Discipline is adherence to laid down norms or conformmce to system. It is a orderly way of working and part of mental and moral training of every employee. It is a system of rules for conduct; behaviour according to established rules.
Principles of Natural Justice
'fie principles of natural justice can be defined as a set of rules to give orderliness and consistency to the procedure adopted by any judicial, quasi judicial or fact finding body lo arrive at the truth. There are certain universal principles which have emerged on the basis of practice of law in various civilised societies all over the world to give a fair and reasonable opportunity to the accused. It become all the more important when we deal with the issue of discipline in the industry. If the management and the inquiry officer do not believe and follow a set of rules to give a fair and reasonable opportunity to the charged employee to prove his point of view, the discipline can never be achieved in the industry. What we preach, we must follow first before we expect others to follow. It is not only important that justice is done, but it should also appear $0 have been done. If there is a conflict in the principles of natural justice and the procedure prescribed under the rules, the principles of natural justice will prevail over the prescribed rules. The service rules of many organisations are in direct violation of principles of natural justice.
It is needless to emphasise lhat principle of natural justice will prevail if such rules are challenged in the court of law. There are basically only two principles of natural justice which are as under :
(a)Nemo debet esse judex in yropia causa (No one should be judge ot his own cause)
(b) Audi Alteram Partem (Hear the other party also)
The implication of thcsc two rules at the time of initiating disciplinary action as well as while conducting the inquiry proceeding can be surnnlarised as under :
(a) The charges framed against the employee sliould be as specific as possible. The exact date, time, place of the incident should be mentioned along with the details of duty timing, shift, place of work along with allvcation of his duty. If he was not on duty, ~t should be specifically mentioned in the chargesheet. The purpose is that he should understand the charges clearly without any an~biguity and vagueness. If he requests for a copy of the st;lnding orders or service rules, it should be provided to enable him to submit his explanation.
(b) If he requests for inspectloll of documents and a copy thereof before submitting his explanation. it should be provided depending upon co~nplexitics of facts ot the incident and the gravity of the charges. This will depend to a great extcnt upon the disciplinary rules of the company and test of reasonability has to be exercised by the competeilt authority on case to case basis.
(c)Copies of all documents taken on record by Incluiry Officer on recluest of the Presenting Officer along with copies of the i~lquiry procecdmgs, should be given to the charged employee on day-to-day bas~s.
(d) No proceeding should be conducted by Inquiry Officer in absence of employee charged or his Defence Assistant except the proceeding for adjc)umnlent or where he has decided to conduct ex-parte inqulry due to continuous ;tbsence of the charged einployee or his assistant after giving rcasonahle opportunity.
(e)The charged eniployee, his Assistant, Presenting Officer alld ihe witness should be asked Lo sign each and every page of inquiry proceeding on day-to-day basis in token of its being Eair and correct recording of Inquiry proceeding. Incluiry Officer should also sign the proceeding in token of the fact that it is correctly recorded.
(f) The charged eulployee should allowed to be defended by a co~npetent co-worker or office bearer of his unioll or even a lawyer. It will depend upon the gravity of the chargcs, complexities of facts of the incident, qualification 'and experience of Presenting Officer so that he is able to put forth his defence effectively.
(g) The charged employee or his Defence Assistant should be given reasonable opportunity to cross examine each and every nial~agen~ent
witness after completion of their statement and exanlination-in-c11ief by PI i h i T . Officer so as to help the charged elnployee to put his tlefence bet'clrc Ule c>t'ficer.
(h) After coinpletion of the deposition of all inauagernelit wiri:~e~nployee should also be given reasonable opportunity to p ~ o ~ l r 1lic ~ t witncsscs in his defence to prove his inllocence.
(i) The Inquiry Officer should act as judge during the entire il~clulry proceedings with XI open mind and without 'my bias or prejudicc agamst the charged employee or his defence. He should extend all reaso~~able opportunity and help
in enabling them to put forth their detence in effective nlaulcr.
(i) The finding of the Inquiry Officcr should be based on inaterial on record. It should be only in reference to thc charges levelled against employee duly substantiated by the docume~ltary and oral cvideuce.
(k) A copy of the report submitted by Illcluiry Officer shc)uld be supplied to the charged employce. He sllould be asked to show cause on the Inquiry Officer's findings.
(l)If the standing ordersJservicc rules ol'the coinpany provides for a second show cause notice to the charged employce on the proposed quantum o f punish~nent.it should be provided to hirn.(m) The competent authority should award the punishment to the charged employee keeping in mind the gravity of the charges, findings of Inquiry Officer, inquiry proceeding, evidence on record, explanation of the charged employee and any aggravating or extenuating circumstances. The punishment should not be disproportionate to the charges and unduly harsh.
(m) If the charged employee decides to make an appeal to the higher authority within tlie company on the punishment awarded to him, it should be objectively considered and replied accordingly.
Disciplinary Procedure
Preliminary Investigation
On receipt of complaint by the management, it is sent to the competent authority for i~ecessary con side ratio^^ and action as he may deem fit. Normallv, "comnetent authority" is defined in the definition clause of the standing order o; servici rules of t l ~ e company as the case may be. There may be one competent authority for different categories of employees. Chargesheet Chargesheet is the specific documcnt issued by the tnariagement to the charged employee, levelling specific charges for indulging in various acts of misconduct. If tlie specific charges are not levelled 111 the chargesheet, courts have held that in such situations, the chargesheet will be treated only as a letter seck~ng the explanation ot the charged emnployee.
Explanation
For subnlission of the explanation, the charged enlployee is given a reasonable time of 48 hours or 72 hours as per provision of the standing orders or the service rules of the conlpany. The following possibilities nlay arise on receipt of explanation :
Principles of Natural Justice
'fie principles of natural justice can be defined as a set of rules to give orderliness and consistency to the procedure adopted by any judicial, quasi judicial or fact finding body lo arrive at the truth. There are certain universal principles which have emerged on the basis of practice of law in various civilised societies all over the world to give a fair and reasonable opportunity to the accused. It become all the more important when we deal with the issue of discipline in the industry. If the management and the inquiry officer do not believe and follow a set of rules to give a fair and reasonable opportunity to the charged employee to prove his point of view, the discipline can never be achieved in the industry. What we preach, we must follow first before we expect others to follow. It is not only important that justice is done, but it should also appear $0 have been done. If there is a conflict in the principles of natural justice and the procedure prescribed under the rules, the principles of natural justice will prevail over the prescribed rules. The service rules of many organisations are in direct violation of principles of natural justice.
It is needless to emphasise lhat principle of natural justice will prevail if such rules are challenged in the court of law. There are basically only two principles of natural justice which are as under :
(a)Nemo debet esse judex in yropia causa (No one should be judge ot his own cause)
(b) Audi Alteram Partem (Hear the other party also)
The implication of thcsc two rules at the time of initiating disciplinary action as well as while conducting the inquiry proceeding can be surnnlarised as under :
(a) The charges framed against the employee sliould be as specific as possible. The exact date, time, place of the incident should be mentioned along with the details of duty timing, shift, place of work along with allvcation of his duty. If he was not on duty, ~t should be specifically mentioned in the chargesheet. The purpose is that he should understand the charges clearly without any an~biguity and vagueness. If he requests for a copy of the st;lnding orders or service rules, it should be provided to enable him to submit his explanation.
(b) If he requests for inspectloll of documents and a copy thereof before submitting his explanation. it should be provided depending upon co~nplexitics of facts ot the incident and the gravity of the charges. This will depend to a great extcnt upon the disciplinary rules of the company and test of reasonability has to be exercised by the competeilt authority on case to case basis.
(c)Copies of all documents taken on record by Incluiry Officer on recluest of the Presenting Officer along with copies of the i~lquiry procecdmgs, should be given to the charged employee on day-to-day bas~s.
(d) No proceeding should be conducted by Inquiry Officer in absence of employee charged or his Defence Assistant except the proceeding for adjc)umnlent or where he has decided to conduct ex-parte inqulry due to continuous ;tbsence of the charged einployee or his assistant after giving rcasonahle opportunity.
(e)The charged eniployee, his Assistant, Presenting Officer alld ihe witness should be asked Lo sign each and every page of inquiry proceeding on day-to-day basis in token of its being Eair and correct recording of Inquiry proceeding. Incluiry Officer should also sign the proceeding in token of the fact that it is correctly recorded.
(f) The charged eulployee should allowed to be defended by a co~npetent co-worker or office bearer of his unioll or even a lawyer. It will depend upon the gravity of the chargcs, complexities of facts of the incident, qualification 'and experience of Presenting Officer so that he is able to put forth his defence effectively.
(g) The charged employee or his Defence Assistant should be given reasonable opportunity to cross examine each and every nial~agen~ent
witness after completion of their statement and exanlination-in-c11ief by PI i h i T . Officer so as to help the charged elnployee to put his tlefence bet'clrc Ule c>t'ficer.
(h) After coinpletion of the deposition of all inauagernelit wiri:~e~nployee should also be given reasonable opportunity to p ~ o ~ l r 1lic ~ t witncsscs in his defence to prove his inllocence.
(i) The Inquiry Officer should act as judge during the entire il~clulry proceedings with XI open mind and without 'my bias or prejudicc agamst the charged employee or his defence. He should extend all reaso~~able opportunity and help
in enabling them to put forth their detence in effective nlaulcr.
(i) The finding of the Inquiry Officcr should be based on inaterial on record. It should be only in reference to thc charges levelled against employee duly substantiated by the docume~ltary and oral cvideuce.
(k) A copy of the report submitted by Illcluiry Officer shc)uld be supplied to the charged employce. He sllould be asked to show cause on the Inquiry Officer's findings.
(l)If the standing ordersJservicc rules ol'the coinpany provides for a second show cause notice to the charged employce on the proposed quantum o f punish~nent.it should be provided to hirn.(m) The competent authority should award the punishment to the charged employee keeping in mind the gravity of the charges, findings of Inquiry Officer, inquiry proceeding, evidence on record, explanation of the charged employee and any aggravating or extenuating circumstances. The punishment should not be disproportionate to the charges and unduly harsh.
(m) If the charged employee decides to make an appeal to the higher authority within tlie company on the punishment awarded to him, it should be objectively considered and replied accordingly.
Disciplinary Procedure
Preliminary Investigation
On receipt of complaint by the management, it is sent to the competent authority for i~ecessary con side ratio^^ and action as he may deem fit. Normallv, "comnetent authority" is defined in the definition clause of the standing order o; servici rules of t l ~ e company as the case may be. There may be one competent authority for different categories of employees. Chargesheet Chargesheet is the specific documcnt issued by the tnariagement to the charged employee, levelling specific charges for indulging in various acts of misconduct. If tlie specific charges are not levelled 111 the chargesheet, courts have held that in such situations, the chargesheet will be treated only as a letter seck~ng the explanation ot the charged emnployee.
Explanation
For subnlission of the explanation, the charged enlployee is given a reasonable time of 48 hours or 72 hours as per provision of the standing orders or the service rules of the conlpany. The following possibilities nlay arise on receipt of explanation :
- Admittance of incidents and charges
- Admittnrlce of incident but denial of charges Counter allegation
- No explanation
- Unsatisfactory explruiatioll
- Appointment of Inquiry Officer
Who could be appointed as Inquiry Officer and what are the precautions to be exercised by the competent authority while appointing him. The competent authority has to ensure that the Inquiry Officer is competent to conduct an impartial, objective and unbiased inquiry against the charged employee. The Incluiry Officer can he a departnlental officer or an outside management consultant or a practicing lawyer. Many organisations prefer inquiries to be conducted by an outside person in order to ensure its impartiality, objectivity and unbiased approach. There is no bar or legal objection on appointment of any outside personlpersons to be appointed as Inyuiry (:)fficer/Inquiry Committee. Wherever fiere is a spccific provision in tlie standing order or the service rules of the company to debar any outsider to be appointed as Inquiry Officer, in such cases they sl~ould not be appointed.
Inquiry Proceedings
The inquiry proceeding colnniences with the issuatice of order by Inquiry Officer fixing date, time a i d venue ol'conducting first hearing. It is advisable that in the same order: Inquiry Officer sllould write that if the charged eniployee wishes to avail thc service of defence assistant, he can bring 11im along to participate in the inquiry. Who can he llis defence assistant has to be ascertained from thc provisio~ls of standing orders or service rules of the company. The Presenting Ol'ficer should introduce various tlocumeutary evidence and request Ihe 111quiry Officer to take it on record of the proceeding.Appointing of Presenting OfficerThe person nominated by nlai~agen~eilt as Presei~ting Clfficer should be well acquainted with the facts of the case. Norlally, competent authority forwards the Disciplinary Procedure report of the Investigating Officer along with its enclosures to Lhe Presenting Officer with his letter nominat~ng him as Presenting Officer. Wherever standing orders/service rules of the company are silent on appointment of Presenting Officer, even an outsider can be appointed as Presenting Officer including a legal practitioner, management consultant, vigilance officer from olher companies. If the standing order/service rules prcscribe that only a company employee can be appointed as Presenting Officer, in that situation help of outsider can be taken for evaluation and presentation of management's case.
Appointment of Defence Assistant
Allowi~ig the services of Defence Assistant to the charged employee is not essential, but the question is to be decided keeping in mind the educational qualification, experience, nature of work, the con~plexities of facts of incident and gravity of the charges levelled against the employee. The reliance has to be placed on provisions of the standing orders/service rules of the company in this regard.The model standing order allows the employee to be defended by the office bearer of a trade union of which he is a member. The practice followed by the company in this regard is also a relevant fact to be taken into consideration.
Recording of Inquiry Proceedings .
As the concept of domestic inquiry is judge based and not based on rules apd regulation, there is no set procedure for recording the inquiry proceeding dy the Inquiry Officer. However, two systems are commonly used hy most of the Inquiry Officers, i.e. question answer method and comprehensive verbatim system. A combination of these two systems is ideal for proper recording o f inquiry proceedings, i.e. comprehensive verbatim system while recording the statements of various lnanagement and defence witnesses and question answer system during their examination-in-chief and cross exanlination to avoid objections and counter objections from both the parties. An anotlier.nlethod adopted by some Inquiry Officers is that they record only the answers given by the witnesses. This method of recording inquiry proceeding does not give a vivid picture of what traa~spired during the inquiry proceeding to a third party as a result of which it become very difficult for the conipetent authority to underslruid the inquiry proceeding and pass appropriate order.It is the prosecution which has to prove the misconduct of the cllargesheeted employee.
Inquiry Proceedings
The inquiry proceeding colnniences with the issuatice of order by Inquiry Officer fixing date, time a i d venue ol'conducting first hearing. It is advisable that in the same order: Inquiry Officer sllould write that if the charged eniployee wishes to avail thc service of defence assistant, he can bring 11im along to participate in the inquiry. Who can he llis defence assistant has to be ascertained from thc provisio~ls of standing orders or service rules of the company. The Presenting Ol'ficer should introduce various tlocumeutary evidence and request Ihe 111quiry Officer to take it on record of the proceeding.Appointing of Presenting OfficerThe person nominated by nlai~agen~eilt as Presei~ting Clfficer should be well acquainted with the facts of the case. Norlally, competent authority forwards the Disciplinary Procedure report of the Investigating Officer along with its enclosures to Lhe Presenting Officer with his letter nominat~ng him as Presenting Officer. Wherever standing orders/service rules of the company are silent on appointment of Presenting Officer, even an outsider can be appointed as Presenting Officer including a legal practitioner, management consultant, vigilance officer from olher companies. If the standing order/service rules prcscribe that only a company employee can be appointed as Presenting Officer, in that situation help of outsider can be taken for evaluation and presentation of management's case.
Appointment of Defence Assistant
Allowi~ig the services of Defence Assistant to the charged employee is not essential, but the question is to be decided keeping in mind the educational qualification, experience, nature of work, the con~plexities of facts of incident and gravity of the charges levelled against the employee. The reliance has to be placed on provisions of the standing orders/service rules of the company in this regard.The model standing order allows the employee to be defended by the office bearer of a trade union of which he is a member. The practice followed by the company in this regard is also a relevant fact to be taken into consideration.
Recording of Inquiry Proceedings .
As the concept of domestic inquiry is judge based and not based on rules apd regulation, there is no set procedure for recording the inquiry proceeding dy the Inquiry Officer. However, two systems are commonly used hy most of the Inquiry Officers, i.e. question answer method and comprehensive verbatim system. A combination of these two systems is ideal for proper recording o f inquiry proceedings, i.e. comprehensive verbatim system while recording the statements of various lnanagement and defence witnesses and question answer system during their examination-in-chief and cross exanlination to avoid objections and counter objections from both the parties. An anotlier.nlethod adopted by some Inquiry Officers is that they record only the answers given by the witnesses. This method of recording inquiry proceeding does not give a vivid picture of what traa~spired during the inquiry proceeding to a third party as a result of which it become very difficult for the conipetent authority to underslruid the inquiry proceeding and pass appropriate order.It is the prosecution which has to prove the misconduct of the cllargesheeted employee.
A charged employee is to be treated Innocent till such time the charges are duly proved against him by the management. This analogy is based on cri~llinal jurisprudence that "let 100 criminals go scot free but no innocent person should be punished". The defence of the charged employee will arise from the management case depending upon how they go about proving the c11:irges. If they are not able lo prove their case to a reasonable extent, there may not be any need for defence to produce any witnesses on its behalf. It is, therefore, absolutely essential tor the management to first produce witnesses and doc.urnents based on which they want to prove the charges against the employee charged.The Inquiry Officer should obtain signatures of all the persons who are attending the inquiry proceedi~~g alongwith date. time and venue and second time on completion of each page of the proceeding. He should also get tlie signatures of all parties to sign any cutting, amendment or correction in the proceecling. This will avoid the possibility of either party challenging or questioning the correctness of Inquiry proceeding at a later date.
The Inquiry proceed~ng should be simultaneously typed during the inquiry proceeding in triplicate and after signature by all tlie presentees. the original copy should be retained by the Inquiry Officer himself, one copy should be given to the Presenting Officer and one copy to the charged employee. It should be recorded at the end of each day's proceeding that copies of today's inquiry proceeding have been handed over to both the parties.
Evidence
Evidence in domestic inquiry could be oral, documentary or both. Depending upon the nature of evidence, its relevance to the charges and circumstances of the incident, it can be classified as prinwy, secondary, circumstantial or hear say.(a) All documents produced in the inquiry are called docunlentary evidence(b) All statements of the witnesses are called oral evidence.Report Writing After proper oral appraisal of managemeilt as well as defence witnesses, the Inquiry Officer has to come to a definite conclusion whcther the charged employet: is guilty of the charges levelled against him or not. The conclusion arrived at by him has to be submitted in writing through his inquiry report. Although tllere is no prescribed format for submission of Inquiry report as per the law, but standing orders/service rules of many orgapisations suggest a definite forillat and different aspects on which Inquiry officer has to give his finding. The report can be brief indicating clearly conclusion and the reasons in support of the conclusions given by the Inquiry officer. Otherwise, the legality or the proprietary of the decision arrived at by the management based on such report is not likely to withstand the test of law in the court.
In order to enable the Inquiry Officer to present a comprehensive, sequential and logical report, it is suggested that he should cover the follow~ng details in report :
(a) Brief detail of the incident for which the charged employee has been chargesheeted.
(b) Details of the specific charges levelled against the charged employee vide the chargesheet.
( c ) Brief details of the explanation funiished by thc charged employee, if any or details of subsequent reminders vide which he was given additional time to submit his explanation, the reference of thc order vide which he was appointed as Inquiry Officer to look into the charges.of the calendar of proceedings.
(d) B r ~ e deta~ls
(e) Summary of the statement, examination in chief and cross exainination of each wilness alongwith sunmary of the final statement given by each party in support of their respective cases.
(f) Analysis of the deposition of each witness.
(g) Findings of the Inquiry Officer on each specific charge levelled against the charged employee duly supported by the reasons.
The Inquiry Officer must also submit with his inquiry report the original copy of the docunients taken on record by him during the course of tlie inquiry proceeding. for the perusal of competent authority. The inquiry officer should not m'ake any suggestions or recommendation about the qu,ultum of puilisliment as it is beyond the purview of his jurisdictions. Any such suggestions or recommendations by the hiqu~ry officer will vitiate the entire inquiry proceeding, therefore, he should refrain from making such suggestions or recommendations. His task is confined only to find out whether the charged employee is guilty of the charges levelled against him or not.
Awarding of Punishment
If the Inquiry Officer has not found the charged enlployee guilty of the charge levelledl the chargesheet, the competent authority can issue an order to the against h ~ n vide charged enlployee exonerating him of the charges. revoking his suspension order, if any and allowing hill1 to resume the duties. However, if the Inquiry Officer has found the charged employee guilty of any or all the charges levelled against him, tlie conipetent authority may award him any of the putiishments given in subsequent paragraph.Normally the Certified Standing Orders or the Departmental Rules provide for following types of punishment :
(a) Warning
(b) Censure
(c)Suspension without salary
(d) With-holding of Increment
(e) Stoppage of Increment
(f) Reduction in Pay
(g) Discharge or Termination or removal
(h) Dismissal
The Inquiry proceed~ng should be simultaneously typed during the inquiry proceeding in triplicate and after signature by all tlie presentees. the original copy should be retained by the Inquiry Officer himself, one copy should be given to the Presenting Officer and one copy to the charged employee. It should be recorded at the end of each day's proceeding that copies of today's inquiry proceeding have been handed over to both the parties.
Evidence
Evidence in domestic inquiry could be oral, documentary or both. Depending upon the nature of evidence, its relevance to the charges and circumstances of the incident, it can be classified as prinwy, secondary, circumstantial or hear say.(a) All documents produced in the inquiry are called docunlentary evidence(b) All statements of the witnesses are called oral evidence.Report Writing After proper oral appraisal of managemeilt as well as defence witnesses, the Inquiry Officer has to come to a definite conclusion whcther the charged employet: is guilty of the charges levelled against him or not. The conclusion arrived at by him has to be submitted in writing through his inquiry report. Although tllere is no prescribed format for submission of Inquiry report as per the law, but standing orders/service rules of many orgapisations suggest a definite forillat and different aspects on which Inquiry officer has to give his finding. The report can be brief indicating clearly conclusion and the reasons in support of the conclusions given by the Inquiry officer. Otherwise, the legality or the proprietary of the decision arrived at by the management based on such report is not likely to withstand the test of law in the court.
In order to enable the Inquiry Officer to present a comprehensive, sequential and logical report, it is suggested that he should cover the follow~ng details in report :
(a) Brief detail of the incident for which the charged employee has been chargesheeted.
(b) Details of the specific charges levelled against the charged employee vide the chargesheet.
( c ) Brief details of the explanation funiished by thc charged employee, if any or details of subsequent reminders vide which he was given additional time to submit his explanation, the reference of thc order vide which he was appointed as Inquiry Officer to look into the charges.of the calendar of proceedings.
(d) B r ~ e deta~ls
(e) Summary of the statement, examination in chief and cross exainination of each wilness alongwith sunmary of the final statement given by each party in support of their respective cases.
(f) Analysis of the deposition of each witness.
(g) Findings of the Inquiry Officer on each specific charge levelled against the charged employee duly supported by the reasons.
The Inquiry Officer must also submit with his inquiry report the original copy of the docunients taken on record by him during the course of tlie inquiry proceeding. for the perusal of competent authority. The inquiry officer should not m'ake any suggestions or recommendation about the qu,ultum of puilisliment as it is beyond the purview of his jurisdictions. Any such suggestions or recommendations by the hiqu~ry officer will vitiate the entire inquiry proceeding, therefore, he should refrain from making such suggestions or recommendations. His task is confined only to find out whether the charged employee is guilty of the charges levelled against him or not.
Awarding of Punishment
If the Inquiry Officer has not found the charged enlployee guilty of the charge levelledl the chargesheet, the competent authority can issue an order to the against h ~ n vide charged enlployee exonerating him of the charges. revoking his suspension order, if any and allowing hill1 to resume the duties. However, if the Inquiry Officer has found the charged employee guilty of any or all the charges levelled against him, tlie conipetent authority may award him any of the putiishments given in subsequent paragraph.Normally the Certified Standing Orders or the Departmental Rules provide for following types of punishment :
(a) Warning
(b) Censure
(c)Suspension without salary
(d) With-holding of Increment
(e) Stoppage of Increment
(f) Reduction in Pay
(g) Discharge or Termination or removal
(h) Dismissal
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