INDIAN LABOUR LAW
These sections will introduce you to the fundamentals of labour law in india
THE DISCIPLINARY PROCEDURE
While there is no procedure laid down in law for disciplinary action against an employee, before inflicting any punishment, the employer is required to follow the principles of natural justice and guidelines evolved from various court decisions in order to justify the punishment.
The following steps need to broadly be followed in disciplinary action, especially those leading to dismissal of an employee:
a) Preliminary enquiry or investigation - this step is not essential but is ideal to determine on a prima-facie basis whether grounds for carrying out the disciplinary process exist. This step can be eliminated in case of gross misconducts
b) Issuance of a Charge Sheet - A critical step in the process, the objective being to provide the employee an opportunity to understand the nature of his offense and give him an opportunity to explain his conduct and prepare his defense
c) Domestic Enquiry - A proceeding enabling both sides to present their case. The company should for this proceeding, remind the employee of his rights under the procedure e.g. the right for representation. The enquiry should be conducted by someone other than those involved in the investigation. The enquiry officer has to submit his report, a copy of which must be forwarded to the employee.
d) Decision - If the employer considers the case is made out on consideration of the balance of probabilities involved, he must decide the appropriateness of the penalty by reference to the disciplinary procedure, past practice, the individual factors of the case and principles of common law in such matters. The decision should then be served on the employee in writing.
If the decision is to dismiss, it is advised that the employer take appropriate legal opinions in the matter before serving the decision. It is also recommended that the decision be reviewed by management at a level at least one level higher than the dismissed employee or the employees conducting the disciplinary procedure.
e) Appeal An employee should be given the right to appeal the decision and the management should appoint a high-level appellate authority, not involved in the disciplinary process for this purpose. Dismissal need not be delayed until after the appeal, although it must remain possible to reinstate the employee after the appeal is successful.
The principles of natural justice should also be followed in the enquiry.
These include the following:
• The employee should know what is alleged against him
• The employee should have reasonable time and opportunity to defend himself
• All documents and evidence should be recorded in the employees presence and no material should be relied upon against the employee without giving him/her an opportunity to defend him/herself.
• The employee should have an opportunity to cross examine witnesses brought against him/her.
• The employee should have an opportunity to bring in evidence of his/her choice to defend him/herself.
How to draft and issue a charge sheet:
• Each charge should be specified and explained in clear unambiguous language with full particulars and time and date of incident
• Each incident which constitutes a misconduct should be given separately and specifically
• The language used in the charge sheet must be clear and unambiguous
• Reference must be made to the service rules or standing orders which have been infringed for each misconduct
• The employee must be afforded a chance to reply to the charges and explain his conduct and the time within which the workman is required to reply to the charge sheet and the consequences if he fails to do so must be mentioned
• The charge sheet must be issued by a competent authority i.e. the employer or any person authrised by the employer in writing. The punishment order may be set aside if the charge sheet has not been issued by a competent authority
• The charge sheet should be issued as soon as possible and served personally on the workman, obtaining his signature in acknowledgment of receipt How to Conduct a Domestic Enquiry:
• An enquiry officer who may be an outsider but is not connected with the case should be appointed
• A notice of enquiry must be served to the chargesheeted employee detailing the name of the enquiry officer, and the date, time and place of the enquiry
• The enquiry officer should initiate proceedings by reading out the charges levelled against the employee and explaining them to him. The employee may seek permission for representation. A co-worker/union leader are usually permitted but the management may refuse permission for the employee to be represented by a legally trained person
• The employer or his representative then leads evidence, permitting the employee to examine all such evidence and documents
• The employer’s witnesses should then be examined one by one following which the employee’s witnesses are examined. Witnesses of both parties can be cross examined by the opposite party
• The enquiry officer should record in detail, the enquiry proceedings, obtain acknowledgment of all parties on the same and furnish copies to all parties
• After conclusion of enquiry proceedings, the enquiry office should submit his report to the disciplinary authority and a copy of the same to the workman. The report should consist of the introduction, the charges, the evidences and the findings
• After considering the enquiry officer’s report, the disciplinary authority should determine the quantum of punishment and issue a notice of the same asking him to show cause why such action should not be taken against him
Note: while the employer is required to follow this procedure with due diligence, it is only with the purpose of strengthening the employer’s case in court and does not preclude either the employee taking recourse to legal action or the appropriate judicial authority reducing the quantum of punishment or reinstating the worker in case of dismissal.
What is a misconduct ?
A misconduct means wrong or improper behaviour backed by wrongful intention. It is not mere error, omission or inefficiency but wilful negligence, disobedience or insubordination. Though there is no rigid rule defining the degree of misconduct that will lead to dismissal, this depends on the fact of the case.
A illustrative list of misconducts is detailed below:
-Absence from duty or failure or refusal to report for duty when called upon to do so
-Doing personal work during office hours
-Assault or abuse of a superior officer Acts of dishonesty or fraud Drinking
-Gambling or playing cards at the place of work
-Act of gross negligence or habitual negligence of duties
-Dissuading an employer’s customers
-Inciting other workers for a go-slow/indulging in violence or sabotage/participaton in an illegal strike
-Stealing or attempting to steal employer’s property
-Regular late attendance
-Refusal to obey the lawful orders of a superior
-Misrepresentation of facts for gaining employment
-Riotous or disorderly behaviour on the premises
-Shouting offensive or provocative slogans
-Sleeping on duty
-Refusal to accept a written order or communication
-Deliberately causing obstruction to supervisory staff
This is not a comprehensive, but an indicative list