Misconduct Enquiry And Ensuing Order - Ten Commandments For Employer
To support its decision, Hon'ble Supreme Court reiterated the broad principles governing realm of conducting an enquiry set out in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others ((1973) 1 SCC 813) and reproduced below:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body.1 The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case2. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.3
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmen4 within the judicial decision of a Labour Court or Tribunal." (emphasis supplied)
To sum it up:
Employer conducts enquiry and concludes existence of misconduct: In such case, the tribunal is empowered to re-apprise the evidence and arrive at its own conclusion one way or the other. In doing so, the tribunal can (i) hold that the domestic enquiry was proper or defective; and/or (ii) agree or disagree with the employer's finding of a misconduct and in a proper case hold that no misconduct is proved; and/or (iii) where misconduct is proved, the disciplinary action is proportionate or disproportionate to the misconduct committed.
Disciplinary action carried out without enquiry or defective inquiry: In such case, the tribunal should not straightaway direct the reinstatement of a discharged or dismissed employee but rather satisfy itself about the validity of the disciplinary action. The tribunal must allow both, the employer to justify his action and the employee to negate employer's justification. Thereafter, the tribunal should consider the evidence adduced for the first time by the parties so as to (i) agree or disagree with the employer's finding of a misconduct and in a proper case hold that no misconduct is proved; and/or (ii) where misconduct is proved, the disciplinary action is disproportionate or commensurate to the misconduct committed.
From India, New Delhi
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
When there is no situation to hold an enquiry, particularly violent situations, it is better to make statement in the punishment letter that the Management can prove the case before the court.
Have handled a case wherein the delinquent supervisor was involved in the violent situation and subsequently discharged from his duties. When it came for hearing before the Labour Court, the case was partly proved. The court awarded compensation in place of reinstament.
From India, Hyderabad