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The untraceability of an important document like the original CSO and the tough legal resistance put forth by the delinquent employees on this score indicate only the messy handling of the HR Department of the organization and give rise to the following pertinent questions automatically in such a situation:
(1) The copies of the originally certified S.O would have been immediately sent to the unions participated in the certification process by the Certifying Officer. Whether the Management took any steps to verify with such unions?
(2)What prevents the Management to apply for recertification ,if the untraceability of the original is authenticated by the Certifying Officer and till then apply the provisions of the Model Standing Orders applicable if both are not contradictory to each other?
If "no" is the answer to the above questions, there is a possibility of some reasonable doubts that the Management wantonly tries to hide some failure on its part to amend the original in accordance with some subsequent material changes like change of the name of the Company, classification of workmen, list of misconducts and the like. Otherwise, why the questioner is so much worried about the enquiry to be declared as null and void just because of the Management's inability to provide the copy of the original CSO? After all, whether the year of certification was 1963 or some other, no disciplinary enquiry violative of the Principles of Natural Justice which remains the same would be approved by the Certifying Officer.
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The missing original CSO of 1963 is not uncommon, as is the case of original documents of the type written area where you could have only limited sets of them. The sheer wear and tear of them in the nearly five and half decades would practically render them illegible or unfit to use. There have been many instances where interested employees could play some dirty trick and try to take advantage of it. But for arguments sake, even if the CSO is missing, if the enquiry is conducted in accordance with the principles of natural justice then it may not be held as vitiated by the court. More or less all SO contain very similar provision and the requirement of principles of natural justice are standard and is known to all. So for the reason that the original of CSO could not be produced, may not vitiate the enquiry. There is case law available stating that quoting of wrong rules will not vitiate the enquiry so long the misconduct is properly mentioned and the procedure is followed.
Since you have not been able to trace the original CSO, try to update the SO by adding the new provisions (like the payment of subsistence allowance, fixed term appointment, prevention of sexual harassment measures) and apply for re-certification.
Dear Ijaj ji,
My short & sweet answer to your query is, you should follow as per certified SO. Get the SO re- certified immediately.
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Dear Sir,
You have the option to issue fresh chargesheet under Model Standing Orders and proceed with the enquiry. Because if you proceed, it will also amount to contempt of court as the directions are not followed. Before the Court you can file application that fresh chargesheet is issued hence complaint be disposed off. In one of my client co we did the same and enquiry was conducted de novo. Ultimately matter was settled.
From the above posts two things clearly emerge for the immediate action to be taken from your end.
1) Proceed with enquiry and hold the disciplinary action part, till CSO is authenticated.
2) Parallel action has to be taken for getting CSO draft registered.
3) In the meantime, if you can locate the evidence for distributing the previous standing order with the acknowledgement of the union it will do you a lot of good.
V.Raghunathan
Chennai
what is the action taken by the HR in this case
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