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Synopsis: Procedure of Conducting Enquiries !

Procedure of Conducting:

Enquiry Generally means the activities involved in investigation or examination in details for findings of facts on way occurrence or for any allegation against any employee. In otherworlds it is the management’s search for truth  or other wise of facto/circumstances/charges alleged byet, against its employees. It is an enquiry held by the management’s representative who is the employee of the same organization against its own employee, against whon certain acts of misconduct are alleged. This type of enquiry is known as domestic enquiry. The term “domestic” means “belonging to the house”.

 

Why domestic enquery:

As per labour laws, no employer can discharge or dismiss an employee or take any disciplinary action unless:

  1. the allegations against him are recorded in writing;
  2. he is given a copy there of and not less than (3) three days time to explain.
  3. investigating/examining the facts
  4. he is given personal hearing if such a prayer is made and
  5. the employer approves such prayen.

 

Thus, it appears that though an employer is not supposed to conduct any domestic enquiry against its employee as per the provisions of the labour laws, kyet the employer can not take any disciplinary action against his employee without first giving him an opportunity to defend himself in a proper domestic enquery. This is the judicial decision on this matter and the employers have abide by it.

 

Effects of deductive enquiry:

If the enquiry is defective and employee is dismissed or discharged or otherwise punished less severely, he may submit a grievance petition to his employer / management and if the employer fails to satisfy him, he may make a complaint to the Court. After hearing the parties concerned previous benefit.

 

In view of the above, the “domestic enquiry” plays a very important role and the employers shoul try, as par as possible, for their own interest to conduct domestic enqueries properly, Fairly and as per the principle of natural Justice.

 

Principle of Natural Justice:

That

  • No one should be condemned or punished without given an opportunity to explain his conduct and charges brought against him.
  • He must have an opportunity to defend against evidences and Witnesses and to cross-examine the witnesses.
  • No decision should be taken by some on who is biased.
  • No decision should be taken on inaccurate or inadequate facts.
  • The defendant should avail benefit of doubt.
  • That a citizen is Enfield to know the reason for any decision which may result in injury to him.

 

It can be pointed out that the court can interfere with the findings and decision of the Management if:

  1. There is want of bonfires,
  2. It is a case of victimization or violation of principles of natural Justice.
  3. There is a basic error of fact or
  4. There has been a perverse findings on the mattered
  5. The punishment is so unjust that remedy is called for in the interest of Justice.

 

Initiating Enquiries:

Usually the management starts the disciplinary action with a winter complain from some body. Some times especially in a small organization the misconduct may be noticed by the manager himself and he may straight way give charge sheet without any complain. In case the complaint is very precise, and discloses some serious fault, it does not give rise to any problem but a discretion is to be exercised in Las the complaint is very vague or ambiguous. In such cases it is necessary for the superior affaire to call for necessary particulars or information and in proper cases, to make preliminary enquires.

 

When preliminary enquire is completed or otherwise the charge sheet is to be finalized and service of charge sheet is necessary along with enquiry notice  by the enquiry officer and a written expiation from the charge sheeted employee is required to be submitted to the enquerey officer. But before framing charge sheet the management can ask explanation after having complain and if the management is not satisfied with reply can be brought charges to be enquired.

 

Enquiry Notice:

Such a notice is the foundation of the enquiry procedures and so care should be taken to see that it is duly communicated to the accused and he is informed about the name of the Enquiry officer, date, time and place of enquery etc (one week notice is enough).

 

Suspension Pending Enquiry:

The employee may be suspended fending enquiry if the nature falt / misconduct demand so but the perod of such suspension shall not exceed 60 days unless the matter is pending before any court where the period may continue. During suspension the employee is entitle to subsistence allowance equivalent to half salary and other allowance in full.

 

If the enquiry is not possible to complete within 60 days it is advisable that the employee should be asked to resume duties.

Appointment of Enquiry Officer:

While making appointment of a person to be the Enquiry Officer, the management should keep in mind the following basic principles:

 

No man must sit in judgement in his own cause or in which he is interested.

 

Even, otherwise, in the administration of justice, public policy requires that a person to be appointed as Enquiry Officer must be independent and unbiased so that the employee proceeded against may have confidence in him. In other  words, the Enquiry Officer should be a person with an open mind. In fact, an Enquiry Officer is in the position of a judge and therefore, he must not be a personally interested person who is either directly or indirectly interested in the subject of a domestic enquiry. He should be impartial so that he could bring to bear an independent judgement in deciding the matter before him. Similarly, if a person is the witness then he should not be appointed to act as Enquiry Officer.

 

The first and foremost pre-requisite of a person to be Enquiry officer is that he should be properly appointed by the competent authority. It means that an enquiry will be vitiated if it is held by a person who has not been specifically authorised to act as such. Next, he should be absolutely free from all kinds of bias, economic or otherwise. Similarly, a person who is biased against the charge-sheeted worker should not be asked to held the domestic enquiry.

 

Functions of Enquiry Officer:

It is an agency provided by the punishing authority as a part of the machinery for collecting facts and materials for basing its conclusions. He is engaged in a fact finding mission only. He need not follow the provision of Evidence Act and his report is not binding on the punishing authority. His main function is “to help the punishing authority to come to a definite conclusion regarding the guilty of the accused”.

 

In discharging his functions, he is supposed to be independent and not subordinate to the superior officers who have entrusted him with the enquiry. Such an Enquiry Officer should be a man of status so that he may have not only the capacity to take independent decisions but also moral courage to resist any pressure from his superiors.

 

He should also be conversant with the rudiments of procedural requirements of domestic enquiries in accordance with the principles of natural justice.

 

Status of Enquiry Officer:

Though the management can appoint any person either from within or out of the establishment to hold the enquiry, if such person is within the establishment then enquiry should be held by someone who is placed above the employee and not by a person holding the same or lower rank. Where an enquiry was held by an officer subordinate to one against whom the allegations were made, it was held that the rules of natural justice were violated.

 

Outsider as Enquiry Officer:

It is well-established that the management can delegate the function of holding enquiry to an outsider or to a practicing advocate or labour consultant. It is also now established that officer from different departments or different establishments of the same employer can held the enquiry.

 

It is rather advisable to engage an outsider for this purpose. The reason is that if the Enquiry Officer is subordinate to the Officer who has initiated the proceedings then a doubt remains that he may be under the influence of the same officer who might have an interest in establishing the charge. Moreover, an officer from the same Department may have a bias against the accused employee.

 

The management can, therefore, appoint an independent outside person for holding enquiry and in fact such appointment is preferable.

 

Procedure to be followed when objection is taken to the bias of enquiry officer:

Sometimes the accused employee  raises objections during the enquiry that the enquiry officer is biased. In such a case, it is desirable for the enquiry officer to grant suitable adjournments to enable the accused to take up the matter with the employer.

 

If the application’s made to the management for change of enquiry officer on the ground that Enquiry Officer is biased then it is sometimes necessary for the management to call for the comments of the enquiry officer. In such a case the reply of the enquiry officer should be limited to factual reply with regard to the allegations made in the application and if counter allegations are made against the employee concerned then it will show that the officer is prejudiced against the employee.

 

Attitude of the Enquiry Officer:

The Enquiry Officer is in the position of a quasi-judicial tribunal and, therefore, should maintain un-biased, fair, objective attitude and have an open mind. He should not be a witness in that enquiry or take the role of a prosecutor or do or say something which would suggest that he has made up his mind about the charges. he should give reasonable and full opportunity to the accused employee to defend himself.

 

The charge-sheeted employee may object to his being an Enquiry Officer on the ground that he has a prejudice or bias against him for good and valid reasons or that he was a witness to the incident. In such an eventuality, the Enquiry Officer should not continue to hold the enquiry, but refer the matter to the authority appointing him as the Enquiry Officer, and suggest appointment of another person as an Enquiry Officer in his place. However, the reasons given on behalf of the charge-sheeted employee should be good and valid.

 

Procedure to conduct domestic enquiry:

The observance of the rules of correct procedure while conducting domestic enquiries is of immense importance’s. The reason is that the attempt of the accused is always to search for procedural defects in the enquiry in order show that the principles of natural justice have been violated and also to attack the enquiry on the ground of victimization, want of good faith, maladies etc. He is forced to do this because the very jurisdiction of the labour court depends on the existence of the contravention of the principles of natural justice, victimization, want of good faith or maladies. Undue importance is, therefore, given to procedural requirements and to allegations of victimization and malafides.

 

the procedure of domestic enquiry has been evolved and governed by three factors viz. the S.O. Act., the method followed by Court of law and the principles of natural justice. Though the principals underlying the procedure for conducting domestic enquiries are simple yet their application to varying problems often given rise to a number of complications.

 

We shall, therefore, now try to describe in detail the principles in accordance with which the domestic enquiries should be conducted.

 

Place of enquiry:

Generally the enquiry should be held either at the place where the accused is posted or at the Head Office of the Company. When the enquiry is held at the Head Office which is quite far away from the place of his employee the accused should be given Conveyance Charges for coming to the place of enquiry.

 

There should be a separate room for holding the enquiry. The accused, his witnesses and all others should be given Chairs to sit and other reasonable facilities.

 

All courtesy should also be extended to the accused. The enquiry officer, while maintaining the seriousness of the occasion and the dignity and decorum of his position, should be friendly and informal in his approach towards the parties appearing before him.

 

Who may remain present during enquiry:

Only persons appearing for the Management and the accused employee, the accused himself and the enquiry officer should be allowed to remain present. Besides, there can also be representative of the management for purpose of conducting the case. He is generally known as presention officer or management’s representative. His function is to prove the charges against the accused worker. It is he who has to prove before the Enquiry Officer the charges against the accused. It will be up to the management representative to bring in all evidence and marshal arguments to prove the charges. The management should give a letter of authority to the management representative to represent and act on behalf of the Management in the enquiry. A copy of this letter should also be sent to the Enquiry Officer for his information.

 

Representation of the accused employee before the Enquiry Officer

The accused employee cannot in his own right demand a representation by a lawyer in a domestic enquiry. But the management, at its discretion, can allow such representation. Similarly, the accused cannot in his own right demand representation by a Union representative in a domestic enquiry since under the rules of natural justice the accused is not entitled to be represented by another person.

 

Though it is not specifically mentioned in the Act, yet the accused employee especially when he is illiterate should be allowed to bring one of his co-worker of his choice (he may be a union official) as an Observer. Any request for non-employee Observer (i.e. outsider) should be immediately rejected. The Observer shall not be allowed by the Enquiry Officer to take part in the enquiry in any way e.g. by asking questions, giving evidence etc. He should simply watch the proceedings of the enquiry.

 

Initiation of proceedings by the Enquiry Officer:

On the first day of enquiry, the Enquiry Officer should read out the charge sheet to the charge-sheeted employee and he should be asked to state whether he has understood the charge-sheet and the charges against him. If he says that he has understood the charge sheet and the charges against him, he should then be asked whether he admits charges. In case he denies the charges, the management representative should be called upon the put forward his case against him with all the evidence that he wants to relay upon.

 

If the accused employee admits all the charges, then there is no need to bring evidence to prove them as they are admitted. The enquiry officer in that case, can and should ask the worker again whether he is admitting the charges and if he admits them again, he should record the admission and ask him to give his statement. If he admits some charges and denies the others a note may be made of the charges which are admitted and the enquiry may proceed regarding those charges, which are not admitted. Where a charge is admitted, it is not necessary to prove it.

 

If the accused employee says that any particular point in the charge-sheet is not clear to him or wants further particulars and if that request is reasonable the enquiry officer may ask the management representative to give the necessary details. The charges should then be recorded.

 

The charge-sheeted employee may give a reply to the charges. If he gives it, it should be taken on record. He should not, however, be forced to give any reply if he does not want to. The charge-sheeted employee has a right not to disclose his defence till all the evidence against him is produced in his presence by the management.

 

Once the enquiry starts the normal procedure may be as follows:

 

  1. Management Representative has to prove the charge, by producing his evidence and witnesses.
  2. After the management Representative completed his case, the accused employee would have the right to bring his evidence in his defence, if he so chooses.
  • After this stage, the Enquiry Officer may ask the accused employee to make his statement he should record it carefully. It should then be read out to him and corrected, if necessary. It will be advisable to take down his statement verbatim.
  1. After this, the Management Representative would marshal his facts, evidence in his arguments. In effect, he will in his arguments show how, from the evidence produced, the accused employee has committed the acts of misconduct with which he is charged. To this the accused employee will give his reply in defense. The management representative, who started first, will have an opportunity to give his reply.

 

Adjournment:

If there is a request for postponement of the hearing (known as adjournment in legal parlance) it should be considered on its merits and reasonable time should be given. The enquiry officer may give the accused one or two adjournments without grumbling. However, if the request for further adjournment is unreasonable or without sufficient grounds etc. the enquiry officer would be justified in refusing further adjournments or given a final adjournment and then on the adjourned date going on with the enquiry, even in the absence of the accused employee which is called in legal parlance “ex-parte” enquiry.

 

Every time the enquiry officer gives an adjournment he should record in the enquiry proceedings the following:

  1. the date of enquiry;
  2. the party who asked for adjournment;
  3. the reason for adjournment;
  4. the next date of hearing

 

The next date should be communicated to the parties, if they are present, then and there and their signature obtained in the proceedings. This will avoid writing letters and save time in intimating the next date of hearing.

 

Exhibit:

Buring an enquiry, documents, articles are produced before the enquiry officer as proof and evidence. They are called exhibits. The enquiry officer should give such exhibits consecutive “exhibit nos.”, with two series. The exhibits produced by the management may be given exhibit numbers, called MI, M2, M3 etc. The letter “M” preceding the number would indicate that they were filed by the management. The exhibits produced by the accused worker may be given consecutive serial numbers like AI, A2, A3 etc. The letter “A” would indicate that they were filed on behalf of the accused employee. Such numbering makes it easier to understand and refer to the exhibits in the proceedings and the findings.

 

At the end of the enquiry, the enquiry officer should prepare an index of all exhibits and list of witnesses and attach them to his findings.

 

Burden of proof:

The burden of proving the charge lies on the management and when the enquiry officer proceeds on the assumption that the ones is on the employee to prove his innocence, than the wrong approach would be a serious mistake and then the labour Court can interfere.

 

Documents:

Generally, when producing a document the original document should be produced, because that is the best evidence – primary evidence. If, however, for any reason the original is not available, a Photostat copy or a certified copy (secondary evidence) of the original can be accepted.

 

Normally, documents are produced through a witness and there can not be any cross-examination of such a witness, who merely produces a document.

 

Method of taking down evidence of witnesses:

The enquiry officer may tke down evidence in question and answer form. He may also take it down in a narrative form which is called “deposition” in legal parlance. This is the method used in courts. In this method the question and the answers are combined in the form of a narration or statement from the witness, which gives his replay.

 

The written record in the enquiry proceedings on the first day upto this stage would be somewhat on the following lines:

 

“Record of enquiry proceedings against

Mr. M. A. Hannan Vide Charge Sheet no.

………………………….. date …………………….”

 

Present:

Mr. M. A. Hasib – Enquiry Officer

Mr. M. A. Hashem – Mnagement Representative

Mr. M A. Haunan – Accused employee

The enquiry started at 9:00 a.m. with the attendance of the above person.

 

Mr. Ghani filed his letter of authority.

 

The enquiry officer read out the charge-sheet dated…………. to Mr. M. A. Hakim and asked him whether he understood the charge-sheet and charges made against him. Mr. Hakim replied that he understood the charge-sheet and the charges.

 

The Enquiry Officer than asked him whether he admitted the charges. Mr. Hakim replied that he did not admit them.

 

The enquiry, thereafter, proceeded. The charge-sheet was marked as “Exhibit No. M-I”. The Enquiry Officer then asked the management representative to bring in his evidence.

 

Mr Ghani, the management representative, then produced his first witness, Mr. A. Hossain (PW NO. -I).”

 

Arguments:

After the evidence of both the parties are over, first the management representative should advance his arguments to show how the accused employee is guilty of the charges. After his arguments are over, the accused would advance his arguments in his support to show how the charges are not proved, and he is innocent or any other argument he wants to advance for the defense. One who starts the argument has the right of reply. The management representatives, therefore, have the right of reply.

 

In a domestic enquiry arguments are not absolutely necessary, but it is advisable to give that opportunity to the parties.

 

When the arguments are oral the enquiry officer may note down the points and the gist of the arguments. Oral arguments need not be taken down verbati. Sometimes parties prefer to give written arguments, which may be accepted by the Enquiry Officer.

 

Ex-parte enquiry:

If it is necessary to hold the enquiry ex-parte i.e. in the absence of the accused employee then the Enquiry Officer has to be careful to see that there is no lacuna in the enquiry since the Court’s sympathy may, in that event, go to the absent employee.

 

In case an accused employee goes not attend the enquiry even after he is given reasonable time, adjournments or for any reason walks out in the midst of an enquiry and the enquiry has to be held ex-parte, the enquiry officer should do the following:

  1. He should record in the proceedings the opportunities and adjournments given to the employee to enable him to take part in the enquiry and the reason why he had to proceed ex-parte.
  2. He should then ask the management representative to bring his evidence and proceed in the normal manner to prove the charges. The temptation to rush through the enquiry in such a case should be avoided. In fact there is a greater responsibility on the enquiry officer in such an eventuality.

 

The Enquiry Officer may ask questions to the prosecution witnesses to clear any point. All this should be recorded. The arguments should be based on records.

 

Conduct of the Enquiry Officer

Luring the course of the enquiry, the enquiry officer’s conduct and manner of handling the enquiry should be such as not to give any scope for any party to allege that he was partial. He should treat both parties equally and courteously and come to a decision in an objective manner supported by evidence on record. He should not bring his personal knowledge, direct or indirect, of the facts of the case to influence his findings.

 

Decision about charges

After the enquiry proceedings are closed, the enquiry officer should carefully go through the proceedings of the enquiry, evidence given on both the sides, the exhibits filed and the arguments advanced by both the parties. This is necessary because the enquiry may have been held in many sittings, spread over a period of couple of days or months or more and the enquiry officer may forget some points if he does not go through the enquiry proceedings carefully.

 

He should carefully consider all aspects and weigh the evidence. The quality of evidence, the manner in which it is given, the demeanor of the witnesses’ etc. are important. Minor contradictions in evidence do not affect the evidence.

 

He should always remember his quasi-judicial role and should take his decision in an objective, fair and just manner. In taking his decision and in his findings, he must restrict himself to the record of the proceedings and should not allow any evidence or material point, which is not on record to influence his judgement. This is important and if it is not observed it will vitiate the whole enquiry.

 

Lelay in writing enquiry report

Though there is no time limit for the period between the bearing of arguments and the writing of the enquiry report, nevertheless there should not be unreasonable delay between hearing of arguments and writing of enquiry report since it is not unlikely that some points which the accused worker considers important may have escaped notice.

 

Writing the enquiry report

The enquiry officer should write his findings in a direct and simple language avoiding unnecessary legal jargon and flourish of legal language. The temptation to show off his knowledge of law and niceties of law should be avoided in a domestic enquiry. The tendency to write very long findings should be avoided.

 

It would be better if the findings are in the following form

  1. Narration of the incident by quoting the charge sheet.
  2. Findings on each charge whether proved.
  3. Reasons in brief for those findings, which would also discuss the evidence. This is important because the Labour Court should know the reasons for the decision from the findings.

 

Consideration of report by punishing authority

The enquiry report should be submitted by the enquiry officer to the authority appointing him as enquiry officer and the proceedings of the enquiry along with the findings of the enquiry officer, should then be considered by that authority.

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