Performance, productivity and reputation of an establishment requires the employees of the establishment to be at their best behaviour and abide by ethical and behavioural standards prescribed by the organisation. To this end, the employer may take disciplinary action against acts of employees which fall short of standards prescribed by law or the policies and rules of the establishment.
The Industrial Employment Standing Orders Act 1946 (IESO Act) requires employers of certain industrial establishments to clearly define the conditions of employment by issuing standing orders which are duly certified by the state labour commissioner. Such certified standing orders (CSO) are required to inter alia define acts and omissions of employees, which constitute misconduct, and provide a procedure for proceeding against an employee involved in misconduct. Establishments which are not covered by the IESO Act, may frame service rules or company policies (Service Rules), which have the same force as CSO.
WHAT CONSTITUTES MISCONDUCT ON THE PART OF THE EMPLOYEE
In order to initiate a disciplinary proceeding against an employee, the employee must have violated an established code of conduct or rule or committed an act of moral turpitude as defined under the CSO / Service Rules. A few examples of common acts or omissions amounting to misconduct are:
- Non-adherence to lawful orders of supervising authority;
- Participation in an illegal strike or act of abetment of such strike;
- An act of fraud resulting in economic and reputational loss to the employer and personal gain for the concerned employee;
- Habitual absence from work or even sleeping at workplace while on duty;
- The prevention of Sexual Harassment Act also provides that all establishments would be required to ensure that an act of sexual harassment on part of an employee must be categorised an act of misconduct and indulging in such misconduct would trigger appropriate disciplinary action.
NEED FOR CONDUCTING DOMESTIC ENQUIRY
There is no statute or law in India that specifically lays down the procedure to conduct the disciplinary enquiry. However, various judicial precedents have laid down a basic structure of the procedure that ought to be followed while conducting a disciplinary enquiry. Domestic enquiries cannot be conducted arbitrarily or with any malafide intention on the part of the employer. Therefore, in order to prevent miscarriage of justice and to prevent the disciplinary enquiry from being challenged before a judicial forum, the procedures followed in the domestic enquiry must be in accordance with the principles of natural justice as well as the procedures prescribed under the CSO / Service Rules of the establishment.
PROCEDURE FOR CARRYING OUT DOMESTIC ENQUIRY
When a complaint is received against an employee or on occurrence of an incident indicating misconduct, the employer may at his discretion, conduct a unilateral preliminary enquiry to determine whether there is adequate material for proceeding with issuing a chargesheet against the employee and conducting a domestic enquiry or not. However, if the matter is obvious enough, the domestic enquiry can start with the issue of chargesheet.
Issue of chargesheet:
On the basis of the preliminary enquiry or otherwise, if the disciplinary authority is satisfied that a prima facie case exists, a chargesheet is required to be issued to the employee. The principal object of issuance of a chargesheet is to provide an opportunity to the person who is charged with misconduct to know the nature of the offence as per the CSO / Service Rules of the establishment and to be able to present his side of the case.
As far as possible, it should be precisely mentioned in the chargesheet, under which rule or clause of the CSO / Service Rules of the establishment, the employee is charged for misconduct. The chargesheet may also indicate the proposed punishment that the employer is considering. A reasonable period of time of not less than 48 (forty-eight) hours should be provided to the employee to submit his reply to the chargesheet.
The employer may commence disciplinary proceedings after the employee has replied to the charges levelled against him in the chargesheet. However, if the employee does not respond to the chargesheet or does not provide satisfactory reasons for not being able to do so, the employer may proceed with the disciplinary enquiry ex-parte. The employer may also suspend the services of the employee with pay, pending completion of the enquiry.
The employer must ensure that the basic principles of fairness are followed throughout the disciplinary procedure, and the person conducting inquiry should not be in a position which may suggest bias. The employer shall be required to provide the employee with copies of reports/statements submitted by other employees/witnesses (if any). The employee should be given adequate notice and a fair opportunity to examine the witnesses, including himself in his defence, if he so wishes. The enquiry officer may ask the employee questions to ascertain the facts of the case and allow him a full and fair opportunity to state his or her side of events, explain his or her conduct and state any mitigating factors. A copy of the enquiry report and findings is to be provided to the employee, before the disciplinary authority proceeds to impose penalty or punishment.
PUNISHMENT AND APPEAL
Subject to the gravity and nature of misconduct, the disciplinary authority may impose punishment on the delinquent employee, such that the punishment is commensurate with the gravity of the misconduct.
Where the disciplinary authority does not intend to impose a harsh punishment for minor breaches of discipline or acts of routine nature such as absence without leave or sufficient cause, late attendance, negligence in performing duties, etc the disciplinary authority may impose minor punishments such as a warning, withholding of promotion, withholding of increments of pay and fines.
For misconducts that warrant strict punishments, the disciplinary authority may suspend the services of the delinquent employee without pay, reduce the rank of the employee to a lower grade or post, or even terminate the employment of the concerned employee.
The disciplinary enquiry procedure adopted by the employer should also provide the employee an opportunity to appeal against the decision of the disciplinary authority. The appellate authority shall consider whether the findings are justified or whether the punishment is excessive or inadequate and pass appropriate orders within a reasonable time period mentioned in the CSO / Service Rules of the establishment.
While there are no specific timeframes prescribed for conduct of disciplinary enquiry, the employer should complete the disciplinary enquiry within a reasonable time period to avoid hardships to the employee. Having said that, the enquiry officer should not show undue haste in concluding enquiry without consideration to genuine requests of the concerned employee. It is a good practice for the disciplinary authority to take time to consider all the evidence as a decision given immediately at the end of the meeting, without a break, could be viewed as having been pre-judged. Further, disciplinary hearings can be stressful for employees and witnesses. The employer should be mindful of this and, if necessary, allow for short breaks.
Disciplinary enquiries may sometimes be viewed as stigmatic even if the concerned employee is acquitted at the end of the disciplinary hearing. Accordingly, before commencing the formal disciplinary enquiry, the employer may adopt informal mechanisms such as verbal warning or counseling, depending on that the severity of the offence, the impact the conduct and performance issues it could have on the establishment.
Disclaimer: The views of the author(s) in this article are personal.