Dt.15.07.

2019

BRIEF NOTES ON

DISCIPLINARY PROCEDURE GUIDELINES

INTRODUCTION:

To err is common to human behaviour. Generally it is pardonable, if it is

minor and doesn’t affect the discipline of the Company. If it is grave
certainly punishable to maintain discipline. Industry has no exception.

"Discipline is an attitude towards rules. It is also an attitude towards norms

of behaviour. Rules are not necessarily written rules, but they also include
accepted mannerisms and norms of social behaviour. Rules are also written
in forms like Standing Orders, terms of employment, statutes, etc. The
behaviour of all employees is governed by the Certified Standing Orders of
the Company or Model Standing Orders or as per applicable statutes /
Service Rules.

DEFINITIONS:

Discipline: Discipline in industrial employment means that an employee

must obey lawful order of Management and discharge duties allotted to him
faithfully and to work to the satisfaction of Management.

Misconduct: Misconduct in employment may mean various acts of omissions

and commissions involving improper conduct in discharge of duties. The acts
and omissions which are to be treated as misconduct in industrial
employment are given in Certified Standing Orders, Model Standing Orders
and Service Rules.

THE PRINCIPLES OF NATURAL JUSTICE:

Natural Justice are set of rules laid down by courts for the minimum
protection of rights of an individual against any arbitrary procedure adopted
or decision arrived at by judicial or quasi-judicial bodies. Briefly, it means
application of fair play, impartiality, and natural sense of what is right and
what is wrong in domestic enquiries. These are fundamental principles to be
observed by every judicial authority or tribunal.

The two main principles of natural justice are

1) No one should be judge in his own cause; and

2) Hear the other side

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 A person is disqualified to act as a judge: (a) if he is a party to the dispute;
(b) if he has any interest whatsoever in the dispute before him; (c) if he is
interested in the result of the dispute; (d) if he imparts his knowledge into
the decision, i.e., he cannot be judge and a witness at the same time; (e) if
he does not act according to his own judgment or if he acts at the dictation
of others. It must be presided over by a person who is not disqualified from
holding the enquiry on personal grounds, such as, bias, personal interest or
knowledge, being an eyewitness or victim of the incident, etc. One of the
principles governing the doctrine of basis is that justice should not only be
done but should manifestly and undoubtedly be seen to have been done.
Where the enquiry officer has a personal bias against the employee charge-
sheeted, the enquiry will be vitiated. He has to hear the other party before
passing judgment. The essential point that has to be kept in mind in all
cases is that the person concerned should have reasonable opportunity of
presenting his case and that the administrative authority concerned should
act fairly, impartially and reasonably. The requirement of acting judicially in
essence is nothing but a requirement to act justly and fairly and not
arbitrarily or capriciously.

In many cases, the judiciary recommended to observe the following

principles in handling disciplinary issues in industries:

(a) No one should be condemned behind his back.

(b) The charge-sheeted employee should know what is alleged against him.
(c) He should have reasonable opportunity and time to defend himself.
(d) All documents and evidences against the charge-sheeted employee
should be recorded in his presence and no material should be relied on
against him without giving him an opportunity to explain it.
(e) He should have an opportunity to cross-examine witnesses brought
against him.
(f) He should have an opportunity to bring his own evidence in his defense.
(g) The tribunal should act in good faith.

MODE OF COMPLAINT

Whenever any employee commits a mistake either in discharge of her/his

duties or an act of indiscipline, the concerned Shift/Section Incharge has to
give a report in writing to her/his reporting manager (RM), describing nature
of mistake, name and designation of the accused, time and place of
occurrence, material evidence supporting the mistake and at least two
witnesses statement, if any, supporting the charges. In case, the employee
submits explanation on her/his own, it may be enclosed to the said
complaint. In turn, the RM to forward all the details to the respective HR
Head/Manager with her/his comments.

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PRELIMINARY ENQUIRY

On receipt of the complaint and details, the respective HR Head/Manager has

to organize a preliminary enquiry into the incident and to verify the facts.
Though it is not mandatory, the preliminary enquiry will enable the
disciplinary authority to find out whether there is a prima facie case or not.
If investigation reveals that a possible misconduct might have been
committed by the employee, further disciplinary proceedings may be
initiated.

ISSUING CHARGE SHEET, CHARGE MEMO, SHOW CAUSE, ORDERS AND OTHER
NOTICES

The first step in a disciplinary proceeding is to make a `Charge Sheet or

Show Cause’ against the delinquent employee.

The Charge Sheet should contain details of all the allegations against the
delinquent employee for which action is proposed to be taken. The Charge
Sheet calling for explanation shall be served on the employee personally or
by RPAD if she/he is not available.

Whenever a Charge Sheet, Show Cause Notice, Order or any other notice is
to be issued to any employee, she/he must be called by the HR
Head/Manager/Executive to the respective Company HR Department and the
HR Head/Manager/Executive must issue the said document to the employee.
At the time of issuing the notice, it must be ensured that at least two
persons must be made available as witnesses. If there is any suspicion that
the employee may not accept the notice, the Security Supervisor/Officer
then be directed to issue the same in the Security Room in the presence of
two witnesses. While choosing the witnesses, it must be kept in mind that
they are not party to the incidents for which the employee is charge
sheeted. At the time of issuing the Notice, the HR Manager / Executive /
Security Supervisor shall readout the contents of the Notice and issue the
same to the employee.

After the notice issued to the employee, her/his signature may be obtained
on the second copy of the Notice. In case, the employee refuses to accept
the Notice, she/he may be informed that the refusal to accept the Notice
would amount to disobedience of the order of her/his superior and it would
constitute misconduct under the Company Standing Orders. Despite of being
told the consequences of such refusal, if the employee still refuses to receive
the order, she/he may be asked to write the facts for her/his refusal on the
notice. If she/he refuses to do so, the HR Manager / Executive / Security
Supervisor shall be asked to make a note on refusal stating the actual words
used by the employee on the first copy of the notice and put her/his
signature below the note. The two persons shall also be asked to put their
signature as witnesses. A copy of the notice may be displayed on the Notice
Board.

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 Further, copies of the notices shall be sent to the employee preferably on
the same day to the permanent as well as latest correspondence addresses
furnished by the employee by Registered Post with Acknowledgement Due.
The stamp receipts issued by the Postal Authorities acknowledging the
booking of notices shall be enclosed to the Notice. The acknowledgement
cards received from the employee must also be enclosed to the respective
notice. The correspondence received from the employee shall be filed in
her/his personal file in chronological order. In case the registered letter sent
to the employee returned undelivered, that should not be opened and kept
in his personal file. The entire correspondence taken place between the
office and the employee would play a vital role in establishing the fact and
hence those documents must be preserved with utmost care in order to
avoid any confusion at the time of enquiry. The HR Executive must carefully
follow the events of the incidents and prepare a case sheet giving the details
from the beginning of the case till the end of it.

EXPLANATION BY THE EMPLOYEE

A minimum of 48/72 hours’ time should be given for submission of written

explanation. The explanation, if any, submitted by the employee in response
to Charge Sheet would have to be fixed out whether she/he has admitted
the charges or not. The admission of charges would have to be unqualified
or unequivocal.

If the explanation is satisfactory to the management, the issue can be

closed by serving an Advice / Warning letter. If it is not satisfactory, the
management shall call for domestic enquiry.

SUSPENSION PENDING ENQUIRY

Suspension pending enquiry is not warranted in all situations. The power

must be judiciously utilized only where it is essential. If the charges leveled
against the employee who is involved in the alleged act of misconduct are
serious and grave and the continuation in the job is likely to endanger in the
work spot and her/his continuation would leads to:

 tampering with evidence, or

 endanger the work atmosphere, or
 create unpredictable difficulties in conducting impartial enquiry, or
 have adverse effect on the morale of the other employees, or
 cause further loss to the Company.

Appointing authority has implied powers to suspend. The Appointing

Authority may place the concerned employee under Suspension Pending
Enquiry till completion of enquiry proceedings. For the period of suspension
pending enquiry, the employee is eligible for Subsistence Allowance as per
the applicable Standing Orders / Statutes.

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PAYMENT OF SUBSISTENCE ALLOWANCE

Where a disciplinary proceeding for misconduct against an employee is

contemplated or is pending or where criminal proceedings against her/him in
respect of any offence are under investigation or trail and the employer is
satisfied that it is necessary or desirable to place the employee under
suspension, she/he may, by order in writing, suspend her/him with effect
from such date as may be specified in order. A Statement setting out in
detail, the reasons for such suspension shall be supplied to the employee.

The Subsistence Allowance to be paid to the delinquent employee who was

kept under suspension pending enquiry as per the Certified Standing Orders
of the Company or as per The Industrial Employment (Standing Orders) Act,
1946.

As per Sec 10-A of Industrial Employment (Standing Orders) Act, 1946:

[10-A. Payment of subsistence allowance.-

(1) Where any workman is suspended by the employer pending

investigation or inquiry into complaints or charges of
misconduct against him, the employer shall pay to such
workman subsistence allowance-

(a) At the rate of 50 % of the wages which workman was

entitled to immediately preceding the date of such
suspension, for the first ninety days of suspension; and

(b) At the rate of 75 % per cent of such wages for the

remaining period of suspension if the delay in the completion
of disciplinary proceedings against such workman is not
directly attributable to the conduct of such workman.

During the suspension period, the delinquent employee must be clearly

advised to immediately intimate the change her/his residential address, if
any, to the Management and whenever required he has come to office to
receive personally the official orders issued by the Management.

In case the charges are not proved in the enquiry, she/he is entitled to get
full wages for the period of suspension pending enquiry. Where the charges
are proved and she/he has been awarded punishment, organization has no
obligation to pay wages.

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Sec 47 (6) of The Andhra Pradesh and Telangana Shops & Establishments
Act, 1988 talks about payment of subsistence Allowance.

(6) Where an employee is placed under suspension pending enquiry into

grave misconduct the employer shall pay a subsistence allowance
equivalent to fifty per cent of the last drawn wage for the first six months
and at seventy five per cent of the last drawn wage beyond six months
during the period of suspension. The total period of suspension shall not
however exceed one year in any case. If the misconduct is not established
or the total period of suspension exceeds one year, the employee shall be
entitled to full wages during suspension period and the period of
suspension shall be treated as on duty.

Hence, it is clear that the employee who was placed under suspension
pending enquiry has to pay subsistence allowance as follows:

S.No. Period % of subsistence allowance

From the first day of suspension
1 pending enquiry to first six 50% of last drawn wage
months
From the 1st day of seventh
2 75% of last drawn wage
month to 12th month

If the total period of suspension exceed one year, the employee

who was kept under suspension pending enquiry to be paid full
wages for the suspension period and the period of suspension shall
be treated as on duty.

NOTICE OF ENQUIRY

When the explanation submitted by the delinquent is found not satisfactory

or no explanation is tendered, the Management shall conduct a domestic
enquiry. A notice to this effect must be given well in advance to the
employee. The person appointed to hold the enquiry may be drawn from
inside the organization or from outside who doesn’t be a party to the
incident or have any bias. The employee should also be intimated that
she/he could avail the assistance of any co-employee to assist her/him at
the enquiry.

If all possible and reasonable means to reach the employee fail or if she/he
deliberately or willingly refuses to accept the delivery of the notice or having
taken the notice and fails to attend the enquiry, the enquiry officer has
every right to hold an ex-parte enquiry.

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DOMESTIC ENQUIRY

The Enquiry Officer (EO) should always be an impartial person. He can even
be an official of the Company provided, has the knowledge of various
proceedings to be followed. The EO should not be lower in grade than the
delinquent employee.

The enquiry shall commence on the appointed date and time. All the
proceedings must be conducted in the presence of the charge sheeted
employee and the complainant or her/his representative. Before the
commencement, the EO must explain to both the parties, the procedure of
conduct of enquiry. She/he must verify with the charge sheeted employee
whether she/he has received the charge sheet. The contents of the charge
sheet to be explained to the charge sheeted employee in the language that
is understood by her/him.

The EO should ask whether the charge sheeted employee pleads guilty of
the charges made against her/him. First, the complainant should be
examined. After recording her/his statement, the charge sheeted employee
should be allowed to cross examine the complainant, if she/he so desires.
After recording the evidence of all the witnesses of the complainant, the
employee should be given an opportunity to make statement about the
evidence led against her/him. In case, the person assisting the employee
desires to make a statement, the EO may record the same. After cross
examination by the Management Representative/Presenting Officer, the
charge sheeted employee should be allowed to make her/his statement.
Then the Management representative/Presenting officer may be permitted to
cross examine her/him. Later the employee should be allowed to produce his
defence witnesses one after another. Their statement and cross examination
may be recorded. After recording the evidences of both parties, they must
be permitted to present their argument either orally or in writing.

It is mandatory on the part of the EO to write the proceedings of enquiry

and obtain signatures of charge sheeted employee, management
representative along with her/his signature on each and every page
immediately as the enquiry is in process. Also need to take signatures of
witnesses wherever applicable. The EO has to give her/his findings and
report in writing. The findings should be based on the evidence at the
enquiry only. The enquiry report should reflect that the Enquiry Officer has
given adequate opportunity to the charge-sheeted employee and has
complied with the Principles of Natural Justice. The EO, though finds the
employee guilty, should not recommend the action to be taken against
her/him. A copy of the proceedings, exhibits and enquiry report also to be
supplied to the charge sheeted employee.

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DECISION ON ENQUIRY REPORT

The decision on enquiry report must be taken by the employer or by any

officer of the establishment assigned with such powers. In the enquiry
report, if the charge sheeted employee is found not guilty of the charges
leveled against her/him and the disciplinary authority is satisfied with it,
she/he may be acquitted and reinstated with back wages due to her/him
since suspension. If the employee is found guilty, punitive action may be
initiated. Before taking any decision on punishment, it is always desirable to
consider the past record of the employee.

The Management would have to carefully consider whether the acts of

misconduct are serious enough to justify the imposition of extreme penalty.
Unless the management reaches the conclusion that having regard to the
nature, content and magnitude of the misconduct committed by the
employee concerned, it would be absolutely unsafe to retain him in service,
the maximum penalty of dismissal can be imposed.

PUNISHMENT – SHOW CAUSE NOTICE

Before inflicting the proposed punishment, the charge sheeted employee

shall be served with a notice directing her/him to show cause as to why the
proposed punishment should not be imposed. It gives her/him ample
opportunity to make a point or two in defence. If the disciplinary authority is
not satisfied with such explanation or the employee fails to explain, decision
shall be taken accordingly. The signing authority person on the punishment
order shall not be less than the appointing authority and as delegated by the
board through a resolution.

NEED TO MAINTAIN THE RECORD OF MISTAKES

In most of the cases, we are in the habit of ignoring the mistakes made by
the employees without making any note on such mistakes. When the
tolerance level of mistakes has increased, we will start action to terminate
the services of such employees. As there is no record maintained on past
mistakes, it is difficult to give serious punishment since we have ignored
/not recorded all her/his earlier lapses. Hence, the HR department personnel
need to ensure that a note on any mistake is kept in employee’s personal
file with employee remarks / acknowledgement irrespective of the fact
whether we take any action for each mistake or not. Such data will be useful
as and when we decide to impose major punishment.

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