DISCIPLINARY ACTIONPROCEDURAL REQUIREMENTS

Prof H.A.C POPPEN HR Consultant & Trainer Email hcpoppen@gmail.com

1. COMPLAINT
1.1 Get a complaint in writing from an eye witness of a misconduct by an employee 1.2 It should contain time of occurrence 1.3 Place of occurrence 1.4 Shift of occurrence 1.5 Content of details of occurrence

2. INVESTIGATION
2.1 Investigate the truth of the complaint 2.2 If there is a prima facie case, which warrants issue of a show cause notice or charge sheet, do so.

3. CHARGE SHEET
3.1 Charge sheet issue without delay ,be specific ,precise and should not be vague 3.2 Mention date of misconduct 3.3 Mention place of misconduct 3.4 Mention shift of occurrence where necessary 3.5 Mention time of occurrence

3.6 Give detailed description of misconduct 3.7 Mention the standing order violated, if it could be done so 3.8 Give sufficient time for getting the explanation ,say 48 hours from the time of service 3.9 If extension is asked for submitting the explanation, it may be granted

4. SERVICE OF CHARGE SHEET

4.1 Serve it personally preferably in private 4.2 Get an acknowledgement on the copy of the charge sheet for having served 4.3 If refused to acknowledge or accept the service of the charge sheet, offer the charge sheet in the presence of two witnesses

4.4 If the employee still refuses to receive the charge sheet, get the signature of the witnesses on a copy and also on the original and send the original by registered post acknowledgement due to the address of the employee. 4.5 Preserve the acknowledgement/returned letter for production as evidence in the enquiry

5. SUSPENSION PENDING ENQUIRY

5.1 In serious and grave acts of misconduct an employee may be kept under suspension pending enquiry 5.2 If suspension pending enquiry is adopted make a mention of the same in the charge sheet 5.3 Ensure payment of subsistence allowance

6. CONSIDERATION OF EXPLAINATION
6.1 Employees may admit the charges and ask for pardon 6.2 May deny the charges in toto 6.3 May ask for extension of time for explanation 6.4 May ask for copy of the complaint, if not already served along with the charge sheet

6.5 An employee may fail to give any explanation 6.6 If explanation is satisfactory, drop the charges and close the enquiry 6.7 If explanation given is not satisfactory, proceed further to hold an enquiry

7. NOTICE OF ENQUIRY
7.1 It should mention enquiry 7.2 It should mention enquiry 7.3 It should mention enquiry 7.4 It should mention enquiry officer the date of the time of the place of the name of the

7.5 It should mention the names of the management witnesses and give a list of documents to be produced by the management 7.6 It should inform the charge-sheeted employee that he can bring witnesses of his side to be examined in the enquiry (if he has any)

7.7 It should inform that the chargesheeted employee can have a coworker as his observer/representative in the enquiry, if he wishes (if the presenting officer of the company is a legally trained person, the accused has a right to insist on having a legally trained person as his representative)

7.8 If he fails to attend the enquiry, it will be conducted ex-parte 7.9 Desirable to keep informing him the dates of all enquiry sessions

8. ENQUIRY
8.1 Enquiry must be conducted in the presence of the delinquent employee 8.2 If the employee is not present even after giving sufficient opportunities for being present at the enquiry, an endorsement to the effect of his absence at the enquiry should be made in the enquiry proceedings and conduct the enquiry ex-parte

8.3 Witnesses of the management should be examined one after another in the presence of the delinquent employee 8.4 Documents should be marked as exhibits in the proceedings 8.5 Delinquent employee should be asked by the enquiry officer to cross-examine the management witnesses and an endorsement should be made in the proceedings to that effect

8.6 An endorsement to the effect of the nonrequirement of the presence of an observer should be made on the proceedings sheet by the enquiry officer 8.7 Endorsements to the effect that the delinquent employee was asked to produce his witnesses would be made by the enquiry officer on the proceedings sheet

8.8 Examine the workmans witnesses, if he produces them at the enquiry 8.9 Ask the management representative to cross examine that workers witnesses make an endorsement in the proceedings 8.10 Ask the charge sheeted worker to give his statement, if the has any to make

8.11 Ask the management representative to cross examine the workers statement 8.12 The enquiry officer can put questions either to the witnesses or to the charge sheeted worker by way of clarification, if he wants any 8.13 Make an endorsement regarding the closing of the enquiry

8.14 Get all the enquiry proceeding sheets signed by the concerned witnesses, charge sheeted employee, by his observer, if he has any, by the management representative 8.15 The enquiry officer should also sign all the pages of the enquiry sheets Note: The signatures of the witnesses, the delinquent employees, and the management representative should be got on the enquiry sheets at the appropriate time when the witnesses are examined.

9. RECORDING OF FINDINGS
9.1 The enquiry officer should give his finding of the enquiry. 9.2 He should briefly state the facts of the case 9.3 It should state the points for determination 9.4 It should discuss the evidence led by either side

9.5 The inference of the conclusion of the enquiry officer should be given with reasons 9.6 It should be based on the evidence recorded and not on any other inference 9.7 It should clearly state whether the delinquent employee is found guilty or not guilty

10. PUNISHMENT
10.1 Only the officer competent to award punishment should pass orders of punishment 10.2 Punishment should be awarded strictly in terms of the standing order provisions

10.3 A copy of the enquiry report should also be sent to the employee and he should be given an opportunity to offer his representation 10.4 If the standing order required examination of past record, the same should be reviewed and a mention made in the notice forwarding the enquiry officers report

11.ORDERS OF TERMINATION
11.1 If no conciliation / arbitration / adjudication proceedings are pending , termination order could be served straight away. 11.2 If proceedings are pending ,strict compliance of section 33 of the Industrial Disputes Act ( approval / prior permission is required )

11.3 If the ESI Scheme is applicable to the workmen, care should also be taken to ensure that the termination order is not in violation of Section 73 (1) of the ESI Act.

12. ROLE OF THE PRESENTING OFFICER

12.1 Analyze the charge sheet and draw up tent poles of the evidence to be produced 12.2 Identify the witnesses who would testify the aspects of the evidence or corroborate the testimony of other witnesses 12.3 Explain to each witness the aspect of the evidence to be brought out by him or corraborated by him

12.4 After the examination in chief of the witness, put supplementary questions to the witness to bring out any portion of the evidence advertently or inadvertently omitted by the witness 12.5 If the witness has contradicted his main testimony when cross-examined by the defence representative ,re-examine the management witness to clarify the confusion created.

12.6 While doing the examination or reexamination, the Presenting officer should not put leading questions (Thats is to say that the question should not suggest the answer). 12.7 If any of the management witness starts testifying against the management, declare him as a hostile witness and cross examine him.

12.8 While cross- examining the workers witnesses, or the hostile witnesses the presenting officer can ask pointed questions ( That is the question can contain the answer and the witness can be asked to affirm or deny the answer)

12.9 Ensure that management documents are presented through the appropriate witness and that they are marked as documents in the enquiry record. 12.10 Carefully study the testimony of the defence witnesses and their documents and put cross examination questions to disprove their veracity

12.11 Object to the defence representative harassing or asking irrelevant questions at the time of management witnesses getting cross examined 12.12 If possible submit a tent pole summary of the management evidence to the enquiry officer, after conclusion of the enquiry

12.13 Arrange for the release of the defence 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 any supplementary evidence needs to be brought in to plug loop holes.

13. ROLE OF THE ENQUIRY OFFICER

13.1 Send notice to presenting officer and charge sheeted employee regarding the first posting of the enquiry. 13.2 Commence the enquiry only if the charge sheeted employee ,his representative and the presenting officer are present.

13.3 If all concerned are not present adjourn the sitting to a fresh date with notice to all parties. 13.4 If all are present commence the enquiry by recording the presence of all concerned. 13.5 Then show the charge sheet / His reply and ask the employee to identify them and then take them as identified documents

13.6 If worker is illiterate ask him if he understood 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

13.9 If the charges are unconditionally admitted, record the same and close the enquiry after getting his/her signature on the admission recording. 13.10 Then ask the presenting officer to give the list of management witnesses and management documents to the charge- sheeted employee.

13.11 If all parties are ready, the presenting officer can be asked to examine his first witness. 13.12 After the first witness finishes his testimony, the charge sheeted worker can be asked to cross examine each of the management witnesses 13.13 If the cross examination is declined ,the facts should be recorded in the enquiry

13.14 If the presenting officer wishes to re-examine the management witness after the crossing ,it should be permitted 13.15 Word by word recording of the testimony of witnesses is not necessary ,It is enough if salient fact of the testimony are captured and recorded.

13.16 However all cross examination questions and their answers should be captured and recorded verbatim. 13.17 Only one witness at a time should be allowed in the room. 13.18 Only after all the management witnesses have completed their testimony and cross examination should the workers witnesses be called for testimony and cross examination

13.19 After all the workers witnesses have testified ,ask the worker whether he would like to testify as his own witness. 13.20 All the documents submitted by management should be recorded and marked as MD-1,MD-2 etc.All documents of the defence should be marked as WD-1,WD-2 etc

13.21 After both parties have completed the examination of the witnesses the enquiry can be closed with such an endorsement on the records. 13.22 If the parties put irrelevant or leading questions they could be disallowed and the reason for disallowing should be recorded.

13.23 Every sheet of the enquiry must contain the signatures of the presenting officer ,witness ,defense assistant ,the charge sheeted worker and also of the enquiry officer 13.24 Prepare a tent pole sheet plotting the evidence that have been recorded for and against the worker.

13.25 Prepare the enquiry report based only on material captured in the enquiry records. 13.26 Submit the findings report along with all documents and enquiry recordings to the management for further action.

13.27 Separate findings should be given for each item of the charge 13.28 Enquiry officer should not make any recommendation regarding the punishment to be awarded

14. ROLE OF THE PUNISHING AUTHORITY

14.1 Check whether he is competent to issue punishment orders keeping in mind the rank of the employee 14.2 If the normal punishing authority was a witness, put up the papers to the higher authorities for further action 14.3 Study the enquiry findings and records and come to an independent conclusion whether charges are proved or not.

14.4 If he is not satisfied with the findings/proceedings ,he can hold a fresh enquiry or write a different findings, relying only on the records already made by the enquiry officer 14.5 The punishment awarded should be based on the standing order provisions, gravity of the offence, past disciplinary record of the employee and the precedent if any established in the company for punishments for similar proved misconducts

14.6 If he has consulted any body else no mention of it should be made in the punishment order 14.7 If there is an appellate provision permit the worker to make the appeal.

15. WORKERS RIGHT TO CHALLENGE THE PUNISHMENT ORDERS

15.1 The worker can challenge the order if it has violated Section 33 of the I.D Act or Section 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 any regarding payment of subsistence allowance Victimization or grossly disproportionate punishment

15.3 If his services are terminated ,he can raise an individual dispute under Section 2 (S) / 11A with the assistance of his union 15.4 If the court finds any violation ,the worker will have to be reinstated, with or without back wages as directed by the court

15.5 If the management wants to challenge the reinstatement order, it can challenge it in the high court 15.6 If such challenge is made, the worker should be paid the last drawn wages for the period of the high court proceedings as mandated in Section 17 A of the I,D Act