V.Raghunathan
Process Industry Consultant / Soft Skill
Tsivasankaran
Consultant
B K BHATIA
Director Of Company
Kknair
Hr, Ir, Law, Disc. Matters
SAIBHAKTA
Retired From Air India
V. Balaji
Ir & Hr
Rakesh Pd Srivastav
Chief Manager - Hr (plant Head Hr)
Harshal16
Junior Manager (hr)
Rukvij
Management, It
+8 Others

B]Dear HR Fraternity
We have a case in hand, wherein, a worker had used most filthy and foul language against a senior Manager in the shop floor. He was immediately kept under Suspension (pending Inquiry). An inquiry was conducted and was proved guilty. Now question is can an employee be dismissed from service for this misconduct and will it be harsh or disproportionate to his misconduct. Is there any case laws to support the decision of the Management.
S.MANOHAR
Dear Mr. Manohar,
It has been decided in the various cases by court that using abusive language against any superior is a serious misconduct that leads to the dismissal of employee. The only precaution which has to be taken is it should be through proper domestic inquiry in accordance with the procedure of natural justice also if your organization has the certified standing orders such misconduct must be mentioned there.
Regards,
Padamnave Parashar
Manager IR
Thank You Parashar
I have also seen certain SC rulings that an employee who has used foul and filthy language cannot be considered as a minor misconduct for lesser punishment. Now, the issue is the employee has realized his misconduct and is applying pressure through Union for pardoning him and to give a chance, whereas Management is very firm that if this type of misconduct cannot be taken lightly and it may give a wrong lead to other workers that they can behave in any manner and Management would not take it seriously. Therefore, the Management is absolutely right and the decision will be enforced. The question is he claims that only on instigation of the officer he used such language. Will the decision of the Management stand before conciliation in case he raises a dispute under sec 2a of ID Act.
S.MANOHAR
Dear Mr. Manohar,
As far as legality is concerned the management is right and on merit. Giving light on the circumstances if management willing to forgive the employee it should be expressed to all employees as a caring step of the management not a result of pressure tactic.
Regards,
Padamnave
It depends on his earlier conduct and criticality to your organisation.
We had a similar case happening during a very sensitive period. After reading the enquiry report but before proceeding to the courts, employee himself offered to resign and collect all dues. There was history with this worker, so we thought it was good riddance of bad rubbish.
Dear Mr. Manohar,
Found a link on gross misconduct which contains FAQs on the same.Please go through this, in case it helps you.
Gross misconduct: 16 FAQs | Law Donut <link updated to site home>
There court decisions upholding the punishment of dimissal for such disorderly and indecent behaviour. however, you need to ensure that such behaviour falls within the purview of the acts of miscondcut specified under your disciplinary rules and dismissal is also one of ethpenalties enumerated under the rules/standing orders of teh company.So far as commuting the penalty is concerned, it depends up on the following factors-
1)His past condcut is unblemished and this is the first instance.
2) His behaviour wasnot intentional but due to provocation from the manager
3) He is a critical resource etc.
4) he can be reloacted
5) suspension itself serves as enough punitive to dter him from such behaviour infucture.
B.Saikumar
Mumbai.
Dear Manohar et al, The question as to whether the Management would be able to justify itself before the Conciliation Officer need not deter you from taking strong action in the matter. As you have seen the earlier days of leniency is no longer prevailing in the courts and there is a realisation that if the activities have to continue then discipline is a must. There cannot be much of meaning activity if every one is allowed to utter obsenities and abuses against each other and a situation of anarchy would remain. Hence you have a sufficient case to impose the penalty of dismissal from service. Regards. KK
Procedural Issues
1. Have you issued second show cause notice informing the proposed punishment? This is required more so in case of dismissals. I suggest even if your Standing Order is silent about second shou cause notice, you should follow this procedure.
2. If the employee is dismissed, then he can directly approach the Labour Court and need not go through conciliateion. If he goes for conciliation under 2 A, the conciliation officer need to refer the matter for adjudication and can not reject reference based on enquiry proceedings.
Practical issues:
1. Has he been always behaving like this? Any previous incidnets?
2. What provoked him and has he taken this plea before enquiry officer?
3. Has it been proved that there was provocation? If there had been any iota of doubt about provocation in the mind of the Enquqiry officer, then dismiisal will not stand before the Labour Court. Capital Punishment is not awarded where there had been provocation.
T Sivasankaran
Dear Manohar & Friends,

1. The issue at hand is not just disciplinary but also one of it's effect on productivity & business through employee morale. Thus the following guidelines could generally draw the course of action:-

>Factors To Assess The Crime & Establish Reasons For This Symptomatic Behavior Of

An One Off Incident Or An First Indication Of An Existing Larger Malaise:-

(a). Has this been the first instance of the individual's behavior & what level was his earlier behavior.

(b). What were the circumstance and provocations that led to it,

(i). Immediate at the work site.

(ii).In time & space at work.

(iii).In his personal life.

(c). Interpersonal behavior of the employee with other employees and a union if any.

(d). Employees indispensability to the process / enterprise.

(e).General prevailing emotional environment on the shop floor/ office/ work place and among the employees.

(f).Direct/ indirect factors that may have created the emotional environs mentioned above and the managements role in its creation.

>Process Of Removal If Assessment IF The Individual Is Useless To The Mgt & Shop/Office/Process Floor & Removal Will Serve A Larger Purpose:-

(a). Institute an impartial inquiry with members and witnesses from all levels of the concerned department to check all of the above factors & establish the origin of the misconduct by the employee as that of an deliberate misconduct / generally uncontrolled emotional behavior / unrepentant first time irrational behavior causing irrecoverable loss greater than the individual can pay back / bad influence to the progress of the company /etc on these lines (Generally these exist in the SOPs of every organisation).

(b). Give the individual a show cause notice within a stipulated period and place him under suspension if required and under company policy to which he should have signed abidance at the time of enrollment.

(c).On receipt of his reply, assess it in light of the assessing factors and decide if it is sufficient or not.

(d).Record / 'Minute' the result of the assessment / decision.

(e) Recommend action / approve it from the hierarchy & legal dept if any and if required.

(f). Inform him of the inadequacy of his explanation.

(g).Hand him the termination orders based on the all of the above.

2. Thus you would have covered all procedural and legal aspects logically sans emotion.

Regards,

Dilip
Dear Dilip

The steps you have suggested in respect of the incident will be useful to search for long term solutions to prevent such unseemly behaiour among the employees such as conducting a training on behavioural management or anger management for both workmen and supervisors etc.. Whatever be the reasons behind the workman's present behaviour, it is highly subversive of discipline and do not justify his condcut of heaping insults on the manager and humiliating him by using foul language and in downright disreagrd for his self-respect, esteem and image and thus needs to be dealt with from disciplinary angle which the company has already taken. The only issue that remains to be seen is whether the dismissal will be disproportinate for this kind of misconduct.There are umpteen judgments that upheld dimissal for such indecent behaviour.However if there exist mitigating circumstances like that it is the first incident or it was the result of provokation from the manager but for which the workman wouldnot have misbehaved etc. can be considered in reducing the quantum of penalty but not dispensing with penalty so that it will act as deterrent for other workers in future.

B.Saikumar

HR & Labour Law advisor

Mumbai
Hi,
If this was the first time where his previous records are not such than a warning should be given and he should be given an observation for 1 or 2 months. If the same repeated again than probably termination is a ideal scenario.
Also it is necessary to know that against whom the foul language was used, what made him do that? Is it because the manager has been behaving badly with him which has led to such incident.
Many cases where employee leaves the job is because not of the company but due to the manager or his senior who don\t treat their sub-ordinates properly. Thus also you loose a useful resource for your company.
Hi
In addition to the valuable comments posted by our experts it would also be prudent to examine the Standing Orders of the
Company and the appropriate disciplinary actions mentioned thereunder for a similar offense. Our actions shall always be in congruence with
the same.
Dr. T. Thomas.
I do not agree that someone can use unacceptable language over his superior and ask for pardon later. Whatever may be reason for provocation, etc. using filthy lanaguage against an employee is not justified.
I have come across several court cases and judgments, that it is not disproportionate to impose punishment of dismissal. Whether the employee has clean track record earlier or otherwise, this does not mean that he will be able to be seen leniently this time.
I am for imposinng capital punishment.
V. Balaji
Dear Mr. Manohar,
I feel that you have to consider his background, his habits, his family and whether his dismissal is going to put his family on the street. If dismissed, it is likely that he will get another job elsewhere. I think, if he repents his misconduct, if he is willing to apologize, he may be demoted and kept on rolls of the company since it would prove as a deterrent to others from indulging in such misconducts.
If the employee is an experienced one, it woud help the company in avoiding getting a replacement for him.
N K Acharya
Dear Mr. Manohar,
This is just a correction to my earlier post, I meant "it is unlikely that he would get a job elsewhere if dismissed" and not "it is likely that he will get a job elsewhere". Sorry for the mistake
Thank you,
N K Acharya
Dear Manohar
There are always two aspects
1. What is legal
2. What does the management want and what is equitable
As you have mentioned, you have followed the legal steps required to reach the conclusion.
For the punishment, What is the view of the management ? Are they ready to fight the matter out to the highest possible level and stick to the decision ? This is important as any weekness of yielding to the union / workmen will create an everlasting impression and thereafter the situation may never come back to normal.
If you have a strong union, and management feels that they can get some leverage out of this situation and are flexible, it is best to use this situation to your advantage
Regards
Preetam Deshpande
Dear Mr. Manohar,

All my friends have expressed their views. It is in line with legality.

If you complied with all the formalities in the domestic enquiry, giving fair opportunity to charge sheeted employee to defend his case, providing all the documents the Management depend on it, allowing the employee to cross examine the Management witnesses, they you have ample opportunty to defend your action in the eyes of law.

Pl. also note that in his defence statement, what he is stated is very important. If he has accepted the guilt, and if he has not stated that he hurled such words only on the provocation of the Manager/Sr. Officer and if he had produced any witnesses in this regard and in case the Management has rebutted all his such statements, you have got good chance even if the Employee raises the dispute u/S. 10(A) of the ID ACT.

The drafting of charge sheet is very important. All those filthy languges (as it is 0 has to be reproduced in the charge sheet.

After the due enequiry, and receipt of the report from the enquiry officer, a copy of the report along with the Second Show Cause Notice is to be sent asking the employee to submit his explanation on the findings of the enquiry officer. The disciplinary authority should analyse all the events in an impeccable manner and after looking at the past records of the employee, has to take a final call in dismissing the employee.

Hope you have complied with all the above formalities. Now a days courts view such misconducts very seriously. Only thing is you have to apply your mind in complying with all these formalities.

G.K.Manjunath,

Sr. Manager - HR
Legal position apart, interest of HR should be in reforming people rather than getting rid of them (which costs no effort). If the employee has no history of indiscipline, a written warning may be adequate, along with proper counseling by an expert. But along with that, it may be fair to place the defaulter under a different manager. That may enable the avoidance of a recurrence.
Dear T Sivasankaran,

I agree with your contention, however, I disagree with you that a workman can directly go to Labour Court and file the case. You would appreciate that with the latest amendment dated 15.09.2010 in I D Act, direct reference of disputes has become possible by the introduction of Sub Section (2) & (3) in the Act. Accordingly, in case of individual dispute of workman related to discharge, dismissal, retrenchment or termination by any means, now the workman has the right to approach labour court directly without waiting for conciliation proceedings and Govt. reference. But he has to wait for three months for this direct action from the date of filing his application before conciliation officer if the Govt. is not able to complete the reference process within three months. Earlier there was no such direct option available to workman to approach labour court.

Hence, a workman will have to wait for three months for this direct action at Labour Court from the date of filing her application before conciliation officer.

Further, I also feel that Manohar has followed well laid down procedures while initiating disciplinary action. I am attaching herewith a Supreme Court of India's decision holding termination as a right action for using abusive language against a superior. However, Mr B Sai Kumar's suggestions must also be considered before you inflict ultimate order of dismissal.

Rgds,

Rakesh Pd Srivastav

Attached Files
Membership is required for download. Create An Account First
File Type: docx Supreme Court's verdict on using abusive language against superior.docx (38.3 KB, 158 views)

I agree. What are your findings in the enquiry on provocation and extent and recurrence of bad behaviour?

Has a step of suspension (though personally I think suspension only holds a person guilty till proved innocent and against natural justice) been considered. Has any other punitive action under your company's Conduct Discipline Rules been considered?

Do you have defence before the Labour Commissioner/ Conciliation?

If it is a first off offence, reinstatement by legal authorities might show up Management as unfair.

However, if it is enforcement , have you also examined whether he was under the influence of alcohol or any other substance that could have caused aberrant behaviour and if so, what is the punitive action under your comaony's rulkes for such substance abuse. (first time, repetitive)

Suspension during the courser of final enquiry might help throw some light on the incident and a dispassionate finding might strengthen your legal position and back up your action.

Rukmani
Dear Siva Sankaran and all dear friends in the Cite.

The valuable opinions and suggestions on this issue was simply tremendous and encouraging. In nut shell, what can be adduced and questionable in the profession of HR,is that the HR man in whose hands these type of disciplinary cases fall, it is observed very carefully by all, what action is likely to be taken on an employee for the misconduct or whether the HR man is down playing or scaling down the seriousness, so on... However, in a shop floor, each one of them work in tight schedule and under high pressure, at times, there is always chance for a sour relationship between a Shop Floor Engineer and equally compressed worker to react before a senior officer. What I would call for the line people should have a good inter personal relationship while executing the work from a worker. This is his skill he should develop over the years. In this case, where an employee has used a filthy and foul language, only shows it was clear case of worker usurping the authority of a senior manager and it cannot be taken lightly.

I happen to stumble upon a SC ruling in Mahindra & Mahindra case a brief extract is given below:

[B][I]New Delhi: The Supreme Court has ruled that a workman could be dismissed from service for using filthy language against a superior without any provocation.

Allowing an appeal filed by Mahindra and Mahindra Ltd, a Bench comprising Justice N Santosh Hegde, Justice Tarun Chatterjee and Justice P K Balasubramanyan upheld the order of the Management dismissing N B Narwade.

With this order, the Supreme Court set aside three concurrent findings of three lower courts that punishment of dismissal would be disproportionate to the misconduct.

The Labour Court, Single Judge of the Bombay High Court and its Division Bench had all dismissed the appeal filed by Mahindra and Mahindra and directed reinstatement of Narwade who was found guilty of abusing his superior in a filthy language without any provocation on November 22, 1991.

The apex Court Bench said: "In this case, all the forums below have held that the language used by the workman was filthy. We, too, are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society."

"Use of such abusive language against a superior officer, that too not once but twice, in the presence of subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor," Justice Hegde, writing for the Bench, said.

Thursday, 24 February , 2005, Source: PTI

Thanks every one

S.MANOHAR

GR HR HEAD/NSPL CHENNAI

09444207703
Mr. Bhatia,
I totally agree with you. Your suggestion of posting the employee under a different manager is also worthwhile since the employee may have a grudge against the particular manager only. Looking at compassionate angle is worthwhile.
N K Acharya
Using abusive language by an employee as such against a superior authority per-se, should not by it self lead to his dismissal. It will be just and equitable that an over all view should be taken to impose a proportionate punishment, if only we want to render natural justice to the employee. The quality and content of the employee's track record, along with the scope of self-reformation of the employee, apart from all other confirmed evidences both for and against, should correctly guide the ' Disciplinary Authority '. The Disciplinary Authority should discern independently, if mouthing an abusive language should warrant such a severe and harsh / capital punishment as ' Dismissal '. At it's best, worst or most, the punishment can be, imposing a reasonable sufferance under major penalty proceedings.

Do not we have any other upright and righteous means of ' disciplining an employee for his worst behavior '?, other than exercising the one and only soft option i.e a ruthless disciplinary action. What has happened to certain universally accepted / acceptable ' Human Resources Dimensions ' as ' Employee Counseling ' , ' Speaking To Employees' union, ' Delivering Training Efficacy In Employee's Personal Effectiveness, Inter personal Relationships & Group Dynamics. These things too constitute, what we so liberally term as ' Out Of The Box Thinking ', but only just very exceptionally act on these HR virtues.

It's little / wonder, that most of the posts received suggest a very rigorous punishment as out-right dismissal of an employee, who is not otherwise gravely charged with violence at the work-place, perpetration of a fraud, and or blatantly working against the interests / concerns of the organization. Since the employee used foul and filthy language, he should be educated to suitably tender immediately an open / written unconditional apology to the concerned officer and to the company, failing which he may be threatened with 'administrative suspension with it's consequences. Quite perhaps, this will then afford a cooling period for the employee to introspect, regret and remorse for his gross misconduct, apart from the deterrent of loss of his self-esteem, honor, damnation and condemnation. ' The Fear Of Future ', in all wisdom, can still discipline the employee, other than company's want of timely prudence, as can be so comfortably be learn t from the ' Maruti company's past sordid state.'
Dear Prasad

Your analysis is excellent and you have opened the mind with human touch. One thing is sure, if an employee has a fear of future he is sure to be disciplined inside and outside the factory. whereas, now the milieu has changed. People can fetch an alternative jobs and damn care of their employment. Now, how can we expect discipline from such workers who want to dominate and show their local power in the shop floor. I have the strong opinion, in recent past, coercing, cajoling, counseling has become a disappearing fad. At the end of the day, Productivity should be met. Each one's role has become so tight and tough. In private sector performance matters.The Shop Floor now a days is full of frictions and one has to get the work from a worker.

Your point is extreamly valid that Employee relations needs to be built and nurtured. In a good progressive company these are ironed out and there is good binding relationship between Supervisors and worker. Therefore, your approach entirely revolves around culture building and bringing in better understanding. The need for rigorous punishment to the extent of dismissal is needed when you dont have real time to do these correctional exercises. Your suggestions are thougt provoking and to be emulated at once.

S.MANOHAR

GR HR HEAD/NSPL CHENNAI

09444207703.
Mr.Ram Prasad

Your suggestion to deal with an act of indicscipline from a reformative point of view and from the angle of behavioural therapy, is no doubt worth

considering as making it as part of HR process of educating and enlighteningboth the workmen as wellas supervisors through trainings and coachings on controlling behaviour and anger management.Such efforts may mitigate the occurrence of such incidents, if not totally eliminate them.Theefore an act of discipline is required to be seen from a different perspective.

Every one expects a HR professional to be a corporate monk, only to condone an act of abuse, only to forgive an act of assault, and only to excuse an act of insubordination. This is too utopian to be practiced in evry case.Given the school environment and social and family environment in India, have we not been taught to refrain from using foul langauge in our childhood and adolescence?Have we not been admonished to be calm, when we were found in an agressive mood or action? have we not recieved sermons in childhood and adolescence about virtues of being polite to others?Have we not been counselled when we were caught indulging in some mischief?Inspite of all these teachings, preachings, sermons, lectures and lessons on good conduct from childhood, people, when they grow up still indluge in breaching it at work places.

There is a subtle line of difference between a behavioural aberration and an act of indiscipline amounting to a miscondcut, calling for two different treatments. the former needs a reformative approach and teh latter calls for deterrent approach- an aproach that should deter not only the delinquent emlployee but also others from committing such acts of misconduct in future.The HR shall be aware as to how to draw thsi line of demarkation to adpt right approach in each case. In the modern globalised environment and competetive markets,survival of business depends up on a disciplined work force and peace and harmony in indutrial relations..Therefore, while imposing the penalty, the HR needs to balnce the interests of the individual workman and the interests of business and take a call on the quantum of penalty.

B.Saikumar

HR & labour Law advisor

Mumbai
Dear Sai Kumar,
Abs true. Nothing at all can justify abusive behavior. My response was also aimed at providing our younger friends with a process of arriving at a decision and taking action that can stand the test of logic as well legality, in case some one tries to contest it in the Management, Union, Court or just simple office politics,
Dilip.
Dear Saikumar,

Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrail relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.

Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.

Regards,

Rakesh Pd Srivastav
Dear Saikumar,

Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrial relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act of condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.

Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.

Regards,

Rakesh Pd Srivastav[/QUOTE]
Thanks Mr Srivatsav Noted the latest amendment. However the fact remains that the employee can move the court directly and in cases of dismissals, reference will be made unlike 1960s and 70s where many managements have managed to "no refernce" and many have approached HCs for quashing the orders of the govt.In fact reference itself had been the subject matter in many appeals and we used to drag cases for 10 to 15 years.

I have no comments on punishment and it is the Managements decision based on so many factors.I only said if there had been any provocation from the concerned Managers side, then I would not advise dismissal.Both on legal and moral grounds. If there is no such provocation, then dismissal is the pu nishment.

It is my personal opinion...capital punishment both in criminal law and in labour law are not desirable in Civilised soceity. If a person is using filthy langauage, I would ignore him I have seen people who used filthy language have corrected when they are ignored. Many do not agree with me and I had been successful in converting atleast a dozen guys in my career.

But the management always resist by saying that it is not running a 'rehabilitation centre " which is also true

Thanks once again

Sivasankaran
I think you may call the employee and get an undertaking from him that he had indeed been abusive and used filthy language.That he repents his action and apologises if his job can be saved .Thereafter on humanitarian grounds the management may forgive him and give him one last chance to improve his conduct.
Dear Mr S.Manohar,

In a short time a plethora of excellent postings have appeared from the learned members.

May I present my views as under.

When seen from a priority and safety point of view,it has to be

ensured that the recorded enquiry proceedings are on a fair and firm footing.

It should be robust to withstand a possible legal battle in future.

Apart from enquiry proceedings is there a Standing Order that provides for the punishment of Dismissal?

Has the employee been given a copy of the standing order when he joined or were the

contents explained to him in a formal training session or during induction.

I am not sure whether this is mandatory by Law.

Having ensured the above, comes the punishment aspect of the case.

The management may take the call taking a overall view.

This could be, in addition whatever suggestions already made, a demotion or a stopping an increment

or as deemed appropriate. This via media ensures two things.

Punishment awarded to the guilty.

Sympathetic consideration has taken place.

V.Raghunathan..................................... ................................ Navi Mumbai
Add Reply Start A New Discussion

Cite.Co - is a repository of information created by your industry peers and experienced seniors. Register Here and help by adding your inputs to this topic/query page.

Prime Sponsor: TALENTEDGE - Premium Professional Certification Courses for career growth from top institutes like IIM / XLRI direct to device (online digital learning)





About Us Advertise Contact Us
Privacy Policy Disclaimer Terms Of Service



All rights reserved @ 2019 Cite.Co™