Jessiejpr
Hr Consultant & Trainer, Cipd
Revribhav
Translator,healer
Pune.hr
Manager
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WHAT IS MISCONDUCT?

Any act or omission on the part of an employee which is a breach of any duty, obligation or

assignment arising under or flowing from any law or contract of employment or service rules or

standing orders, settlements or awards or improper conduct or wrongful behavior is a misconduct.

TYPE OF MISCONDUCTS

Minor Misconducts

The following acts or omission on the part of an employee shall amount to minor misconduct:

1. Late coming

2. Absence from duty without leaves for a period of less than six days

3. Loitering, gossiping in department during working hours

4. Failure to ware tight clothes/specified uniform.

5. Negligence of duties or neglect of work.

Major Misconducts

The following acts or omission on the part of an employee shall amount to major misconduct:

1. Willful insubordination or disobedience of any lawful and reasonable order of a superior.

2. Going on legal strike or abetting, inciting, instigation.

3. Willful slowing down in performance in work or instigation there of.

4. Theft, fraud or dishonesty in connection with the employer’s business or property.

5. Taking or giving bribes or any illegal gratification.

6. Habitual absenteeism without leave for more than 10 consecutive days or over staying the

sanctioned leave without sufficient grounds.

7. Habitual breach of any standing order or any law applicable to establishment.

8. Collection without the permission of the manager or any money within the premises of

establishment.

9. Engaging in trade within the premises of establishment.

10. Drunkenness, Riotous, Disorderly or indecent behavior on the premises of the establishment.

11. Commission of any acts subversive of discipline or rude behavior on the premises of the

establishment.

12. Habitual neglect of work or habitual negligence.

13. Canvassing for union membership or collection of union funds within the premises of the

establishment.

14. Willful damage to work in process or any property of the establishment.

15. Holding meetings inside the premises of establishment without the permission of the

manager.

16. Disclosing to any unauthorized person any information in regard to the processes of the

establishment.

17. Gambling within the premises of establishment.

18. Smoking or spitting on the premises of the establishment, where it is prohibited.

19. Failure to observe safety instructions notified by the employer or interference with the safety

devices.

20. Distributing or exhibiting within the premises of establishment and bills, pamphlets and

posters.

21. Refusal to accept a charge sheet order or other communication served in accordance with

the standing orders.

22. Unauthorized possession of lethal weapon in the establishment.

PENALTIES FOR MINOR MISCONDUCT

Warning, fine, passing adverse entry in service records, recovery of loss of goods for which the

concerned workman is accountable, recovery from wages of the whole or part of any loss caused

by the workman through negligence.

PENALTIES FOR MAJOR MISCONDUCTS

The following penalties may be imposed for good and sufficient reasons if an employee found

guilty of major misconduct.

Warning or censure, withholding of increment, fine, stopping promotion, demotion, suspension,

discharge, dismissal, vacation of company quarter or any other punishment which the manager

may deem fit.

PROCEDURE FOR AWARDING PENALTIES FOR ACTS OF MINOR MISCONDUCT

Where allegations of misconduct against the workman are of minor nature, he is called upon the

position verbally or otherwise. The manager or his authorized representative after hearing the

concerned workman will decide if the workman deserves any punishment and if so pass orders

accordingly. It is not necessary to hold enquiry in such cases.

PROCEDURE AND CONDUCT OF ENQUIRY

1. The I.D Act or any other law does not prescribe any procedure to be followed by the

employer in domestic inquiry.

2. In the absence of any statutory provision, the domestic enquiry do need not confirm to all the

requirements of judicial proceedings, they however, must satisfy the essentials of principle of

natural justice.

3. The guiding principle therefore, is that domestic enquiry should be conducted without bias

and by giving the delinquent employee an opportunity for adequately presenting his case.

4. Apart for compliance with the rules and principles of natural justice, the domestic enquiry

must be held honestly.

COMPLIANCE WITH RULES

1. In holding enquiry standing order in industrial employment should be followed as the standing

orders have force of law and constitute statutory terms of employment.

2. In holding enquiry statutory rules framed for the purpose should also be followed.

3. The enquiry must be conducted by an authorized person.

SUSPENSION PENDING ENQUIRY

A workman who committed a major misconduct may be placed under suspension by the

manager. A workman under suspension shall not leave the town during the period of suspension

without prior permission of the manager. A workman who placed under suspension pending

enquiry shall be entitled during the period of such suspension to subsistence allowance in the

following manner:

(a) From the date of suspension till the date he replies to the charge sheet is received by the

manager (nil.)

(b) For the first 30 days from the date of receipt of reply of the charge sheet—50% of the normal

wages and dearness allowance.

(c) For the next 30 days--- @ 60% of the normal wages and dearness allowance

(d) From the 91st day onwards--- @ 75% of normal wages and dearness allowance.

The workman shall not be entitled to subsistence allowance in case he takes up employment

during the period of suspension.

CHARGE SHEET AND ENQUIRY

A) A workman against wage misconduct is alleged and is placed under suspension shall be

served with a charge sheet within a week from the date of suspension. The charge sheet

should be specific and give full details for the charges leveled against him. The date, time

and place of incident should be mentioned in the charge sheet. When the misconduct

depends on offending language, then actual words used should be specified in the charge

sheet. The workman shall be called upon to submit his explanation within 48 hours, which

may be extended for 6 days for sufficient reason on request in writing from the workman

concerned.

B) If the workman admits the charges against him, no enquiry need to be held and it shall be

open to the manager to award punishment as he deems proper without holding the enquiry.

C) If the workman does not submit his written explanation or explanation submitted by him are

not found to be satisfactory or if he denies the charges alleged against him, an enquiry shall

be held.

D) The workman concerned in enquiry shall sign at the end of each statement recorded in his

presence. Such workman may be assisted by another workman of his choice but he must be

working in the company.

E) The enquiry may be conducted either by the manager or any officer or person appointed by

him for the purpose.

F) The manager shall appoint an enquiry officer and management representative for the

purpose of conducting domestic enquiry.

G) Copy of the charge sheet along with all relevant documents should be handed over to the

enquiry officer.

NOTICE OF ENQUIRY

a) It is very necessary to convey to the charge sheeted workman the name of the officer before

whom he is to appear. The time, date and place of enquiry should also be communicated in

the notice of enquiry.

b) The management should give its evidence first to prove the charges alleged against the

workman.

c) The enquiry officer can ask the management to serve the notice of enquiry.

d) The enquiry officer should decide in the beginning as to which procedure for major

misconduct should be followed.

e) If the charges rest on documents alone, it is not necessary to adduce oral evidence.

EX-PARTE PROCEEDINGS

1. If the employee does not attend on the date of enquiry fixed and communicated then ex-parte

proceedings can be taken against him.

2. When the worker insists that he must be allowed to be represented by his council and on

refusal of the same he boycotts the enquiry then such enquiry could be held ex-parte.

3. When the worker knows the date of enquiry and does not co-operate with the enquiry officer

or does not attend the proceedings, he cannot complaint if the proceedings are ex-parte.

4. If the worker intentionally refuses to participate in the enquiry, enquiry can be held ex-parte.

5. If the worker withdraws from the enquiry, it does not mean that he admits the charges alleged

against him. The enquiry officer has to record evidence of the management in support of the

charges.



JUSTIFICATION OF NON-ATTENDANCE BY WORKERS

1. Absence on account of protest is not justified. Even if some facility is denied the worker is not

justified to withdraw from the enquiry.

2. If certain documents or copies are not supplied to the workman and he withdraw from the

enquiry, it is not justified and enquiry could proceed ex -parte.

3. When a request of worker for being represented by an outsider or an advocate is disallowed,

he cannot walk out and if he does so, ex-parte proceeding is valid.

4. If absence is on account of genuine illness and he has asked an adjournment on death

grounds, it must be granted.

5. If an employee is on sanctioned leave and seeks adjournment on that ground, it must be

granted.

6. If an employee is on hunger strike and it is not possible for him to defend himself,

adjournment must be granted.

7. Adjournment is sought on the plea that the workman fears physical assault, the adjournment

may not be granted.

8. Enquiry can be held on a holiday also and in the absence an application of adjournment, the

enquiry officer is competent to proceed ex-parte.

9. Enquiry can be held even at night in case the concerned works day and night.

Grant of adjournment s discretion of the enquiry officer, but as such a discretion must be

exercised in a judicial and reasonable manner. An employee cannot be compelled to attend

enquiry. If an employee does not attend an enquiry, then it can be held ex-parte but he cannot be

charged for disobedience of orders.

ROLE OF THE MANGEMENT REPRESENTATIVE

1. In departmental enquiries, the punishing authorities play a dual role. The said authority or its

nominee conducts the enquiry on behalf of the management and judges the action of the

delinquent employee.

2. The role of management representative is similar to the case of public prosecutor as he also

conducts and pleads the case of management.

3. The role of MR is to conduct the case fairly and with full sense of responsibility.

4. It is not the duty of the MR to suggest any falsehood or suppress any facts.

5. The MR is also not expected to produce evidence, which stands to demolish his own case.

6. The role of MR can only be discharged properly if he sis equipped with the full knowledge of

the case. The MR should also have the basic knowledge or procedure and process of

domestic enquiry as well as to carry out the cross-examination of the charge sheeted

employee as well of his defense witnesses.

PRODUCTION AND INSPECTON OF DOCUMENTS

When the charge sheeted employee thinks that certain document is likely to be useful for his

defense and is in the possession of the management when he can apply for its production.

1. When a document is used against an employee, it should be disclosed to him.

2. Records of preliminary investigation if relied upon the management should be disclosed to

the employee.

3. Documents having no evidentiary value need not be disclosed.

4. If no reliance is placed on a document during enquiry then it need not to be disclosed.

5. Documents necessary for cross-examination or defense should be made available if asked

for.

6. If no prejudice is caused to the delinquent employee by non-production of documents,

enquiry is not vitiated.

7. Inspection of documents can be given as an alternative to production of documents.

BIAS IN DEPARTMENTAL ENQUIRIES

A domestic enquiry must be held by an unbiased person. The bias in its proper significance is

departure from the standard of even-handed justice which the law requires from those who

occupy judicial office the doctrine of bias:

1. No man shall be judge in his own case.

2. Justice shall not only be done but manifestly and undoubtedly seem to be done.

APPRECIATION OF EVIDENCE

1. Even though the onus of proving the guilt rest on the management, the probability or

otherwise of the version of incident put forth by he workman has to be taken into

consideration in determining his guilt and it cannot be altogether ignored.

2. The E.O. while appreciating the evidence should take care that the charges against the

delinquent workman should no deemed to be proved merely on the facts that the worker

could not put up strong defense.

3. If the employee has not produced any defense during enquiry, it cannot give rise to any

presumption that whatever the employer witness states is correct. Disposition of the

witnesses has to be judged on their merits.

4. It is not necessary to prove motives behind the act of misconduct.

5. While appreciating the evidence the E.O. should be extra careful for the disposition of chance

witnesses.

6. The E.O. should not simply disbelief the witness or think unreliable, as the witnesses are a

close relation of either party. Similarly, merely that middle and senior level officer depose for

the management and the workers for the delinquent employee is no reason to disbelief them.

7. The E.O. while appreciating the evidence should be conscious of the fact that the credit of a

witness does not depend upon his status. Truthfulness is not the monopoly of persons who

are rich and who hold high status.

8. It is not necessary that there should always be one witness to prove any charge. The reason

is that the evidence weighed and not counted.

9. The E.O. should not consider the events subsequent to incidence for which an employee was

charge sheeted.

10. In domestic enquiry the Doctrine of Benefit of Doubt is not applicable. Therefore, an E.O. is

under obligation to arrive at conclusion of facts.

11. It is not the concern of the E.O. as to whether the act mentioned in the charge sheet has

been proved or not.

12. E.O. is not interested with the power of imposing the punishment. His duty ends with the

finding of facts.

13. While drafting enquiry report, specific findings should be given on each charge and in case of

each person.

14. The finding should be specific and E.O. should come to conclusive findings of guilt.

FINDINGS OF ENQUIRY

1. The whole object of holding a domestic enquiry against a delinquent workman is to enable

EO to decide upon the merits of charges leveled against the employee. It is therefore,

essential that the EO should submit the enquiry report indicating clearly his conclusion and

reasons in support thereof.

2. The EO should not hold anyone guilty of the charges on suspicion. Suspicion, however

reasonable, is not sufficient to punish the employee.

3. EO should not give the findings on assumption of facts and circumstances not supported by

evidence on record.

4. The findings of the enquiry should be based upon the enquiry records and the EO should not

impose his own knowledge of things while writing the report.

5. The EO is not justified in parting extraneous consideration while writing the enquiry report.

6. While writing the findings, EO cannot omit from considering any material on record. When EO

disbelieves the worker and his witnesses he should give sufficient reasons.

7. The EO should bear in mind that the interpretation of document is a question of law.

Admission of document thereof should be distinguished from the admission of the contents of

the document.

8. EO should not give findings outside the scope of the enquiry. The scope of the enquiry is

limited to the charges as mentioned in the charge sheet.

Courtesy

Kiran Srinivas K

Regards

M. Peer Mohamed Sardhar

91 93831 93832

From India, Coimbatore

Attached Files
File Type: pdf flow_chart_of_drafting_of_charge_sheet_170.pdf (9.0 KB, 9677 views)

Dear Friends, In line with Mr.Mohd, I thought of sharing some formats that might be useful while drafting on disciplinary action. Regards, Jessie J
From United Arab Emirates, Dubai

Attached Files
File Type: pdf Disciplinary Action1.pdf (216.0 KB, 6615 views)

Dear Friends, What disciplinary action you suggest for the employees who do not follow the dress code. Regards Bhagi
From India, Karur
I think the workman who repeatedly ignores the orders may first be issued a warning and in the event of further non-compliance,a minor charge sheet may be issued.
From India, Ajmer
its very helpful im making a project report on disciplinary actions if any one can give me inputs for the same it would be gr8.
From India, Mumbai
My employer insurance company has rejected my appeals under CDA Rules.
Kindly advise me further course of action.
Strangely,I was charged for violating the GIC rules of 1975,however,they punish me in terms of NIACL rules of 2003
however charge sheet and Inquiries pertain to year 2008 and 2009 under rules of 1975.
Rules of 2003 seem FAKE as no circular has been issued under which they implemented .
(as per information revealed under RTI act.)
Definition of employee under rules of 1975 (as per book printed in 2008) did not apply to me.

From India, Ajmer

Attached Files
File Type: doc appellate authority decisions NIACL.doc (42.0 KB, 1042 views)

I have submitted Memorial to CMD Of my employer insurance company against unjustified orders of appellate authority to justify the orders of dismissal and permanent reduction of six increments from my salry on the pretext of disciplinary action.
From India, Ajmer

Attached Files
File Type: doc 25.05.10 CMD NIACL memeorial.doc (87.0 KB, 643 views)

I am also involved in the preparation of the greivance policy for an organization, but we are trying to document and manage it online especially the cases which are initiated by the supervisor
From India
Yes,indeed if the inquiry officer,mangement witnesses and Disciplinary Authority are in collusion they may conspire to get an honest employee be punished on suspicions alone.
From India, Ajmer
Dear Jessie, Your formats are very useful for reference. I see that the formats for 12,13,14 are missing from the file that you have attached. In case you have them, please do share. Thanks BIC
From India, Ahmedabad

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