Disceplinary Proceeding

8/13/2019 Disceplinary Proceeding

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DisciplinaryProceeding

Krishna Pal Malik Asst. Prof. MGLI, Ahmedabad


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Discipline at working place

An organisation, whether a club, a school, an institution, afactory, a company or an office, has to have a framework ofpolicies, rules, regulations and procedure to carry on its tasks.These are necessary to enable it to function in a orderly way.These also enable its members to discharge their dutiessmoothly, effectively and profitably. This orderly conductbased on definite standards and clear guidelines, is calleddiscipline.Discipline prevails in an organisation, when its members

willingly do what they are required to do under the rules andconsciously avoid action that interferes with the rights,privileges and duties of others. In a broader sense, disciplinethus indicates the sprit and confidence with which themembers of an organisation perform their tasks.


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Ingredients of discipline Announcement : The pattern of behaviour expected of the

employees, must be announced in unambiguous terms by laying downclearly the standards of norms. The justifications for these standardshould also be made known to avoid any misunderstanding.

Advance warning : The employees must be cautioned beforehand.They should be kept informed of the type of lapses or failures in their

behaviour that would be construes acts of indiscipline, with nature ofpunishment attract on commission or omission.

Immediacy : In case of breach of discipline, action must be initiatedimmediately.

Impartiality : Discipline enforcing authority should be impartial andmake his action consistent, without any discrimination of status.

Impersonality : The authorities must not feel happy and unhappyover punishing or letting off an employee. Authority must not beemotionally involved.


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Different Approaches to Disciplinary Action Legalistic Approach Humanitarian Approach Human Resource Approach Behavioral Approach Leadership Approach

Disciplinary process Finding the facts Constructive counselling

Verbal Reprimand Written Reprimand Penal measure


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Stages in departmental action

(i) Issue of charge-sheet, which may or may not be preceded by a showcause notice;

(ii) Holding of an enquiry in all cases except where the misconduct is of aminor nature and the service rules specially provide that enquiry wouldnot be held in such cases;

(iii) Recording of finding by the Enquiry Authority;(iv) Consideration of findings of the Enquiry Authority by the Disciplinary

or Competent Authority;(v) Tentative decision regarding penalty and second bearing on the nature of

proposed penalty, if the rule so provide;(vi) Final order and communication of the same; and(v) consideration of the appeal , if any, by the Appellate Authority and its

disposal.


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Principle of Natural justice

Natural justice has meant many things to many writers, lawyers, jurists and system of law. It has many colours, shades, shapesand forms. Rules of natural justice are not embodied rules andthey cannot be imprisoned within the straight jacket of rigidformula. Natural justice is a concept of common law and signifiesfundamental rules of judicial procedure.Lord Widgery : The principle of natural justice was thesefundamental rules, the breach of which will prevent justice frombeing seen to be done . [R V Ilosenball (1977) 1 WLR 766 ] Lord Harman - what than are requirements of natural justice is acase of this kind? First, I think that the person accused shouldknow the nature of accusation made; secondly that he should begiven an opportunity to state his case, and thirdly of course thatthe tribunal should act in good faith. I do not think that there reallyis anything mare . -


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SC on Natural Justice

The concept of natural justice has under gone a great deal ofchange in the recent years. In the past, it was thought that itincluded two rules, namely, (1) no one shall be judge in his own

(Nemo debet lesse judex in propia causa) and (2) No decision shall be given against a party with out affording him a reasonablehearing (Audi alteram partem). Very soon thereafter a third rulewas envisaged and that it is quasi judicial inquiries must be held ingood faith without bias and not arbitrarily or unreasonably. But inthe course of year many more subsidiary rule; came to be added tothe rules of natural justice . [ AK Kruipak v. UOI, AIR 1970 SC150 ]


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In another case, SC held that Rules of natural justice are notembodied rules nor they can be elevated to the position of

fundamental rights. The aims are to secure justice or to preventmiscarriage of justice these rule. It can be operate only in theareas not covered by any law validly made. If a statutoryprovision can be read consistently with the principle of natural

justice, the court should do so. But if a statutory provisions either

specifically or by necessary implication excludes the applicationof any rule of natural justice. In such circumstances the courtcannot ignore the mandate of legislature or the statutory authorityand read into concerted provision the principle of natural justice.[UOI V JN Sinha AIR 1971 SC 40 ]

The SC again reviewed the principle of natural justice andbrought it, near to meaning of due process and said thatprocess shall be just, fair and reasonable. [ Menka Gandhi V UOI(1978) 1 SCC 248 ]


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Justice VR Krishna Iyer

It should be noted that the aims of the rule of natural justice is tosecure justice and to prevent miscarriage of justice.He observed natural justice is a pervasive fact of secular lawwhere a spiritual touch enlivens, administration and adjudication, tomake fairness a creed of life.

It has may colour and shades may forms and shapes and shavewhere valid law excludes, it applies when people are effected butacts of authority.It is the bone of the healthy Govt., recognised from earliest timesand not a mystic testament of judge made law. Today it applicationmust be sustained by current legislation, case law or other extentprinciple not the hoary chords of legend and history .[Mohinder Singh v. Election Commissioner, AIR 1978 SC 851 ]


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Principles of natural justice

Principle of natural justice can be broadly classified under

the following three categories.

An authority cannot be a judge in his own case.

An authority cannot be condemned unheard.

An authority should decide only if it hears.


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Illustrative case law

A DSP held a departmental enquiry against the respondent, apolice constable. As one of the witness against therespondent turned hostile and DSP himself went into the boxto depose to what the witness had admitted at the earlierstage.

He assumed to complete the enquiry and passed an order ofdismissal. The SC held that the rule of natural justice werecompletely discarded and all canon of fair play weregrievously violated . It was observed in this case that the tworoles could not be obviously be played by one and the sameperson. It is futile to except that he could, in circumstances,hold the scale even. It socks ones notion or judicial proprietyand fair play.[State of UP v. Mohammed Uooh 1958 SCR 595 ]


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Illustrative case This historical case has rightly been described as the magna carta

of natural justice. In this case the plaintiff, a chief constable had beenprosecuted but acquitted on certain charges of conspiracy.

In the course of judgement the presiding judge against the plaintiffs character as a senior police officer made certain observation. Takinginto account those observation the watch committee dismissed the

plaintiff from service. The court of appeal held that the watch committee was acting an

administrative authority and was not exercising judicial or quasi- judicial power, and therefore, the principle of natural justice did notapply to their proceedings for dismissal.

Dismissal could not be exercised without giving a reasonableopportunity of being heard and with out observing the principles ofnatural justice. The order of the dismissal was, therefore held to beillegal. [ Ridge V. Baldwn (1964) AC 40 ]


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Violation of rule of natural justice

Where one student who was charged with coping at theexamination, debarred without giving him a reasonableopportunity to be hearted. [ Board of HS v. UOI ]

Where the personnel hearing was given by an officer, but theorder passed by another officer.

Where one of the members of selection committee was also acandidate himself. [ Kaipak v. UOI ]

Where the chairman of a tribunal confirmed an order of thereview committee, of which he himself was a member.[ Mahapatra v. UOI ]


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Exceptions (Rule of natural justice was not violated)

Where an opportunity to be hearted was given to thepetitioner, but he did not avail of it. [ Jethamal v. UOI ]Where although statements of witnesses were recordedin the absence of petitioner, such statements weremade available to him and witnesses were also allowedto be cross-examined. [ State of UP v. Gupta, AIR1970 ]Where legal assistance was not afforded, because therewere no complicated question of fact or question of lawinvolved. [ K Chandra v. UOI, AIR 1974 ]Where in the case of smuggling the petitioner was heardin person, appeared through counsel, and examined hiswitness. [ Shermal v. Collector, AIR 1956 Cal 621 ]


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Misconduct in industries [R.14 (3)](a) Wilful insubordination or disobedience, whether alone or in combination

with others to any lawful and reasonable order of a superior,

(b) Theft, fraud or dishonesty in connection with the employers business orproperty,

(c) Wilful damage to or loss of employers goods or property,(d) Taking or giving bribes or any illegal gratification,(e) Habitual absence without leave or absence without leave for 10+ days,(f) Habitual late attendance,(g) Habitual breach of any law applicable to the establishment,(h) Riotous or disorderly behaviour during working hours at the

establishment or any act subversive of discipline,(i) Habitual negligence or neglect of work,(j) Frequent repetition of any act or omission for which a fine may be

imposed to a maximum of 2 per cent of the wages in a month,(k) Striking work or inciting others to strike work in contravention of the

provisions of any law, or rule having the force of law.


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Disciplinary action for misconduct [R.14]

A workman may be fined up to 3% of his wages in a month forany of the acts and omissions. Specify the acts and omissionswhich the employer may notify with the previous approval of theappropriate Government or of the prescribed authority in POW

Act. A workman may be suspended for a period not exceeding fourdays at a time, or dismissed without notice or any compensationin lieu of notice if he is found to be guilty of misconduct.Where a disciplinary proceeding against a workman iscontemplated or is pending or where criminal proceedings againsthim in respect of any offence are under investigation or trial andthe employer is satisfied that it is necessary or desirable to place

the workman under suspension, he may, by order in writing,suspend him with effect from such date as may be specified inthe under. A statement setting out in detail the reasons for suchsuspension shall be supplied to the workman within a week fromthe date of suspension.


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The proceedings of the enquiry

A workman who is placed under suspension shall be paidsubsistence allowance in accordance with the provisions of S.10-Aof the Act.

In the enquiry, the workman shall be entitled to appear in person orto be represented by an office-bearer of a trade union of which he isa member.

The proceedings of the enquiry shall be recorded in Hindi or inEnglish, or in the language of the State where the industrialestablishment is located whichever is preferred by the workman.

The proceedings of the inquiry shall be completed within a period ofthree months:

Provided that the period of three months may, for reasons to berecorded in writing, be extended by such further period as may bedeemed necessary by the inquiry officer.


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Payment of subsistence allowance [S.10-A]

Where any workman is suspended by the employer pendinginvestigation or inquiry into complaints or charges of misconductagainst him, the employer shall pay to such workman subsistenceallowance. -

At the rate of 50% of the wages which the workman was entitled toimmediately preceding the date of such suspension, for the firstninety days of suspension ; and at the rate of 75% of such wages

for the remaining period of suspension if the delay in the completionof disciplinary proceedings against such workman is not directlyattributable to the conduct of such workman.

If any dispute arises regarding the subsistence allowance payable toa workman, the workman or the employer concerned may refer thedispute to the Labour Court having jurisdiction.

If, provisions relating to payment of subsistence allowance under anyother law for the time being in force in any State are more beneficialthan the provisions of this section, the provisions of such other lawshall be applicable to the payment of subsistence allowance in thatState.


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Conclusion of enquiry or proceeding

If on the conclusion of the enquiry or, as the case may be, of thecriminal proceedings, the workman has been found guilty of thecharges framed against him and if it is considered, after giving theworkman concerned a reasonable opportunity of makingrepresentation on the penalty proposed, that an order of dismissalor suspension or fine or stoppage of annual increment or

reduction in rank would meet the ends of justice, the employershall pass an order accordingly.

If on the conclusion of the inquiry, or as the case may be, of thecriminal proceedings, the workman has been found to be notguilty of any of the charges framed against him, he shall bedeemed to have been on duty during the period of suspension andshall be entitled to the same wages as he would have received ifhe had not been placed under suspension after deducting thesubsistence allowance paid to him for such period.


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Deemed to be absent from duty duringsuspension

When an order of dismissal is passed, the workman shall bedeemed to have been absent from duty during the period ofsuspension and shall not be entitled to any remuneration for suchperiod and the subsistence allowance already paid to him shall berecovered.

Where the period between the date on which the workman wassuspended from duty pending the inquiry or investigation or trialand the date on which an order of suspension was passed,exceeds four days , the workman shall be deemed to have beensuspended only for four days or for such shorter period as isspecified in the said order of suspension and for the remainingperiod he shall be entitled to the same wages as he would havereceived if he had not been placed under suspension, afterdeducting the subsistence allowance paid to him for such period.


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Deemed to be on duty during suspension

Where an order imposing fine or stoppage of annual incrementor reduction in rank is passed, the workman shall be deemed tohave been on duty during the period of suspension and shall beentitled to the same wages as he would have received if he hadnot been placed under suspension after deducting the

subsistence allowance paid to him for such period.In the case of a workman to whom the provisions of Article 311(2) of the Constitution apply, the provisions of that article shallbe complied with.

The payment of subsistence allowance under this standingorder shall be subject to the workman concerned not taking upany employment during the period of suspension.


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Awarding of punishment

In awarding punishment under this standingorder, the authority imposing the punishmentshall take into account the gravity of

misconduct, the previous record, if any, of theworkman and any other extenuating oraggravating circumstances, that may exist. Acopy of the order passed by the authority

imposing the punishment] shall be supplied tothe workman concerned.


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Termination of employment [R.13] For terminating employment of a permanent workman , notice in

writing shall be given either by the employer or the workman-onemonths notice in the case of monthly-rated workmen, and two weeksnotice in the case of other workmen; one months or two weeks pay,as the case may be, may be paid in the lieu of notice.

No temporary workmen whether monthly rated, weekly-rated, or

piece-rated and no probationer or badli shall be entitled to any noticeor pay in lieu thereof if his services are terminated, but the services ofa temporary workman shall not be terminated as a punishment unlesshe has been given an opportunity of explaining the charges ofmisconduct alleged against him in the manner prescribed in para 14.

Where the employment of any workman is terminated, the wagesearned by him and other dues, if any, shall be paid before theexpiry of the second working day from the day on which hisemployment is terminated.


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Certificate on termination of service [R.16]

Every permanent workman shall be entitled toa service certificate at the time of hisdismissal, discharge or retirement from

service.There is a provision under this Act for issuinga service certificate at the time of dismissal,discharge or retirement, and every person isentitled to take such certificate.

Disceplinary Proceeding

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