Tsivasankaran
Consultant
Anil Kaushik
Chief Editor,businessmanager
Kumaresank
Labour & Industrial Laws
Malikjs
Gm (hr)
THIAGARAJU
Chief Personnel Manager
+5 Others

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An enquiry officer was appointed by the Disciplinary authority for conduct of Domestic Enquiry against an Employee, The Enuiry Officer had conducted enquiry and concluded that the employee is guilty of all charges. Another charge sheet had been issued on the same employee for similar misconduct. The same official had been appointed as the Enquiry officer for the second charge sheet. Now the employee has represented for change of enquiry officer stating that the enquiry officer is biased as he had earlier held him guilty of the same charges. Do we have to consider the request or deny the request, what is the legal position. kindly forward your views along with extract of case laws please.
From India, Madras
Hi, Before commenting on ur issue, i would like to know, under what circumstances ,management had to issue second chargesheet on the same charges when they are already proved in domestic enquiry ?
regds
Anil Kaushik
Chief Editor, BUSINESS MANAGER

From India, Delhi
Hi
Thanks for the response
Both charge sheets are not for the same misconduct but similar misconduct viz., involvement in private business.
My query is that can the charge sheeeted employee provided an opportunity to change the enquiry officer on the ground that he has been held guilty of the earlier charge sheet.
Regards
ctraju

From India, Madras
Hi
Technically, the demand by the workman is not justified and legally you can reject his plea.I am yet locate the case law on this subject, I will forward the same to you as soon as I locate.
However, if I were in your position, I will appoint another Enquiry Officer rather than loking at the legality of the issue.
Second time charge on engaging in another business definitely, may warrant,if proved guilty, capital punishment! and I wont take any risk on such procedural matters.
Siva

From India, Chennai
Dear friend,
Management has inherent right to initiate disciplinary proceedings against against erring employee,appoint enquiry officer, appoint management representative and pass order after receiving enquiry report. disciplinary authority is not bound to accept the findings of E.O.
In this background management has all powers to reject the demand of employee reg.changing of E.O. simply because employee is found guilty by E.O. in earlier matter of same nature is not conclusive to say that E.O. is biased against employee,unless other factual matters are on record to indicate that E.O. is not neutral.
regds
anil kaushik
chief editor BUSINESS MANAGER

09829133699

From India, Delhi
I Understand that same person is involved in separate but similar misconducts. He was found guity by EO.
The said EO would have the knowledge of delinquent's involvement in the earlier case similar to the present one. Hence findings may not be in tune with principle of natural justice. When contested at later stage ,court may find that enquiry is vitiated.
Therefore it is desirable to appoint another enquiry officer than taking a risk. (Be proactive)
HC. Subbaramu
HR & Labour Law consustant
Bangaluru

From India, Kochi
dear
i agree with mr anil kausik he is absolutely right.as mr subbaramu has said
court my vitiate this enquiry ,my views are different.
court can vitiate any enquiry but what is legal position ,the answer for this given by mr kausik is absolutely right.

From India, Delhi
Domestic enquiry processes have evolved through several judgements on the subject. Legally, there is no bar appointing the same EO to handle another enquiry of the same person having same or similar misconduct. Even in courts, criminals convicted of an ealier offence (say theft) cannot ask for a change of judge on the grounds that the judge already knew he was a thief and therefore he would be biased! It would be proper and in order that the Disciplinary authority, receives the written objection, applies his mind carefully, pass a "Speaking order" rejecting or accepting the claim of attributed prejudice or bias. In either case, his order must be communicated in writing and acknowledgement obtained from the deliquent employee. Once this is done and is part of the procedings, there is no danger of this being viewed adversely by any court on appeal. Many organisations cannot afford to keep on changing the Enquiry Officer at the drop of the hat and for every objection raised by a charge-sheeted employee. This is does not even qualify to be a minor infirmity. There are clear verdicts in which the courts have held that minor infirmities in the chargesheet or the process of enquiry would not vitiate the findings, conclusions or the punishment order.

EIRVALSA

From India, Madras
Dear all,
The procedures followed in Law of Cromes is directed by CRPC. It is controlled by written Laws. Where as Domestic Enquiries are guided by Priciple of natural Justice. We do not have codified written laws. It is developed by various judgements, specially by our hon'bl Supreme Court.
One of the principle of natural justice is that EO should not have the personal knowledge of the charges alleged against the delenquent employee. Hence in the present case it is desirable to go in for another Enquiry officer. (We all know how the courts are lenient towards the labour.)
Thanks
HC. Subbaramu,
Bangaluru

From India, Kochi
Dear Thiagaraju,

Effect of Perverse Attitude of Those Responsible for Investigation & Inquiry:

Good governance presupposes two pristine qualities on the part of the governor. These are, - the first quality being integrity or honesty of purpose and approach. The second and equally important characteristic is capacity or efficiency. Good faith consists of honesty plus care and attention. Even if there are no malicious content or inherent desire to inflict injury, the inquiry will not render justice unless objectivity and proper standards are observed in inquiry process.

The PO is a honest person and he suffers no ill-will towards the charged officer, but he holds the honest, but perverse view that his duty is to prove the charges "somehow" and if he fails to achieve this, he is an under-performer.

Similarly the inquiry officer feels that if the charges are proved, it is a case of defence failing and if the charges are not proved, then it is the management that is falling, and he has inherent responsibility to the management. So whenever the management fails, he makes a compromise and gives a verdict of fifty-fifty (mechanically holding some charges as proved and some as not proved).

Similarly if the disciplinary authority were to presume that the more cases of "misconduct" that he is able to establish and effect punishments, it demonstrates the effectiveness of the system of preventive discipline.

The investigating officer is a typical fault finder. He thinks negative that his job is to invent faults. He proceeds with the task with suspicion and mistrust occupied in his mind. He feels that he is sent to "catch the villain" and starts searching for the catch. He fills up the page labouring hard with several procedural "inexactitudes" that he can make out.

Or else, no investigation is conducted and on receipt of a complaint, the charged officer's comments are directly called for and thereafter a charge sheet is straight away issued. But when it happens, what are the sources (evidences) for proving the charge sheet. This problem is left to the presenting officer to face.

What is the position of a charged officer in all these occasions? Can he expect to get undiluted justice?

..........R. Kannan

Every organization has a different set of conduct rules and DA regulations. Hence there is no hard and fast rules with regard to methods adopted in changing or keeping the same Inquiry Officer. Reliance on case-laws is also not needed because, these are quasi-judicial functions they don't operate under a Uniform Civil Code for all organizations.

The practises may differ from organization to organization. However, it is better, in order to give a fair and reasonable opportunity to the CSO (Chargesheeted Officer), we change the Inquiry Officer who had already held him guilty to avoid him sitting with a preconceived notion about the CSO.

Regards,

Chandrasekhar

From India, Hyderabad

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