Kishorkulkarni
Law Practice
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Asso.prof.(commerce & Management) Pg
Kknair
Hr, Ir, Law, Disc. Matters
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Thread Started by #devamritam15@gmail.com

Hello Friends
In need your valuable advice for my below querry.
During suspension pending enquiry proceeding, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on behalf of him.
Pls provide be sufficient court orders also which adduce the authority authorising him to engage lawyer.
Thanks
Sreedevi
29th November 2013 From India, Thiruvananthapuram
The purpose of conducting domestic inquiry is to allow or offer sufficient opportunity to the delinquent employee who is charged with a misconduct. Normally an ordinary employee is not well aware with the procedure and practice followed in the Inquiry. Also he may not have skill to put cross-questions to management's witness and thus defend his case. Hence, assistance of a co-worker or of a union representative has been permitted by making a specific provisions in the Model Standing Orders.
In case, when management is represented in Inquiry by a skilled, experienced and trained person in law or by a lawyer, denial of assistance of an Advocate is not advisable. So also, the charges are complicated and any ordinary man cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
30th November 2013 From India, Kolhapur
The relevant provision of Model Standing order is attached
30th November 2013 From India, Kolhapur

Attached Files
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File Type: pdf SO.pdf (27.9 KB, 200 views)

It is the general practice, an employee along with the Advocate is allowed, but Advocate alone dealing with the matters in the absence of an employee is not acceptable (unless the employee is physically or mentally not in a position to attend and deal by himself...), with the presence of an employee, Advocate cab deal with the matters, enquiry, inquiry, any related procedure for that matter completely........
1st December 2013 From India, Bangalore
Dear Sreedevi,
In the normal course for a domestic enquiry, engagement of a lawyer by the delinquent employee is not allowed, unless the Rules for conduct of such enquiry permit it.
I am attaching two judgements in this regard.
(i) A Supreme Court Judgement in Management of National Seeds Corporation v. K V Rama Reddy and
(ii) A Judgement by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgement. Please note that this highlighting is not a part of the judgement itself.
I trust you would find these helpful in arriving at a decision in regard to engaging a lawyer.
Regards
Raju Bhatnagar
3rd December 2013 From India, Bangalore

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File Type: pdf Supreme Court - Management of National Seeds Corporation v. K V Rama Reddy - representation by a.pdf (30.6 KB, 198 views)
File Type: pdf Madras High Court - V Mathivanan v State Bank of India - representation by a legal practitioner .pdf (55.3 KB, 119 views)

If the rules permits or if the management is represented by an advocate then rhe employee is entitled to be represented by an advocate.This is the general rule.But there are court ruling holding that if the charges are very complicated to defend then an advocate can be allowed for compliance of natural justice.
If your establishment is in Kerala follow only model standing orders under Kerala SO rules.
Varghese Mathew
9961266966
3rd December 2013 From India, Thiruvananthapuram
Dear friends,
My opinion is that more than anything, the provisions of SO/Conduct & Disciplinary Rules which governs them have a say in the matter as other citation can apply to the specific cases relevant rather than suo-motto apply to all the cases. This is because every case will have certain specifics and different than the other. Surprisingly there are different judgements passed by various courts as you could see from the attached citations, there are some far and some against, this is just because circumstances differs. So one has to approach based on the merits of each case.
http://police.pondicherry.gov.in/pol...ASE%20LAWS.pdf.
I'm sure this would provide interesting reading to our friends who seeks such things.
3rd December 2013 From India, Bangalore

Attached Files
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File Type: pdf DE-CASE LAWS.pdf (330.7 KB, 119 views)

------------------
Dear friends,
It's generally accepted privilege to a charged employee to represent himself by a Union rep. Supposing the very same Union rep.happened to be a Law graduate, if not a practising Advocate being an employee or a non-employee but part of the Union then how the Lawyer could be denied to represent the charged/accused employee. I came across many union office bearers who are not an employee per se, but prominent politicians, practising advocates, prominent labour leaders some times retired employees etc., still can take part in such disputes and enquiries, they also can sign settlements, agreements on behalf of the Union/employees like wage settlements, conciliations etc. Then how they can be denied either assisting or participating in the enquiry? Some member Advocates in practice might like to contribute with their experiences.
5th December 2013 From India, Bangalore
Dear all, The judicial dictum is well settled that assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So the assistance of Advocate is not by default and is to be allowed only where the Presenting officer is a trained legal mind, (like practising advocate or a prosecutor from Police Establishment) and where the facts are too complicated and carries legal issues which have not been settled so far by the higher courts.KK
6th December 2013 From India, Bhopal
One final point in this matter.If any of the members are preparing standing orders make it in such a way that only a coworker can be allowed to assist the delinquent employee,and not an advocate or TU leaders.Co worker may be a TU executive. But it is less of consequence than an external leader who in most cases will be an advocate or a politician who will complicate the enquiry.The existing SOs can also be amended along these lines.
Varghese Mathew
Labour law Adviser
09961266966
6th December 2013 From India, Thiruvananthapuram
I wonder of the suggestion- Standing Orders should be made to allow only co-worker in Inquiry and nobody else. It seems submission and getting certification of Standing Orders is not a joint-task but a unilateral process of Management, so that the management can put anything in them. Is it possible to prepare Standing Orders anything less than the Model S. O. prescribed by the Govt? The word "modification" should mean curtailing of rights? Will the Certifying Authority certify such S. O. which are detrimental to the workers?

We must remember that whether there are Standing Orders or certain Rules of procedure, they can not override the provisions and principles of law. In short, rules or S. O. are there to facilitate and not to restrict the provisions of law.

When the principle of natural justice has to be strictly followed in the cases of a domestic Inquiry, the procedure, rules or standing orders are to be prepared to help and facilitate the principle and not to restrict the scope of the principle.

The provisions of Standing Orders do prevail, but when? When the charge is of simple and uncomplicated nature. But, when the same is complicated, of serious nature and an ordinary man is unable to understand it and thus defend his case, then are we going to show the provisions of S. O. and reject the assistance of a legally trained person? In such circumstances, provisions of S. O. become redundant.

That's why wise Inquiry- Officer does not give much consideration or weight to such provisions of S. O and in spite of objections of management, takes proper decision depending on the facts and circumstances of the case. Here strict interpretation of S. O. is not advisable but a liberal interpretation will help in the long run.
6th December 2013 From India, Kolhapur
I made the suggestion because I was involved in drafting and getting certified two SO in the lines I suggested though Kerala model SO states that a workmen can be represented by an office bearer of his TU (he can be an outsider)and it is still administered.I also have seen many SO in kerala in that way.
Varghese Mathew
9961266966
7th December 2013 From India, Thiruvananthapuram
Dear Varghese Mathew,
My intention was to comment on the attitude of many managements to narrow down or restrict the rights available or even to deny such rights given by statutes. There is more and more tendency of such nature, which I feel alarming. If we see the posts and queries on this cite, they often talk of some handmade rules and company policies, which are never put on paper or never tested to laws and times. It is for a good HR Manager to see that the right practice, procedure and fair approach in all aspects is adhered to, followed and maintained in his unit. But, the scene is not a happy one.

I appreciate that you were successful in getting the draft of S.O. duly certified by the Officer. It will always be helpful to have such suggestions for discussions due to which all will benefit.
With warm regard,
Adv. K. H. Kulkarni
7th December 2013 From India, Kolhapur
Thank you Mr Kulkarni.
From various posts in citehr I also have the same feeling.Some of the practices in the new-gen Cos are;
1.Appointment orders are not issued.
2 .Illegal bonds /terms are got signed.
3.F&F settlements, issuing of service/salary certificates ,payments of statutory dues,are not done /delayed for not complying the 'Co policy'
4 .Employees not adhering to notice periods.
5.Employers not agreeing for buy-back .leave adjustment against notice period.
Varghese Mathew
7th December 2013 From India, Thiruvananthapuram
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