it implies a certain control imposed
by someone in authority or by the State and directly refers to the imposing of
penalties for breach of the code of conduct, written or unwritten.
Three main points emerge from the above discussion: First, discipline, in its
positive aspect, is a consistent endeavour to mould one’s life so as to behave in
accordance with the prescribed code of conduct. Secondly, in its negative aspect,
it implies certain abstinence i.e. certain self-imposed restrictions on one’s own
conduct whether imposed by law or not. Thirdly, it implies maintenance of
proper control over the rank and file of the subordinates.
PHYSICAL, MORAL & INTELLECTUAL DISCIPLINE7
Physical discipline means well-ordered and well-coordinated physical activities
directed to achieve a certain end. For example, a wrestler, boxer, swimmer or
even a manual worker in a particular field is required to train his limbs and
muscles in such a way as to enable him to make a coordinated use of his limbs
and muscles for attaining a certain end.
7 Chakravarti, K.P.
8
Moral discipline implies that a person should train his mind and senses in such a
way as to bring them under his control. Unless a man has attained a control over
his senses, and is easily excited and given to passion, he cannot be said to be a
disciplined man.
Intellectual discipline implies that a person’s ideas and thoughts must be
channelised to an orderly system, otherwise they may run riot not only to the
damage of one’s own personal self but to the great damage of the society.
Democracy permits freedom of thought and expression, of course, subject to
public order, morality and decency and sovereignty of the country. Certain
restrictions are, therefore, necessary to regulate one’s conduct.
BASIC IDEA OF DISCIPLINE LINKED WITH MASTER AND SERVANT RELATIONSHIP
The idea of discipline in the sense of subordination has emanated from the
concept of master and servant relationship. It is implied in the very master and
servant relationship that a master has a right to exercise his control over his
servant – not only control over his work, but also disciplinary control over his
conduct. In the exercise of that inherent right, the master can punish his servant
by way of discharge or dismissal or by stoppage of increment or promotion, etc.
for any misconduct justifying such punitive action.
The implied condition of such relationship is that a servant must obey the lawful
orders of his master and discharge the duties allotted to him faithfully and to the
satisfaction of the master.
The principle of this relationship have been succinctly laid down by the Supreme
Court in Chiranjit Lal V. Union of India8as follows:
8 AIR 1951 SC 4
9
(a) A servant must be obedient to, and amenable to, the directions of the
master; and
(b) The master must have the power to discharge or dismiss him.
In case the master has no control over him or has no power to discharge or
dismiss him, there cannot be a relation of master and servant between them.
Discipline as applied to civil service or industrial employment carries the same
intention, i.e. the maintenance of control over the subordinates. While the civil
service of a State is a prestigious service and has its own ethics, the industrial
employment has not developed any ethics in the sense of public service. Even in
public sectors of the industry this is also absent. This is due mainly to the lack of
participation of the workers in the management. Sense of ‘belongingness’ in
industry is almost nil, with the result that there is a constant tug-of-war between
the management and the unions of the workers.
MODE OF ENFORCEMENT OF DISCIPLINE
It is, none the less, a fact that maintenance of internal discipline in an industrial concern is the responsibility of the management and no outside authority can interfere with the way it should manage it internal affairs. It is also well-recognised that in order to maintain the efficiency and probity of internal administration, the management can weed out the undesirable elements and enforce strict discipline in the plant or establishment. Discipline is the core of efficiency, no doubt, but it is a golden rule that no employer should make a fetish of discipline, considering the common failings of human nature. An employer should neither be ‘vindictive’ nor should he resort to victimization and unfair labour practice and to ensure that none of the discharge workers have been victimized or put to unfair labour practice, the Industrial Tribunals have now been given vast powers to go behind the formal order and find out the real motive of
10
the management. The Tribunals have the power to interfere with management’s action if it is arbitrary, capricious or malafide or is prompted by unfair labour practice.
11
CHAPTER 3MISCONDUCT
DEFINITION AND SCOPE OF MISCONDUCT
The primary meaning of the word “Misconduct” is bad management,
mismanagement and malfeasance or culpable neglect of an official in regard
to his office. Both in law and in ordinary speech the term misconduct usually
implies an act done willfully with a wrong intention and as applied to
professional acts, even though such acts are not inherently wrongful, it means
also a dereliction of or deviation from duty9.
The word ‘misconduct’ has not been defined in the Industrial employment
(Standing Orders) Act 1946, nor in any other industrial enactments. It may
mean various acts of omissions and commissions involving improper conduct
in the discharge of duties. According to the High Court of Calcutta, the work,
‘misconduct’ is a generic term, while the specific misconducts like
disobedience of orders, insubordination, neglect of work, etc. are species
thereof.10
The word, however, has acquired a special meaning in Industrial Law and
must mean those acts or conduct which may be incompatible with express or
implied obligations of an employee vis-à-vis the establishment of the
employer.11
9 B.R. Ghaiye, Misconduct in Employment,, , 2nd Ed. 1988, P. 6010 G.S. Misra V. UOI (1961) 3 FLR 195 (Cal)11 M.P.S.R.T.C. V. G.S. Karmarkar, 1984 (49) FLR 351 (MP)
12
MEANING OF MISCONDUCT
The meaning given to the word “misconduct” in Concise Oxford Dictionary is as follows:
“Malfeasance or culpable neglect of an official in regard to his office.”
In words and Phrases”, Permanent edition, the meaning given to “misconduct” is:
Improper or wrong behaviour or unlawful behaviour or conduct or malfeasance.12
Black’s Law Dictionary, Sixth Edition, Misconduct has been defined as
“A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviuor, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.
In Pearce V. Foster13, LOPES, L.J. observed as under:
“If a servant conducts himself in a way inconsistent with the faithful discharge of his duties in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.”
12 Kashi Prasad Saxena V. State, 1967 II LL 588(All D.B.)13 (1886) 17 QBD 536
13
The above observations were cited with approval by the Supreme Court in Govinda Menon V. Union of India.14
In his book15, G.M. Kothari provides ‘Misconduct’ as “An act or omission of an employee which is a breach of any duty, obligation or assignment arising under or flowing from any law or contract of employment or service rules or standing orders or special contract, settlement or award or settled practice, custom or usage in the employment market to which he belongs, is a misconduct.”
In State of Punjab V. Ram Singh Ex Constable16, a three Judge Bench of the Supreme Court discussed the meaning of misconduct as under:
Misconduct in office has been defined as:
“Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character, the term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act.”
P. RAMANATHA AIYAR’s, the Law Lexicon17, ‘misconduct’ defines thus:-
“The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and
14 1967 II LLJ 249:AIR 1967 SC 127415 G.M. Kothari, How to Conduct & Defend Disciplinary Inquiries & Cases, , Third Edition 2008 P.16 1992 LIC 2391:1993 I LLJ 21817 Reprint Edition 1987 at p. 321
14
carelessness, negligence and unskilfulness are transgressions of some established but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and in necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the right of a party have been affected.”
It would be difficult to lay down any general rule, since misconduct has a very
wide connotation. It varies from case to case. Thus, going on strike which is
not illegal is not misconduct in the case of industrial workers, while any kind
of strike by Government servants is misconduct. Absence without leave for
more than 10 days is misconduct in the case of industrial worker, while this is
a mere irregularity in the case of Government Servants. While some acts or
omissions are seriously viewed in public service law as gross misconducts,
they are no so in industrial law, and vice versa18.
Sometimes trivial acts of omission or lapse which are normally ignored are of
no consequence. But when such trivial acts give rise to serious consequences,
they no longer remain trivial in character. Thus, smoking at a work-place is an
offence of minor character. The supervisory staff also often ignore it. But if
smoking becomes a rule rather than an exception, then it becomes
misconduct and cannot be ignored any longer. For example, in cases where
fire-hazard is great, such as in textile and jute mills or where explosives are
manufactured. Dismissal is not an unexceptionable punishment for smoking
at such prohibited places19.
18 K.P. Chakravarti, Domestic Enquiry & Punishment, ,3rd Ed. 2009, P.31 19 Supra 9 at P.32
15
It is held by the Supreme Court that acts of an employee which were
detrimental to the interest and prestige of the employer amounts to
misconduct.20
ACTS ‘SUBVERSIVE OF DISCIPLINE’
Misconduct means an act of indiscipline or an act ‘subversive of discipline’, as
commonly known. However, the expression in its broader sense, includes all
types of misconduct arising out of the fall from standard behavior, that is to
say, any acts subverting the peace or slowing down work or misbehavior with
superiors as well as co-workers, etc.
As observed by the Supreme Court, acts which are subversive of discipline
among the employees would constitute misconduct: rowdy conduct in the
course of working hours would constitute misconduct; misbehavior
committed even outside working hours, but with the employees of the said
concern may, in some case, constitute misconduct, if the same is of such a
nature that the employee would not be regarded as worthy of employment,
and it may, in certain circumstances be liable to be called ‘misconduct’, but
this will naturally depend upon the circumstances of each case. Thus, an
employee having quarreled with a shopkeeper in the staff colony taking up
the side of another employee for which he was charge-sheeted and dismissed,
was held by the Supreme Court not to have committed any misconduct21.
There is no absolute guideline to distinguish between acts which are
‘subversive of discipline’ and which are ‘simple acts of indiscipline’. Following
the English and Indian decisions, the labour Appellate Tribunal has attempted
20 M.H. Devendrappa V. K.S.S.I.D. Corpn. AIR 1998 SC 106421 W.M. Agnani V. Badri Das (1963) I LLJ 690 (SC)
16
to give some guidelines for finding out a particular act which can be deemed
to be subversive of discipline.
The following acts will, as laid down by the Appellate Tribunal, constitute
misconducts even if they are committed after the working hours and outside
the factory or place of business of the employer, if the act –
i. inconsistent with the fulfillment of the express or implied
condition of service, or
ii. is directly linked with the general relationship of employer and
employee; or
iii. has a direct connection with the contentment and comfort of
men at work; or
iv. has a material bearing on the smooth and efficient working of
the concern; or
The Labour Appellate Tribunal22 in laying down this proposition(while
deciding the Shalimar Company Mazdoor Union’s Case) held that dismissal of
the workman committing such a misdeed would be quite justified on the
ground that such an act had the effect of undermining the smooth and
efficient working of the concern.
In Mulchandani Electrical & Radio Industries Ltd. V. Workmen23, the Supreme
Court has observed that “an act even though committed outside the factory
premises may have a serious repercussion on the discipline in the
establishment. In such cases, the act would be considered as subversive of
discipline and a misconduct……..An act wherever committed, if it has the
22 (1955) II LLJ 876 (LAT)23 AIR 1975 SC 2125
17
effect of subverting discipline or good behavior within the premises or
precincts of the establishment will amount to misconduct.”
There may be many other things which are not expressly written, but they
constitute grave misconducts such as murder, rape, robbery, criminal
trespass with a view to commit such crimes. No workman can challenge the
decision of the management to dismiss him after domestic enquiry , on the
ground that none of these offences are incorporated in the Standing Orders,
and as such they cannot be dismissed unless and until the charges are proved
before a Criminal Court which is only competent to decide the case. But a
Company cannot wait indefinitely for the result of the criminal trial and afford
to go on paying suspension (subsistence) allowance for months and years till
the case is decided. It can take departmental action if some material evidence
is in the hands of the Company to substantiate the charges.
MINOR AND GRAVE MISCONDUCT
It would be Correct to say that a minor lapse or omission though a
misconduct in the technical sense of tem- should be ignored. But a trivial act
may sometimes cause a serious misconduct and if such omission is repeated,
it may cause a serious damage. Such repeated omissions may be treated as a
serious misconduct.
The Madras High Court, while dealing with the misconduct, observed as
follows:
“The expression ‘misconduct’ covers a large area of human conduct. All cases of misconduct cannot be treated alike. The nature and quantum of punishment have to depend on the nature of charges. Where a mill worker not only stopped his work without justification, but refused to do his work when ordered by his superiors and also continued to
18
remain on the spot and prevented the ‘substitute’ from doing his work and a result of which the workers in the second shift on the same day could not do their duty, the misconduct on his part could not be termed as of very inconsequential nature. Therefore, the punishment of dismissal would not be disproportionate and reinstatement of the delinquent would not be justified. If the workman was to be reinstated, then the management would entirely lose its disciplinary control on the work-force. “24
From the Madras High Court’s observations on misconduct, it is clear that an
act or a series of acts even though not tinged with violence may create a
situation which may be detrimental not only to the interests of the
management, but also to the basic norms of the discipline. The motive of the
delinquent is irrelevant in such cases. The gravity of the misconduct is to be
judged by the effect it produces not only on the economy of the Company but
on the work-force as well. If it has a demoralizing effect on others and
undermines the very foundation of discipline, it is a serious misconduct and
has to be dealt with accordingly.
MISCONDUCT ENUMERATED IN THE MODEL STANDING ORDERS Under The Standing Orders (Central) Rules, 1946
So far as when an act constitutes misconduct on part of the employees in
industrial establishment/undertaking is concerned, proper guidance is,
however, available in the Model Standing Orders or Standard Standing Orders
framed as a part of the Rules made under the Industrial Employment
(Standing Orders) Act, 1946. They are noted below:
24 Mgt. of Sri Gopalakrishna Mills (P) Ltd. V. Labour Court, Coimbatore 1981 LIC 209 (Mad)
19
Para 14(3) of Schedule I to the Industrial Employment(Standing Orders)
Central Rules, 1946 relating to the Model Standing Orders, prescribes the
following acts and omissions which shall be treated as misconduct:-
a. Willful insubordination or disobedience, whether alone or in
combination with others to any lawful and reasonable order of a
superior;
b. Theft, fraud or dishonesty in connection with the employer’s business
or property;
c. Willful damage to or loss of employer’s goods or property;
d. taking or giving bribes or any illegal gratification;
e. Habitual absence without leave or absence without leave for more than
10 days;
f. Habitual late attendance;
g. Habitual breach of any law applicable to the establishment;
h. Riotous or disorderly behaviour during working hours at the
establishment or any act subversive of discipline;
i. Habitual negligence or neglect of work;
j. Frequent repetition of any act or omission for which a fine may be
imposed to a maximum of 2 percent of the wages in a month;
k. Striking work or inciting other to strike work in contravention of
provisions of any law or rule having the force of law.
Acts or omissions involving misconduct as given in the Model Standing
Orders are only enumerative and not exhaustive, and as such, worker can be
dismissed form service for any misconduct though not falling within the one
enumerated in the Standing Orders.25
25 A. Chinaiha V. Dalmia Cement (Bharat) Ltd. (19095) I LLJ (IT Madurai)
20
It may be noted in this connection that the misconducts enumerated in the
Model Standing Orders were incorporated in the Standing Orders Rules
enacted in 1946. Since then employer and employee relationship has also
undergone considerable changes due to greater awareness among the
workers and due to greater demand for social justice and Government
interference in industrial relations. Therefore, the concept of misconduct
should also vary with the social changes that have occurred in the intervening
years. Thus, we see in many decisions of the courts a changed outlook also in
form of the Court decisions. Rigidity governing the employer and employee
relationship has been relaxed and rules of conduct are liberally interpreted.
In one case where an employee was discharged for failing to report for duty
on the expiry of his leave in accordance with the terms of the Standing
Orders, the High Court of Karnataka held that “if a workman has to take leave
beyond his control, that cannot be considered as an irregularity in attendance
and that cannot be made a ground for termination of service even
simpliciter.” There will be no justification for terminating the services of the
workman simpliciter under the Standing Orders.26
‘MISCONDUCT’, WHERE THE TERM IS NOT DEFINED
Where there are no standing orders (or rules on the subject, it would be open
to employer to consider reasonably what conduct can be properly treated as
misconduct. What is misconduct will naturally depend upon the
circumstances of the case. It is not possible to lay down any general rule in
this behalf. Where standing orders have been framed, there is no difficulty
because they define misconduct. In the absence of standing orders, the
26 Motor Industrial Co. Ltd. V. B.N. Keshava (1981) 58 FJY 20 (47)
21
question will have to be dealt with reasonably and in accordance with
common sense.27
In S.R. Subramanya V. Indian Bank,28 it was observed
“It is therefore apparent that even when the regulations do not give a precise definition of the term “misconduct”, the said term has to be understood as meaning transgression and violation of some established and defined rule of action, a dereliction of duty or a behaviour which is improper or unlawful. Any action that an officer employee of the bank takes in the discharge of the duties of his office, which action the holder of the office had no right to perform or which he performs improperly would amount to misconduct. The conduct must be willful in character and must be forbidden for it is only the conduct must be willful in character and must be forbidden for it is only the forbidden quality of the act which renders the same an act of “misconduct”. In other words, a conduct which jeopardizes the interest of the bank or its reputation or an act which the employee was not authorized to perform or performed it without due diligence and caution, would expose the employees to a charge of misconduct. It, therefore, follows that even where there may be no specific enumeration of the various acts of omission and commission which would constitute misconduct, the employer may be entitled to charge an employee with such misconduct and prove the same b reference to the nature of the duties and the office held by him if the said conduct was forbidden, improper or unbecoming on his part. So proved, any such act of omission or commission would constitute misconduct no matter the same is not specifically enumerated as an act of misconduct.”
Disobedience of an order of a supervisor is certainly an act of misconduct
even if the word misconduct has not been defined in the standing orders.
Similarly, causing loss to the employer would also be misconduct.29
27 Agnani V. Badri Das, 1963 I LLJ 684 (SC)28 1996 II LLJ 1143 (Kant)29 M.P.S.R.T.C. V. G.S. Karmarkar, 1984 (49) FLR 351 (MP)
22
In a case where misconduct was not defined, it was held by a division Bench
of the Allahabad High Court that mere act of negligence cannot constitute
misconduct and that an employee can be held liable for misconduct only if it
arises from ill-motive.30
MISCONDUCTS NOT ENUMERATED IN THE MODEL STANDING ORDERS
Sometimes new tactics are adopted by workers to press their demands, or to
express their resentment such as ‘go-slow’, ‘gherao’ or mass abstention from
work on the pretext of casual leave, etc. These acts are not expressly
mentioned in the Model Standing Orders prescribed under the Central Rules
of 1946. The West Bengal Government has of course, in its Model Standing
Orders, included among other things, ‘willful go-slow tactics’. No doubt these
are acts subversive of discipline and good behavior.
MISCONDUCTS AT COMMON LAW
The various types of misconduct recognized at Common Law in England and
acted upon by judicial authorities are enumerated by Smith in his Law of
Master and Servant31 as under:
i. The act or conduct prejudicial or likely to be prejudicial to the interest
or reputation of the master;
ii. The act or conduct of the servant which is inconsistent or incompatible
with the due or peaceful discharge of his duty to his master;
iii. The act or conduct of a servant which makes it unsafe for the master to
retain him in service;
30 S.S. Ahluwalia(Dr.) V. G.B. Pant University of Agriculture & Technology, 1991 LIC NOC 16 (All)31 6th Ed., at p.79
23
iv. The act or conduct of the servant is so grossly immoral that all
reasonable men will say that the servant cannot be trusted;
v. The act or conduct of the servant is such that the master cannot rely on
the faithfulness of his servant;
vi. The act or conduct of the is such as to open before him temptations for
not discharging his duties properly;
vii. The servant is abusive or disturbs the peace at the place of
employment;
viii. The servant is insulting and insubordination to such a degree as to be
incompatible with the continuance of the relation of master and
servant.
ix. The servant is habitually negligent in respect of the duties for which he
is engaged; and
x. The neglect of the servant, though isolated tends to cause serious
consequences.
Most of the misconducts at Common Law are not specific, and described in
such wide terms that they could be interpreted in any way by the master to
suit his own designs.
The case of Clouston & Co. Ltd. V. Corry32 is such an example of the application
of the common law rule of misconduct of an individual case.
32 (1906) AC 122
24
CHAPTER 4RULES OF NATURAL JUSTICE
The Principles of Natural Justice are those fundamental rules the breach of
which will prevent justice from being seen to be done33.
Natural justice is another name for common sense justice. Rules of Natural
Justice are not codified canons. But they are principles ingrained in to the
conscience of man. Natural Justice is the administration of justice in a
commonsense liberal way.
The expression ‘natural justice” and “legal justice” do not present a water-
tight classification. It is the substance of justice which is to be secured by
both, and whenever legal justice fails to achieve this solemn purpose, natural
justice is called in aid of legal justice. Natural justice relieves legal justice from
unnecessary technicality, grammatical pedantry or logical prevarication. It
supplies the omissions of a formulated law.
The rules of natural justice mean and include the following:
1) That every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
2) That he must have reasonable opportunity of being heard in his defence.
3) That the hearing must be by an impartial tribunal i.e. a person who is neither directly nor indirectly a party to the case.
4) That the authority must act in good faith, and not arbitrarily but reasonably.
5) That the authority must act swiftly and without any delay.
6) That the documents must be supplied to the charge-sheeted employee.33 R. v. Home Secretary (1977) 1 WLR 766
25
7) That the disciplinary authority should record reasons for the decision taken by it.
8) That the copy of enquiry report should be furnished to the employee.
The principles of natural justice apply both to quasi-judicial as well as
administrative enquiries entailing civil consequences. IT is needless to
emphasize that the principles of natural justice which are meant to prevent
miscarriage of justice are also applicable to domestic enquiries and
administrative proceedings.
The principles of natural justice yield to and change with the exigencies of
different situations and do not apply in the same manner to situations which
are not alike. They are neither cast in a rigid mould nor can they be put in a
legal strait-jacket. They are not immutable but flexible and can be adopted,
modified or excluded by statute and statutory rules as also by the constitution
of the tribunal which has to decide a particular matter and the rules by which
such tribunal is governed34.
A PRE-REQUISITE FOR DISCIPLINARY ACTION
The aim of the rules of natural justice is to secure justice or to prevent
miscarriage of justice.35
If an employer wants to punish an employee on the ground of any
misconduct, he can do so only in conformity with the principles of natural
justice. Where the rules do not provide any procedure for dealing with an
employee accused of committing misconduct, the concerned authority would
34 Satyavir Singh V. Union of India AIR 1986 SC 55535 A.K. Kripak V. Union of India AIR 1970 SC 150
26
have to furnish to the employee charges leveled against him and would have
to afford him an opportunity to be heard36.
But these principles may have to be excluded where there are express
provisions of law. It is true that if a statutory provision can be read
consistently with the principles of natural justice, the courts should do so
because it must be presumed that the legislatures and the statutory
authorities intend to act in accordance with the principles of natural justice.
But if, on the other hand, a statutory provision wither specifically or by
necessary implication excludes the application of any or all the rules or
principles of natural justice, then the court cannot ignore the mandate of the
legislature or the statutory authority and read into the concerned provision
the principles of natural justice.
It is well settled that any action taken by the employer against an employee
must be fair, just and reasonable. The conferment of absolute power to
terminate the services of an employee is antithesis to fair, just and reasonable
treatment. In order to impose procedural safeguards, the Supreme Court has
read the requirement of natural justice in many situations, where the statute
is silent on this point.
An example of reading principles of natural justice in the legal provisions is
the decision of a three Judge Bench of the Supreme Court in Punjab National
Bank V. Kunj Behari Misra37. IN that case, the concerned regulation provided
that the disciplinary authority shall, if it disagrees with the findings of the
inquiring authority on any article of charge, record its reasons for such
disagreement and record its own findings on such charge. The said regulation
did not specify that when the disciplinary authority does so, it is required to
give a hearing to the delinquent officer. As a result thereof, whenever the 36 Bihar State Road Transport Corporation V. State of Bihar AIR 1970 SC 121737 AIR 1998 SC 2713
27
disciplinary authority disagrees with the inquiring authority, it must record
its tentative reasons for such disagreement and give to the delinquent officer
an opportunity to persuade the disciplinary authority to accept the
favourable conclusion of the inquiry officer. The final findings should be
recorded only after considering the representation of the delinquent officer.
PRINCIPLES OF NATURAL JUSTICE
The principles of natural justice consist primarily of two main rules, namely,
“nemo judex in causa sua” (no man shall be a judge in his own cause) and
“audi alterem partem” (hear the other side). The corollary deducted from
these two rules and particularly the audi alterem partem rule was “qui aliquid
statuerit parte inaudita altera equum licet dixerti haud aequum fecerit” (he
who shall decide anything without the other side having been heard, although
he may have said what is right will not have done what is right) or as is now
expressed, “justice should not only be done but should manifestly be seen to
be done”38.
Nemo judex in re sua, i.e., the authority deciding the matter should be free
from bias; and audi alterem partem, i.e. a person affected by a decision has a
right to be heard are the two basic principles of natural justice. However,
certain subsidiary principles are deduced from these two basic principles by
the courts. These principles of natural justice now require the quasi-judicial
authorities to record reasons in support of their decisions, the decisions of
the authorities should be based on substantive evidence. These two principles
are neither separate nor distinct; they are two facets of the same principle, i.e.
fairness in action.
38 Supra 17
28
In Syndicate Bank V. General Secretary, Syndicate Bank Staff Association39, the
Supreme Court observed:
“There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause, and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g. a party must have due notice when the Tribunal will proceed; Tribunal should not act on irrelevant evidence or shutout relevant evidence; if the Tribunal consists of several members they all must sit together at all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith an order and it should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.”
In Associated Cement Companies Ltd V. Their Workman40, the Supreme Court observed that
“If an officer himself sees the misconduct of a workman it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye witness of the impugned incident. If an officer claims that he had himself seen the misconduct alleged against an employee in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer – In deciding the question as to whether the explanation given by the charge sheeted employee was true or not, the enquiry officer should not have imported his personal knowledge and the knowledge of his colleague and should not have also relied on the reports received from other witnesses”.
In disciplinary enquiries, the rules of natural justice imply that an enquiry
cannot be said to have been properly held unless, (i)the employee proceeded
against has been informed clearly of the charges leveled against him, (ii) the
39 AIR 2000 SC 219840 1963-II LLJ 396 SC
29
witnesses are examined – ordinarily in the present of the employee – in
respect of the charges, (iii) the employee is given a fair opportunity to cross-
examine witnesses, (iv) he is given a fair opportunity to examine witnesses
including himself in his defence if he so wishes on any relevant matter, and
(v) the enquiry officer records his findings with reasons for the same in his
report.41
RULE AGAINST BIAS
The cardinal principle of natural justice is that the adjudicating authority
must be impartial and must act without any kind of bias. The said rule against
bias is based on the principle that justice should not only be done but should
manifestly be seen to be done. Bias may be of different kind and form. It may
be pecuniary, personal, or there may be bias as to the subject matter, etc.42
‘BIAS’, MEANING OF
The word ‘bias’ in popular English parlance stands included within the
attributes and broader purview of the word ‘malice’ which in common
acceptation mean and imply ‘spite’ or ‘ill-will’43.
It is well settled that mere general statements will not be sufficient for the
purposes of indication of ill will. There must be cogent evidence on record to
come to the conclusion whether in fact there was existing a bias which
resulted in the miscarriage of justice.
In Amar Nath Choudhury V. Braithwaite and Co. Ltd.44, the order of removal
from service was passed by the Chairman-cum-Managing Director of the
41 Sur Enamel and Stamping Works Ltd. V. Their Workmen, AIR 1963SC 191442 Amar Nath Choudhury V. Braithwaite and CO. Ltd. AIR 2002 SC 67843 Strand’s Judicial Dictionary (5th Ed.) Vol. 344 Supra 24
30
company acting as disciplinary authority. He also presided over and
participated in the deliberations of the meeting of the Board while deciding
the appeal against the order of removal. The Supreme Court held:
“…Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an Act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility.”
With regard to plea of “doctrine of necessity”, pressed by the management,
the Apex Court observed:
“6….the Board could have constituted a committee of the Board/management or any officers of the company by excluding Chairman-cum-Managing Director of the Company and delegated any of its powers, including the appellate power, to such a committee to eliminate any allegation of bias against such an appellate authority. IT is there
REASONABLE OPPORTUNITY, MEANING OF
There can be no invariable standard for ‘reasonableness’ except that the
court’s conscience must be satisfied that the person against whom an action is
proposed had a fair chance of convincing the authority who proposes to take
action against him that the grounds on which the action is proposed are
either non-existent or even if they exist, they do not justify the proposed
action. The decision of this question will necessarily depend upon the
peculiar facts and circumstances of each case including the nature of action
31
proposed, the grounds on which the action is proposed, the material on which
the allegations are based, the attitude of the party against whom the action is
proposed in showing cause against such proposed action, the nature of the
plea raised by him in reply, the requests for further opportunity that may be
made, his admissions by conduct or otherwise of some or all the allegations
and all other maters which help the mind in coming to a fair conclusion on the
question.45
In Palani (K) V. S.F. Vellore Electricity System46, it was observed that
“The expression ‘reasonable’ is not susceptible of a clear and precise definition. What is reasonable in one case may not be reasonable in another case. What is reasonable is not necessarily what is best but what is fairly appropriate to the purpose under all the circumstances. It should not be left to the vagaries of each individual officer, since that would introduce a thousand shades of reasonableness with cannot be permitted. No rigid code or procedure is prescribed to conduct an enquiry. Still certain minimum standards of procedure, which are regarded as rules of natural justice, have to be followed”.
In Channabasappa Basappa Happali v. State of Mysore,47 the Supreme Court,
while rejecting a plea of breach of principles of natural justice, laid down the
following requirements for a departmental enquiry: “At an enquiry, facts have
to be proved and the person proceeded against must have an opportunity to
cross-examine witnesses and to give his own version or explanation about the
evidence on which he is charged and to lead his evidence.”
NATURAL JUSTICE NOT TO BE STRETCHED TOO FAR
45 Fedee (P) Ltd. V. S.N. Bilgrani AIR 1960 SC 41546 1968-II LLJ 94 (Mad)47 AIR 1972 SC 32
32
Natural Justice is no unruly horse, no lurking land mine, nor a judicial cure-all.
If fairness is shown by the decision-maker to the man proceeded against, the
form, features and the fundamentals of such essential processual propriety
being conditioned by the facts and circumstances of each situation, no breach
of natural justice can be complained of. Unnatural expansion of natural
justice, without reference to the administrative realities and other factors of a
given case, can be exasperating. We can neither be finical nor fanatical but
should be flexible yet firm in this jurisdiction. No man shall be hit below the
belt – that is the conscience of the matter.48
In H.C. Sarin v. Union of India,49 the Supreme Court found the following
passage in the judgment of Lord DENNING, M.R., in the case of R. v. Secy. Of
State for the Home Department,50 quite apposite to be quoted:
“The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences.”
Where the employer offered all facilities to the delinquent employee and
invited his attention to the fact that he could take inspection and examine the
witnesses, but he abstained from participating in the enquiry despite
repeated requests by the enquiry officer, the High Court rejected the
contention of the delinquent employee that there was failure to comply with
the principles of natural justice.51
EFFECT OF NON-COMPLIANCE WITH PRINCIPLES OF NATURAL JUSTICE
48 Board of Mining Examination V. Ramjee, AIR 1977 SC 965 (969)49 AIR 1976 SC 168650 (1973) 3 All ER 796 (803)51 Kalyanpur Keshav Venkatrai Pai v. Corporation Bank, 1994 LIC 583 (591) (Bom)
33
The general view as taken by the courts is that if principles of natural justice
are not complied and the same has not caused any prejudice to the delinquent
employee, they should restrain themselves from interfering with the
impugned action or order on the basis of such violation. But the employers
are well advised to observe very carefully and avoid any violation of the
principles of natural justice because a contrary view may also be taken in
certain cases.
In S.L. Kapoor v. Jagmohan,52 the Supreme Court observed (at page 147):
“In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes form a person who has denied justice that the person who has been denied justice is not prejudiced.”
In the case of State Bank of Patiala v. S.K. Sharma, 53 the Supreme Court
clarified that the observations made in the aforesaid case of S.L. Kapoor v.
Jagmohan, have to be understood in the context of the facts of that case and
subject to the dicta of the Constitution Bench in Managing Director, E.C.I.L. v.
B. Karunakar,54 where the Constitution Bench took the view that before an
employee could be punished in a disciplinary enquiry, a copy of the enquiry
report should be furnished to him and that not furnishing the enquiry report
amounts to denial of natural justice. However the court added that just
because a copy of the enquiry report is not furnished in a case, the
Court/Tribunal should not mechanically set aside the order of punishment. It
was directed that in such cases, a copy of the enquiry report should be
52 AIR 1981 SC 13653 AIR 1996 SC 166954 AIR 1994 SC 1074
34
furnished to the delinquent and his comments be obtained in that behalf and
that the court should interfere with the order of punishment only, if it is
satisfied that there has been a failure of justice.
In Divisional Manager, Plantation Division, Andaman & Nicobar Islands v.
Munnu Barrick,55 the Supreme Court observed as under:
“17. The principles of natural justice cannot be put in a strait-jacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the court may insist upon proof of prejudice before setting aside the order impugned before it.”
In State Bank of Patiala v. S.K. Sharma,56 after discussing the effect of violation
of the relevant rules, regulations and statutory provisions regarding
enquiries, the Apex Court took up the position of enquiries which were not
governed by any rules or regulations and formulated the following principles:
“5. Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice – or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action – the court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alterem partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between ‘no opportunity” and no adequate opportunity, i.e., between “no notice”/ “no hearing” and “no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses to). In such cases, normally liberty will be reserved for the authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alterem partem). But in the latter case, the effect of violation (of facet of the rule of audi alterem
55 AIR 2005 SC 115856 AIR 1996 SC 1669
35
partem) has to be examined from the standpoint of prejudice; in other words, what the court or tribunal has to see is, whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend on the answer to the said query. (it is made clear that this principle does not apply in the case of rule against bias, the tests in which behalf are laid down elsewhere.)
7. There may be situation where the interest of State or public interest may call for a curtailing of the rule of audi alterem partem. In such situations, the court may have to balance public/state interest with the requirement of natural justice and arrive at an appropriate decision.”
POWER OF HIGH COURT
The High Court can interfere under Article 226 of the Constitution of India
against an order of punishment which is vitiated by violation of the principles
of natural justice. Such an order suffers from error of law apparent on the face
of the record and is, therefore, liable to be quashed.57
By trying to know how disciplinary enquiries conducted by the employers
have generally been received by the courts, we shall now be making an effort
to understand the process of disciplinary action.
CHAPTER 5CHARGESHEET
CHARGE
Charge means some accusation made against the employee in a standard form or
otherwise. It is not necessary in a domestic enquiry that the language of the
57 Ramesh Chandra Bansal v. Regional Manager, U.P.S.R.T.C. 1995 III LLJ (Suppl.) 328 (330) (All)
36
‘charge’ should be couched in legal terminology as used in the Code of Criminal
Procedure58.
On receipt of a complaint, the first step to be taken by disciplinary authority is to
make a ‘charge’ against the delinquent employee. The disciplinary authority has
to reduce to the form of a charge or charges the grounds on which it is proposed
to take action. The object of framing a charge is to find out whether the
employee is guilty of the misconduct alleged against him.
The charge must be supported by a statement of allegations of misconduct,
containing all relevant facts, documentary or otherwise, and besides a list of
witnesses by whom the charges are to be sustained as well as a list of documents
by which the charges are intended to be established.
The object is to give every possible opportunity to the delinquent employee to
understand the nature of the charge or charges full, so that he may be in a
position to give a proper explanation to the charge.
The language in which the charges are couched must be objective and should not
give any impression that the management has prejudged the issue. So no
punishment should be proposed in the charge-sheet.
Charges must be correctly drawn with the specific misconduct with which the
person is charged and nothing to be left to the imagination of the delinquent
employee.
Normally, an enquiry by management starts by issuing a charge-sheet to the
workman proposed to be discharged or dismissed. In a case where the charge-
sheet is vague, it must be held that there has been no proper enquiry.59
58 Venkatarama v. Province of Madras AIR 1946 Mad 37559 Firestone Tyre & Rubber Co. of India (P) Ltd. v. Its Employees’ Union AIR 1981 SC 1626
37
REQUISITE OF VALID CHARGE
A charge to be valid must be based on facts. It should not be a hearsay complaint
but must have been emanated from an authentic source. Charges must not be
based merely on suspicion.
To bring home the guilty, the charge must be specific. To say that no employee is
guilty of repeated insubordination and disobedience of order is to make
nonsense of a charge, because this conveys nothing to the charge-sheeted
worker, except a general imputation against his conduct. It is necessary to
mention specific instances of insubordination and disobedience of order with
date, time and the place of occurrence.60
In a charge based partly on relevant and partly on irrelevant assumption, the
punishment imposed on an employee based on such a charge cannot be
sustained in law. As held by the High Court of Madras, it is not for the court to
delete the erroneous portion of the order and consider whether the conclusion
can be reached on the balance of material available. The court in such
circumstances will quash the entire proceedings.61
The following points are worthwhile to note in this connection:
i. A charge must be specific, precise and intelligible. Vagueness in the workings of a charge must be avoided. It should not be left to the employee to find out or imagine what the charges leveled against him are.62
60 Chandulal Papatlal v. Ahmedabad New Cloth Mills (1953) ICR 161 Varadacharalu V. State AIR 1960 Mad 39362 Tribhuwan Nath Pandey v. Union of India AIR 1953 Nag 138 given at pg. 141
38
ii. An employee charged with one misconduct cannot be punished for another misconduct which has been incorporated in the charge-sheet.63
iii. Mere mention of a particular clause of the Standing orders is not enough to sustain a charge. The charge must be sufficiently described and supported by facts. It should be elaborate enough to indicate the nature of accusation made against the employee.64
iv. A charge does not become invalid by reason of its omission to mention a particular clause of the Standing Orders, if the charge has been sufficiently described.
v. There should be no indication I the charge-sheet of the proposed punishment to be awarded so that no inference of prejudice can be made out.65
CHARGESHEET
Charge sheet contains charge formed by the disciplinary authority against he
delinquent employee. It is a memorandum containing allegation of misconduct
against the employees of every category. It shall mention all the essential
ingredients of the misconduct and should be very specific and not be vague or
ambiguous about all the charges which the workman is called upon to meet.
The charge or charges in the form of charge-sheet must be communicated to the
employee charged. The object of the communication is to warn the accused of
the case which he is to answer by written representation or orally before an
Enquiry Officer in an enquiry.
In Zaikh V. Firestone Tyre & Rubber Company Ltd. & Others, the Court observed
that the object of this requirement is that the workman charged must know what
63 Shyam Sunder Misra v. State of Orissa AIR 1957 Ori 22264 State of Rajasthan v. Ratanlal ILR (1967) Raj 76465 K. CHinappa Reddy v. State of A.P. AIR 1969 AP 234
39
he is charged with and have the ample opportunity to meet such charges and to
defend him by giving a proper explanation after knowing the nature of the
offence with which he is charged66.
The charge-sheet, therefore, becomes the basis of the enquiry and all subsequent
proceedings shall have to be strictly confined to the charges as set out in the
charge-sheet. Moreover, the final action has also to be based on the charges set
out in the charge-sheet issued to the workman and on other grounds67.
In Hari Prasad Singh V. Commissioner of Income Tax68, the court held that it is
essential that the employee charged with misconduct must be told in the clearest
terms and with full particulars what his alleged misconduct is. It should not be
left to him to find out what are the specific allegations against him.
CHARGE SHEET & MODEL STANDING ORDERS
In the case of industrial workers governed by Industrial Employment (Standing
Orders) Act, the necessity of framing a proper charge-sheet for misconduct and
issuing the same to the workmen concerned and giving him the opportunity to
explain the circumstances alleged against him is very much there. In this respect
r.14 (4) of the Industrial Employment (Standing Orders) Central Rules, 1946 may
be referred to:
“14(4). No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an
66 Zaikh V. Firestone Tyre & Rubber Company Ltd. & Others 1954 I LLJ SC 28167 Laxmi Devi Sugar Mills Ltd. V. Nand Kishore Singh 1956 II LLJ (SC) 44368 AIR 1972 Cal 27
40
opportunity to explain the circumstances alleged against him. The approval of the manager of the establishment or where there is no manager of the employer is required in every case of dismissal and when the circumstances appear to warrant, the manager or employer may institute independent enquiries before dealing with charges against a workman.”
AUTHORITY TO ISSUE CHARGESHEET
The charge-sheet can be issued by the employer. Rule 14(4) of the Industrial
Employment (Standing Orders) Central Rules provides that the power to issue
charge-sheet and punish the workman on the charge of misconduct is upon the
manager or where there is no manager upon the employer. So where there is the
manager of the establishment it is the manager who is to issue the charge-sheet
and take the appropriate disciplinary action including the dismissal.
Where the delegation to impose penalties or take action is provided in standing
orders framed under Industrial Employment (Standing Orders) Act, 1946, the
provision shall be scrupulously followed. However, a charge-sheet cannot be
issued by anybody else for and on behalf of the punishing authority. If at the time
of issuing the charge-sheet the person issuing the charge-sheet was not the
punishing authority, a subsequent authorization made by them in favour of that
authority to punish the workman concerned is not enough.69
The objection as to the invalidity of the charge-sheet has to be raised at the
earliest opportunity. It was held that when the objection was not raised at the
earliest but the punishment is given by the punishing authority then the default is
not held to be fatal.70
69 Krishan Kumar v. Divisional Asstt. Electrical Engineer AIR 1979 SC 191270 State of M.P. V. Shardul Singh (1970) 1 SCC 108
41
FRAMING OF CHARGE-SHEET
The Charge need not be framed with the precision of a charge in a criminal
proceeding. But as stated earlier, it must not be vague or general as to make it
impossible of being traversed. The test is as to whether the charge conveeys to
the delinquent the exact nature of the alleged offence in a way that it would
enable him to meet the charge.
There is no magic in the word “charge-sheet”. If the Memo, issued to the
delinquent employee clearly shows what are the heads under which disciplinary
action is contemplated, it is a charge-sheet. The Second charge-sheet which is
issued late is described as supplementary charge-sheet and the charges made in
this supplementary charge-sheet are in addition or supplemental to the charges
framed against the appellant under the previous Memo that is to say, the first
charge-sheet. The third charge-sheet that is subsequently served on the
delinquent officer describes itself formally as a charge-sheet and also the
previous two communications as charge-sheets. The several charges are clearly
set out in all of them and the necessary particulars on which the charges were
based are set out in a great detail. Therefore, the contention that there is no
formal charge-sheet and the enquiry was based on such charges is not valid has
no foundation.71
Thus, it is clear that there is no set form to prepare a charge-sheet. Nor is there
anything technical about framing of a charge-sheet. Particularly in industrial law,
no forms are prescribed for framing a charge-sheet. It is, therefore, essential that
a great care should be taken by the disciplinary authority, particularly in an
71 Krishan Chandra Tandon v. Union of India AIR 1974 SC 1589
42
industrial concern, to frame a proper charge-sheet, because a faulty charge-sheet
vitiates the whole enquiry proceedings.72
When the notice was issued intimating the workers that they had adopted a “go-
slow” method that can in itself be construed as a charge-sheet even if the notice
was not under the heading “charge-sheet” and did not also specify that enquiry
would be held. So it cannot be contended by the workmen that no charge-sheets
were issued against them.73
The following guidelines may be helpful for drawing up a valid charge-sheet:
a. Misconduct or misconducts is or are to be specified in clear and unambiguous terms, leaving nothing to the imagination of the delinquent employee. If two misconducts are constituted by the same set of facts, these are to be mentioned separately.
b. The date, time and place of occurrence and the names of the persons if any, in whose presence the incident has occurred, are to be invariably mentioned.
c. It is not essential that the particular clause of the Standing Orders is to be mentioned, because in certain cases a misconduct committed may not be covered by the clause of the Standing Order.
d. Care should be taken to avoid-
i. repetition, verbosity and ambiguity in expression;
ii. unnecessary and extraneous matter; and
iii. misdescription of the misconduct.
e. If the previous records are to be taken into consideration the fact is to be suitably mentioned in the charge as to what specific matters in the past records are to be relied on. If, however, the past chapter is closed after award of punishment, this is not to be dug up again.
72 Avinash Chandra Sanjar v. Divisional Superintendent, Rly. Jhansi (1962) I LLJ 7 (ALL)73 Workmen v. Motipur Sugar Factory Pvt. Ltd. AIR 1965 SC 1803
43
f. The charge or charges must not assume the guilt of the person concerned and no hint of punishment is to be given at this stage.
g. No reasoning is to be given at this stage for establishment of the charge or charges.
In Chittranjan Das v. State74, the Court pointed out that mere non-specification of
date and time does not make the charge invalid when the mentioning of the
same is not significant.
In case where the worker in his explanation says that the charges are false and
baseless, then it means that he understood them and therefore there is no
question of vagueness.75
Calcutta High Court has held that in order to bring home the charges leveled
against a delinquent officer without any vagueness and/or ambiguity charges are
required to be stated specifically and in straight forward manner but for that
purpose an overall assessment of the charge-sheet in the context of imputation
of charges and other antecedent facts and circumstances are required to be
made.76
However, if no prejudice is caused by the recital made in the charge-sheet and if
adequate and effective opportunity is given to the delinquent employee to rebut
the charges and disciplinary proceedings is conducted properly, the question of
prejudice or of violation of natural justice may not arise.77
AMENDMENT OF THE CHARGE74 AIR 1963 SC 169075 N.N. Rao v. Greaves Cotton Co. Ltd. (1973) I LLJ 8176 Anand Prakash Saxena v. Union of India !988 Lab IC 1284 (Cal)77 Ram Chandra Ram v. Union of India (1990) 3 SLJ 81 (Cal)
44
There is no bar to an employer from dropping the charges against the worker and
to frame fresh charges which may on further consideration have appeared to be
appropriate. When second set of charges becomes necessary after a preliminary
enquiry there is nothing wrong in dropping the first charge-sheet and issue fresh
charge-sheet after superseding the first.78 In such a case fresh opportunity to
reply to the fresh charge-sheet is required to be given.
The amendment of the Charge has to be distinguished from clarification given or
further particulars given to the workman to the charge previously framed. Such
clarification or further particulars cannot be ignored on the ground that they
were of no consequence as they were not in the form of second charge-sheet.79
SERVICE OF CHARGE-SHEET
The issue of charge-sheet is merely a procedural matter and does not amount to
inflicting any punishment. The following procedure is usually to following in
regard to the issue and service of charge-sheet.
After the charge-sheet is drawn up, it should be given an issue number and date
and served on the employee. The service of the charge-sheet may be done in
following ways:
i. By handing over the charge-sheet to the employee and obtaining his signature or thumb impression on the office copy of the charge-sheet or on the forwarding letter, in the presence of a witness. If the worker is illiterate, its contents shall be explained to him in vernacular language. Where the worker refuses to accept the charge-sheet on the ground of its being in a language not intelligible to him, a translation thereof in Hindi be made and given to him
78 B.C. Majumdar v. Union of India AIR 1960 Punj 14779 General Electric Co. of India ltd. v. B.K. Kedia 30 FJR 185 (Punj)
45
ii. By sending the charge-sheet through registered post, acknowledgment due. If the registered letter is refused, the envelope together with the remarks of the postal authorities should be kept unopened.
iii. When the employee refuses to accept the charge-sheet when called upon to accept it, the facts should be recorded in the presence of two witnesses.
iv. If the employee resides in the accommodation provided by the employer & refuses to take delivery of the charge-sheet, a copy of the charge-sheet should be duly pasted on the wall of his quarter in the presence of witnesses and this will be treated as a valid tender of the charge-sheet.
v. Where the employee is under detention of Police, the charge-sheet can be served on him at police station in the presence of witnesses.
Where the Standing Orders prescribed any particular mode of service of charge-
sheet, the service of charge-sheet effected in such way is enough. It has been
held by the Supreme Court that where the Standing Orders provide that notice
should be served on the workman by communicating the same orally to him and
or affixing the same on the notice board and the Company had acted in
compliance of the Standing Orders by affixing the charge-sheet on the notice
board after the notices were sent by the registered post had been returned
unserved, there was sufficient notice to the workman.80
It is held by Calcutta High Court that when the employee pleaded that he was not
served with the charge-sheet or the show-cause notice and the enquiry officer
offered to give him the same and also to give him permission to submit his
explanation by the date fixed, but the employee refused and left the enquiry, he
80 Mckenzie & Co. Ltd. V. Its workers AIR 1959 SC 389
46
cannot subsequently take the plea that he was not given opportunity of
hearing.81
NOTE:
1. Getting a reply to the Charge-sheet from the delinquent employee by giving him reasonable time to submit his explanation to the allegations. The delinquent employee to be given time to submit his explanation as has been allowed in the Rules and Regulations / Service Conditions, Standing Orders or COBC. If there is no period is stipulated in the Rules & Regulations etc., an employer can give time to the delinquent employee to submit his explanation as per its discretion. Normally, minimum 48 hours time is granted to submit such an explanation.
2. In case of satisfactory reply, matter ends.
3. If the delinquent Employee does not reply or if the reply given by the delinquent Employee is not satisfactory, the Enquiry Officer is to be appointed normally for conducting the disciplinary proceedings to enquire into the truth in the allegations made against the delinquent employee.
4. An opportunity should be given to the delinquent Employee to nominate his Defense Assisting Officer/Representative and the same should be notified to the Enquiry Officer.
81 Swapan Ganguly v. State of W.B. 1995 Lab IC 235 (Cal)
47
CHAPTER 6DISCIPLINARY PROCEDURE
DISCIPLINARY ACTION
Efficiency and discipline are two essential factors for the success of an
organization, whether big or small. It is a difficult problem for a big establishment
to enforce strict rules of discipline among thousands of workmen who belong to
different ethnic and cultural group. Besides this, there are different unions with
different ideologies in a big undertaking. Mutual rivalry, clash of interests is an
everyday affair in such an industry.
The need for discipline is greater in an industry where a large number of workers
are employed. Lapses, omissions, or willful breach of rules constantly occur.
Where small lapses or omissions can be tackled at a lower level by the issue of a
warning or a reprimand, habitual omissions, carelessness, negligence in duty,
damage or loss caused to the machinery or equipment due to lack of proper care,
incompetence, insubordination, lack of integrity, dishonesty and acts involving
moral turpitude, etc., have to be dealt at a higher level and an enquiry has to be
instituted against the delinquent worker and the charges have got to be proved
before any drastic action is taken by way of disciplinary measures.
The Supreme Court82 recent approach also elucidates to balance interests of
workmen and employers, instead of short sightedly protecting interest of
workmen alone, as the earlier approach, had caused a setback to discipline at the
Workplace/Industrial Undertaking and that it may not be proper to allow
employees to break the discipline with impunity.
82 Hombe Gowda Education Trust & Another v. State of Karnataka 2006 SCC (L& S) 133
48
In the light of the statutory provisions and the changes that have been
consequently brought about in the employer and employee relationship,
discipline has now ceased to be the one way traffic. It now largely depends on the
mutual co-operation between the employer and the employees, and willing
obedience of the employees to the rules of the establishment. To ensure better
discipline in an industry mutual efforts of the employers and the employees are
necessary.
Now it is known to all that the unfettered common law right of an employer “to
hire and fire” his employee has been largely modified by the concept of social
justice as well as by statutory provisions. Disciplinary action must have now the
sanction of law and has to be conducted according to the procedure established
by law. The law has now given right to an individual worker to raise an industrial
dispute on the matter of his unwarranted termination of services.83
Disciplinary action is required to be taken when an Employee has indulged in the
acts of misconducts which may be enumerated either in Model Standing
Order/Certified Standing Orders, COBC (whichever is applicable to the respective
units) and are the acts of subversive of discipline. The disciplinary action can also
be initiated in respect of the acts of omission or commission whether or not
stipulated in the Service Conditions but are acknowledged the acts of subversive
of discipline/misconduct in general parlance.
The disciplinary action is meant not really to punish the guilty but to keep the
administrative machinery unsullied by getting rid of bad elements. The interest of
the delinquent officer also lies in prompt conclusion of the disciplinary
proceedings. If he is guilty, he should be dealt with promptly according to law. It
83S. 2A of I.D. Act
49
is not also in the interest of administration that persons accused of serious
misdemeanour should be continued in office indefinitely.84
The immediate purpose of disciplinary proceedings is just to find out the truth of
the allegation made against the concerned worker, and if the truth of the
allegations is established after an impartial enquiry, to award a suitable
punishment commensurate with the gravity of the offence. No organization can
function efficiently without disciplinary action being taken against delinquent
employees.
Justice also demands that the wrong-doer should pay for his wrong-doing and the
wrong must be expiated. If the wrong-doer goes unpunished or goes away with
slight punishment inconsistent with the offence he has committed, it will offend
against the sense of justice and will generate in others a sense of frustration and
dissatisfaction which is not at all desirable to keep an organization strong and
healthy.
Severity of punishment is, however, not the criterion of effective disciplinary
control in an organization. Disciplinary control is effective only when it is firmly,
promptly and consistently exercised. From the viewpoint of control, it is the
certainty of punishment for misconduct or lapses that counts more than the
severity of punishment.
“Let the punishment fit the crime’ – should be the golden rule. The simple
meaning of this maxim is that the punishment to be imposed on a wrong-doer
should not be less or more in consideration of the crime committed, and the
wrong-doer should also feel that the punishment he has received is not too
severe for the offence committed.85
84 State of Rajasthan V. B.K. Meena AIR 1996 SC 1385 Ramakant Misra V. State of U.P. AIR 1982 SC 1552
50
In the Model Standing Order incorporated in the Industrial Employment
(Standing Order) Central Rules 1946, no particular punishment has been
prescribed for any particular misconduct. However, it is provided in cl. (c) of Para
4 of the Model Standing Order that when a workman is found guilty of the
charges framed against him, after giving him a reasonable opportunity of making
representation on the penalty proposed, the employer shall pass an order of
dismissal or suspension or fine or stoppage of annual increment or reduction in
rank. The vast discretion has, thus, been given to the employer or the authority
prescribed on his behalf to decide what particular punishment is to be awarded
for a particular offence.
Except these prescribed punishments, there are many other uncodified
punishments which may be imposed by the management without following the
prescribed procedure viz., reassignment to a less importance or transfer to a less
important office or establishment under the same employer or a workman who is
careless or negligent in his work is often kept under constant watch. In addition
to this, verbal warning or reprimanded can be administered to an erring
workman. There are hundred methods of maintaining discipline which can be
adopted without initiating formal procedure as prescribed under the rules or
Standing order of the establishment.
Disciplinary Action is nothing but a mode of enforcement of discipline by
punishing a delinquent worker, and leaving an example to others that they will be
similarly treated, if they behave in the same way. Disciplinary proceedings have
two-fold objectives – firstly, to enquire into the truth of the allegations of
misbehavior or misconduct of the employee charged as well as to give him an
opportunity to prove his innocence and secondly, to set an example for others.
51
Disciplinary Action thus contemplates certain procedure to be followed by the
management. The procedure is based mainly on the rules of natural justice and
equity. The whole intentions behind such proceedings are to afford a fair
opportunity to the accused employee to meet the charges leveled against him.
Disciplinary action broadly consists of certain stages, i.e. framing of a charge-
sheet, holding of an enquiry into the misconduct finding of the enquiry officer,
order of punishment passed by the punishing authority and finally,
communication of the order of punishment to the concerned employee. It is clear
from the decided cases that the disciplinary proceeding cannot be cut short even
if the accused does not take part in the proceedings.
The object of disciplinary action is ultimately to punish the workman if the
allegations made against him are proved in the domestic enquiry. If the
allegations are not proved, the workman is free of the charges made against him
on the basis of those allegations. On the other hand, if the allegations are proved,
the management will be within its right to award any of the punishments of
discharge, dismissal, suspension, reduction in rank or stoppage of increment or
the withholding of promotion as would meet the ends of justice. In awarding
punishment, it is necessary that the extenuating as well as the aggravating
circumstances of the case should be taken into consideration. A copy of the order
passed by the employer should invariably be supplied to the workman
concerned.86
LIMITS OF DISCIPLINARY JURISDICTION
86 Para 14(5) of Model Standing Orders
52
In taking disciplinary action against his employees, the employer must take care
that he does not transgress the limits of his jurisdiction which can be best
understood from the following observation of Supreme Court87
“The employer has hardly any extra territorial jurisdiction. He is not the
custodian of general law and order situation nor the Guru or mentor of the
workmen for their well regulated cultural advancement….The employer
has both power and jurisdiction to regulate the behaviour of workmen
within the premises of the establishment, or for peacefully carrying the
industrial activity in the vicinity of the establishment.”
Their lordships further observed in the above case that even where the standing
order is couched in a language which seeks to extend its operation far beyond the
establishment, it would nonetheless be necessary to establish a causal
connection between the misconduct and the employment. It was also clarified
that the causal connection in order to provide linkage between the alleged act of
misconduct and employment must be real and substantial, immediate and
proximate and not remote or tenuous.
DISCIPLINARY PROCEDURE
Disciplinary/domestic enquiry is a part of disciplinary action initiated by an
employer in respect of allegations of misconducts committed by the delinquent
employee against the Rules and Regulations, Standing Orders or Code of Business
Conduct of the Company (COBC) etc. on the basis of some complaint/information
received by the employer. Such terms and conditions, sometimes, are also
87 Glaxo Laboratories(I) Ltd. V. Presiding Officer, Labour Court, Meerut AIR 1984 SC 505 : 1983 LIC 1909
53
stipulated in the letter of appointment issued to the employee. Certain acts of
omission or commission on the part of an employee can also be termed as
misconducts even if the same are not mentioned in the standing orders or service
rules but are the acts of subversive of discipline and cannot be generally
acceptable by a prudent person.
The purpose of Domestic Enquiry is to extract the truth of the allegations made in
the complaint. It gives opportunity to the delinquent employee to defend himself
against the charges leveled against him and for the Employer to evaluate the
veracity of the allegations made against the delinquent employee and inflict an
appropriate punishment if necessary.
The enquiry proceedings are quasi-judicial proceedings in nature. These
proceedings are not held strictly like court proceedings though the procedure to
be followed is almost akin to court procedure. It is not mandatory for the Enquiry
Officer to follow the procedures as laid down in the Code of Civil Procedure, 1908
or the Indian Evidence Act 1872. Broadly followed procedure in the enquiry
proceedings:-
1. Management Representative to lead the evidence first.
2. Cross-examination of management witnesses by Defence Assisting Officer before Enquiry Officer.
3. Statement of delinquent employee before Enquiry Officer.
4. Cross examination of defense witnesses by the Management Representative before the Enquiry Officer.
5. Statement of the other witnesses of delinquent Employee to be recorded.
6. On the basis of the evidence adduced, parties to give their written submission in brief to the Enquiry Officer.
54
7. In case, either the Management Representative or the delinquent employee raises any issue, the enquiry officer is required to consider and decide the same independently.
The Procedure for disciplinary action is not provided either in the Industrial
Dispute Act or in the rules made thereunder for the guidance of the disciplinary
authorities. The protection of Article 311 of the constitution is also not available
to the employees in the industrial employment, both in public & private sectors.
Even the model standing orders do not provide the procedure of disciplinary
action. Since no hard and fast procedure to be adopted in enquiry is provided,
the Enquiry Officer can adopt its own procedure in the interest of justice.
The Supreme Court88 laying down the law held that an enquiry cannot be said to
have been properly held unless:
i. The employee proceeded against has been informed clearly of the
charges leveled against him,
ii. The witnesses are examined in the presence of the employee in
respect of the charges,
iii. The employee is given a fair opportunity to cross-examine witnesses
iv. He is given a fair opportunity to put his defense
v. The enquiry officer records his findings with reasons for the same in his
report.
COMPLAINT
Disciplinary Action initiates with a complaint of misconduct against a delinquent
employee and allegations form the basis of such action.
88 Sur Enamel And Stamping Works Ltd. V. Their Workmen AIR 1963 SC 1914
55
A complaint may originate from a supervisor or other superior officer or even
from a fellow employee. The complaint giving full narration of facts, time, date
and place of misconduct committed, should be sent to the manager/disciplinary
authority without any comment or recommendation or suggestion.
Complaints may be disposed of by such authority in one of the following
manners:-
i. If the complaint is frivolous, no action need be taken.
ii. If the complaint discloses a minor offence,
a. Oral warning may be given to the concerned workman.
b. A written warning may be issued after issuing a letter of charge and receiving explanation of workman.
c. Any of the other minor punishments e.g. suspension, fine may be awarded to the workman after following the formal disciplinary procedure, explained herein.
iii. If the complaint discloses a major offence, punishment of dismissal,
discharge, demotion, etc. may be awarded after following the formal
disciplinary procedure.
Sometimes complaints are vague and do not disclose clearly all the relevant facts.
In such cases, a preliminary investigation or a fact finding enquiry must be held.
PRE-CHARGE INVESTIGATION
The main purpose of this stage is to evaluate the gravity of misconduct, if
committed by a delinquent employee and to decide as to whether any
56
disciplinary action is required to be taken against him or not. However, it is no
substitute for a regular and proper enquiry.
A preliminary enquiry is a fact finding enquiry to ascertain whether there is a
prima facie case and the employee-workman cannot be punished on the basis of
such enquiry. Charges are framed on the basis of evidence collected during the
preliminary enquiry89.
It is not necessary that a preliminary enquiry be recorded in the presence of the
delinquent workman or that his statement and/or that of any of the witnesses
should be recorded in his presence.
Where sufficient and reliable facts for framing charges are available there is no
need to hold a preliminary enquiry, but a charge-sheet should straight away be
issued to the workman concerned.
Any failure to produce the preliminary report at the enquiry on the strength of
which the charges against the workman are made would vitiate the enquiry but
such a preliminary enquiry report does not form part of the evidence before the
enquiry officer90.
Since it is not necessary to tender record of preliminary enquiry at the formal
enquiry, the same should normally be avoided unless it becomes absolutely
necessary.
Steps for Pre-charge investigation-
1. Perusal of Report/Complaint received by the management against the employee. This is the first stage of a domestic enquiry.
89 Article ‘Domestic Enquiry’ by D.C. Jain, 1989 II CLR 3390 Tata Engineering & Locomotive Co. Ltd. V. S.C. Prasad & Anr. 1969 II LLJ (SC) 799
57
2. Investigation at the shop floor level by HR/independent officer for evaluating whether prima facie case is made out against the delinquent employee for further proceedings or not depending upon the gravity of the charge and the available evidence.
3. Oral/written recommendations are needed to be considered by HRD or Unit Head before initiating further action in the matter.
The proceedings as indicated in point no.2 and 3 may also be initiated by the COBC investigating team. Based on the findings of the preliminary investigation, the decision may be taken as to whether there is sufficient reason for institution of a domestic enquiry against the delinquent employee.
SUSPENSION PENDING ENQUIRY
Keeping in view the gravity of misconduct, it might be advisable to suspend a
workman simultaneously with the issue of a charge-sheet as a measure of
security or in the interest of the company or employees in general. However, it is
necessary to know whether an employer has a right to suspend his workmen
pending enquiry.
It has been held that the power to suspend, in the sense of a right to forbid a
workman to work, is not an implied term and condition of contract of service and
that such a power can only be the creature, either of statute or of an expressed
term in the contract itself. Therefore, in the absence of such an express power
under Standing Orders or Contract of service, the employer would have no right
to suspend a workman and where he does so, he will have to pay full wages
during the period of suspension91.
91 Hotel Imperial, New Delhi & Ors. V. Hotel Workers Union, 1959 II LLJ 544 SC
58
Sometimes the workman alleges that the suspension pending enquiry shows that
the employer is already prejudiced or biased against them or that such
suspension pending enquiry tantamount to punishment. Such allegations have no
substance and have always been rejected by the Supreme Court92.
It may however, be emphasized that where a workman is suspended pending
enquiry, all efforts should be made to complete the enquiry at the earliest.
CHARGESHEET
The first stage in a domestic enquiry is the issuance of a chargesheet. The
ordinary meaning of ‘charge-sheet’ is a memorandum of charges i.e. acts or
omissions alleged to have been committed by an employee.
No disciplinary action can be initiated against an employee or a workman unless
he is first served with a charge-sheet containing all charges and their essential
particulars93.
It is the basis of the domestic enquiry and all subsequent proceedings shall have
to be strictly confined to the charges as set out in the chargesheet. The other
important aspects i.e. drafting a Charge-sheet and the relating Law has already
been dealt at length in Chapter 5.
EXPLANATION TO THE CHARGESHEET
92 Laxmi Devi Sugar Mills V. Ram Swarup & Ors. 1957 I LLJ 1793 Supra 3, P-241
59
Explanation is not just a piece of formality. The explanation tendered in respect
of an allegation made against a workman is not to be treated lightly and due
consideration must be given to it.
The employee must be given sufficient time to enable him to prepare and submit
his explanation. Usually the time given to furnish explanation varies from 24 to 48
hours and where any specific provision pertaining to it exists in the standing
orders, the same should be complied with, but it can be varied according to the
facts of the case.
However, if the employee requests for extension of time it should generally be
allowed to avoid any hardship and also such extension shall be reasonable. What
would be reasonable time would depend upon circumstances of each case. For
example, where a workman is seriously ill perhaps an extension of time of one
month or even more would be considered reasonable.
Where an employee does not submit his explanation at all, this will damage his
defence but does not mean confession of the charges framed against him. The
safe course for the management is to treat his silence as if he has submitted an
unsatisfactory explanation and proceeded on with the issue of notice of holding
the enquiry.
Where the employee submits an unqualified admission of the charges leveled
against him, no further enquiry need to be held and he can be awarded suitable
punishment which should invariably be recorded in writing but if the employee
submits an explanation controverting the charges leveled against him, his
explanation must be carefully scrutinized with the object of finding out whether
or not his explanation is satisfactory.
60
In Central Bank of India v. K. Banerjee94, where in Supreme Court observed that
the workman admits his guilt, to insist upon management to let in evidence
about allegation will only be an empty formality. In such case, it will be open to
the management to examine the workman himself, even in the first instance, so
as to enable him to offer an explanation for his conduct, or to place before the
management any circumstances which will go to mitigate the gravity of the
offence. But, even then the examination of the workman, under such
circumstances, should not be saviour of an inquisition.
INTIMATION OF ENQUIRY
If the explanation submitted by the employee is found unsatisfactory, the next
step is to issue him a notice of holding the enquiry, giving him information as to
the name of the enquiry officer, the date, time and venue of the enquiry and also
notifying to him that he should be ready with his defence on the date of the
enquiry, the witnesses that he wishes to examine or any other relevant
information that he may like to give.
The mode of notice of enquiry is the same as that of service of the Charge-sheet.
Notice to the workman of holding enquiry must be given sufficiently in advance
of the date fixed and it should be ensured that a reasonable notice of enquiry is
given to the workman as failure to do so may, in certain circumstances, render
the enquiry invalid. For instance, where a workman was intimated in the morning
that the enquiry would be held in the afternoon of the same day, and where his
request for adjournment of the enquiry on the ground that sufficient notice had
not been given to him to enable him to prepare his defence and to bring his
witnesses, was not accepted by the enquiry officer, the ex-parte enquiry 94 (1967) 2 LLJ 739
61
conducted by the enquiry officer under such circumstances was held to be
improper95.
ENQUIRY OFFICER
The Enquiry Officer may be an officer of the management who is well versed with
the procedure to be adopted in the enquiry. An advocate, a legal officer, or an
officer from outside the Company who is familiar with the domestic enquiry
process may also be appointed as enquiry officer but he must be independent
and unbiased so that the employee proceeded against may have confidence in
him and expect a just report from him. However, the appointment of outsiders as
the enquiry officer can only be made if there is no embargo/restriction in
appointing them as the enquiry officer as per the Service Rules of the
management.
An officer, who himself has been the object of misconduct on the part of the
employee, should, in no case, be appointed as the Enquiry Officer. Similarly, the
officer who had made preliminary investigation in respect of the charge
complained of or who issued the chargesheet, should not, as an act of propriety,
be appointed as Enquiry Officer.
The enquiry officer should not be disqualified person for the reasons of such as
bias, personal interest or being an eye-witness or victim of the incidents etc.
otherwise, it will not be a fair enquiry and the order passed by him is bad in law.
In a case96, the Hon’ble Supreme Court held that even a lawyer who is paid
remuneration by an employer would be competent to hold an enquiry.
95 K. Palani V. Suptt. Engineer Vellore Electricity System 33 FJR (Mad) 4396 Saran Motors (P) Ltd., Delhi V. Vishwanath & Another 1964 III LLJ (SC) 139
62
EVIDENCE ACT & DOMESTIC ENQUIRY
The evidence Act has got no application to enquiries conducted by domestic
tribunals even though they may be judicial in character. The law requires that
such tribunals should observe rules of natural justice in the conduct of the
enquiry and if they do so, their decision is not liable to be impeached on the
ground that the procedure laid down in the evidence Act was not strictly
followed97.
PROCEEDINGS BEFORE THE ENQUIRY OFFICER
When the enquiry commences, the enquiry officer should record the date and
time of the enquiry, presence of the charge-sheeted workman. The Enquiry
Officer should then read out the chargesheet to the workman and also his written
explanation and should take both the documents, i.e. chargesheet and the
written explanation on record and ask the workman charged whether he admits
the charges or not.
Where the workman admits the charges, the admission of the charges too should
be recorded. In such a case, there will be no necessity for proceeding further with
the enquiry as, in the face of the said admission, any further enquiry is
redundant98. If, however, the workman does not admit the charges, evidence of
the witnesses in support of the charges should be recorded one by one in the
presence of the charge-sheeted employee.
97 UOI V. Varma, 1958 I LLJ 259 SC98 Supra 20
63
After recording the statement of each witness in support of the charges, the
charge-sheeted employee and/or his representative should be asked to cross-
examine the said witnesses99. Where the charge-sheeted workman does not wish
to cross-examine a note to that effect should be recorded by the Enquiry Officer.
When the evidence of a particular witness in support of the charge is being
recorded before the Enquiry Officer, care should be taken that all other material
witnesses in support of the charges should not remain present in the Enquiry
Officer’s room. It is manifest that the purpose of cross-examination would be set
at naught if all the witnesses are present at the spot of the enquiry during the
entire period that the enquiry takes place. Holding of an enquiry in such a
manner would result in miscarriage of justice and vitiate the enquiry100.
After the statements of the witnesses in support of the charges are completed,
the Enquiry Officer should then ask the charge-sheeted workman that having
regard to the evidence of the witnesses in support of the charges does he admit
the charges or not. If the charge-sheeted workman at that stage admits the
charges, a statement to that effect should be recorded and the enquiry can then
be concluded. If however, the charge-sheeted workman does not admit the
charges, and there after he should be asked to produce his witnesses one by one
on whose evidence he relies in his defence. The Enquiry Officer can ask the
charge-sheeted workman and/or his witnesses questions in clarification which
should be based only on the material already before him and not by importing his
personal knowledge.
Such questions, as stated above, should be only in the nature of clarification and
not by way of cross-examination because it is not the duty of an Enquiry Officer
to cross-examine the witnesses. Where the Enquiry Officer asks any questions in 99 Kardah & Co. Ltd. V. Its Workmen 1963 II LLJ 452100 Hight Court, Allahabad in Sharda Prasad Vishwakarma V. State of U.P. & Ors. 1968 I LLJ 45
64
clarification from the witnesses in support of the charges after they have been
duly cross-examined by the charge-sheeted workman, a further opportunity
should by given to the charge-sheeted workman to cross-examine the witness to
avoid any allegation in future that the charge-sheeted workman was not given
fair opportunities to cross-examine the witness in support of the charges on the
additional material elicited through such questioning by the enquiry officer.
At the end of the statement of each witness, the charge-sheeted employee and
the concerned witness should be asked to go through it and thereafter sign.
Where the statements are recorded in a language other than the language
understood by the charge-sheeted workman, the same should be translated to
him in the language understood by him and a note to that effect stating that the
statement of the witness has been read over and explained to the charge-
sheeted employee and who admits that the same has been correctly recorded,
be made and thereafter the workman should be asked to sign. Where a charge-
sheeted workman refuses to sign, a note to that effect should be recorded by the
Enquiry Officer.
In the above said proceeding an employee cannot claim the right to be
represented by a lawyer or by an outsider of his own choice. Similarly he cannot
claim as a right that he should be represented at the domestic enquiry by a
representative of his union. The employer may at his discretion allow such
assistance and where Enquiry Officer refused the worker to be represented by his
counsel, but offered them representation by a member of their union and the
worker refused this offer and withdrew from the enquiry, and the enquiry was
held ex-parte thereafter, was regular and proper. However, the worker has the
right to be represented by the co-worker.
65
During the course of domestic enquiry proceedings, one should follow the following rules-
Pending enquiry, the Management can suspend the delinquent Employee depending upon the gravity of the charges.
A delinquent employee can be permitted to defend himself by another co-employee only unless the Service Conditions permit him to be represented by an office bearer of Trade Union of which he is a member or by any other outsider.
After constitution of enquiry, every issue arising out of enquiry for example demand of representation through an outsider or an advocate in the enquiry or demand of documents or demand of list of management witnesses etc. has to be decided by the enquiry officer only independently.
In case, the employee makes any direct demands from the management with regard to any issue connected with the enquiry, the management has to forward the same to the enquiry officer and not to dispose the same by itself. After constitution of enquiry, only the enquiry officer has jurisdiction to decide the issues arising out of or in connection with the enquiry.
The proceedings of the enquiry should be conducted in English, Hindi or the language of the state where the Industrial establishment is located. The enquiry officer is supposed to record the enquiry proceedings either himself or the same can be recorded on his dictation in verbatim.
EX-PARTE ENQUIRY
Where inspite of opportunities having been given, a charge sheeted workman
fails to attend the enquiry or where he deliberately withdraws from the enquiry,
a note to that effect should be recorded in the proceedings but the enquiry
should be proceeded and completed ex-parte by recording the evidence of the
witnesses in support of the charges101. Evidence should first be led before the
enquiry officer to satisfy him that the notice of enquiry had been duly served
101 Brooke Bond India V. Suba Raman 1961 II LLJ 417
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upon the charge sheeted workman and inspite of this he had failed to attend the
enquiry. The peon or any other person who was deputed to serve the notice of
enquiry should be examined and the peon book should be produced to satisfy the
Enquiry Officer that the notice of enquiry had been duly served. Where notice of
enquiry is sent through registered AD Post or publication done in the newspaper,
such evidence should be led, so that based on such evidence the Enquiry Officer
could justifiably proceed with the enquiry ex-parte. In case, after the enquiry has
started, the charge sheeted employee turns up and affords sufficient cause for his
failure to report for the enquiry at the appointed time the enquiry may be
proceeded after making appropriate notes in the proceedings to this effect.
Where the workman withdraws from the enquiry and refuses to take part in it
without any good reason, the enquiry can still be proceeded in accordance with
the Law as the workman withdraws at his own risk but it is essential that the
workman should be given sufficient chance atleast once or twice before the
enquiry is held ex-parte. It would further be desirable if the copy of the
proceedings recorded in his absence is sent to him by registered post.
ENQUIRY PENDING ORIGINAL PROCEEDINGS
It is not necessary for the management to wait for the decision of a criminal court
where a workman is being prosecuted for the same offence for which he is
charge sheeted. The management can proceed with the domestic proceedings
during the pendency of a criminal case court where the misconduct is of a very
grave nature or the facts are complicated.
A charge sheeted workman has no right to refuse to participate in the domestic
enquiry on the ground that his defence will be disclosed and it will prejudice his
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case pending before a criminal court. If the evidence produced in the domestic
enquiry is that which is not produced before the criminal court and the
management’s action is based on such evidence, the action taken by the
management will be held as proper, even if the workman is acquitted
subsequently by the criminal court. Holding of domestic enquiry during the
pendency of proceedings before a criminal court doe not amount to contempt of
court.
Once a workman is acquitted on the basis of the findings of the Enquiry Officer,
no punishment can subsequently be awarded to him even if he is punished by the
criminal court.
The degree of proof is different at two forums as the criminal courts are
governed by the law of Evidence and Criminal Procedure Code, whereas the
Enquiry Officer has to follow the principles of natural justice. Hence, an action
taken by management on the basis of the evidence produced during the
domestic enquiry will prevail even if the workman is acquitted by a criminal court
subsequently.
Grave and sudden provocation is not a valid defence in disciplinary proceedings
unlike in criminal law.
FINDINGS OF ENQUIRY OFFICER
Industrial adjudication attaches considerable importance to the domestic
enquiries and the conclusions reached at the end of such enquiries. This
necessarily postulates that after the enquiry is completed the same would be
68
followed by the report and findings of the Enquiry Officer. However, the same
has been dealt at length in Chapter 7.
The findings of the Enquiry Officer form an integral part of a domestic enquiry.
Where an Enquiry Officer fails to make a report or where the report does not
indicate the reasons and the conclusions or the reasons in support of the
conclusions, it would be impossible for the Tribunal to decide whether the
procedure adopted by the Enquiry Officer was basically erroneous or whether his
conclusions are perverse.
The report of the Enquiry Officer, therefore, is a document which will have to be
closely examined by the Tribunal when a dispute pertaining to the disciplinary
action based on such a report comes before it for adjudication102. The
misconduct of each workman charged at the enquiry must be proved individually.
The theory of conspiracy has no place in industrial adjudication. When an
individual act of misconduct is not proved, the charge against workman must be
held to have failed.
PUNISHMENT
Punishment is probably the last part of the Disciplinary Proceedings but it is
usually preceded by Show Cause Notice, giving last opportunity to delinquent to
furnish his explanation as to why he should not be punished for the misconduct.
102 Powari Tea Estate V. Barkataki 1965 II LLJ SC 102
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The workman has no right to a second hearing by the punishing authority after
the enquiry is over and before orders are passed against him unless there is such
a provision in the Standing Order/Conditions of Service applicable to him.
In Hamdard Dawakhana Wakf v. Its Workmen103, it was held that if a workman
has been found guilty of misconduct after a fair and proper domestic enquiry,
there is no obligation on the employer to give the workman another hearing
before passing the order of dismissal or discharge against him.
ORDER OF PUNISHMENT
The order of dismissal or discharge must be based upon the very misconduct for
which the workman is charged. If the order is based upon misconduct for which
no charge was framed, it is illegal. Where the order is based on misconduct which
is charged and proved, its legality is not affected merely because it refers to some
other act of the workman or his record.
Communication to the workman of the order of dismissal or discharge made
against him is essential for making the order operative.
The punishment should be awarded only by such officer of the establishment
who has a right to punish under the Standing Order.
If there is no standing order, the proprietor or any other officer of the
company/firm holding power of attorney for the purpose of punishment may
pass the final order.
Where the Manager himself is a complainant or appears as a witness in the
domestic enquiry, he should not pass an order of punishment even if he is
103 1962-II LLJ 772 (SC)
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authorised to pass an order under the Standing Orders. In such cases, it is
desirable that an authority higher then the Manager should pass the final order.
It is well settled principle of law that if the punishment is interfered or
substituted lightly, it will amount to abuse of the process of Court. It is the
mental set up, duty performed by Respondent and similar relevant circumstances
which go into decision making process while considering whether the
punishment is proportionate or not with regard to the proved charges against the
delinquent.
The court of tribunal while dealing with the quantum of punishment has to
record reasons as to why it is felt that the punishment was not commensurate
with the prove charges. The scope for interference is very limited and restricted
to exceptional cases.
The consistent view of the Hon’ble Supreme Court is that “the practice of
showing misplaced sympathy or generosity or compassionate ground to review
the quantum of punishment is held to be impermissible”.
In Bhardwaj v. Hindustan Shipyard Ltd. & Anr.104, the Court held that it is well
settled that the quantum of punishment to be imposed on an employee for
proved misconduct is for the employer, in its wisdom to decide. While Section 11-
A confers power on the Tribunal to examine the proportionality of punishment,
the Tribunal can only interfere in case where the punishment imposed by the
employer is grossly disproportionate.
104 2006 (2) CLR 359 (AP)
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In Karnataka Bank Ltd. v. A.L. Mohan Rao,105 the Court observed that it is not for
Courts to interfere in cases of gross misconduct with decision of disciplinary
authority, on any mistaken notion of sympathy, so long as inquiry has been fair
and proper and misconduct proved. In such matters it is for the disciplinary
authority to decide the apt punishment keeping in view the gravity of
misconduct.
ACTION ON ENQUIRY REPORT
1. Consideration of the enquiry report by the Disciplinary Authority. 2. If the Disciplinary Authority decides to impose punishment, issue show
cause notice to the delinquent Employee against the proposed punishment along with a copy of the enquiry report.
Please note this show cause notice is only with regard to the quantum of punishment and has nothing to do with the guilt of the employee. Moreover, non-issuance of a show cause notice may vitiate the action taken by the management. The management is required to endorse a copy of the enquiry report to the delinquent employee. However, in case the service conditions of the employee provides for issue of show cause notice calling upon the said delinquent to submit his explanation before awarding the punishment, it would be obligatory on the management to issue a show cause notice to the delinquent employee.
3. Consider the reply given by the delinquent Employee to the show cause notice.
4. If the delinquent Employee does not reply or if the reply given is not satisfactory, the Disciplinary Authority to proceed and inflict appropriate punishment.
Please Note that-
105 2006 (1) LLN 156 (SC)
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Principles of natural justice to be followed. Punishment should not violate section 73 of the ESI Act - notice of dismissal or discharge given to an employee during the period the employee is in receipt of sickness, maternity or other benefit shall be invalid.
While deciding about the quantum of punishment the following points should be considered-
i. Gravity of the misconductii. Previous records if any.iii. Mitigating/aggravating circumstances that may exist.
The punishment must be in concurrence with the Standing Orders/Services Rules of the Company.
If any dispute is pending in any Labour Court or before the Conciliation Officer at the time of inflicting punishment of dismissal/termination, the permission/approval of such Labour Court or Conciliation Officer has to be taken mandatorily as provided u/s 33 of ID Act 1947.
5. Appeal
The workman can appeal before the Appellate Authority if the Service
Conditions/Standing Orders so provide for the same. If not included then
this shall not be applicable. The decision of the Appellate Authority tends
to be final.
CHAPTER 7
FINDINGS OF ENQUIRY OFFICER
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Findings are nothing but observation on the case made by the Enquiry Officer on
the conclusion of the enquiry proceedings. It may be in the form of a report
setting out the charges sought to be established against the delinquent employee
and a summary of the depositions and statements made and filed before him and
then arriving at a reasoned conclusion on the basis of evidence, documentary and
oral as well as the arguments, if any, advanced on either side.
The Enquiry Officer should not base his finding on any extraneous matters
collected by him outside the enquiry nor should he incorporate any information
from his personal knowledge. Personal belief or predilection has no place in
domestic enquiry and as such the finding should be free from such ramblings in
the unauthorized field.
The Enquiry Officer, even if he himself is the punishing authority, should also
prepare such a finding. He cannot dispense with the preparation of a finding and
straightaway pass an order of punishment. It is wholly misconceived as pointed
out by the Supreme Court in the case of Sur Enamel Stamping Works Ltd. that
once evidence is recorded all that the employer is to do is to pass an order of
dismissal.106
A record of finding is essential in a domestic enquiry whether it be conducted by
the punishing authority itself or by any other officer deputed by him. As has been
clearly stated by the Supreme Court in Shamnugger Jute Factory Co.’s Case107 that
an enquiry is surely to be held as vitiated if no finding is recorded.
106 AIR 1963 SC 1914107 (1964) I LLJ 634
74
The principle has been laid down by Gajendragadkar, J., in Khardah & CO. Ltd. v.
Its Workmen108 in the following words:
“If industrial adjudication attaches importance to domestic enquiries and conclusion reached at the end of such enquiries, that postulates that the enquiry would be followed by a statement containing the conclusion of the enquiry officer.”
In that case it was further observed that the Enquiry Officer after taking the
evidence adduced by the parties has to record his findings and conclusions as to
whether the misconduct alleged has been proved or not which are of vital
importance for the adjudication of the dispute arising out of the disciplinary
action.
It is, of course, not necessary that the report should be elaborate. To put it in
other way, the Enquiry Officer need not write a very long and elaborate report;
but since his findings are likely to lead to the dismissal of the employee, it is his
duty to write clearly and precisely his conclusions and to indicate briefly his
reasons for reaching such conclusions.109
In Powai Tea Estate V. Barkataki110, the Supreme Court clearly laid down that
however brief the report is, it should indicate in a broad way the conclusion of
the Enquiry Officer and his reasons.
It is clear from judicial pronouncements that a finding by an Enquiry Officer, is
imperative, even though he may be the punishing authority. The failure to record
his findings and conclusion at the end of the enquiry would produce a serious
108 AIR 1964 SC 719109 Ibid. See Elgin Mills Co. Ltd. V. First Labour Court (1969) I LLJ 805 (All) given at pg. 807110 (1965) II LLJ 102
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infirmity in the enquiry which would render the enquiry invalid. The Tribunal
would be justified in declaring such an enquiry void.
CRITERIA FOR PROPER FINDINGS
The finding must be complete by itself. It must not be a cryptic report without
stating any reasons for the conclusion arrived at, but ending with the statement
that all other relevant points will be discussed personally. Such a report has no
value at all.111
On various occasions the Court/ Tribunal held the enquiry invalid for production
of a cryptic/ incomplete report or for non-production of the report at all.
In Shamnugger Jute Factory Co.’s Case112, the enquiry report was not produced
before the Tribunal at all. The Tribunal, therefore, took the view that either the
report was not at all made or not produced before it and therefore, the enquiry
was held to be invalid. The Supreme Court, on appeal, also held that the enquiry
was vitiated for non-recording of finding by the Enquiry Officer.
Similarly, the finding is liable to be rejected by the Tribunal if it is based on
irrelevant and extraneous matters. If the enquiry officer relies on matters which
the workman had no opportunity to meet, the validity of the enquiry would be
affected. However, it has also been observed that if in the enquiry report some
facts are mentioned on personal knowledge, they could be treated as incidental
observations, if the main charges stand proved, even though one of the charges
was not found proved by the Enquiry Officer.113
111 Howrah Trading Co. (P) Ltd. v. Fourth Industrial Tribunal (1966) II LLJ 288 (Cal) given at pg.289 112 (1964) I LLJ 634 SC given at pg. 636113 Tata Locomotive Co. Ltd. V. S.C. Prasad (1969) II LLJ 799 given at pg. 809
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In Central Bank of India v. Prakash Chand Jain114, the Supreme Court also
cautioned the industrial adjudicators not to brush aside lightly the finding of an
enquiry officer merely on the ground that the Enquiry Officer, while writing his
report has mentioned facts which are not strictly borne out by evidence before
him. It is to be borne in mind that persons appointed to hold such enquiries are
not lawyers and the enquiries are of simple nature where the technical rules of
procedure do not prevail.
In writing the report, the Enquiry officer must not travel beyond the limit of the
charges framed. If, in the course of enquiry, some additional misconduct is found
to have been committed, the scope of the enquiry should not extend to the
investigation of such misconduct. Although from the evidence adduced, it
becomes apparent that the charge-sheeted workman has also committed this
additional misconduct, the Enquiry Officer must not mention this in his report. It
he does so, it will be a record of extraneous matters which may influence the
punishing authority while issuing the order of punishment.115
But this restriction does not extend to cases, where the Enquiry Officer has
passingly mentioned some incidental matters though they have no bearing on the
charge or charges. When the charges have been fully established, passing
mention of some incidental matter in the enquiry report will not vitiate the
enquiry.
The Industrial Tribunal has considered this point in Mohd. Abdul Khadir v. Royal
Auto Supply Co. Ltd.,116 where it was held that when there is slight difference
between the allegations contained in the show-cause notice and the charge
114 AIR 1969 SC 983: (1969) II LLJ 377 at pg 384115 Harbans Lal v. State of Punjab AIR 1962 Pun 289. Also S.S. Rao v. State of Mysore AIR 1964 SC 21116 (1964) ICR 751
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which was established against the delinquent employee and it appears that he
has not been prejudiced thereby, the action of the employer cannot be set aside.
It is a recognized principle of law that if a workman is charge-sheetd for a minor
offence, and if it transpires in the enquiry tht he has committed a major offence,
he cannot be punished for a major offence, but on the other hand, if a workman
is charged for a major offence, but is found to have committed a minor offence,
he can be punished for that minor offence.
The Enquiry Officer should, therefore, draw his conclusions within the framework
of the charges and on the facts adduced by evidence of both the parties. He must
not express his person belief or record any information that comes though
sources other than evidence adduced before him.
REQUIREMENTS OF AN ENQUIRY REPORT
The Enquiry Officers appointed by the Company are departmental officers and
are not trained lawyers and as such; it is too much too expect from them a fool-
proof enquiry report as expected from a trained Judge. All that is required to test
the validity of an enquiry from such report is to see whether the following
particulars have been observed:
i. Whether the requirements of rule of natural justice have been satisfied, i.e. whether reasonable opportunity had been given to the charge-sheeted employee to defend himself by allowing him to cross-examine the prosecution witnesses and examining his own and give his own statement.117
117 Phulbari Tea Estate v. Its Workmen AIR 1959 SC 111
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ii. Whether the evidence thus adduced in the enquiry had been duly recorded and assessed and the reasons for disbelieving any evidence duly state in the report.118
iii. Whether a uniform standard had been followed in dealing with the evidence of both sides, that is, fairness to both the parties had been observed meticulously.119
iv. Whether the enquiry officer showed any bias or has prejudged the issue.120
v. Whether he has acted independently, fairly and impartially or with a closed mind.121
vi. Whether he has introduced any extraneous matter outside the purview of the charges.122
The Inquiring Authority is not court but it has to act quasi-judicially. So the
report it has to prepare on the conclusion of the enquiry must fulfill above
stated basic requirements.
The report though not required to be couched in legal terminology or based
on the legal technicalities of a Court Trial, it should neither be a bald
statement or merely a catalogue of facts without any inference of finding123
nor should be a bare record of several notes without any finding.124 It should
118 Howrah Trading Co. (P) Ltd. v. Fourth Industrial Tribunal (1966) II LLJ 288 (Cal)
119 Saran Motors v. Viswanath (1964) II LLJ 139120 Andhra Scientific Co. Ltd. v. A. Seshagiri Rao IR 1960 AP 526121 State of Punjab v. Karam Chand AIR 1959 Pun 402122 U.P. State Warehousing Corporation v. Chandra Kiran Tyagi AIR 1970 SC 1244123 Hindustan Steel Ltd. V. Rourkela Mazdoor Sabha (1969) II LJ 202 (Ori)124 Northers Dooars Tea Co. Ltd. v. Worken of the Dem Dima Tea Estate (1964) I LLJ 436
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be a well-considered and reasoned document. In other words, the report
should contain not only a bare statement of facts but an unbiased assessment
of evidence giving reasons why he rejected certain evidence and accepted the
other.
In Binraj v. Union of India125, the Supreme Court observed that the underlying
idea is that the parties should know and be able to Judge for themselves
whether or not to ask for judicial review. When the reasons are given, it also
helps the Court to find out whether the order is bona fide.
It also ensures the unassailability of the enquiry held. If therefore, the finding
is cryptic and not supported by reasons, the enquiry will be exposed to the
criticism that it was undertaken as an employ formality. The employer
whether he himself be the enquiring officer or not, cannot straightaway pass
an order of dismissal as soon as the evidence is recorded. It implies that the
charges framed against the employee have been proved. The reason being
that the validity of the enquiry proceedings depends upon the fact that the
conclusion of the Enquiry Officer is not perverse and there is no basic defect
in the approach adopted by him and it will not be possible to find out whether
the enquiry did or did not suffer from the above defects if it is not known how
the enquiry officer approached the question and what were the grounds on
which he based his decision.126
The Enquiry Officer cannot omit consideration of any material relevant for
enquiry. When, however, it is complained that he did not consider some of
the documents it is held by the Bombay High Court that it is not necessary for
the Enquiry Officer to refer to each and every document produced by the
delinquent and complaint can only be made if a relevant document is ignored. 125 AIR 1957 SC 397126 Khardah & CO. Ltd. v. Its Workmen AIR 1964 SC 719
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When no attempt was made by the worker to show the relevancy of
document not referred to by the Enquiry Officer in his report, then the report
is not vitiated.127
The Enquiry Officer has to decide the enquiry on the basis of his own
judgment When the report mentioned that the Enquiry Officer had informal
discussion with the professor who submitted the preliminary report before
submitting the report it is held that there is every possibility of the Enquiry
Officer has been influenced by such discussion and the report is vitiated.128
Bombay High Court in the above case distinguished the judgment in Sunil
Kumar Banerjee v. State of W.B.129. The Supreme Court in such case did not
find any illegality when the disciplinary authority arrived at independent
decision in respect of each of the charges against the employee but thereafter
he consulted the vigilance commission regarding the extent of punishment.
REASONS FOR FINDINGS
The Enquiry Officer in arriving at the finding in respect of the charge or
charges framed against the delinquent employee must give reasons for his
decision. It is made clear by Supreme Court that domestic Tribunals, like all
other quasi-judicial Tribunal a must give reasons for their decisions130. So far
as domestic Tribunals are concerned giving reasons is also a requirement of
natural justice. Not only reasons have to be given but also the reasons which
are given must be proper and adequate.127 Ramesh v. Bank of Baroda (1988) 56 FLR 164128 Dr. P.C. Jain v. IIT, Bombay 71 FJR 25 (Bom)129 AIR 1980 SC 1170130 Desai v. Testeel Ltd. (1979) 3 SCC 225
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The Industrial Tribunal cannot interfere with the enquiry report of the Enquiry
Officer on the ground that detailed reasons have not been given. It is held
that if reasons exist in the report, then the report is not violative of the
principles of natural justice because it does not contain the full reasons.131
Therefore, even though reasons should be given it is not necessary that report
should be elaborate. It should indicate in the broad way the conclusion of the
officer and his reasons.
When the Enquiry Officer in his report indicated that the charge was grave
and the workman failed to give any explanation and to cross-examine the
witnesses and referring to the evidence discussed it and came to the
conclusion that the workman was guilty of gross misconduct which merited
dismissal, the report is held to be with adequate reasons.132
But it is not enough that the quasi-judicial authority adverts to the material
before it, but the order should disclose a consciousness as to the application
of mind to the cogent material before it and ex facie the decision should
disclose after considering pros and cons of such material. Non-application of
mind can be presumed when there were base references to the certificates
and a laconic expression that they are not correct.133 Similarly when it is
merely stated that the competent authority is satisfied that the allegations
are established it is not sufficient when there is no chain of ratiocination by
which the decision is reached. Mere mention of the conclusion does not
tantamount to giving reasons for conclusion. Therefore, where witnesses on
behalf of the employer and those of charge-sheeted employee made
inconsistent statements, then reasons should be given why one version is
131 Peerless General Finance & Investment Co. Ltd. V. Third Industrial Tribunal (1987) 1 LLN 122 (Cal)132 Balijan South Tea Estate V. labour Court 32 FJR 76 (Assam)133 R. Venkatachalam v. Presiding Officer, Southern Railway (1970) II LLJ 625 (Mad)
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accepted to that of other, otherwise the order may suffer from
arbitrariness.134
Giving of reasons by the Enquiry Officer in his report serves another purpose,
namely, it enables the delinquent workman to be satisfied that the enquiry is
just. If he sees that there are cogent reasons for the action taken against him
then he at least has the satisfaction that the enquiry has been made against
him fairly and on the basis of the evidence adduced on the enquiry.
A question often arises whether it involves violation of rule of natural justice
when one Enquiry Officer hears the accused, but another gives the finding.
The Delhi High Court has held in a case that where the delinquent official is
heard and the statement is recorded by one Inquiring Officer, but the findings
are given by another, it cannot be said that any rule of natural justice is
violated. Natural justice prescribes a minimum procedure which cannot be
bloated into a rigmarole of technicalities to vitiate the enquiry somehow or
other.135
There is no rule in a disciplinary proceeding that the successor inquiring
authority cannot rely upon the evidence recorded by the predecessor. In the
absence of such a rule, there is no violation of the provision of the principles
of natural justice merely because the successor was not in a position to watch
the demeanour of the witnesses. The inquiring officer is not the ultimate
punishing authority. The disciplinary authority is to reach his own conclusion
on the basis of the evidence recorded in the enquiry report and merely
because he has no opportunity of observing the demeanour of the witnesses
himself, if cannot be held that the ultimate finding of the disciplinary
134 Bakhtawar Singh v. State AIR 1971 Pun 220; AK Mohan v. Labour Court (1986) 52 FLR 487 (SC)135 Bhola Nath v. Management of Delhi Transport Undertaking (1971) 1 SLR 240 (Del)
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authority has no jurisdiction. Such a conclusion is not borne out by the
rules.136
RECOMMENDATIONS FOR PUNISHMENT
It is not the business of the Enquiry Officer to recommend any punishment if
he finds the charge-sheeted officer guilty of the charges. Nor is it his duty to
do so. He is not the punishing authority and as such his duty is only to enquire
into the charges framed against the delinquent worker and to assess the
evidence produced by both the parties.
In his ultimate analysis, if the Enquiry Officer finds that the charges have been
established by the evidence adduced before him or by the documents
produced before him, he will record such finding in his report. His functions
end with the recording of the finding and submission thereof to the punishing
authority. But in special circumstances if he suggests any punishment, he is
not debarred form doing it. The punishing authority may or may not agree
with such suggestions or recommendations. He is required to come to his own
conclusion independently after going through the whole record and making
his own assessment of the case.137
It is settled law that the Enquiry Officer if he is not the disciplinary authority is
not entrusted with the power of imposing punishment. His duty commences
and ends with the finding of facts and he may be held to be a fact finding
authority. Therefore, in the absence of rule or statutory provisions to the
contrary the Enquiry Officer is not to specify the punishment which may be
imposed upon the delinquent officer. 136 Baribandhu Misra v I.G. of Police AIR 1970 Ori 213137 Chakravarti, KP
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The Supreme Court has held that even if the Enquiry Officer was asked to
send his report containing his findings and recommendation relating to
proposed penalty it is not that the Enquiry Officer has to give his
recommendation for the penalty and the failure to give the recommendation
does not in any way affect the validity of the report.138
Even if the Enquiry Officer recommended that lenient view may be taken
regarding penalty the disciplinary authority can ignore it because in the
absence of the rules to the contrary the Enquiry Officer has no business to
make any recommendations and the imposing of appropriate penalty is the
exclusive domain of the disciplinary authority.139
DRAFTING OF ENQUIRY REPORT140
It does not require a special skill or expertise to write a report, it is not a
simple matter as that. It requires some diligence and devotion on the part of
the Enquiry Officer who is required to follow a systematic method to make
out a case out of a mass of materials before him. He has to marshall the facts
in a coherent manner and then proceed on the following lines:
i. He should, in the first instance, mention the compliant or complaints
brought against the delinquent workman, and then give a gist of the
explanation, if any, submitted by him. He may also state at this stage if
any preliminary investigation into the complaint was made and with
what result.
138 Krishna Chandra Tandon v. Union of India (1974) 4 SCC 1294139 Sabed Ali v. General Manager, N.F. Railway (1987) 3 ATC 234 (Gau) c.f. Chakravarti, K.P.140 Chakravarti, K.P.
85
ii. Secondly, he should mention the charges brought against the workman
by the management not being satisfied with the explanation.
iii. Thirdly, he may mention the order of the management for a formal
enquiry, appointing him s an Enquiry Officer to conduct the enquiry.
iv. Fourthly, he should make a statement of the listed documents
produced by either side as well as the list of witnesses examined during
the enquiry.
After noting down these preliminaries, the Enquiry Officer should discuss the
written statements of both the parties. If no written statement has been
submitted by either of the parties, he should make a mention of it. He should
mark the documents upon which he wants to rely which appear to be
material to the case.
He should then give a brief review of the oral statements and depositions of
witnesses systematically in support of each charge by the prosecution and
rebutted by the defence witnesses. He should then sum up the evidence and
give his reason for rejecting or accepting some evidence. Finally, he should
come to a conclusion on his own assessment of the evidence. He should make
a definite statement as to whether each of the charges is proved or not
proved. There is no scope for benefit of doubt in a domestic enquiry.
86
CHAPTER 7
POWER OF LABOUR COURTS
Section 11-A provides for powers of Labour Courts, Industrial Tribunals and
National Tribunals to give appropriate relief in case of discharge or dismissal of
workmen.
Before the introduction of s. 11A of the I.D. Act inserted in the Act in 1972, the
jurisdiction of the Industrial Tribunal and Labour Court againstthe order of
dismissal or discharge was limited. When any industrial dispute arose the
Tribunal had power to see whether the termination of service wasjustified and to
give proper relief. However, it could not act as a court of Appeal and substitute
its own judgment for that of the management.
In Indian Iron & Steel Co. Ltd. V. Its workmen141, the Supreme Court laid down
four following circumstances wherein the Labour Courts could interefere with the
judgment of management:
i. when there is want of good faith;
ii. when there is victimization or unfair labour Practice;
iii. when the management has been guilty of basic error or violation of
principles of natural justice;
iv. when on the material the findings are completely baseless or perverse.
141 1958 I LLJ 260
87
Subsequently in 1963 the International Labour Organization, also recommended
certain points in the item no. 119 into the matters concerning “Termination of
employment at the initiative of the employer” which are as follows:-
“A worker aggrieved by the termination of his employment should be entitled to appeal against his termination among others, to a natural body e.g. Arbitrator recommendation, a court or an arbitration committee or a similar body.
That natural body should be empowered to examine the reasons given by the management on this termination on the other circumstances relating to his case so as to render a decision on justification of the termination”.
That this natural body should be empowered to order that the concerned
workman unless reinstated with unpaid wages, should be paid adequate
compensation or accord some other relief as deemed appropriate.
In the light of above recommendation and subsequent decision of the Court
which echoed the voices of Justice S.K. Das, who pronounced the Judgment in the
Indian Iron & Steel Co. Ltd case, it was considered that the Tribunal’s power
should not be limited in adjudication proceedings relating to discharge or
dismissal of a workman and the Tribunal should have the power in such cases,
where it is necessary to set aside the order of discharge or dismissal and direct
reinstatement of the workman on such terms and conditions, if any, as it thinks
fit or give such other relief to the workman including the award of any lessor
punishment in lieu of discharge or dismissal as the circumstances of the case may
require. For this purpose a new section 11-A was proposed to be inserted in the
Industrial Dispute Act 1947.
The Industrial Dispute (Amendment) Act, 1971 which amended the Section 11A
passed the parliament and received the assent of the President on December 8,
88
1971 and came into force from December 15, 1971. The amendment drastically
changed the complexion of disciplinary action against a workman.
Now s. 11A has enlarged the power of the Tribunal to interfere with the decision
of the management and eventually put further restriction on the powers of the
management to discharge or dismiss a workman with impunity.
The scope of amended S. 11A was discussed in detail by the Supreme Court in
case of Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. Vs. Firestone
Tyre & Rubber Co. of India142. The court observed as follows
“The right to the disciplinary action and to decide upon the quantum of
punishment are mainly managerial functions but if a dispute is referred to
a Tribunal, the latter has power to see if action of the employer is
justified.”
“When a proper enquiry has been held, and the finding of misconduct is a
plausible conclusion flowing fro the evidence adduced in the said enquiry,
the Tribunal will not sit in judgment over the decision of the employer as
an appellate body. Interference with the decision will be justified only
when the findings arrived at in the enquiry are perverse or the
management is guilty of victimization, unfair labour practice or malafides.”
“Even if no enquiry has been held or if the enquiry held is found to be
defective the Tribunal in order to satisfy itself about the legality and
validity of that order has to give an opportunity to the employer and the
employee to adduce evidence for the first time justifying his action and it
is open to the employee to adduce evidence contra.”
142 1973 Vol. 43 FJR 315 (SC)
89
“An employer who wants to avail himself of the opportunity of adducing
evidence for the first time to justify his action may ask for it at the
appropriate stage. The Tribunal has no jurisdiction to refuse it. It is in the
interest of both the management and the employee and to enable the
Tribunal itself to be satisfied about the alleged misconduct.”
“Once the misconduct is proved either in the enquiry conducted by an
employer or by the evidence placed before a Tribunal for the first time,
punishment imposed cannot be interfered with by the Tribunal except in
cases where the punishment is so harsh as to suggest victimization.”
It was, also, observed in Fire Stone and Tyres and Rubbers Company’s case143 that
before the enactment of S-11A, Industrial Tribunal could interfere in the
disciplinary action taken by mgt, if principles of natural justice were violated or
findings were perverse or there was victimization, malafide or unfair labour
practice on the part of the management.
It was further observed, that it is settled law that unless it is clearly expressed,
the retrospective operation should not be given to a statute so as to impair an
existing right. Since this section does not make it clear that it is applicable to
reference made prior to December 15, 1971. Therefore, S-11A can have no
application to dispute referred for adjudication prior to December 16, 1971,
which will have to be dealt with according to the principles laid down in the
decisions of the Supreme Court.
The question as to whether the Tribunal or Labour Court has to confine itself with
the evidence or materials collected by the Enquiry Officer or whether it has
143 Ibid 2
90
power to direct the employer to adduce evidence if it is found that no enquiry
was held before passing the order of dismissal or discharge or that the enquiry so
held is held to be defective. It is held that the proviso to s. 11A of the I.D. Act is
not confined to the materials which were available at the domestic enquiry
before the Enquiry Officer and that “materials on record” mentioned in the
proviso to s. 11A include even the evidence adduced before the Tribunal or
Labour Court and that it cannot be held that the provso has put an end to the
power of the court to permit the employer on being moved to adduce evidence
in support of the order of dismissal or discharge when no enquiry was held or
where the enquiry was found to be defective for violation of the principle of
natural justice and also to permit the workman to adduce evidence in support of
his defence.144
The proviso to the Section 11-A refers to “any proceeding under this section”
clearly shows that there cannot be a proceeding under this section before the
section itself has come into force. This fact was subsequently supported by the
Supreme Court Judgment in the case of East India Hotels v. Workman145 where
the Supreme Court observed that S-11 is not applicable with retrospective effect.
The Supreme Court has also held that the right to adduce evidence for the first
time before the Industrial Tribunal has not been disturbed bythe proviso to s. 11A
which only provides that the Tribunal has to satisfy itself on the basis of the
materials on record.146
On the scope of the new section 11A Supreme Court observed the following
broad principles:144 Manphool Ram v. Labour Court (1988) 56 FLR 4041451974 SCC 245146 Supra 2
91
1. Even where the employer has held a proper and valid domestic enquiry
before passing the order of punishment, the Tribunal is now clothed with
the power to re-appraise the evidence in the domestic enquiry and satisfy
itself whether the said evidence relied on by the employer establishes the
misconduct alleged against the concerned workman that was once largely
in the realm of the satisfaction of the employer has ceased to be so and
now it is the satisfaction of the Tribunal who will finally decide the matter.
2. Even when the Tribunal holds u/s 11-A that the alleged misconduct is
proved, it can nevertheless find that the proved misconduct did not merit
punishment by way of discharge or dismissal and it can interfere with the
punishment and can award a lesser punishment instead thereof.
3. Where an employer is expected to hold a proper domestic enquiry
according to the standing orders and principles of natural justice before
passing the order of dismissal and if a proper enquiry has been so
conducted by an employer and a correct finding is arrived at regarding the
misconduct, tribunal, even through it has power now to differ from the
conclusions arrived at by the employer, it will have to give cogent reasons
for not accepting the view of the employer.
4. It is the section which has abridged the rights of the employer which had
recognized certain managerial rights and now the power has been given to
the Tribunal to differ both on the finding of misconduct arrived by the
employer as well as the punishment imposed by him.
5. The expression “material on record” in proviso to S. 11A cannot be
confined only to the materials which were available at the domestic
enquiry. The expression refers to material on record before the Tribunal,
Viz.
92
(a) evidence taken by the employer at the domestic enquiry and
proceeding of the enquiry.
(b) The above evidence and in addition to any further evidence led
before the tribunal, or
(c) The evidence placed before the Tribunal for the first time in support
of the action taken by the employer as well as the evidence
adduced by the workman contra.
It is only on the basis of these materials that Tribunal is obliged to consider
whether the misconduct is proved and further question whether the
proved misconduct justifies the punishment of dismissal. The provision
prohibits the Tribunal from taking any fresh evidence either for satisfying
itself regarding the misconduct or for altering the punishment.
However, if no enquiry has been held by the employer or if the enquiry is
found to be defective, it is open to the employer even now to adduce
evidence for the First time before the Tribunal justifying the order of
discharge or dismissal and an opportunity is given to the workman to lead
evidence. This can be done at the stage when the Tribunal finds that the
domestic enquiry was valid or no enquiry was held. In this respect the law
remains unchanged.
6. The proviso to S-11A does not imply that where the employer has not held
any domestic enquiry, the tribunal should straight way order
reinstatement of the concerned workman.
93
7. As application made by a employer under Section 33(1) of the Act for
‘permission’ or under Section 33 (2) for ‘approval’ has still to be dealt with
according to the principles held down by the Supreme Court in its various
decisions as no change has been effect in S-33.
In Mahindra & Mahindra Ltd. v. Naravade 147, the Court observed that s. 11A of
the Industrial Dispute Act has empowered the adjudicating authority with power
to interfere in the discharge or dismissal order passed by the employer only
when such order is not justified and grant any other relief & award lesser
punishment in lieu of discharge of dismissal. But that does not mean that the
power exercisable by the adjudicating authority is totally discretionary. The
authority should weigh the gravity offence and the punishment inflicted by the
management. The authority can interfere only when the order of dismissal is not
justified and not otherwise.
The Supreme Court had clearly laid down the mandate that unless the
punishment is shockingly disproportionate or perverse industrial forums cannot
interfere under Section 11-A of the Act.
It shall not be a consideration that the workman remained unemployed and
therefore, the adjudicating authority out of sympathy award compensation. The
discretion vested in the adjudicating authority is only when certain conditions are
in existence like punishment being disproportionate to the gravity of misconduct
and there exists mitigating circumstances which require reduction of the
sentence/punishment. In the absence of any such factor there is no room for
sympathetic consideration.
147 2005 I CLR 803
94
The Supreme Court148 held:
“It is well established principle of law that in a given circumstances, it is
open to the industrial Tribunal acting under Section 11-A having
jurisdiction to interfere with the punishment awarded for good and valid
reasons. If the Tribunal decides to interfere with such punishment, it
should bear in mind the principle of proportionality between gravity of
offence and the stringency of punishment”
The ANDHRA PRADESH HIGH COURT in Bhardwaj v. Hindustan Shipyard Ltd. &
Anr.149 held that it is well settled that the quantum of punishment to be imposed
on an employee for proved misconduct is for the employer, in its wisdom to
decide. While Section 11-A confers power on the Tribunal to examine the
proportionality of punishment, the Tribunal can only interfere in case where the
punishment imposed by the employer is grossly disproportionate. The tribunal is
not entitled to interfere with the punishment awarded to an employee on
sympathetic grounds relief upon.
The Apex Court observed in U.B. Gadhe & Ors. VS. G.M., Gujarat Ambuja Cement
Pvt. Ltd.150 that
The power under said Section 11-A has to be exercised judiciously and the
Industrial Tribunal or the Labour Court, as the case may be, is expected to
interfere with the decision of a management under Section 11-A of the Act
only when it is satisfied that punishment proposed by the management is
148 2005 I CLR 1070149 2006 (2) CLR 359 (AP)
150 2007 (115) FLR 515 (SC)
95
wholly and shockingly disproportionate to the degree of guilt of the
workman concerned.
Though under section 11-A the Tribunal has the power to reduce the
quantum of punishment, it has to be done within the parameters of law.
Possession of power is itself not sufficient it has to be exercised in
accordance with law.
Power and discretion conferred under the Section needless to say have to
be exercised judiciously. The court exercising such power and finding the
misconduct to have been proved has to first advert to the question of
necessity of desirability to interfere with the punishment imposed and if the
employer does not justify the same on the circumstances, thereafter to
consider the relief that can be granted. There must be compelling reason to
vary the punishment and it should not be done in a casual manner.
In Bharat Forge Co. Ltd. v. A.B. Zodge151, this principle has been reiterated by
supreme Court that a domestic enquiry may be vitiated either for fnon-
compliance of the principle of natural justice or for perversity and consequently
a disciplinary action taken on the basis of a vitiated enquiry does not stand on a
better footing than a disciplinary action with no enquiry and that the right of the
employer to adduce evidence before the Industrial Tribunal or Labour Court in
both the circumstances is well recognised. When in the instant case the employer
before the closure of the proceedings before the Tribunal prayed for adducing
evidence in support of the impugned order of dismissal but the Tribunal refused
such prayer, the Supreme Court has held that the said order of the Tribunal is
denial of opportunity to the employer and is unjustified. 151 AIR 1998 SC 1556
96
97
CHAPTER 9
JUDICIAL REVIEW
No provision is provided in the Industrial Disputes Act, pertaining to review,
revision or appeal against actions/orders or awards of the authorities under the
Act. Whereas sec. 17(2) of the I.D. Act provides that awards/orders of the
adjudicating authorities under the act are final & binding and cannot be “called in
question before any court in any manner whatsoever”.
Hence, in cases, where such awards or orders violate the fundamental
jurisdiction of the authorities, or suffer from errors of law apparent on the face of
record or violate the Rules of Natural Justice or proceed from malafide
considerations or are perverse, the only remedy that an aggrieved party can
resort to is the constitutional remedy namely WRIT under ARTICLE 32 & 226/227
of the CONSTITUTION OF INDIA.
The High Court has been provided with inherent power to issue Writs under
Article 226 of the Constitution of India, for the enforcement of legal/non-
fundamental rights besides the fundamental rights.
The scope of the power of the High Court in its writ jurisdiction to interfere with
the orders and awards of the Industrial Tribunal and to give appropriate relief to
the aggrieved parties is very wide and comprehensive. However the judicial dicta
have evolved certain limitations, as voluntary restraints, to direct the writ power
to defined channels. The High Court, therefore, has to exercise their jurisdiction
not arbitrarily but in accordance with the well recognized principles of law.
98
The Supreme Court152 observed that the High Court could, in its appellate
jurisdiction, exercise such powers as are exercisable by the Industrial Tribunal
under s. 11A of the Industrial Disputes Act. Therefore, it would be open to the
High Court to consider what would be the adequate punishment for the
misconduct found to have been committed by the workman.
But this is not a normal feature of the High Court’s function. It is only in
exceptional cases and if the High Court is fully satisfied that it would not be
expedient to remit the case to decide the issue, because that would cause
immense hardship to the aggrieved parties.
Under S. 11A of the Industrial Disputes Act,, wide discretion has been vested with
the Industrial Tribunal, but there is no discretion in the High Court in exercising
writ jurisdiction although it had scrutinized the orders of the Tribunal within well
accepted limitations and that High Court cannot substitute its discretion in place
of Industrial Tribunal.
In State of Orissa Vs. Madan Gopal153, the Apex Court observed that the phrase
‘any other purpose’ in the Article means a writ according to well established
principles can be issued for any valid purpose, e.g. enforcement of any legal right
or performance of any legal duty.
The purpose for which and the persons to whom the orders/ directions/writs
under Article 226 can be issued have now been clearly crystallized. Following are
few important judicial dictas wherein the power of the High Court under Article
226 has been discussed in the case of dismissal, discharge or termination after
taking the disciplinary action on the charge of misconduct by the management.
152 Workmen of Bharat Fritz Werneer (P) Ltd. V. Bharat Fritz Werner(P) Ltd. AIR 1990 SC 1054: (1990) 3 SCC 565153 AIR 1952 (SC) 12
99
In Somnath Sahu Vs. State of Orissa154, the S.C. observed that the High Court is
not constituted under Article 226 of the Constitution as a court of appeal over
the decision of a statutory authority hearing the appeal.
Also, where evidence against the delinquent exists, which appellant authority has
accepted and such evidence reasonably support the conclusion that the
employee concerned is guilty of improper conduct; it is not the function of the
High Court under Art. 226 to review the evidence and to arrive at an independent
finding on the evidence. The High court may interfere where the authority has
acted, without or in excess of its jurisdiction and where it has committed error of
law apparent on the face of the record.
Where the enquiry was vitiated due to violation of the rules of natural justice and
employer was asked to adduce evidence but did not produce any evidence in
support of the dismissal order, the award of the Tribunal upholding such
dismissal is perverse and the High Court is competent ot set aside such award
and to direct the employee to be reinstated in the service with continuity of
service.155
In order to decide whether the punishment is proper or excessive the Labour
Court or Tribunal has to look into probabilities of the case and not the past
record. When the order of dismissal fro service was approved by the Labour
Court taking into account the bad past record of the employee which was not
raised by the disciplinary authority or before the Labour Court, then such
upholding of order of dismissal being perverse it is competent for High Court to
interfere with it. Therefore, Andhra Pradesh High Court set aside the award of
154 1969 (19) FJR 135155 Workman of FCI V. Union of India 1996 LaIC 1872 (Cal)
100
the Labour Court and ordered the employee’s reinstatement in service but
without back wages.156
When the Tribunal on the basis of the evidence before it found the dismissal to
be justified and approved the order of dismissal, the dismissal becomes effective
from the date when it was passed. The High Court cannot modify the Tribunal’s
award by declaring that the dismissal shall be effective from the date of award of
the Tribunal. Such an order being illegal has been set aside by the Supreme
Court.157
The Supreme Court158 also pointed out that even if it be found that the Tribunal
did not elaborately discuss the evidence in its award, the finding of misconduct
arrived at by it, the inference was that the management had lost the confidence
in the workman that he would truthfully and faithfully perform his duties and the
Labour Court rightly declined to exercise power under S. 11A of the Industrial
Disputes Act, 1947.
In Sree Ram Lahar Vs. Union of India159, the High Court observed that where an
administrative order is made which affects the rights of an individual, the reasons
for such order must be fully stated. Reasons disclose how the mind is applied to
the subject-matter of decision, whether it is purely administrative or quasi-
judicial. It reveals a rational nexus between the fact considered and the
conclusion reached.
It was further observed that the enquiry officer is the sole judge of fact whether
there exists evidence on which his findings can be based. The adequacy or
reliability of such evidence is not a matter which can be permitted to be
156 N. Chinnaiah V. Depot Manager 1996 Lab. I.C. 1796 (AP)157 Punjab Dairy Development Corporation Ltd. v. Kala Singh AIR 1997 SC 2661:1997 SCC(L&S) 1434158 Ibid 6159 1975 Lab IC 1572
101
challenged in a proceeding under Article 226 of the Constitution but only in cases
where the findings are not based on evidence or where no reasonable conclusion
could be arrived at on the basis of the materials before the Enquiry Officer or are
perverse, the High Court in exercise of writ jurisdiction can interfere with the
report of Enquiry Officer.
When the Tribunal on reappraisal of evidence held that the charge was not
proved and ordered reinstatement, it is held by Patna High Court that the order
of the Tribunal cannot be held to be infirm and should not be interfered with.160
A definite finding of the Tribunal is necessary to reduce the sentence. When the
Tribunal fails to decide the plea of the workman tat the punishment is too severe
and remains silent on such plea the matter should be remanded to the Tribunal
so that it could give a definite finding on the matter161.
When the workman was not free from blemish only subsistence allowance but
not full back wages should be awarded.162
For reducing the sentence considering the same to be too harsh the past record
of service can be seen. When no blame worthy misconduct was found for the last
14 years and the misconduct alleged was indecent, improper and abusive
language used by the workman on one occasion only, the dismissal being too
harsh, it should be substituted by withholding two increments.163
When the workman went to sleep in early hours of the morning during night duty
and the machine was kept working without any raw material being put to the
machine and the production hampered, the Supreme Court has approved the
160 Mgt. of Central Bokaro V. C.G.I.T. 1997 Lab IC 2522 (AP)161 Western India Plywoods Ltd. V. I.T. 1982 Lab IC (NOC) 71 (Ker)162 Delhi Cloth & General Mills v. Shriram Fertiliser Union (1989) 58 FLR 408: 1989 Lab IC 490 (Raj)163 Ramakant Mishra v. State of U.P. 1982 Lab IC 1552: (1982) 45 FLR 432 (SC)
102
setting aside the dismissal order as the punishment was disproportionately harsh
and reinstatement with portion of back wages was ordered.164
When the attainder in Dairy Development corporation entrusted with the job of
receiving and weighing milk and making entries in the Register was removed
from service for commission of lapses, the Labour Court rightly held that he
punishment of removal was undoubtedly a harsh one, unrelated to the
magnitude of offence and set aside the order of removal and ordered
reinstatement in service with continuity of service but without back wages. Such
award was upheld by High Court.165
When, however, the watchman was found guilty of cheating poor persons and
extracted money from them and was convicted under s. 420 I.P.C., by the
Criminal Court dismissal is justified and the Tribunal cannot invoke s. 11A of the
Industrial Disputes Act to reinstate him in service.166
Where the workman abetted an illegal strike and was therefore dismissed from
service by the management, the Industrial Tribunal should not invoke s. 11A to
reinstate him in service was the view taken by Allahabad High Court.167
In case where the employee is found guilty of misappropriation and he had been
punished earlier also, his dismissal was quite justified and the Tribunal’s award
setting aside dismissal order on the ground that the same is disproportionate
with the gravity of the misconduct is erroneous.168
In G.E.C. v. Labour Court169, the Court observed that when the worker instigated
the other worker to assault a higher officer, his dismissal was proper and 164 Colour-Chem Limited v. A.L. Alaspurker AIR 1998 SC 948165 Milk Products Factory, AP Dairy Development Corp. Ltd. v. V.K. Durga 1998 Lab IC 833 (AP)166 Municipal Corporation v. Hussainmiya 1987 Lab IC 1564 (Guj)167 J.K. Jute Mill Mazdoor Panchayat v. State (1986) 53 FLR 475 (All)168 Management v. A.R. Radhakrishnan 1994 Lab IC (NOC) 117 (Mad)169 1994 Lab IC(NOC) 80 (All)
103
interference with the punishment of dismissal by invoking s. 11A of the Industrial
Disputes Act by the Tribunal on the ground that the punishment is
disproportionate with the gravity of the offence is not proper.
In a case where the workman in a drunken condition entered the office of bus
station and the co-worker protested, he twisted the arm of that worker, his
dismissal from service was held to be disproportionate with the gravity of
offence.170
When the worker refused to operate the newly installed machine, the dismissal
on the fround of refusal to obey the lawful order of the employee is grossly
disproportionate when other workmen also refused to operate the said machine
and they were spared of disciplinary enquiry.171
When charge against the employee is that he signed the attendance register on
some dates when he was absent to show his presence falsely, the Apex Court
observed that it is misconduct no doubt but extreme penalty of dismissal is not
called for.172
When the bus driver was found guilty of committing theft of diesel worth less
than Rs. 10, his dismissal from service was disproportionate to the misconduct
proved.173 But the dismissal of the driver for rash and negligent driving which
caused road accident should not be interfered with as it is quite justified.174
POWER OF SUPREME COURT
170 Gopal Das V. U.P.S.R.T.C. (1994) 68 FLR 291 (All)171 Association of Chemical Workers v. Barude 1993 Lab IC 711 (Bom)172 B.R. Singh v. Union of India 1990 Lab IC 389 (SC)173 Ganikhan v. M.S.R.T.C. 1992 Lab IC 936 (Bom)174 Ram Das v. Divisional Controller (1992) 65 FLR 708 (Bom)
104
The Article 136 of the Constitution of India relates to special leave to appeal
before the Supreme Court from the decision of High Court. The scope of this
Article was explained by Justice Gajendragadkar in Engineering Mazdoor Sabha
Vs. Hind Cycle Ltd175
“It is clear that Article 136 confers very wide powers on this court and as
such, its provisions have to be liberally construed”.
The Constitution makers thought it necessary to clothe this Court with wide
powers to deal with all orders and adjudications made by Courts and Tribunals in
the territory of India in order to ensure fair administration of Justice. But in
exercising its overriding power under Article 136(1) of the constitution, the
Supreme Court has itself set up certain limitations i.e. the power vested shall be
exercised sparingly and only in exceptional circumstances where its interference
is required for the purpose of preventing some grave injustice from being done,
but once the court is satisfied that a fair deal has been denied to any party, then
it is duty to interfere for the purpose of setting things right. So is the case when it
finds the decision of an industrial Tribunal arbitrary or unfair, or illegal resulting
in grave miscarriage of justice, or where the Tribunal has ignored the established
principles.
175 1962 II LLJ 760
105
The Supreme Court will interfere under Article 136(1) in the following cases,
namely
(a) where the Tribunal acts in exercise of the jurisdiction conferred
upon it under the statute or regulation creating it or where it
ostensibly fails to exercise a patent jurisdiction,
(b) when there is an apparent error on the face of decision, and
(c) where the Tribunal has failed to apply the established principles governing the question at issue and a grave injustice has resulted therefrom.
106
C O N C L U S I O N
Thus we have seen that ordinary law of master and servant offers no security of
service to the servant and it vests arbitrary power in the hands of employer to
‘hire and fire’ his employee, but now, with the emergence of modern concepts of
Social justice, his common law right to discharge or dismiss his workman has
become subjected to several limitations and restrictions, so as to avoid hardship
to workman and to give him security of service.
The better enforcement of discipline in industry will be effected, when the mgt.
will understand the reasons of indiscipline and the effective way of curing
indiscipline, some of which are summarized herein below:
1. To understand ‘discipline’ which we mean training of mind and body, a
voluntary subjection to authority for one’s development. It is something
that comes from within but which can be enforced by external agency, this
could be achieved with positive motivation and co-operation and willing
observance of rules.
2. To understand ‘indiscipline’, does not mean a revolt of workers against
certain principles to be followed or decisions taken by mgt. Grievances
and complaints are signs of indiscipline or dissatisfaction which should be
checked up and controlled at the very moment before it takes the shape
of industrial problem.
3. Try to overcome the factors which sometimes are responsible for
indiscipline in industry like illiteracy, social background of the employee,
personal problems of an employee, lack of adjustment ability by the
107
superiors, monotony of work, human tendency to flout the instructions
and rules, lack of confidence, rigidity and multiplicity of rules.
4. To achieve its fundamental purpose and objective viz. enforcement of
discipline in the industry, the management should face both external and
internal factors wisely e.g. to meet the economic and social demands of
the society and to look after the welfare of the members of the
organization.
5. A genuine attitude of trusteeship, or social responsibility on the part of
both labour and management would do much, to better the tone of our
modern industrial society and would lesson conflicts.
6. The mgt. should enforce personnel policies, adequate grievance redressal
procedures, effective means of communication and similar
policies/devices as are necessary to maintain cordial relations, without
which discipline in the organization is vague and pointless.
108
REFERENCES
Books
1. Practical Guide to Labour Management, Third Edition, 1989, By H.L. Kumar.
2. LAW RELATING TO DISMISSAL DISCHARGE AND RETRENCHMENT UNDER LABOUR LAWS, 1997, By H.L.Kumar
3. Domestic Enquiry and Punishment, Second Edition, 1992, By K.P. Chakravarti
4. Misconduct in Employment, 2nd Edition, 1977, By B.R. Ghaiye
5. EMPLOYMENT ITS TERMS AND CONDITIONS, 1981, By B.R. Ghaiye and Nirmala Malhotra
Journals
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