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Arunachala Nataraj
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Thread Started by #Ijaj

We are the corporate based listed company having multiple divisions around the Maharashtra State. Workers are governed under Certified Standing Orders (herein after referred as CSO) of the company. Accordingly, based on the provisions of the CSO the management is initiating disciplinary actions against the wrong doer. The said CSO has certified by the Labour Commissioner Mumbai in the year 1963.
At present some domestic enquiries are in process, wherein the workers representative has filed application to provide Signed copy of CSO. Last time also we tried to tress out original signed CSO copy but the copy was not available, we also inquired with Labour Commissioner office, there also old records are not available.
Meantime the worker's representative file Interim Application before Industrial Court for stay to the enquiry proceeding till the CSO copy is not allotted for defense. The court has not allowed Interim application for stay to enquiry but given directions to give copy of CSO to them. As per directions we have given un-signed xerox copy of CSO. The worker has filed another application to provide signed copy. Now we are plan to proceed further to complete the enquiry.
Under the circumstances, since we are not able to provide signed copy of CSO, whether the enquiries will be held as perverse and illegal ? what are the steps has to be taken to continue & to complete domestic enquiry in absence of signed copy of CSO.
5th May 2018 From India, Nashik
Dear Shaik Ijaj,
What is transpired from your post is that your CSO is missing and you want to initiate the disciplinary actions with workforce without signed copy of CSO.
You try to get a signed copy or else go for re-certification. The model standing orders can be followed for initiation of actions in the absence of certified SO.
But your organization has ruffled the issue with the workers without tracing a CSO. Better wait for finding the CSO or getting it certified, or else take the bold step of going ahead like without a written constitution many countries operate, you also can operate in cases of exigencies of indiscipline.
5th May 2018 From India, Hyderabad
Dear Mr Shaik,
You may follow the Model Standing Order as prescribed in Maharastra,
And Try to get to be implemented in your company. The domestic enquiry will be held valid if provision are followed as per Model Standing Order.
Your advice / action are awaited
5th May 2018 From India
At the outset, it may be noted that no Court grant stay order against the disciplinary proceedings.
It is true that your Company has a Certified Standing Oder. The workmen are aware of the said fact.
Since you have unsigned copy of the Certified Standing Order you may get the same duly certified and proceeding with the disciplinary proceedings failing which if the workmen approach the Labour Court at the time of challenging the validity or otherwise of the Domestic Enquiry held by the Management the Court may vitiate the enquiry.
Even though you follow the Model Standing Order the chances vitiating the enquiry still remains for the reasons you already have a Certified Standing Order.
S G Management Services
6th May 2018 From India, Kolkata
Dear colleague,
In my view, by being unable to provide original copy of the CSO will not by itself vitiate the enquiry proceedings. The MR should make written submission before the Enquiry officer that the original CSO will be provided as and when found and the enquiry should proceed with the available CSO copy.
With the appropriate ruling to this effect by the EO, and the fact that the Court has not stayed the proceedings, the the enquiry if proceeded further will not suffer any infirmity.
Vinayak Nagarkar
HR- Consultant
7th May 2018 From India, Mumbai
A copy of the CSO will be available with the Labour Department.Go for it .
7th May 2018
You might have quoted in the charge sheet , misconduct under (........) clauses of Standing Orders of our Company and after the enquiry if the workman is punished, the union may contest that the charges are null and void in the court stating that there is no CSO. Therefore, I feel better late than never, get the standing orders certified and then proceed.
7th May 2018 From India, Mysore
dear friend,
At the first, As and when your office come to the conclusion that prima facie there is a violation of duty/service by the employee proceed with the enquiry and never look back for want of CSO.
Secondly.. the CSO will certainly be available with the labour office who have certified, may be due to making divisions the CSO available with the oldest of records. Since, you know the year, tracing the CSO will not take much time. Also, find out the CSO in some enquiry files (probably names changed go through Personnel files CSO copy may be available) In earlier days enquiries are held by the personnel department, now, there is a change as legal cell, enquiry office, establishment section etc.,
Thirdly, you are going to conduct the enquiry adhering the norms and there will certainly no violation thus, proceeding with the enquiry will get valid.
Fourth, never allow the tactics of delaying, willy nilly acts, this prove costly in the long run.
best of luck...
7th May 2018 From India, Arcot
Dear All,
If standing order made as per the Draft Standing order, and passed by the competent authority, you can take action any employee at any time as per the standing order.
9th May 2018 From India, Maur
Yes, you have a ticklish issue. The Union probably knows that you do not have any original certified copy of the Standing Orders and is trying to exploit that situation. But you may have the reference of the certification like date, the proceeding no. etc. Based on that you may apply to the office of the Certifying Authority for getting certified copy of it. If you are not getting it from there, apply under RTI and let them state that certified copy is unavailable. In law a presumption arises that all Governmental work is done as per rules and it is for the party alleging it to prove it otherwise. (Evidence Act) So if you are able to produce some evidence that the Standing orders were certified vide reference no. and date, the validity of it can be presumed and the burden of proving its illegality would get shifted to the opposite party.
11th May 2018 From India, Mumbai
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.
11th May 2018 From India, Salem
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.
12th May 2018 From India, Mumbai
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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18th May 2018 From India, Mumbai
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.
25th May 2018 From India, Pune
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.
2nd June 2018 From India
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