Disciplinary Action-procedural Requirements

8/6/2019 Disciplinary Action-procedural Requirements

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DISCIPLINARY ACTION-PROCEDURAL REQUIREMENTS

Prof H.A.C POPPENHR Consultant & Trainer

Email [email protected]


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1. COMPLAINT

1.1 Get a complaint in writing from aneye witness of a misconduct by an

employee1.2 It should contain time of occurrence

1.3 Place of occurrence

1.4 Shift of occurrence1.5 Content of details of occurrence


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2. INVESTIGATION2.1 Investigate the truth of the

complaint

2.2 If there is a prima facie case, whichwarrants issue of a show cause noticeor charge sheet, do so.


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3. CHARGE SHEET3.1 Charge sheet issue without delay

,be specific ,precise and should not

be vague3.2 Mention date of misconduct

3.3 Mention place of misconduct

3.4 Mention shift of occurrence wherenecessary

3.5 Mention time of occurrence


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3.6 Give detailed description ofmisconduct

3.7 Mention the standing order violated,if it could be done so

3.8 Give sufficient time for getting theexplanation ,say 48 hours from the

time of service3.9 If extension is asked for submitting

the explanation, it may be granted


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4. SERVICE OF CHARGE SHEET4.1 Serve it personally preferably in

private

4.2 Get an acknowledgement on thecopy of the charge sheet for havingserved

4.3 If refused to acknowledge or accept

the service of the charge sheet, offerthe charge sheet in the presence oftwo witnesses


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4.4 If the employee still refuses to receive thecharge sheet, get the signature of thewitnesses on a copy and also on the

original and send the original by registeredpost acknowledgement due to the addressof the employee.

4.5 Preserve the acknowledgement/returned

letter for production as evidence in theenquiry


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5. SUSPENSION PENDING ENQUIRY5.1 In serious and grave acts of

misconduct an employee may be kept

under suspension pending enquiry5.2 If suspension pending enquiry is

adopted make a mention of the samein the charge sheet

5.3 Ensure payment of subsistenceallowance


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6. CONSIDERATION OF

EXPLAINATION6.1 Employees may admit the charges

and ask for pardon

6.2 May deny the charges in toto6.3 May ask for extension of time for

explanation

6.4 May ask for copy of the complaint, ifnot already served along with thecharge sheet


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6.5 An employee may fail to give anyexplanation

6.6 If explanation is satisfactory, dropthe charges and close the enquiry

6.7 If explanation given is notsatisfactory, proceed further to holdan enquiry


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7. NOTICE OF ENQUIRY7.1 It should mention the date of

enquiry

7.2 It should mention the time ofenquiry

7.3 It should mention the place ofenquiry

7.4 It should mention the name of theenquiry officer


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7.5 It should mention the names of themanagement witnesses and give a list

of documents to be produced by themanagement

7.6 It should inform the charge-sheetedemployee that he can bring witnesses

of his side to be examined in theenquiry (if he has any)


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7.7 It should inform that the charge-sheeted employee can have a co-

worker as his observer/representativein the enquiry, if he wishes (if thepresenting officer of the company is alegally trained person, the accused

has a right to insist on having alegally trained person as hisrepresentative)


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7.8 If he fails to attend the enquiry, itwill be conducted ex-parte

7.9 Desirable to keep informing him thedates of all enquiry sessions


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8. ENQUIRY8.1 Enquiry must be conducted in the

presence of the delinquent employee

8.2 If the employee is not present evenafter giving sufficient opportunitiesfor being present at the enquiry, anendorsement to the effect of hisabsence at the enquiry should bemade in the enquiry proceedings andconduct the enquiry ex-parte


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8.6 An endorsement to the effect of the non-requirement of the presence of an observershould be made on the proceedings sheet

by the enquiry officer

8.7 Endorsements to the effect that thedelinquent employee was asked to producehis witnesses would be made by the

enquiry officer on the proceedings sheet


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8.8 Examine the workmans witnesses,if he produces them at the enquiry

8.9 Ask the management representativeto cross examine that workerswitnesses make an endorsement inthe proceedings

8.10

Ask the charge sheeted workerto give his statement, if the has anyto make


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8.14 Get all the enquiry proceeding sheetssigned by the concerned witnesses, chargesheeted employee, by his observer, if hehas any, by the managementrepresentative

8.15 The enquiry officer should also sign allthe pages of the enquiry sheets

Note: The signatures of the witnesses, the

delinquent employees, and themanagement representative should be goton the enquiry sheets at the appropriatetime when the witnesses are examined.


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9. RECORDING OF FINDINGS9.1 The enquiry officer should give his

finding of the enquiry.

9.2 He should briefly state the facts ofthe case

9.3 It should state the points fordetermination

9.4 It should discuss the evidence ledby either side


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9.5 The inference of the conclusion ofthe enquiry officer should be givenwith reasons

9.6 It should be based on the evidencerecorded and not on any otherinference

9.7 It should clearly state whether thedelinquent employee is found guiltyor not guilty


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10. PUNISHMENT

10.1 Only the officer competent toaward punishment should pass orders

of punishment10.2 Punishment should be awarded

strictly in terms of the standing orderprovisions


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10.3 A copy of the enquiry report shouldalso be sent to the employee and heshould be given an opportunity to

offer his representation10.4 If the standing order required

examination of past record, the sameshould be reviewed and a mentionmade in the notice forwarding theenquiry officers report


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11.ORDERS OF TERMINATION

11.1 If no conciliation / arbitration /adjudication proceedings are pending

, termination order could be servedstraight away.

11.2 If proceedings are pending ,strictcompliance of section 33 of the

Industrial Disputes Act ( approval /prior permission is required )


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11.3 If the ESI Scheme is applicable tothe workmen, care should also be

taken to ensure that the terminationorder is not in violation of Section

73 (1) of the ESI Act.


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12. ROLE OF THE PRESENTING

OFFICER12.1 Analyze the charge sheet and draw up

tent poles of the evidence to be produced

12.2 Identify the witnesses who would testifythe aspects of the evidence or corroboratethe testimony of other witnesses

12.3 Explain to each witness the aspect of theevidence to be brought out by him or

corraborated by him


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12.4 After the examination in chief of thewitness, put supplementary questions tothe witness to bring out any portion of the

evidence advertently or inadvertentlyomitted by the witness

12.5 If the witness has contradicted his maintestimony when cross-examined by the

defence representative ,re-examine themanagement witness to clarify theconfusion created.


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12.6 While doing the examination or re-examination, the Presenting officershould not put leading questions

(Thats is to say that the questionshould not suggest the answer).

12.7 If any of the management witnessstarts testifying against themanagement, declare him as a hostilewitness and cross examine him.


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12.8 While cross- examining theworkers witnesses, or the hostile

witnesses the presenting officer canask pointed questions ( That is thequestion can contain the answer andthe witness can be asked to affirm or

deny the answer)


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12.9 Ensure that managementdocuments are presented through theappropriate witness and that they are

marked as documents in the enquiryrecord.

12.10 Carefully study the testimony ofthe defence witnesses and theirdocuments and put cross examinationquestions to disprove their veracity


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12.11 Object to the defencerepresentative harassing or askingirrelevant questions at the time of

management witnesses getting crossexamined

12.12 If possible submit a tent polesummary of the managementevidence to the enquiry officer, afterconclusion of the enquiry


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12.13 Arrange for the release of thedefence witnesses if they happen to

be on duty at the time of the enquiry.12.14 Collect the copy of the daily

recordings and see if anysupplementary evidence needs to be

brought in to plug loop holes.


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13. ROLE OF THE ENQUIRYOFFICER

13.1 Send notice to presenting officerand charge sheeted employee

regarding the first posting of theenquiry.

13.2 Commence the enquiry only if thecharge sheeted employee ,his

representative and the presentingofficer are present.


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13.3 If all concerned are not present adjournthe sitting to a fresh date with notice to allparties.

13.4 If all are present commence the enquiryby recording the presence of all concerned.

13.5 Then show the charge sheet / His replyand ask the employee to identify them and

then take them as identified documents


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13.6 If worker is illiterate ask him if heunderstood the contents of the

charge-sheet and his reply.13.7 If he has not understood them

explain/translate the same for him

13.8 Then ask the employee what

he/she has to say about it


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13.9 If the charges are unconditionallyadmitted, record the same and closethe enquiry after getting his/her

signature on the admission recording.13.10 Then ask the presenting officer to

give the list of managementwitnesses and managementdocuments to the charge- sheetedemployee.


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13.11 If all parties are ready, the presentingofficer can be asked to examine his firstwitness.

13.12 After the first witness finishes histestimony, the charge sheeted worker canbe asked to cross examine each of themanagement witnesses

13.13 If the cross examination is declined ,thefacts should be recorded in the enquiry


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13.14 If the presenting officer wishes tore-examine the management witnessafter the crossing ,it should be

permitted13.15 Word by word recording of the

testimony of witnesses is notnecessary ,It is enough if salient factof the testimony are captured andrecorded.


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13.16 However all cross examinationquestions and their answers should becaptured and recorded verbatim.

13.17 Only one witness at a time should beallowed in the room.

13.18 Only after all the managementwitnesses have completed their testimony

and cross examination should the workerswitnesses be called for testimony and crossexamination


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13.19 After all the workers witnesseshave testified ,ask the workerwhether he would like to testify as his

own witness.13.20 All the documents submitted by

management should be recorded andmarked as MD-1,MD-2 etc.Alldocuments of the defence should bemarked as WD-1,WD-2 etc


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13.21 After both parties have completedthe examination of the witnesses theenquiry can be closed with such anendorsement on the records.

13.22 If the parties put irrelevant orleading questions they could be

disallowed and the reason fordisallowing should be recorded.


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13.23 Every sheet of the enquiry mustcontain the signatures of thepresenting officer ,witness ,defenseassistant ,the charge sheeted workerand also of the enquiry officer

13.24 Prepare a tent pole sheet plotting

the evidence that have been recordedfor and against the worker.


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13.25 Prepare the enquiry report basedonly on material captured in theenquiry records.

13.26 Submit the findings report alongwith all documents and enquiryrecordings to the management for

further action.


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14.6 If he has consulted any body elseno mention of it should be made inthe punishment order

14.7 If there is an appellate provisionpermit the worker to make theappeal.


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15. WORKERS RIGHT TOCHALLENGE THE PUNISHMENT

ORDERS15.1 The worker can challenge the order if it

has violated Section 33 of the I.D Act orSection 73(1) of the ESI Act

15.2 The grounds of challenge could be Violation of principles of natural justice Violation of the provisions of the standing

orders or statutory provisions if anyregarding payment of subsistence

allowance Victimization or grossly disproportionatepunishment


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15.3 If his services are terminated ,hecan raise an individual dispute underSection 2 (S) / 11A with theassistance of his union

15.4 If the court finds any violation ,theworker will have to be reinstated,

with or without back wages asdirected by the court


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15.5 If the management wants tochallenge the reinstatement order, itcan challenge it in the high court

15.6 If such challenge is made, theworker should be paid the last drawnwages for the period of the high court

proceedings as mandated in Section17 A of the I,D Act

Disciplinary Action-procedural Requirements

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