Domsenq Msa
Transcript of Domsenq Msa
DOMESTIC ENQUIRY IN THE CONTEXT OF BANGLADESH LABOUR CODE- 2006
M. SHABBIR ALI
LEARNING OBJECTIVES
Concept of Domestic Enquiry
Objective of Domestic Enquiry
Domestic Enquiry Vs Trial In A Court
Domestic Enquiry and Departmental Enquiry
Principles of Domestic Enquiry
Enquiry Against Whom and Why
Who is a worker?
Steps in Disciplinary Action
Preliminary Enquiry
Charge-Sheet and it’s Contents
Suspension Pending Enquiry
Consideration of Reply to Charge-Sheet
Selection of Enquiry Officer
Appointing Lawyer/ Outsider as Enquiry Officer
M. Shabbir Ali
LEARNING OBJECTIVES..CONTD.
A-Z: Functions of Enquiry Officer/ Process
Five Question by the Enquiry Officer
How Enquiry Can be Vitiated?
Disciplinary Action Process Model
Punishment for Conviction & Misconduct
Settlement of Final Payments
Grievance Procedure
Q&A
Reference/ Sample: Charge-Sheet/ Model-Enquiry Notice/ Suspension order/ Model-Enquiry Proceedings/ Dismissal Letter/ Removal/ Termination Letter/ Letter of Demotion/ Letter of Warning/ Letter of Suspension as punishment/ Show-Cause notice in case of conviction by a court:
“Sashtimulak Babostha” -by Advocate SA Huq
M. Shabbir Ali
CONCEPT OF DOMESTIC ENQUIRY
Introduction:
If organization is to be competitive and economically sustainable in the long run, it is not just enough for them for simply employing and paying the people. For smooth running of an organization employees are considered for:
Their Attitude
Their Conduct &
Their Behaviour or Performance
In the positive sense all these above three contributors create Industrial Peace, which is the very foundation of Industrial Democracy. Without Industrial Democracy no enterprise would prosper. Organizational disharmony results in conflicts and frustrations.
So, any allegations for employees’ conduct, behaviour or performance needs authentic verification, usually dealt through a process of natural justice called “Domestic Enquiry”
M. Shabbir Ali
CONCEPT OF DOMESTIC ENQUIRY CONTD.
What is it in brief:
A domestic inquiry is an internal hearing held by an employer
to ascertain whether an employee is guilty of misconduct.
The purpose of a domestic inquiry is to find out the truth of
the allegations made against the workman
Rather than view the domestic inquiry as burden on the
management, and an unnecessary waste of time, resources
and expense, the employer, should view the process of the
inquiry as a means to show that every possible means was
made available to avail the employee of meeting the charges
against him and, if possible, clearing himself.
M. Shabbir Ali
OBJECTIVE OF DOMESTIC ENQUIRY
The objective of holding a domestic inquiry is
twofold:
- Firstly, to give the opportunity to the
employer to prove the charges of
misconduct against a delinquent employee
before punishment is meted out and
- Secondly to give the employee sufficient
opportunity to defend himself/herself.
M. Shabbir Ali
TRIAL IN A COURT OF LAW VS DOMESTIC
ENQUIRY
While a trial in a court is for crimes done against society,
the domestic enquiry is conducted for offences committed
against the establishment for misconduct, punishable under
the standing orders/rules and regulations of the
organization.
While a trail in a court is in accordance with the criminal
procedure code, civil procedure code, evidence act etc., the
domestic enquiry is conducted in terms of what is known as
‘Natural Justice’. Also, the enquiry officer while examining
the evidence and pronouncing on the guilt is not authorized
to penalize the employee. It is only the employer or the
appointing authority also known as notified disciplinary
authority who can pronounce the penalty.
M. Shabbir Ali
DOMESTIC ENQUIRY AND
DEPARTMENTAL ENQUIRY
The term ‘Domestic Enquiry’ is commonly used in
connection with an enquiry against industrial or commercial
workers. [Private Sector]
On the other hand, the enquiry against Government Servant
is called as a ‘Departmental Enquiry’. [Public Sector]
But there is no hard and fast rule for use of these terms. Still
there are essential differences between the enquiries into
the charges against the industrial workers and Govt.
Servants.
M. Shabbir Ali
PRINCIPLES OF DOMESTIC ENQUIRY
1. Rule of Natural Justice must be observed.
2. The delinquent is entitled to a just hearing.
3. He can call for his own evidence.
4. Cross-examine any witness called by the prosecution.
5. Where rules are laid down, the procedure of such rules
must be followed.
6. Disclose to the employee concerned, the documents of
records and offer him an opportunity to deal with it.
7. Do not examine any witness in the absence of the
employee.
8. The enquiry officer is at liberty to disallow any evidence
after recording the reasons in writing.
M. Shabbir Ali
ENQUIRY AGAINST WHOM AND WHY?
There is a proverb “No man can be punished
without giving him or her a fair opportunity of self
defence”.
So it recommended that the principles of domestic
enquiry should be followed equally in dealing the
misconducts of :
Senior Managers, Managers or,
Supervisors or,
Workers
Union Leaders/ EC Members: Domestic Enquiry
can also be initiated against a Union Leader or
EC Member-[Without any malafide intention].
M. Shabbir Ali
WHO IS A WORKER?
a. A person does not ceased to be worker only because he is
employed in a supervisory capacity. To be able to say that he
is not a worker, it has to be established further that he
exercises functions mainly of a managerial or administrative
nature.
b. What is important in determining whether a person is a
worker or not is to see the main nature of the job done by
him and not so much his designation
...Ref. 31 DLR, P-301
Mere designation is not sufficient to indicate whether a
person is a worker or an employer, but it is the nature of the
work showing the extent of his authority which determines
whether he is a worker or employer ...Ref. 40 DLR (AD), P-45
M. Shabbir Ali
STEPS IN DISCIPLINARY ACTION
Prior to issuance of any order of punishment the employer has to comply with certain steps and those are:
1. Preliminary enquiry, if required
2. Framing of Charge-Sheet
3. Delivery of Charge-Sheet
4. Consideration of explanation
5. Selection of Enquiry Officer
6. Issuing Enquiry Notice
7. Proper Domestic Enquiry
8. Report of the Enquiry Officer
9. Consideration of Enquiry Report by the Authority
10. Awarding of Punishment
11. Delivery of Punishment Letter
M. Shabbir Ali
PRELIMINARY ENQUIRY
It is not mandatory, but it helps to record or protect any
important evidence, statement or witness of an incident
immediate after it’s occurrence, which ultimately helps the
management in proving the misconduct. This also helps the
management whether it is necessary to initiate a
Disciplinary Action against the employee concerned or not.
Such an enquiry may be termed as Fact-Finding
Enquiry
The management may conduct this at it’s own discretion
The preliminary Enquiry is done prior to issuance of
charge sheet
There is no hard and fast rule followed in conducting
Preliminary Enquiry, it can either be done in presence or
in absence of the employee
M. Shabbir Ali
CHARGE SHEET
The concept of charge sheet has been derived from criminal
law
A Charge Sheet is a document-
Which sets out the allegations of misconduct,
misbehaviour, indiscipline, lack of interest, negligence,
theft, fraud etc. on the part of the employee which he
should not have committed in contravention of existing
rules of the organization.
Which should form the basis for the subsequent enquiry
proceedings.
M. Shabbir Ali
CONTENTS OF A CHARGE SHEET
It is important that the charge sheet contains the following details:
- Name of the person charged
- Employee number
- Address
- Date, Time & Place of Occurrence
- Narration of the misconduct alleged
- Relevant clause and specific act of misconduct under the standing order/ Rules/ Regulations
- Calling for an explanation within a stipulated time frame
- If the charge rest on written report, a copy of that report to be enclosed
- If an employee has used abusive language to his superior officer, a reference to the particular provisions of standing orders will not be enough, the actual words alleged to have been used by the employee must be quoted in the charge sheet, along with the circumstances under which this was used by the employee
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PURPOSE, LANGUAGE, TIMING OF
CHARGE SHEET
Purpose: It should be specific and clear and never vague. Irrelevant matters not connected with the charge should be omitted from the charge sheet
Language: There is no hard and fast rule, but it is suggested that it should be written in the language of the alleged employee, or provide a translated copy of the same for employee’s clear understanding
Timing: There is no specific mention in the BLC. The sooner is the best principle should be followed
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CHARGE SHEET- POINTS TO REMEMBER
Time to be given for reply:
- Within 7 days (As per BLC)
- Time for submission may be extended for 1/ 2 times.
There is no harm on allowing such time
Who can issue Charge-Sheet:
- There is no mention in the law, usually the employing
authority can sign the charge sheet or,
- By delegation of disciplinary power, any responsible
officer may issue charge sheet.
Amendment of Charge Sheet:
- It can be amended even after issuance
- An additional charge sheet may be issued as well.
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CHARGE SHEET- POINTS TO REMEMBER
Delivery of copy of charge- sheet to union/ Inspector of Labour Directorate:
- There is no such provision
- However, if there is a mention in the agreement , copy of charge sheet to be provided ( it is recommended that do not keep such provision)
Drafting of Charge-Sheet:
- It is nothing but an Art
- eg. While mentioning any time please write “about 3:30 pm
- Practice and learn this Art.
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DELIVERY OF CHARGE-SHEET
If possible deliver the charge-sheet to the employee in
presence of a witness and keeping a signature of
acknowledgement on the office copy.
If the employee refuses to receive the Charge-Sheet do not
impose pressure on him. Arrange to send the Charge
Sheet under Registered Post (01 copy each in Present and
Permanent address) and preserve the registration slips in
the file with care. Also arrange to hang a copy of the same
in the notice board of the organization. Any undelivered
Registered letter should be kept intact in the file for future
reference.
It is recommended that do not deliver the Charge-Sheet
through Peon Book or Dispatch Register.
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SUSPENSION PENDING ENQUIRY
Considering the severity or need such an order can be served prior to issuance of charge-sheet even or, along with the charge-sheet or, on receipt of a reply of charge-sheet.
The management may consider issuing such an order immediate after a misconduct (e. theft, financial fraud, forgery, Violent attitude and fighting in the workplace, or any misconduct grave in nature).
The management may consider issuing such an order when the employees presence may create obstacle of conducting enquiry.
As per BLC-Section 24-2, such suspension is valid up to 60 days only, but in the event of continuation of any case in the court suspension will continue till issuance of verdict.
As per BLC-Section 24-2, the suspended employee will receive half of average pay & allowances as subsistence allowance during the suspension period.
Recording attendance of the employee during suspension is illegal
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CONSIDERATION OF EXPLANATION IN
REPLY TO CHARGE SHEET
It is always recommended that the explanation of charge- sheet to be sent to the issuing authority
The alleged employee may or may not confess the charges in his reply or may not send any reply at all.
Once received, the employer is bound to scrutinize reply to the charge-sheet and then decide accordingly
If the employee confesses the charge/ charges, the management may proceed for awarding punishment without further formalities. But any punishment of termination or dismissal should be initiated after proper and complete enquiry.
While the explanation of the alleged employee is not found satisfactory, the management consider to proceed for further enquiry in to the case through engaging an Enquiry Officer/ or An Enquiry Committee comprising 2/ 3 people.
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SELECTION OF ENQUIRY OFFICER
The management may engage one or more enquiry officer for
conducting enquiry in to the charge brought against any
alleged employee.
The basic criteria for selecting the panel members for
Domestic Enquiry are:
Officers who are not involved directly with the
investigation and circumstances of the case.
Officers should normally be of a rank or status above the
employee facing the disciplinary charges.
Officers who are not witness of the incident.
Officers who are not having any friendly relation or enmity
with the employee facing the charges
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APPOINTING A LAWYER OR AN OUTSIDER AS
ENQUIRY OFFICER [BOTH CONSIDERED AS
BEST OPTIONS]
Lawyer/ Advocate as Enquiry Officer
The management may engage employer’s Lawyer (who is
engaged either full time or part time) or an external Advocate
for holding an enquiry by payment. And the workers are not
entitled to complain because a lawyer is engaged to hold the
enquiry.
Outsider as Enquiry Officer
It is now well established that the enquiry can be entrusted to
an outsider and by payment of remuneration it cannot
disqualify him on the ground of bias.
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ISSUING ENQUIRY NOTICE
The notice of enquiry may be served by the employing
authority or authorized officer who signed the charge-
sheet.
The enquiry officer may also serve the notice of enquiry.
The notice of enquiry may be served directly to the
employee in presence of a witness by keeping an
acknowledgement signature on the office copy
Or, arrange to send the Charge Sheet under Registered
Post.
The employee should receive the notice at least 3 or 4
days before the enquiry, so that he gets an opportunity to
contact his witness for preparation.
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A-Z FUNCTIONS OF ENQUIRY OFFICER
An Enquiry Officer should complete the enquiry and submit his
findings to the Disciplinary Authority as expeditiously as possible.
To this end he should:
(a) Advise the date of the first hearing to the employee. He may
also advise about the list of documents and witnesses to be
relied upon by the prosecution
(b) Following are the persons allowed in an enquiry proceeding:
i. Delinquent employee
ii. Presenting Officer
iii. Defence Representative if any
iv. Only one witness, at a time who is being examined
(c) Ensure that the employee is present during all sittings of the
enquiry. Without his presence, enquiry should not be conducted.
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FUNCTIONS OF ENQUIRY OFFICER-CONTD.
(d) At the enquiry, ensure identity of the employee and ascertain basic details about him, such as name, age, etc.
(e) Ask the employee whether he has received the charge sheet quoting the charge sheet number and date.
(f) Read out the charges one by one and ask him whether he admits the charge. If the employee pleads guilty for a charge proceed to the next charge. If he does not plead guilty to the charges, ask him if he is going to be represented by any defence representative. If so, obtain letter from the employee appointing defence representative.
(g) Allow Representation of Management at the time of enquiry
(i) Allow the Defence Representative to conduct examination of defence witness
(j) Raise objection during enquiry (as needed)
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FUNCTIONS OF ENQUIRY OFFICER-CONTD.
(k) Conducting Joint Enquiry (if needed)
(l) Summoning of Witness (Limitation)
(m) Burden of proof – is the responsibility of the complainant
or the representative of the management.
(n) Control the procedure for examination of witness
(o) Guide the method of taking down evidence of witness
(not through Q&A rather in the own language of witness)
(p) Record authentication of evidence ( recording, correcting
and then obtaining signature of witness in the required
pages, but if refused to sign, that act must be recorded in
the proceedings)
(q) Standard of proof (“Reasonably proved” is enough for
Domestic Enquiry, but not like “Beyond reasonable
doubt” as needed in court
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FUNCTIONS OF ENQUIRY OFFICER-CONTD.
(r) Indexing the Exhibits (both received from management and the employee)
(s) Production of complainant as a witness
(t) Solitary witness
(u) Conducting Ex-Parte Enquiry.
(v) Initiation and closing of Enquiry.
(w) Adjournment of Enquiry (should not allow more than 1 or 2 times)
(x) Writing the enquiry proceedings (enquiry proceedings and the statement of witnesses should be recorded by the Enquiry Officer and obtaining all parties signature on each pages of the proceeding)
(y) Preparation of Enquiry Report
(z) Submission of Enquiry Findings attaching the Enquiry Proceedings and relevant attachments.
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FIVE QUESTIONS (TO BE ASKED) BY THE
ENQUIRY OFFICER
Have you got the opportunity of self defence in
the enquiry?
Have you got the scope of giving the statement
freely without any interference?
Have the prosecution witnesses given their
statement before you?
Have you got the opportunity to cross examine
the witnesses?
Do you want to say anything more?
M. Shabbir Ali
HOW AN ENQUIRY CAN BE VITIATED
Non observance of the principles of Natural
Justice
Denial of Personal Hearing
Insufficient Personal Hearing
Any biasness by the Enquiry Officer
Not allowing sufficient time to the accused
to adduce evidence
Any Perverse Findings of Enquiry Officer
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DISCIPLINARY ACTION PROCESS MODEL
Set Organizational Goals
Establish Rules
Communicate Rules to Employees
Take Appropriate Disciplinary Action
Observe Performance/ Behavior
Compare Performance/ Behavior with Rules
EXTERNAL ENVIRONMENT
INTERNAL ENVIRONMENT
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PROGRESSIVE DISCIPLINARY APPROACH
Improper Behavior/ Act
Does this violation warrant disciplinary
actions?
Does this violation warrant more than
an oral warning?
Does this violation warrant more than a
written warning?
Does this violation warrant more than a
suspension?
Termination/ Dismissal
Yes
Yes
Yes
Yes
Yes
No Disciplinary Action/
Counseling
Oral Warning
Written Warning
Suspension
No
No
No
No
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PUNISHMENT FOR CONVICTION AND
MISCONDUCT BLC (SEC 23)
Clause 1. A worker may be dismissed without notice or pay in lieu of, if
a. Found convicted for any criminal offense, or
b. Found guilty of misconduct under Section 24
Clause 2. May be under extenuating circumstances, given any one of the following punishments:
a. Termination
b. Demotion to lower post, grade or pay-scale >01 Year
c. Holding up for promotion for 01 Year
d. Holding up of Increment of wages for 01 Year
e. Fine
f. Suspension for not more than 01 week without wages or without subsistence allowance
g. Censure or warning
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PUNISHMENT FOR MISCONDUCT-
COMPENSATION BLC (SEC 23)
Sub Section-3:
When Dismissed under Sec-23/ sub section 1 or
Terminated under Sec-23/ sub section 2(a)-
If the length of continuous service is minimum 01 year- will
be eligible for compensation @ of 14 days wages or gratuity,
whichever is higher for every completed year of service
When Dismissed under Sec-24/ sub section 4(b) for
misconduct shall not be entitled to any compensation
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MISCONDUCT AS PER BLC-2006 (SEC 23)
Clause 4 : The following act shall be treated as misconduct:
a) Wilful insubordination or disobedience, whether alone or
in combination with others, to any lawful or reasonable
order of the superior
b) Theft fraud or dishonesty in connection with employer’s
business or property
c) Taking or giving bribes in connection with his or any
other worker's employment under the employer
d) Habitual absence without leave or absence without leave
for 10 days
e) Habitual late attendance
Contd…
M. Shabbir Ali
MISCONDUCT AS PER BLC-2006 CONTD.
f) Habitual breach of any law or rule or regulation applicable
to the establishment
g) Riotous or disorderly behaviour in the establishment or
any act subversive of discipline
h) Habitual negligence of work
i) Habitual breach of any rule regarding service, discipline or
conduct approved by the Chief Inspector
j) Altering, forging illegally, tempering, damaging or causing
loss to official records of the employer
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STEPS IN DISCIPLINARY ACTION BLC (SEC-24)
Sub-section 1: No order of punishment can be given against a
worker unless-
a. The allegation against him is brought in writing;
b. He is given a copy thereof and not less than 07 days time to
explain;
c. He is given an opportunity of being heard;
d. He is decided to be guilty after enquiry;
e. The employer or the manager approves of the order of
punishment
Contd..
M. Shabbir Ali
SETTLEMENT OF FINAL PAYMENTS OF
THE WORKER
The employer has to pay all the dues
payable to a worker within 30 (thirty)
working days from the date of cessation of
service due to retirement, discharge,
retrenchment, dismissal and conclusion of
service.
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GRIEVANCE PROCEDURE
Grievances = Complaints against the employer
•Unfair treatment by managers
•Unfair pay
•Unfair Termination/ Dismissal
M. Shabbir Ali
GRIEVANCE PROCEDURE BLC (SEC 33)
1. An worker who has grievance (with regard to discharge, dismissal, termination, or
any other means of employment) may submit grievance in writing to the employer
within 30 days fro the date of being informed of the cause
2. The employer shall enquire into the grievance and by giving the worker concerned
a chance of being heard, inform of it’s decision about the matter within 15 days
from the date of the receipt of the grievance
3. If the employer fails to give a decision or if the worker is dissatisfied with such
decision, may lodge a complaint with the labour Court within 30 days from the
date of the expiry of the time allowed or date of the employer’s decision
4. The Labour Court, after receiving the grievance, by serving notice upon both the
parties shall hear about the grievances and give appropriate decision at it’s
discretion.
5. Any worker aggrieved by the order of the court may prefer an appeal before the
tribunal within 30 days from the date of the order and the decision given on the
appeal shall be final.
6. No Court-Fee is payable for lodging any complaint or appreal under this section.
7. Any complaint under this section shall not be treated as a criminal prosecution
under this Act.
8. No complaint can be lodged against the order of termination given under Section
26 (Termination Simpliciter)
M. Shabbir Ali
Q & A ??
M. Shabbir Ali