DOMESTIC ENQUIRY

      Disciplinary proceedings are regarded as quasi-judicial proceedings.

      Standard of proof required is preponderance of probabilities.

DISCIPLINE MEANING

Employee’s self-control which prompts him Work in accordance with rules and regulations of the Company.

Behave in Normal and Orderly manner.

Subject to Control and Comply reasonable orders of Superiors.

Discipline is imperative in a group situation for mutual benefit & advantage.

Breach of Discipline arises from a clash between the expectation level of those who are responsible for enforcement of standards and those who are to abide by the said standards. Therefore there has to be a meeting point between these two points of view so that discipline is maintained.

Discipline to be effective at a work place should be based on Hot Stove policy propounded by Douglas Mcgregor.

These are :

 Announcement:- Like a stove, the presence of discipline needs to be announced.     

                                  The behaviour pattern expected from employees must be announced before hand. 

Advance Warning:- If some one approaches a hot stove he feels the growing intensity of  heat & thus           he gets advance warning.

                                                Similarly in matters of discipline an employee should be cautioned beforehand

Immediacy:- If a person touches a hot stove he gets burnt instantaneously.

                Similarly breach of discipline requires immediate action.

Impartiality (Consistency):- Like a stove, the discipline enforcing authority should be impartial and consistent in action. There should be no discrimination on the ground of status etc.

Impersonality:- Like a stove the authorities should not feel happy or unhappy over the outcome of disciplinary action.

DOMESTIC ENQUIRY :CONCEPTUAL ANALYSIS

"Domestic" (from the latin word 'domus' - means 'house') has an adjective meaning,

'belonging to the house' or 'remaining much at house' or 'relating to internal affairs' or

'private' (as opposed to public) and enquiry (inquiry) means 'making investigation/

examination of facts I principles' or 'searching I seeking information by asking questions'

or 'asking what, whether, how, why etc. It also means 'search for truth'.

Thus, 'domestic enquiry', m the context of Industrial management as opposed to

Governmental management of legal functions- means management's search for truth or

otherwise of facts/ circumstances I allegations I charges alleged by it against its

employees.

This institutions is an off shoot of the philosophy of social Justice, sanctified by statutes,

Judicial Pronouncements and rules made under them and fortified by the fundamental

rules ofNatural Justice.

"Domestic Enquiry" was of no import or relevance to the law of master and servant, in

the context of philosophy of laissez faire, which one held the field every where prior to

Industrial Revolution. Then 'contract' rather than 'status' was the basis of relationship of

master and servant. Master then had absolute uncontrolled and unregulated powers of

'hire and fire' and the parties, besides their implied obligations and rights could provide

for any express terms, provided the same is done by free consent and is for lawful

consideration and for a lawful object and is not expressly declared to be void under any

law (implied obligations of servant were faithfulness, competence, satisfaction to the

master, obedience and dutifulness, diligence). The master was absolute Judge in these

matters and he was only answerable to the Courts under common law, if any when any

action for damages was brought against him by the employee and that too under law of

contract only.

DISCIPLINRY PROCEEDINGS

Ø  An action initiated to reprimand, suspend, or punish an official for his unethical or illegal conduct.

Ø  Act of Omission or  Commission

FOR EXECUTIVES

Ø  Conduct, Discipline and Appeal rules, 1978

  FOR NON- EXECUTIVES

Ø  Certified Standing Orders as per Industrial Employment (Standing Orders) Act, 1946

Ø  Disciplinary proceedings are based on Principles of Natural Justice.

Ø  These relate to a few accepted rules.

Ø  The Principles provide guidelines for disciplinary action against an employee.

Ø  This concept has its origin in Roman Law      Jus Naturae.

Ø  The Principles of Natural Justice were explained in Tata Oil Mills co Ltd. Vs Their Workmen-1963 II-LLJ 78 

•       no man may be a judge in his own cause

     Latin nemo judex in causa sua (or in propria causa) 

•        No body should be condemned without being heard.

    Latin  Audi alteram partem (Hear the other side)

MISCONDUCT

—  The dictionary meaning of misconduct is improper behaviour, intentional wrong doing, deliberate violation of a rule or standard of behaviour. In Industrial Law, the word misconduct means some positive act or conduct which would be incompatible with the express or implied terms of relationship of the employee with the employer. It will depend on the circumstances of each case (Punjab Financial Corporation Vs Union Territory and others – 1992-II LLJ 825).

—  A private quarrel between an employee and a stranger with which the employer is not concerned falls outside the categories of misconduct.

—  In general terms in a workplace, behaviour or act of an employee may be construed as misconduct if it is

—  Prejudicial or likely to be prejudicial to the interest of employer as also that of other employees working in the organisation.

—  Inconsistent or incompatible with the normal norms of discharge of one’s duty.

—  Such that it makes it unsafe and undesirable for the employer to retain him in service.

—  Such that the employer can not rely on his faithfulness or

—  Such that it amounts to insubordination to such a degree that it is incompatible with a normal employer and employee relationship.

—  An employee can be punished for an act of misconduct though not mentioned in the service rules or standing orders of the establishment. E.g. applying for leave on false grounds is a misconduct though expressly not mentioned as such in the rules or the standing orders (Bank of Madura Ltd. Vs Bank of Madura Employees Union, Coimbatore AIR 1965-Mad-492)

—  However a single act of omission or error of judgement would ordinarily not constitute misconduct, though if such error or omission results in serious or atrocious consequences the same may amount to misconduct (PH Kalyani Vs Air France, Kolkata – 1963-I LLJ 679)

An organization is a living social organization wherein employers and employees work to

satisfY their economic as well as sociological and Psychological needs. This essentially

calls for balancing of objectives. No organization can properly function unless limits are

set to individual behaviour which may jeopardize the interests of the organized

establishment. This function is generally described as maintenance of discipline.

Discipline, indeed is the very basis of a well organized and established enterprise. It

forms the backbone of the industrial management. With the establishment of relationship

of employer and employees, certain Code of Conduct for mutual relationship develops.

Discipline connotes observance of the prescribed rules of conduct or mode of life. It

implies willingness to work and conforming to the established rules. Obedience to lawful

orders is contemplated under the contract of service.

Discipline is a behavioral question concerning human resources. Disciplinary action is

one of the major causes of industrial dispute. Every employee has strong security needs

as well as a need to identify with a group of like minded people. A normal employee

likes to work to wow and to get recognized.

NATURAL JUSTICE IN DOMESTIC ENQUIRY

A domestic enquiry is a quase-judicial proceeding and as such one of its essential

requirement is that the rules of natural justice have to be observed in holding it.

The Civil Procedure Code, 1908 and the Indian Evidence Act, 1872 lay down several

rules of Natural Justice. But these two Acts are not strictly applicable to Domestic

Enquiry.

Rules of Natural Justice is meant those basic Principles of Justice which are founded on

Equity and reason and without which no Justice can be done.

It is not possible to make a complete list exhausting all the rules of Natural Justice in

brief It can be said that the Rules ofNatural Justice are those rules which it is absolutely

essential to Natural Justice?

Rules of Natural Justice is a matter of substance, not of form. It includes two basic

principles of Equity.

1. No one shall be a judge in his own cause (nemo judex in propria causa sua) I.e.

he must not have anything like personal interest in the case,

2. No decision shall be given against a party without affording it a reasonable

hearing (audi-alterem partem).

PRELIMINARY ENQUIRY-

It is customary and in complicated case, it is desirable to

have a Preliminary Enquiry/Investigation into the allegations/accusations against a

workman, for finding out whether there is any prima facie case justifYing initiation of

formal proceedings.

Preliminary enquiry is made solely with a view to decide whether there is adequate

material for initiating a Domestic Enquiry against a workman. In other words, the

preliminary enquiry is merely for the purpose of framing a charge and for determining

whether a prima facie case for a formal enquiry is made out or not and results can not be

deemed to be conclusive. It is conducted merely for the satisfaction of the employer and

it is only when the employer decides to held a regular Domestic Enquiry for the purpose

of inflicting punishment that the employee gets an opportunity of being heard and

defends himself.

It is not necessary that the workman should be present while the preliminary enquiry is

being conducted. It may start on the complaint being lodged by one workman against

another workman or on a complaint by the supervision under whom the workman is

working. The necessity to conduct a preliminary enquiry depends on the nature of the

offence and it is not necessary in all cases where misconduct is alleged. The Statements

recorded during the preliminary enquiry make nothing to do with the regular enquiry

unless they are produced by the Management in the course of the enquiry proceedings

After this is done, if the statement given by any witnesses during the preliminary enquiry

differs from that of the final enquiry, the enquiry officer may draw the attention of the

witness to the same and seek clarification on those points.

When an act of misconduct has been committed and the Disciplinary Authority receives a complaint, it may conduct a preliminary enquiry. This enquiry is conducted before the charges are framed and is not part of a domestic enquiry.At this stage the management carries out investigations prior to launching enquiries against the workman, and determines whether there is sufficient material evidence to initiate domestic enquiry.

The law with respect to preliminary investigation is, if the employer makes the enquiry it is not incumbent upon him to call for the explanation of the workman before serving the charge-sheet, since it may be used as a ploy for dishing out the defence of the workman. However, it is pertinent to note that the evidence recorded in a  preliminary enquiry cannot be used in domestic enquiry because the workman has not had the opportunity to defend himself against such evidence. Upon conclusion of the

preliminary enquiry, if the workman is found innocent, the employer need not undergo the

following procedure. In such cases, the employer is only required to issue a show cause

notice to the workman. However, if the workman is found guilty, the management has to

hold a proper enquiry before dismissing him, which can be initiated only by supplying him

with a charge-sheet.

Section 33(1) of the Industrial Disputes Act, 1947 provides that during the pendency

of any conciliation proceeding before a conciliation officer or a Board or of any proceeding

before an arbitrator or a Labour Court or a Tribunal or National Tribunal in respect of an

industrial dispute, no employer shall -

(a) In regard to any matter connected with the dispute, alter, to the prejudice of

the workmen concerned in such dispute, the conditions of service applicable

to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish,

whether by dismissal or otherwise, any workman concerned in such

dispute/save with the express permission in writing of the authority before

which the proceeding is pending.

In cases falling under Section 33(1) unless prior permission in writing is granted by

the appropriate authority, the employer cannot discharge or dismiss the workman, but he

can suspend such workmen after holding the enquiry and on finding him guilty of the

charges levelled against him before applying for permission. The effect of such permission

in case of the 'permission' being given, would be that the order of dismissal would relate

back to the date on which the employer suspended the workmen on coming to the

conclusion that dismissal was the proper punishment for the permission of which he made

the application.

THE CHARGE SHEET

The charge sheet actually becomes the basis of the enquiry and all subsequent proceedings have to be strictly confined to the charges set out in the charge sheet.

The final action has also to be on the basis of the charges mentioned in the charge sheet and on no other grounds (Laxmi Devi Sugar Mill Ltd. Vs Nand Kishore Singh 1956-II LLJ 439).

The word charge sheet has been borrowed from criminal law. It refers to the written and formal intimation to the delinquent about the alleged misconduct so that he has full knowledge of the charges. It also calls upon the delinquent to reply to the stated charges. Great care should therefore be taken to frame the charge sheet and any omission to do so may result in an incurable irregularity, thus vitiating the entire proceedings.

ISSUING AUTHORITY

A procedure is normally laid down in the rules or standing orders of the undertaking.

The procedure is also laid down in Delegation of Powers

The procedure should be followed strictly

If the subordinate authority has given either express or implied approval to the issue of charge sheet by the disciplinary/appointing authority, the departmental proceedings initiated by the subordinate authority can not be vitiated (Gramophone Co. of India Ltd. Vs State of West Bengal and others – 1991-I LLJ 536)

Where the rules framed by the appropriate Govt. prohibit a Welfare Officer from associating himself with disciplinary action, it should be ensured that the Welfare Officer does not sign the charge sheet or any document connected with the disciplinary action.

But, he is not precluded from giving evidence as a witness during the enquiry

Domestic enquiry commences once a charge-sheet is issued to the

workman. A charge-sheet essentially contains detailed particulars of the misconduct, specific

charges against the workman and the relevant clauses of the Standing Order under which the

workman is liable to the punished. It is pertinent to note that the charge-sheet is to be sent

by the employer to the workman by registered post and in case it is returned un-served, the

employer must get the charges published in the local newspaper in the regional language

understood by the workman.

A charge sheet must be specific and not vague.

The charge sheet must be precise.

It should contain a plain statement of the act or omission complained of so that the employee can put in his defence. In short the workman proceeded  against should be informed clearly of the charges levelled against him.

The charge sheet should be drafted very carefully and served properly.

It is important that the charge sheet contains the following details:

- Name of the person charged

- Employee number

- Address

- Date, Time & Place of Occurrence

- Narration of the misconduct alleged

- Relevant clause and specific act of misconduct under the

standing orders/ settlement.

- Calling for an explanation within a stipulated time

- If the charge rests on a written report, a copy of that report to be

enclosed.

SERVICE OF THE CHARGE SHEET : Generally standing orders provide the

manner of serving the charge sheet on the workman concerned and where it is prescribed

the procedure should invariably be followed. Generally the charge sheet framed against

an employee should be served on him personally, if possibly, and an acknowledgement to

that effect should always be obtained from him. In cases where the employee is absent or

refuses to accept the charge sheet when presented to him, the same should be sent to his

local and permanent address under registered post with acknowledgement due, after

getting his refusal attested by two witnesses. In case the charge sheet is returned by the

postal authorities, the employer should display the charge sheet on the notice board, if

such a provision exists in the service rules. In such case it is necessary to publish it in a

local newspaper in the regional language with a wide circulation. It is not enough to

display the charge sheet only on the notice board of the company.

Rules/Standing Orders of an organisation  provide for suspension pending disciplinary enquiry

Suspension means keeping the contract of service in abeyance .

An employer may suspend a workman on  finding that misconduct complained against him is of grave and serious nature. The presence of the employee on the workplace, if considered dangerous for the security and maintenance of order and discipline in the establishment or it is greatly apprehended that  he may tamper with the evidence, the delinquent employer may be suspended.

The employer may do so as measure of security to the life or property of any person or of

the management, or to avoid the possibility of the employee using his influence, in

winning over the witnesses threatening or intimidating them or in tampering with the

evidence and official records.

 During the period of suspension the employee can neither take any employment elsewhere nor undertake any profession or trade etc. Therefore for the survival of the employee and his family the employer has to pay subsistence allowance.

Section lOA of the Industrial Employment (S.O.) Act, 1946 (inserted by Act No. 18 of

1982 w.e.f. 17.5.1982) provides:

Where any workman is suspended by the employer pending investigation or inquiry into

complaints or charges or misconduct against him, the employer shall pay to such

workman subsistence allowance :

1. at the rate of fifty per cent of the wages which workman was entitled to

immediately preceeding the date of such suspension, for the first ninety days of

suspension; and

2. at the rate of seventy-five 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.

If an order of dismissal is passed, the workman shall be deemed to have been absent from

duty during the period of suspension and shall not be entitled to any remuneration for

such period, and the subsistence allowance already paid to him shall not be recovered.

The payment of above subsistence allowance is subject to the workman not taking up any

employment during suspension.

Suspension after proper enquiry can also be imposed as a punishment.

AS PER CDA RULES 1978

“25.0 SUBSISTENCE ALLOWANCE:

25.1 An employee under suspension shall be entitled to draw subsistence allowance equal to 50 per cent of

his/her basic pay provided the Disciplinary Authority is satisfied that the employee is not engaged in any

other employment or business or profession or vocation. In addition, he/she shall be entitled to dearness

allowance admissible on such subsistence allowance and any other compensatory allowance of which

he/she was in receipt on the date of suspension provided the suspending authority is satisfied that the

employee continues to meet the expenditure for which the allowance was granted.

25.2 Where the period of suspension exceed six months, the authority which made or is deemed to have made

the order of suspension shall be competent to vary the amount of subsistence allowance for any period

subsequent to the period of the first six months as follows :

(i) The amount of subsistence allowance may be increased to 75 per cent of basic pay and allowances

thereon if, in the opinion of the said authority, the period of suspension has been prolonged for

reasons to be recorded in writing not directly attributable to the employee under suspension.

(ii) The amount of subsistence allowance may be reduced to 25 per cent of basic pay and allowance

thereon if in the opinion of the said authority, the period of suspension has been prolonged due to

the reasons directly attributed to the employee under suspension.

25.3 Before making any payment to a suspended employee he/she would be required to furnish to the

Competent Authority a certificate every month that he/she is not engaged in any other employment,

business or profession or vocation.”

For Non executives Certified Standing orders may be referred .

CONSIDERATION OF EXPLANATION BY EMPLOYER:

After a charge sheet has been served on the accused workman, he may send his

explanation in either of the following ways:-

i) admitting the charges and pleading for mercy.

(ii) denying the charges in totality .

(iii) requesting for more time to submit the explanation after inspection of certain

documents which is in possession of the management.

(iv) the employee may not submit the explanation at all.

The above four positions sought for the following actions :

(i) Where the employee admits the charges which are of minor nature and begs for

mercy, a detailed enquiry need not be held and a decision may be taken

accordingly on the charge sheet. Care is taken that the admission of guilt must be

recorded in writing and signed by two witnesses including the delinquent

employee.

If, however, the misconduct is of a senous nature warranting discharge or

dismissal enquiry should be held, notwithstanding the admission of charges.

(ii) In case where the workman submits an explanation mentioning that the charges

levelled against him are baseless, false, motivated, a proper enquiry should be

held before awarding any punishment

(iii) When the workman concerned makes a bona fide request on reasonable grounds

for extension of time to submit explanation, the same is generally granted to avoid

any further complications.

(iv) In the circumstances where the delinquent employee fails to submit any

explanation within the specified time limit, the management should take steps to

hold a proper enquiry.

APPOINTMENT OF ENQUIRY OFFICER :

After a careful consideration of explanation of the delinquent employee or when no reply

is received within the specified time limit, the management should appoint an enquiry

officer to hold an enquiry against the delinquent employee. The enquiry officer may be

an official of the company or even an outsider, but the enquiry officer should be an

impartial person with an open mind, free from any bias, prejudice and a person of high

 integrity and moral values. One who will be a witness in the ensuing enquiry or has any

personal interest in the case is not eligible to be the enquiry officer.

Enquiry officer should also be not in a position to get influenced by the delinquent employee.

Role of the Enquiry Officer

An Enquiry Officer is an agent of the Disciplinary Authority on a fact

finding mission. He is more or less like a judge or what may be called,

“Quasi Judicial Tribunal”. He is expected to conduct the enquiry in

an impartial, unbiased, fair way with open mind. He should not take the

role of the Presenting Officer or Defence Representative. He need not

follow rules or procedures of Courts or apply the provisions of

Evidence Act or any other law. If the delinquent employee objects to

the enquiry officer conducting the enquiry on the ground that the

enquiry officer has a prejudice or bias against him, the enquiry officer

should refer the matter to the disciplinary authority, before conducting

the enquiry.

The enquiry officer should elicit information on all material points.

Wherein an enquiry, a witness gives evidence on material points to

corroborate the testimony of complainant about his hearing the

conversation between the complainant and the delinquent worker, it is

essential that the distance between the witness and the place of

occurrence is also ascertained to find out if the witness could have

really heard it. Even if this point is not brought out by the respective

parties at the enquiry, the enquiry officer will have to bring out this

point.

The Enquiry Officer should be considerate but at the same time firm.

He should not cross-examine and put leading questions. The questions

asked by him should not give an impression that he is acting in a

partial manner. He is entitled to ask for any clarification on the

evidence tendered but this should be done in a way that any inference

of partiality is not revealed. He should not normally ask questions

resembling cross-examination.

Where the question of victimisation is alleged by the delinquent for his

being a member of the minority/unrecognized union that the case was

foisted against him at the instance of the majority / recognised union,

the enquiry officer should not brush aside the suggestion by saying

that he is not interested in union politics, but should bestow efforts to

find out the necessity for such plea being allowed and take a decision.

If the employee against whom the enquiry is held misbehaves with the

enquiry officer or with the witnesses or with any other person present

during the enquiry or does any act hindering the smooth conduct of the

enquiry such fact shall be recorded by the enquiry officer. If the

employee against whom the enquiry is held leaves the enquiry during

the conduct of the proceedings without the permission of the enquiry

officer, the enquiry officer may at his discretion, proceed with the

enquiry without the employee being present after recording such fact.

Functions of Enquiry Officer

An Enquiry Officer should complete the enquiry and submit his findings

to the Disciplinary Authority as expeditiously as possible. To this end

he should:

(a) Advise the date of the first hearing to the employee. He may also

advise about the list of documents and witnesses to be relied upon

by the prosecution and forward copies of the documents which

would be received by him from the Presenting Officer.

(b) Following are the persons allowed in an enquiry proceeding:

i. Delinquent employee

ii. Presenting Officer

iii. Defence Representative if any

iv. Only one witness, at a time who is being examined

(c) Ensure that the employee is present during all sittings of the

enquiry. Without his presence, enquiry should not be conducted.

(d) At the enquiry, ensure identity of the employee and ascertain basic

details about him, such as name, age, etc.

(e) Ask the employee whether he has received the charge sheet

quoting the charge sheet number and date.

(f) Read out the charges one by one and ask him whether he admits

the charge. If the employee pleads guilty for a charge proceed to

the next charge. If he does not plead guilty to the charges, ask him

if he is going to be represented by any defence representative. If

so, obtain letter from the employee appointing defence

representative.

(g) Ensure that the defence representative is co worker and if rules permit so   

representative of a registered union, . The defence representative

need not necessarily be a representative of the recognised union.  

(h) Advise the Presenting Officer to present his case and then to start

examination-in-chief of his witnesses. Immediately after

examination-in-chief of each witness is over, allow the witness to

be cross-examined by the Defence Representative and to be reexamined

by the Presenting Officer after the cross-examination is

over.

(i) Then ask the Defence Representative to conduct examinationin-

chief of the defence witnesses also and then follow a similar

procedure as above.

(j) After each witness has been disposed of obtain the signatures of

all present, in the recorded note book on each page. The witness

should also sign before he leaves the room.

(k) After all the witnesses of the prosecution and defence have been

examined on the last day of the sitting; the Presenting Officer may

be advised to present his summing up followed by the Defence

Representative. If they so desire, they may be allowed to submit

written brief. In that case, advise Presenting Officer to submit one

copy of his brief to the defence Representative.

(l) Advise the Defence Representative that on receipt of Presenting

Officer’s brief, he should submit his brief.

(m) On receipt of Defence Representative’s brief, prepare the findings

and submit it to the Disciplinary Authority.

Enquiry Findings

The Enquiry Officer should narrate briefly the statement made and the

evidence laid before him both in support of and against the charge. He

should analyse each charge as to whether it is proved or not. The

findings should not suggest any punishment. They should be supported

by cogent reasons to be set out clearly in the report. The Charge

Sheet, Explanation, and Record of Enquiry and the findings of the

Enquiry Officer will have to be submitted to the Disciplinary Authority,

for decision. The decision and punishment, if any, shall be

communicated in writing to the employee concerned as early as

possible.

The Enquiry Officer should also note

(a) To conduct the enquiry on an on-going basis and not postpone it on

flimsy grounds.

(b) To fix the date of the next hearing at the time of postponement and

advise all concerned, in case postponement is granted under

compelling circumstances.

(c) To ensure that, if postponements are granted the next sitting

commences at the earliest.

(d) To route all communications addressed to employees / officials,

calling them to attend the enquiry as Witness / Defence

Representative / Presenting Officer etc., through the Branch

Managers / Department Heads only.

(e) To advise the Branch Manager / Departmental Heads at the end of

each sitting, by means of a letter mentioning the dates on which the

enquiry was conducted to enable them to grant on-duty leave etc.,

to the concerned employees / officials. This letter should be

handed over to each of the employees / officials, who had attended

the proceedings as Defence Representative / Presenting Officer /

Witness etc., with instructions to deliver it to their Branch Managers

/ Dept. Heads concerned.

Where the delinquent employee does not have a Defence

Representative and would still like himself and his witness examined,

the Enquiry Officer should formulate the questions in the Examinationin-

Chief and re-examination on behalf of the employee, the crossexamination

being conducted by the Presenting Officer.

Other Salient Points

Ex-Parte: While reasonable opportunity should be provided to the

employee to defend himself, willful delay of the proceedings on his part

on flimsy grounds such as the non-availability of Defence

Representative etc., should not be allowed. Where the enquiry is

conducted ex-parte, the Presenting Officer will present his case by

introducing the witnesses and documents in the usual manner.

There will, however, be no cross-examination, since the defence is not

present. The Enquiry Officer should also record all such proceedings

as detailed above and proceed on merits of the case.

Examination-In-Chief: An examination-in-chief is one in which the

prosecution / defence asks questions of his own witness to bring out

the facts of the case from that witness, which will help him prove his

case. In the examination-in-chief, the party introducing the witness i.e.,

prosecution or the defence should ascertain identity of the witness by

asking a few questions relating thereto. The witness need not answer

under oath. The prosecution / defence then proceeds to get answers by

asking questions to establish the points, as may be required by it,

through that witness.

Cross-Examination: After the examination-in-chief of each witness by

prosecution / defence is over, the other side is permitted to crossexamine

the witness to bring out any hollowness in his statements in

the examination-in-chief. Questions to re-establish the averment of the

witness and / or leading questions can, therefore, be asked during the

cross-examination. This does not mean that questions which are

offensive or irrelevant can be permitted.

Re-Examination: For the purposes of obtaining clarification on some

of the points which emerged during cross-examination, the side which

introduced the witness is allowed to re-examine the witness after the

cross-examination is over.

Defence Representative And His Role: The charge sheeted employee

has a right to have him defended by a representative of a registered

trade union of Bank Employees. He can also be represented by a

Lawyer with the prior approval of the Disciplinary Authority. The

Enquiry Officer should note that he has no powers to permit the

delinquent employee to be represented by a Lawyer.

If a request therefore is received, it should be referred to the

Disciplinary Authority for his approval. It should also be noted that

there can be only one representative for each employee. The role of

the Defence Representative is to disprove the charges leveled against

the delinquent employee in the charge sheet. To this end, he will also

produce documents and witnesses well in advance and cross-examine

prosecution witnesses. He will also submit a brief to the Enquiry

Officer, after going through the prosecution brief.

ENQUIRY PENDING CRIMINAL PROCEEDINGS:- The Criminal proceedings

and Disciplinary proceedings are altogether distinct and different Jurisdictional areas. In

Disciplinary proceedings, the question is whether the delinquent is guilty of such

conduct as would merit his discharge or dismissal from service or a lesser punishment, as

the case may be, whereas in criminal proceedings the question is whether any offence

criminal law such as Indian Penal Code, Prevention of Corruption Act or any other penal

statute is established, and if established, what sentence would be imposed upon him. The

conviction in a criminal court requires a higher standard of proof than required in a

disciplinary enquiry. The charges leveled in the disciplinary proceedings have to be

tested keeping in mind the ·enforcement of discipline and the level of integrity amongst

the staff in the administration of the employer while that is not necessarily a relevant

factor to be taken note of in criminal proceedings. In a criminal prosecution, the standard

of proof is one of beyond all reasonable doubt while in a domestic enquiry it is one of

preponderence of probabilities.Therefore, if there is a acquittal in criminal

proceedings, the disciplinary proceedings still will not be barred because such

proceedings have got an independent angle for testing the charges.

The principles of natural justice do not require that an employer must wait for the result

of the criminal trial before taking action against an employee. However, it is desirable

that if the incident giving rise to a charge framed against a workman in a domestic

enquiry is being tried in a criminal court, the employer should stay the domestic enquiry

pending the find disposal of the criminal case. It would be particularly appropriate to

adopt such a course where the charge against the workman is of a grave character,

because in such a case, it would be unfair to compel the workman to disclose the defence

which he may take before the criminal court. But to say that domestic enquiries may be

stayed pending criminal trial is very different from saying that if an employer proceeds

with the domestic enquiry in spite of the fact that the criminal trial is pending, the

emquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is

either bad in law or malafide ..

REPORT OF ENQUIRY OFFICER

The enqurry report is a document of vital importance in the course of disciplinary

proceedings against a delinquent workman. If the enquiry officer finds that the charges

reveled against the workman are proved it may result not only in the deprivation of the

livelihood but also attaches stigma to the character of the workman. The enquiry report,

therefore, should reflect the application of mind by the enquiry officer to the pleadings

and the evidence adduced before him by the parties. An enquiry report in a quasi Judicial

enquiry must show the reasons for the conclusions. It cannot be an ipse dixit of the

enquiry officer.

Reasoned order is a desirable condition of Judicial disposal. A speaking order will, at its

best, be a reasonable and, at its worst, be at least a plausible one.

The whole object of holding a domestic enquiry against a delinquent workman is to

enable the enquiry officer to decide upon the merits of the dispute before him, and such

enquiries must confirm to the basic requirements of natural justice and one of the

essential requirements of a proceeding ofthis character is that when the enquiry is over,

the officer must consider the evidence and record his conclusion and reasons therefore.

If Industrial adjudication attaches importance to domestic enquiries and the conclusions

reached at the end of such enquiries, that necessarily postulates that the enquiry would be

followed by a statement containing the conclusions of the emquiry officer.

The Enquiry Officer, therefore, after taking the evidence adduced by the parties has to

record his findings and conclusions as to whether the misconduct is proved or not which

are of vital importance for the adjudication of the dispute arising out of the disciplinary

action. It is therefore, essential that the enquiry officer should make a brief report

indicating clearly his conclusions and reasons in support thereof. The fact that the

Enquiry officer himself is the ultimate punishing authority, cannot help to dispense with

the making of the report recording the findings holding the charge-sheeted workman

guilty of the charges leveled against him.

A cryptic report, for instance, without stating any reasons will be of little value. It is not

necessary that there should be direct evidence. Circumstantial evidence satisfYing the

test of preponderance of probabilities will be sufficient. One of the tests which the

Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character

is, whether the conclusions of the enquiry Officer was perverse or whether there was any

basis ever in approach adopted by him. In the absence of the findings or conclusions

recorded by the Enquiry officer, it would be impossible for the adjudicator to know as to

how he approached the question and what conclusions he reached before taking the

disciplinary action against the delinquent workman and it would, therefore, be difficult

for the adjudicator to decide whether the approach adopted by the enquiry officer was

basically erroneous or whether his conclusions were perverse.

DISCREPANCIES OR PERVERSITY_: No doubt the report of the enquiry officer

will be vitiated where the enquiry officer acts malafide, i.e. ignores or excludes from

consideration a vital and material piece of evidence or takes into consideration any

irrelevant or extraneous materials, or where he transgresses the rules of natural justice by

being biased against the workman or denies to him a reasonable opportunity to defend

himself or where his report is perverse i.e. findings are not supported by any evidence or

an entirely opposed to the evidence on record.

Perversity vitiates disciplinary proceedings. There is a two-fold test of perversity of a

finding. The first test is that the finding is not supported by any legal evidence at all and

the second is that on the basis of the material on the record, no reasonable person could

have arrived at the finding complained o£ In each of these cases, the findings would be

treated as perverse.

ACTION ON ENQUIRY REPORT

The Supreme Court in Union oflndia vs. Mohd .. Ramzan Khan case, held that "the right to make representation to the  disciplinary authority against the findings recorded in the enquiry report is an integral  part of the opportunity of defence against the charges and is a breach of principles of  natural justice to deny the said right. It is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether

Government or non Government, Public or Private.

The Enquiry Report and the representation, if any, of the delinquent employee, are to be

considered by disciplinary authority. It is incumbant on the disciplinary authority to

Judiciously consider the findings of the enquiry officer. It is open to such authority to

agree or disagree with the findings of the enquiry officer with respect to the charges

leveled against the delinquent workman. If the disciplinary authority disagrees with the

findings of the Enquiry Officer exonerating the delinquent of the charges leveled

against him, the rules of natural justice will require that it should record its reasons for

its disagreement.

When there is disagreement between the Enquiry Officer and the Disciplinary Authority

and the Enquiry Officer has exonerated the charged employee, the Disciplinary

Authority is not only bound to furnish a copy ofthe report, but also inform the employee

about the tentative conclusion about his guilt and also to give representations against such

conclusion.

PUNISHMENT - Imposing punishment is the last stage in the disciplinary proceedings

against a delinquent workman. This stage commences after the Disciplinary Authority

has received the report of the Enquiry Officer, a copy of the report served upon the

delinquent employee asking his representation and has received the representation, if any.

Upon considering the gravity of the misconduct and the extenuating circumstances, if

any, and also any other factor that may be relevant in the facts and circumstances of the

case, the disciplinary authority has to decide the quantum of punishment that may be

imposed on the delinquent.

The punishment must  commensurate with the gravity of the act of misconduct proved against the delinquent workman.

The punishment must be as per CDA RULES 1978 or Certified standing orders of the Company as the case may be.

Appeal:-

Appeal must be dealt as per provisions of per CDA RULES 1978 or Certified standing orders of the Company as the case may be.

REVIEW

CDA RULES 1978

37.0 REVIEW

37.1 Notwithstanding anything contained in these rules, the Appellate Authority as specified in the schedule

may call for the record of the case within six months of the date of the final order and after reviewing the

case pass such orders thereon as it may deem fit.

Provided that if the enhanced penalty, which the Appellate Authority proposes to impose, is a major

penalty specified in Rule 27 and an inquiry as provided under Rule 29 has not already been held in the

case, the Appellate Authority shall direct that such an inquiry be held in accordance with the provisions of

Rule 29 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If

the Appellate Authority decided to enhance the punishment but an inquiry has already been held in

accordance with the provisions of Rule 29 the Appellate Authority shall give show-cause notice to the

employee as to why the enhanced penalty should not be imposed upon him/her. The Appellate Authority

shall pass final orders after taking into account the representation, if any, submitted by employee.

The Coal India Limited, Board of Directors may at any time call for the records of any inquiry review any

order and pass necessary order, as it may deem fit.

27.0 NATURE OF PENALTIES
27.1 The following penalties may, for good and sufficient reasons, be imposed on an employee for misconduct,
viz. :
(i) Minor Penalties
a) Censure ;
b) Withholding increment, with or without cumulative effect;
c) Withholding promotion ; and
d) Recovery from pay of the whole of or part of any pecuniary loss caused to the Company by
negligence or breach of orders or trust ( Rule 27.1 (i) (d) amended vide CIL OM No. CIL/ C-5A
(vi)/ 50774 /CDA/ 184 dated 23.11.05)
(ii) Major Penalties
a) Reduction to a lower grade or post or stage in a time scale;
Note :
The Authority ordering the reduction shall state the period for which it is effective and whether, on the
expiry of that period, it will operate to postpone future increments or, to affect the employee’s seniority
and if so, to what extent.
b) Compulsory retirement ;
c) Removal from service ; and
d) Dismissal
Note 1
Removal from service will not be a disqualification for future employment in Coal India Limited and its
Subsidiary Companies while dismissal disqualifies a person for future employment.
Note 2
The following shall not amount to penalty within the meaning of this rule :
(i) With-holding of increment of an employee on account of his/her work being found unsatisfactory or
not being of the required standard or for failure to pass a prescribed test or examination.
(ii) Stoppage of increment at the efficiency bar in the time scale on the ground of his/her unfitness to
cross the bar.
(iii) Non-promotion, whether in a substantive or officiating capacity of an employee, after consideration
of his/her case to a service, grade or post for promotion to which he/she is eligible.
(iv) Reversion to lower service, grade or post of an employee officiating in a higher service, grade or
post on the ground that he/she is considered, after trial, to be unsuitable for such higher service,
grade or post or on administrative ground unconnected with his/her conduct.
(v) Reversion to his/her permanent service, grade or post of an employee appointed on probation to
another service, grade or post during or at the end of the period of probation in accordance with the
terms of his/her appointment or the rules and orders governing probation.
(vi) Replacement of the services of an employee whose services have been borrowed from Central or a
State Government or an authority under the control of Central or a State Government at the disposal
of the authority which had lent his services.
(vii) Compulsory retirement of an employee in accordance with the provisions relating to his/her
superannuation or retirement.
(viii) Termination of the services :
(a) of an employee appointed on probation during or at the end of the period of probation in
accordance with the terms of his/her appointment or the rules and orders governing probation
;
or
(b) of a person appointed in a temporary capacity otherwise than under a contract or agreement
in accordance with the general conditions of service applicable to temporary employment;
(c) of an employee employed under an agreement or contract, in accordance with the terms of
such agreement or contract ;
(d) of a person on reduction of establishment ; and
(e) of a person who is liable to be discharged for failure to qualify in certain duties or subjects
under the conditions of his/her service.