salil-menon
Dear Colleagues

We have one case of misconduct. The employee is a staff category and falls under the unionized category.
The misconduct is he has brought one bottle of foreign liquor by hiding behind his jacket while he went out during recess, and while returning after recess, the bottle got cracked after falling down at the access control area in front of the security guard. He tried to push the broken bottle aside and tried to escape. The security guard called him and sent him to the Security officer's cabin. (Gujarat being a prohibited state, carrying or consuming liquor is an offense). The time was 19.00 hours and he was in his 3rd shift. The security officer took his statement, wherein he had stated that during recess when he went out to buy some peanuts, somebody put this liquor bottle inside his jacket and he was not aware of it.

As proof, we have the statement of the security guard and supervisor, and also video clipping of CCTV cameras wherein it is very clear that the employee was trying to take out the bottle from the backside of his jacket and at that time fell down, and then he was trying to push with his leg and escape.
Security supervisors carried out the breath analyzer test and he tested negative, zero alcohol. He was sent home, and we have suspended him pending a domestic inquiry.

Now we need to take a final decision after confuting the domestic inquiry:

1. Shall we go for capital punishment by dismissing him after conducting domestic inquiry by giving him a fair opportunity to defend his case.

or

2. Suspend him for 4 days and give him a chance.

If we dismiss him from the services, will it be tenable in the labour court in case if this case goes to the court.

Sharing this incident as a part of knowledge sharing and seeking valuable inputs from the experts.

From India, Gurgaon
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Saswatabanerjee
Partner - Risk Management
Rkn61
Hr Manager
Srivastavacmlal
Master Consultant
John Chiang
Consultant
KK!HR
Management Consultancy
Nagarkar Vinayak L
Hr And Employee Relations Consultant
+1 Other

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KK!HR
1373

First of all, is it a misconduct in your Standing Orders/Rules to carry liquor to the workplace. Since the medical evidence points out that he had not consumed any liquor, you cannot charge the employee with alcoholism et al. In case this is a misconduct, then you start the disciplinary process as per your standing order/rules applicable. With the evidence in hand, the outcome is a foregone conclusion.
As regards punishment, this is a serious matter and cannot be lightly dealt with. He has put at risk not only his life but also of others. But does it deserve dismissal? The Courts have the right to interfere in punishment if it is shockingly disproportionate. So you will have to produce evidence wherein for this misconduct dismissal has been resorted and it has been upheld.
In case you are proceeding on the basis of violation of the Gujarat Prohibition statute, then you may have to await decision of the competent court .

From India, Mumbai
salil-menon
Thank you KKHR for your response. Our standing order says... - Drunkenness riotous, disorderly or indecent behavior on the premises of the Undertaking shall amount to misconduct :
From India, Gurgaon
Nagarkar Vinayak L
617

Dear colleague,

From the facts of the case as narrated by you, it is apparent that the concerned employee's acts do not amount to the misconduct under the relevant clauses of the Standing Orders quoted by you.

Therefore, your chargesheeting him, ordering domestic enquiry and suspension will be a futile exercise and may go against you.

Better will be, if you wish , to proceed against him under the Gujrat prohition law after consulting legal expert on this subject and pending that suspend him in the meantime pending investigation and final outcome and pay him subsistence allowance as provided for in the Standing Orders.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
KK!HR
1373

No, I differ from the views expressed by respected Vinayak Sir. Carrying liquor in person in a state where there is prohibition is definitely an disorderly and indecent behaviour. You can go ahead with the disciplinary action. As regards punishment as opined early, pl review.
From India, Mumbai
rkn61
574

My view is , though the person has not consumed liquor based on the results of the breath analyzer, possession of a liquor bottle with content in it, in a work place, shall definitely tantamount to severe misconduct and gross indiscipline and he shall be subject to disciplinary action.

At the same time, dismissal of employee for this cause, it is felt that the same shall be disproportionate punishment and he can challenge the decision of company.

It is advisable that you can go ahead with domestic enquiry, prove the charges levelled against him, and further consult with a registered legal practioner who is specialized in Labour Laws, with the Report of Enquiry by the Enquiry Officer, and proceed accordingly.

Your action should be a warning to all such employees in your Company.

From India, Aizawl
Nagarkar Vinayak L
617

Dear colleagues,

I too beg to differ with both the learned colleagues' views. I still maintain my stand that the charges under the relevant clauses chosen in the chargesheet and the domestic enquiry proceeded against will fall flat as the charges are inapplicable . If the acts fall under any other clause as misconduct say ,an act subversive of discipline and good behavior then a fresh chargesheet needs to be issued and domestic enquiry to be proceeded with.

I reiterate that the clauses chosen and contained in the chargesheet under reference are irrelevant , inapplicable and therefore are bound fail as the evidence is against it.( breath analyser test).

The question of the punishment of dismissal, remains wide open for challenge and interference by the courts.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
saswatabanerjee
2356

Any criminal activity is a misconduct, irrespective of whether it is specifically given in the standing orders.

Therefore, since this is a criminal activity, you are within your rights to punish by termination of employment. The courts are unlikely to oppose it. (specially if you have irrefutable proof like CCTV Footage)

You may be required under law to report this matter to the police station and you may be in trouble if you fail to do so. I suggest you speak to your corporate lawyers for clarity on this

From India, Mumbai
salil-menon
thank you all for your valuable responses.
I have discussed with our labour lawyer. He has confirmed that we can initiate domestic inquiry by giving him time and opportunity to defend his case, and finally if management want to dismiss, we can very much dismiss as the case is strong in favour of the company.

Once again thanking you

From India, Gurgaon
srivastavacmlal
121

Dear All contributing experts and CiteHR member Salil Menon,

I appreciate that all the Contributing Experts have given their valuable opinion as well as you have also obtained legal advice from your area's labor advocate. I shall draw your attention to the following which are needed for clinching advice to be offered in the matter:

1. You have not mentioned the nature of work/industry where this incident of carrying liquor bottle happened?

2. As narrated by you the employee came out during recess, and while returning to duty place (i.e. taking return entry through the entry gate) he was carrying a bottle of foreign liquor that fell down at the entry gate and got broken. The CCTV footage, as you state, shows that the employee was trying to take out the bottle at the entry gate /security post and at that time the bottle fell and broke. So here the question is why the employee was trying to take out the bottle from backside of his jacket? He could have gone unnoticed easily. The CCTV footage needs to be analysed more carefully. The statement of security guards and Security Incharge also needs to be recorded and analyzed.

3. Although such an activity is definitely a misconduct being a disorderly behviour and the prohibition law of the State as well. So taking disciplinary action by suspending the employee pending inquiry is advisable.

4. The internal inquiry has to be conducted in accordance with the prescribed rules of the company, and if there is no rule, then in accordance with the principles of natural justice following due process of law.

5. But at the same time I shall second the views of Shri Saswata Bannerjee that the matter also needs to be reported to the local police under the prohibition law of the State.

6. The charge sheet is to be drafted carefully with precision giving all minute details. It is a different matte whether charge sheet succeeds or fails, but a message should go to the employees that Management is conscious of misbehaviour/disorderly conduct of employees.

7. What punishment should be given? It will depend upon the report of the inquiry officer as well as on the decision to be taken by the Disciplinary Authority of the concerned employee.

8. It may be noted that care should be taken to appoint an Inquiry Officer other than the Disciplinary Authority so that an allegation of bias is not raised against the Disciplinary Authority. It may also be noted that a Disciplinary Authority has a right to differ from the findings of the inquiry officer and come to his own conclusion after considering all the evidence on record of inquiry.

9. Quantum of punishment should commensurate with the gravity of misconduct, and decision may differ from person to person because it is the area of discretion granted to the Disciplinary Authority. However the punishment of dismissal should be resorted to in extreme cases where company has suffered huge loss or lost its good will in the industry due to misconduct of an employee or there was grave criminal offence committed by an employee for which there is punishment of imprisonment.

Hope this may clear many of the doubts of your mind as well as issues discussed in above opinions..

Any further query will be welcome.

With regards and due respect to all seniors and contributing colleague.

Chandra Mani Lal Srivastava
Master Consultant & Subject Expert of Disciplinary Proceedings
9315516083
New Delhi/21.01.2022/6:08 pm

From India, New Delhi

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