PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Nagarkar Vinayak L
Hr And Employee Relations Consultant
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kumaracmeYou asked a very good question. The two principle which governs principle of natural justice is 1. No man shall be a judge in his own cause 2, No man shall be punished with out his reply ( in other words hear the other side)
Though there is no clear cut rule or law on conduct of domestic enquiry in labour laws but various labour and high and supreme courts has given directions and guidelines for conduct of domestic enquiry based on the above two principles. Hence the enquiry has to be conducted with out any bias and the enquiry officer, MR has to be neutral person and they should not have link in the misconduct done by the delinquent. Also, the statement of the delinquent plays a major role in the second principle which is a vital for rendering justice to the delinquent.
Hope this would suffice. Now legally trained enquiry officers are available who knows all the nuances of the enquiry whom you can engage for this domestic enquiry.
From India, New Delhi
kumaracme>>>>>>The attached checklist is useful before you conduct a domestic enquiry <<<<<<<<<<<<
From India, New Delhi
Nagarkar Vinayak LDear colleague,
There is no seperate Act/ Law enacted so far , for laying down principles and procedure of conducting the domestic enquiry. They are culled from the plethora of SC judgements on the veriety of aspects in this regard and it is very dfficult to accommodate all of them in details.
However, major guiding principles in conducting and following due procedures emanating from the judgements briefly are :
1. The chargesheet should contain clear facts and circumstances about the charges such as date , time, place and the nature of charges, and under what clauses of the Certified/ Model Standing Orders/ Service Rules the act/s alleged amount to the misconducts.
2 . The alleged act of misconduct must have been committed while the employee is on duty or during the course of his employment.
3. Due notice ,well in advance, of the domestic enquiry containing date, time and place , name of the enquiry officer should be served. The notice should specifically mention that the chargesheeted employee will be given full and reasonable opportunity to defend his case by co-worker or union representative .
4The Enquiry Officer should be independent person and not connected or interested party to any party to the enquiry.
5 The enquiry should be conducted in the language understood by the chargesheeted person at his request during the enquiry. The recording of the enquiry proceedings can be in English but translated in the language of the CS workman.
6. At the outset , the enquiry officer , should read out and explain clearly the charges levelled against him and ascertain whether he has understood and accepts the same. If he denies then the enquiry should proceed further after due recording.
7 The enquiry officer( EO) should allow coworker or union representative to defend the case , make written submissions and examine witnesses as well as cross examine management witnesses.
8. All witnesses should be examined/ cross- examined in the presence of the CS/ Defendent.
9 CS/Defendent is to be given fair and reasonable opportunity to cross- examine witnesses.
9. Enquiry officer should record each proceedings and obtain signatures of all present on both sides with dates.
10. After duly concluding the enquiry, the EO should submit the report of his findings with reasons as to whether the charges levelled against the CS are proved or not. EO should not recommend any punishment if the charges are proved.
Thus it can be seen that only experienced and legally trained person can do justice to the domestic enquiry and it is not a job of any riffraff.
HR and Employee Relations Consultant.
From India, Mumbai
pankajsThanks to all for your valuable inputs. Pankaj Gurgaon
From United States ,
The principles of natural law can be read in Administrative law or constitutional law or Jurisprudence. The following are the important points to be kept in mind.
1. The person against whom the inquiry is going to be conducted should be given a hearing.
2. The parties concerned in hearing should not be part of decision making panel.
3. The decision given should be reasoned.
Point one can be elaborated further like:
Giving notice to person about the charges and hearing.
Giving him time to prepare and file the reply.
If you are keeping all these points in mind during inquiry, you are adhering to the principles of Natural Justice.
Hope it helps