Domestic Enquiry 158

DOMESTIC ENQUIRY INTRODUCTION MANAGEMENT OF DISCIPLINARY ACTION  Disciplinary action should be preceded by proper domestic enquiry Improper domestic enquiry Scrutiny by Labour or Higher Courts Defective  Domestic Enquiry should be free from flaws

Important aspects of Domestic Enquiry • • • • •

Documentation Foolproof Action Knowledge of Principles Adherence to Correct Procedure Mode of Adducing Evidence

What Is Domestic Enquiry? DOMESTIC = Something of Home or Family Affairs ENQUIRY = 1. The act of inquiry; seeking for information by asking questions; Interrogation 2. Search for truth, Information or knowledge, Investigation into the facts or principles

DOMESTIC ENQUIRY: The in-house act of department in search for truth or information as to some affairs or happenings of the house or dept. involving departmental employee. It is a proceeding of quasi-judicial nature to be conducted in a manner to ensure a fair deal to the accused employee. DOMESTIC ENQUIRY is an enquiry into the conduct of an employee. Charges are framed and after observing the principles of Natural Justice an order of punishment or otherwise is passed by the competent authority.

OBJECTIVES OF DOMESTIC ENQUIRY 1. To ascertain truth against alleged acts – whether an employee is guilty of delinquency 2. To impose penalty according to the degree of culpability

TO FIND OUT i) ii) iii)

Who is responsible How the offence was committed Whether such conduct could have been avoided had the standing instructions on the subject been properly followed by the incumbent.

PRINCIPLES OF NATURAL JUSTICE 1. Derived from the Romans who believed that some legal principles were ‘ NATURAL’ OR self-evident and did not require a statutory basis. 2. Two basic legal safeguards govern all decisions by judges or in quasi judicial exercises  AUDI ALTERAM PARTEM (The right to be heard)  NEMO JEDEX IN PARTE SUA (No person should be judge in his own case)

PRINCIPLES OF NATURAL JUSTICE The following principles are the cardinal principles of Natural Justice: • The person/s who is the subject of concern must know all the allegations in relation to his behaviour • They must have full opportunity to put their case • All parties to the complaint must have the right to be heard

COMPLAINT Complaint is report containing allegations – main weapon of the prosecution Letter of complaint is the key to the launching of enquiry Complaint should reflect the truth and the actual situations, witnesses and evidences as the burden of proof lies on the employer Unambiguous

C O M P LAI N T

Transperant Should contain all Details like, place, Witnesses, Evidences etc.

PRELIMINARY ENQUIRY It is fact-finding enquiry into the allegations against an employee, which satisfies the disciplinary authority to frame his mind to go ahead with disciplinary action

The objectives of PE = To see whether a prima facie case exists and the extent of evidence suggests that a formal disciplinary enquiry may be started into the conduct of the employee. Preliminary Enquiry enables disciplinary authority to come to the conclusion whether the matter needs to be proceeded Preliminary enquiry is not regular disciplinary enquiry No legal stipulation to hold preliminary enquiry by the Presenting Officer

FRAMING OF SHOW CAUSE AND CHARGES PRELIMINARY ENQUIRY DISCLOSES PRIMA FACE CASE

SHOW CAUSE – Letter seeking explanation from the employee regarding alleged improper conduct or act   

Date ,time and place of alleged offence Nature of offence Written complaint and other documents to be attached

Show cause to be issued only when  There is strong evidence of prima-facie case  Evidence may lead to proof of guilt  Evidence does not reflect any serious doubt as to the involvement of the accused employee

CHARGE SHEET WHEN 1. Written explanation found unsatisfactory 2. Written explanation not submitted ………. Chargesheet specifying the clauses of the standing orders under which the accused employee is charged, need not be issued if the evidence is utterly inadequate, incomplete, untrue, incredible, false or absurd Charge sheet is a document containing specific allegation. The word ‘ Charge’ means ‘definiteness in accusation’ Chargesheet consists of i)

Statement of relevant facts together with clauses of Standing Orders setting out the charge/s

ii)

List of documents and witnesses by whom the articles of charge are to be sustained. Contains information about date, time and place of enquiry

iii)

Formation of Enquiry Committee UNIQUE FOUR -MEMBER ENQUIRY COMMITTEE   

2 representatives selected by and from workmen in the department 1 Manager or his authorised representative 1 Officer in whose section the accused workman is working NOTICE

1. Notice inviting names of workmen representatives is issued by the deptl. Manager 2. Notice intimating formation of Enquiry Committee is issued with or without names of workmen representatives

ROLE OF CONSTITUENTS OF THE ENQUIRY COMMITTEE

Burden of determination ( finding the truth ) lies on the Enquiry Committee Enquiry Committee Clause 19(b) 1. the Manager or any other officer authorised by the Management Role - Sr.Enquiry Officer  Steers the progress of Enquiry

 Sees and ensures that all rights of the Accused employee are honoured and adhered to  Ensures that principles of natural Justice are adhered to  Ensures impartiality and fairness; also determines whether matter brought before the Enquiry is relevant or irrelevant  Required to submit findings after enquiry Remaining 3 Members of the Enquiry committee (i) 1 officer in whose section the accused is employed (ii) 2 representatives selected by and from workmen in the deptt  All have equal status  All are Enquiry Officers conducting the Enquiry process  Tries to find facts logically ,prudently with unbiased attitude& with an open mind Presenting Officer has to be appointed with a letter of authority by the Management ---------------------------------------------------------------------------------------Presenting Officer is an agent of the Disciplinary Authority; his job is to prove his case by leading evidence to help arrive at appropriate conclusion

Burden of proof lies on Presenting Officer Presenting Officer is the representative of the management Presenting Officer not a prosecutor . He should be unbiased. He should not be interested in the case in any way or should not be witness to the case. His duty is to assist the Enquiry Officer in arriving at the truth by presenting facts and records connecting the case

PROCEDURE OF DOMESTIC ENQUIRY First step – Documentary Evidence

• • •

Explain composition of the Committee including presence of writer / interpreter / presenting officer The Sr. Enquiry Officer then explains how the enquiry is proposed to be conducted Statement of case by the Presenting Officer  Circumstances leading to receipt of a written complaint  Prima facie investigation  Issuing of Show cause letter and chargesheet

Object of production of documents (iii) (iv) (v)

To show bonafide To show proof To give opportunity to delinquent to prepare his defence Therefore only valid and reliable documentary evidence should be produced. The Dy. Manager ( Sr. Enquiry Officer) refers to the exhibits and gets confirmation or corroboration of the same by the accused employee

Second Step Leading evidence:Presentation and Examination of Company’s witnesses by Presenting Officer Principles – Burden of proof lies on Presenting Officer  Presenting Officer has to produce Company’s witnesses and examine them one by one in presence of accused employee  Witnesses are persons who have seen ,who know and who have heard and can depose – witness/es should be credible  Presenting Officer not supposed to ask leading questions or lead his witnesses

Third Step o Cross – examination of witnesses ( by the accused workman) o Basic rule of fair play – opportunity must be given o More important when facts or charges are disputed o Cross – examination is important to discover the truth of what is stated in the documents / complaints / statements

Statement of the accused Employee in his defence 1. Accused employee should not be asked ‘ Do you plead guilty’? 2. He should be given the opportunity to state his case without any hindrance 3. The accused employee may be cross – examined by the Presenting Officer

Production of Witnesses and / or Documents by the accused employee 1. Formal introduction of witnesses 2. Examination by the accused employee

Cross Examination by Presenting Officer Presenting Officer to cross-examine accused employee’s witnesses

Conclusion of the Enquiry 1. Sr. Enquiry Officer repeats the opportunity of allowing statement or producing document by the accused employee for the second time 2. He has to obtain confirmation as to whether all reasonable opportunities of defence given to accused 3. The Sr. Enquiry Officer reads entire proceedings in vernacular and gets a confirmation from the accused that he has understood the record of proceedings and that it has been correctly recorded. This has to be embodied also in the proceedings 4. All members, accused and Presenting Officer to sign at the bottom of all pages 5. All Enquiry Committee members are required to give their findings after conclusion of enquiry; must not recommend punishment

Some do ’s and Don’ts Do’s 1. Copies of all documentrs to be used against the accused employee should be furnished to him beforehand along with show cause and Chargesheet 2. Name of all present at the Enquiry must be recorded in each page of proceedings and their signature obtained 3. Formal authorisation letter to the Enquiry Officers to be kept in the file 4. Opportunity of cross-examination of company’s witnesses must be given to the accused 5. Opportunity of making statement in defence and the opportunity to produce witness and / or documents must be given to the accused 6. Proceeding should contain signature of accused stating that he has understood the entire record of proceedings 7. All members , Presenting Officer, accused employee,witnesses and writer / interpreter must sign at the bottom of all relevant pages 8. Copies of proceedings to be handed over to accused as well as Enquiry Committee members after conclusion of day’s proceedings on each day 9. Examination of witness must be done in presence of the accused