Standing Orders ACT2009

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Industrial Discipline

May 2012


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Contents :

The Industrial Employment (Standing Orders) Act, 1946

Steps leading to Disciplinary Action

Domestic Enquiry Absenteeism

Violence at workplace

Theft

Negligence

Go-slow

Efficiency


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Industrial Discipline...IntroductionRoots :

Contract of employment

Model / Certified Standing Orders

Settlement between the Company and the employees

Work culture, practices, rules & regulations

Employee representatives and pressure groups


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The Industrial Employment (Standing

Orders) Act, 1946

An act to require employers in industrialestablishments formally define the conditions of

employment under them


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The Industrial Employment (Standing Orders) Act,

1946Matters to be provided in the Standing Orders

Classification of workmen

Manner of intimating workmen periods & hours ofwork, holidays, pay-days, wage rates

Shift working

Attendance and late coming

Leave & holidays : application, authority

Requirement to enter premises by certain gates &

liability to search


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The Industrial Employment (Standing Orders) Act,

1946

Closing & opening of sections of the esta., temporary

stoppage of work : Rights & liabilities of the employer

& employees Termination of employment : notice to be given by the

employer & employee

Acts or omissions which constitute misconduct

Means of redress for workmen against unfair

treatment or wrongful executions by the employer, his

agents or servants


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Steps leading to Disciplinary Action

Complaint

Investigation

Weighing pros and cons

Compromise

Framing of Show Cause Notice / Charge sheet

Delivery of SCN / Charge sheet Response from the delinquent worker

Milder action / Suspension Pending enquiry

Enquiry


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SCN & disciplinary actions

Charge Sheet / Show-cause notice

Reply by the employee

Action : Warning, suspension etc.


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Charge-sheet / Show Cause

Notice A memorandum of charges i.e. acts or omissions alleged to have beencommitted by the employee

Objective : to tell the accused what he supposed or alleged to have done.

To give the employee a reasonable opportunity to defence

A precise and definite catalogue of charges so that the employee mayunderstand and effectively meet.

Charges must be specific in all possible details besides being

accurate.Should contain all relevant facts.

The facts in the charge-sheet must disclose the misconducts with which the

employee is charged-time, venue, manner in which incidence happened,witnesses, documents, records


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Charge-sheet / Show Cause

Notice Ensure that language used in it does not show that theemployee is guilty.

Time - qualify - about

It has been reported against you - implications..

Use the words that are mentioned in the Standing

Orders

The charge-sheet must be signed by the competentauthority


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Reply to the Charge-sheet / Show

Cause NoticeContingencies :

Admission of charges

Request for extension of time forsubmission of explanation

Refusal of charges

No submission of explanation


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Reply to the Charge-sheet / Show

Cause NoticeEssential ingredients of the reply :

Admission of guilt

Unconditional apology

Assurance of not repeating such acts infuture


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Role of HR Dept.

Investigation into facts, evidence, witnesses

Arrive at conclusion

Weigh pros and cons

Consider other deciding factors - nature & gravity

of the misconduct, past history of the employee,

impact on work-culture, pressure groups


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Decision on the basis of the reply

Factors to be considered :

Gravity of the misconduct

Reply submitted by the employee

Past record of the employee

Misconduct : by intention or a mistake

Policy issues e.g. smoking


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Suspension pending enquiryCircumstances justifying exercise of right to suspend : where the continuance of the employee may endanger industrial

peace or security

where the continuance of the employee at workplace mayprejudice investigation, trial or enquiry e.g. apprehended

tampering with witnesses or documents

where the preliminary enquiry into the allegations made has

revealed a prima facie case justifying criminal or dep.proceedings which are likely to lead to his conviction and / or

dismissal or removal from services


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Suspension pending enquirywhere the employee is alleged to have committed

following misconducts :

an offence of conduct involving moral turpitude corruption, theft, misappropriation of companys

money

serious negligence

refusal or deliberate failure to carry out written orders

of supervisory staff


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Domestic Enquiry


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Objectives...

To find out the truth of allegations against

an employee / workman.

To provide a fair opportunity to the

delinquent workman to defend


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Principles of Natural Justice Nemo judex in causa sua : No one should be

judge in his own cause

Audi Altrem Paltrem : No one should becondemned unheard

One who hears must decide

A person cannot be expected to take an

objective decision in which he has an

interest


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Audi Altrem Paltrem Notice

Right to present his case

Right to rebut adverse evidence

Right to be presented

No evidence should be taken at the back of

the party


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Domestic Enquiry proceedings-

Appointment of presenting officer

Briefing of the witnesses

Information about the enquiry proceedings

Enquiry proceedings Report of the enquiry officer

Official record to be sent to the disciplinary authority

Decision to be made by the disciplinary authority

Second Show Cause Notice

Appeal

Punishments


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Who should be... the Disciplinary Authority

the Enquiry Officer


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The Enquiry Officer An impartial person with an open mind and without

prejudice against the delinquent employee

Should act impartially, objectively and fairly

Should possess necessary knowledge

Information to the delinquent about the charges

Examination of the witnesses in the presence of the

workman & cross-examination by the workman Should not use reports made behind the back of the

workman.


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The Enquiry Officer Report : A brief summary of the documentary and oral evidence

as well as the arguments advanced by both the parties.

Conclusions and reasons thereof

EO not be travel beyond the limit of the charges

EO not to recommend a punishment.


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ABSENTEEISM

(A) LEAVE 1. FACTORIES ACT, 1948

2. SHOPS & ESTABLISHMENTS ACT

3. STANDING ORDERS ACT

(B) LEAVE OF ABSENCEDICTIONARY MEANING - LEAVE = PERMISSION

UNLESS SUCH PERMISSION IS GIVEN OR LEAVE

SOUGHT IS GRANTED IT WILL BE UNAUTHORISED

LEAVE

(C) ABSENCE FOR SHORT PERIODS

ABSENCE FOR LONG PERIODS


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ABSENTEEISM

(D) REFUSAL OF LEAVE BY MANAGEMENT

(E) HABITUAL ABSENCE WITHOUT LEAVE

(F) EVIDENCE :

(1) RECORDS - ATTENDANCE REGISTER,

LEAVE CARD, ATTENDANCE CARD

(2) MENTION - DATES AND NO. OF DAYS IN

EACH MONTH(3) BRING EVIDENCE TO SHOW IT AFFECTS

PRODUCTION AND EFFICIENT WORKING


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ABSENTEEISM

(G) EXTENSION OF LEAVE

(1) WORKMEN SHOULD SEND APPLICATION FOR

EXTENSION IN ADVANCE

(2) MANAGEMENT TO COMMUNICATE REFUSAL TO

EXTEND LEAVE

(3) IF NO REFUSAL SENT,THERE IS AN IMPLIED

PRESUMPTION OF GRANT OF LEAVE

(H) PROOF OF RECEIPT

REGISTERED A/D LETTER

UNDER CERTIFICATE OF POSTING(I) OVERSTAY OF LEAVE

REMAINS ON SANCTIONED LEAVE FOR A PERIOD AND

THEN ABSENTS

(J) VOLUNTARY ABANDONMENT OF SERVICE


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VIOLENCE AT THE WORK PLACE Section 141 of the ipc defines unlawful assembly : as an assembly of five or

more persons, if the common object of thepersons composing that assembly

is

First : to overawe by criminal force, or show of criminal force...... Or

Second : to resist the execution of any law, or any legal process; or Third : to commit any mischief of criminal trespass, or other offence; or

Fourth : by means of criminal force, or show of criminal force, to any person

to take or obtain possession of any property, or to deprive any person of

enjoyment , or to enforce any right or supposed right; or

Fifth : by means of criminal force, or show of criminal force, to compel any

person to do what he is not legally bound to do, or to omit to do what he is

legally entitled to do


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VIOLENCE AT THE WORK PLACE Section 146 : rioting

Whenever force or violence is used by unlawful assembly, or by any member thereof,

in prosecution of the common object of such assembly, every member of such

assembly is guilty of the offence of rioting.

Section 339 : wrongful restraint

Whoever voluntarily obstructs any person so as to prevent the person from

proceeding in any direction in which that person has a right to proceed, is said to

wrongfully restrain that person.

Section 340 : wrongful confinement

Whoever wrongfully restrains any person in such a manner to prevent that person

from proceeding beyond certain circumscribing limits, is said wrongfully toconfine that person.

Defences in case of assaults

General circumstances to be kept in view when workers are involved in riotous

behaviour..

Evidence in case of rioting and assault.


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NEGLIGENCE Derived from the word neglect which means not to care or

not to pay attention to the work of leave something undone or

omit to do. It means want of proper care, or attention or carelessness.

An inadvertent imperfection by a responsible human agent in

the discharge of a duty as produces in an ordinary and natural

sequence a damage to another. Unintended damage/consequence.


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NEGLIGENCE Concept of negligence is negative in character.

When an employee is accused of negligence, he is not

accused of doing something but on the other hand he is

accused of not doing something or failure to exercise

sufficient skill or diligence. e.g. Forgetfulness, delay,

e.g.Doctor, signalman, mechanic - aeroplane

Punishment : depending on charge, previous record and

circumstances.


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Go Slow


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Definition... The tactics of the workmen, when

individually or collectively, they

intentionally reduce the speed of their workor adopt dilatory tactics to reduce the

production or or efficiency while pretending

to be engaged on their respective jobs.


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background... Union : weapon in their armoury, an

alternative to strike, legitimate weapon to

pressurise the Management

The Supreme Court and High Courts : a

serious misconduct, much more harmfulthan the total cessation of work i.e. strike


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Provisions... Unfair Labour Practice under Item 5 of

Schedule III of the Maharashtra Recognition

of Trade Unions & Prevention of UnfairLabour Practices Act, 1971.

Model Standing Orders : wilful slowing

down in performing of work, or abetment orinstigation thereof.

Contract of employment.

Settlement


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Landmark Judgements... Zakih v/s Firestone Rubber Company, 1954, I LLJ, 281,Bombay HC.

Bharat Sugar Mills v/s Jai Singh, 1961, II LLJ, 644, SC.

Bank of India v/s T S Kelawala, 1990, II LLJ, 39, SC. P G Gangadhanan v/s Presiding Officer, 1996, II LLJ, 1234,

Madras HC.

Krishkumar v/s Nicholas Laboratories, 1997, II CLR, 324,

Bombay HC.

Carona Sahu Ltd. v/s Mansoor Ahmed, 1997, I CLR, 769,

Bombay HC.


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Go Slow must be wilful ...wilful

Deliberation & calculation, intention on the

part of the employee to prejudice theinterest of the employer.

Rules out any possibility of the slowing downbeing accidental or unintentional.


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Disciplinary action... Investigation : nature of production, stagesof production, their relative importance, role

of worker at each stage, pre-production

activities, facilities for production, effect onproduction.

Chargesheet : sufficient particulars about

the go-slow indulged in by him, days onwhich he slowed down, norms that the

employer expects / are fixed, how he has

fallen below the norms.


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Disciplinary action... Reply to the Chargesheet by the employee Departmental Enquiry

Report of the department enquiry Second showcasuse notice

Reply to the S.S.N

Punishment


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Punishments : Censure / warning Deduction in wages

Dismissal


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Measures... Establish by documentation production norms expected

from workmen over a normal shift..quantification of

output. If there is any change in the procedures, process

improvement, introduction of new machinery, refix the

norms.

Understand a workmans viewpoint while finalising thenorms.

Norms should not be negotiable after finalisation.


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Measures... Norms should be communicated to allworkmen..wherever possible..include it in the

Settlement

Wherever the shotfall in production is noticed, recordthe same with details of the date, shift, names of the

workers, technical reasons for failure, time etc.

Wherever the shotfall is attributable to the workman,

discuss with him first.

Put up periodic notices, in case of a collective go-slow.

Standing Orders ACT2009

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