Disciplinary Hearings in India: Are They Required by Law Before Firing an Employee?

Disciplinary Hearing Requirements in India

Is conducting a disciplinary hearing mandatory before the dismissal of an employee according to Indian law or any act? Or does the requirement to conduct a disciplinary hearing vary as per company policy? Please guide and shed some light on the same.

It is mandatory if it involves disciplinary action. No one can be punished without being given an opportunity to be heard.

Regards,
Sivasankaran

If you are dismissing an employee as a form of punishment for alleged misconduct committed by them, you need to conduct a domestic enquiry as per your standing orders if your establishment has one. In the event that standing orders are not applicable to you, you should follow your service rules if you have established them. If you do not have any service rules, or if they do not address disciplinary procedures, then you must conduct an enquiry in accordance with the principles of natural justice, which are binding on employers. Additionally, the Industrial Disputes Act and the Constitution may also come into play to prevent arbitrary dismissals.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

As per the principle of natural justice, no one can be punished without a hearing; the person should be given an opportunity to be heard. In view of this and the Service Rules/Standing Orders of a company, before the termination of an employee, a domestic inquiry shall be mandatory. The misconduct alleged has to be proved in a disciplinary inquiry. Only then can the employee be terminated.

It is mandatory to conduct an inquiry into the allegation raised.

Regards,
Sanjay

Dear Mr. Saikumar, which is the competent court for managerial-level employees working in a Pvt Ltd Co. in Karnataka, who are harassed by the company? Hope you'll help.

Regards

Dear Rupinder, this is in addition to what other members have said. You can click here to read my views on why a domestic enquiry should be conducted.

Thanks,

Dinesh V Divekar

The general rule is that no employee/worker (to whom the provisions of the Industrial Disputes Act are applicable) can be dismissed without framing a charge and following the procedure prescribed under the standing orders applicable to them. However, this general rule has an exception. Courts have held that an employee can be dismissed from service even without following the prescribed procedure.

I am posting a link to the judgment of the Honourable High Court of Madras on this issue. In this judgment, the Honourable Judge considered the judgments of the Honourable Supreme Court on this issue. I recommend reading the judgment as it provides a new perspective on the issue you raised. Please see Untitled Page.

With regards,

Dear Mr. Rupinder,

The general rule is that no employee or worker (to whom the provisions of the Industrial Disputes Act are applicable) could be dismissed without framing a charge and following the procedure prescribed under the standing orders applicable to them. However, this general rule has an exception. Courts have held that an employee could be dismissed from service even without following the prescribed procedure. I am posting a link to the judgment of the Honourable High Court of Madras on this issue. In this judgment, the Honourable Judge considered the judgments of the Honourable Supreme Court on this issue. Please read the judgment. It gives a new perspective to the issue you raised. Please see Untitled Page

With regards,

It can be done only in cases when the allegations are serious in nature and are apparent without any second thought.

I have gone through this full case law, and there is nothing in this case which contends that an employee can be terminated without a domestic inquiry. The nature of allegations in the present case was also serious. In fact, an inquiry was conducted in the present case but was incomplete and dispensed with due to an assault on the inquiry office, which amounts to grave misconduct. Even the relevant cases referred to in this judgment are not suggestive. In fact, the court, in a number of cases, held that even if no proper inquiry was conducted, it is still open to the tribunal to give an opportunity to be heard by both the employer and employee at a later stage.

Regards

Dear Mr. Harikrishnan/Mr. Essykkr,

I went through this discussion and also read the judgment referred to by Mr. Harikrishnan.

Discharge Simpliciter in Employment Law

"Discharge simpliciter in relation to employment law is a termination simpliciter, i.e., termination of services as per the terms of the contract. It is usually used when the employer exercises his right under the employment contract in good faith, on losing faith. It is distinguished from dismissal as the latter is termination by way of punishment. However, if the discharge simpliciter is challenged in the court of law, the court can lift the veil, and if the discharge is victimization, unfair labor practice, or punishment for any misconduct, malfeasance, and the said action has been resorted to dispense with the principles of natural justice of hearing the employee concerned before punishing him, such termination can be set aside. Where the employer satisfies the court that action has been taken in good faith, then the discharge is upheld."

It is generally used where the employer has lost trust in the employee.

The case referred to by Mr. Harikrishnan is about an employee who was not cooperating in the enquiry proceedings. Under these circumstances where an employee does not cooperate and keeps giving trouble, which are recorded by the enquiry officer, there are two options left to the employer:

1. Initiate one more disciplinary action.
2. Resort to discharge simpliciter.

It is the second option that this management has resorted to. This judgment per se does not give a right to dismiss an employee without an enquiry. In fact, they have initiated an enquiry, could not complete, and then decided to discharge him.

Courts have always held that if a stigma is attached to termination of service in the form of a punishment, it must precede an enquiry. A discharge does not attach a stigma, and it could be due to many reasons which include health grounds.

I agree with Mr. Essykkr that this judgment per se does not give any right for the employer to punish an employee without an enquiry. This case must be read with specific facts and should not be applied as a ratio decidendi.

Regards,
T. Sivasankaran

You have stated in your post that "Courts have always held that if a stigma is attached to termination of service in the form of a punishment, it must precede an enquiry. A discharge does not attach a stigma and it could be due to many reasons, including health grounds." You have also stated that in the case referred to by me, the management had discharged the employee.

I invite your attention to paragraph 10 of the judgment referred to by me. I have extracted this paragraph for ready reference.

"10. Taking note of the conduct of the petitioner and the prevailing tense atmosphere in the Institute, the respondents dispensed with the enquiry as it was not reasonably practicable to hold the same and dismissed the petitioner from service in terms of Rule 19(ii) of the CCS (CCA) Rules by an order dated 25.02.2003. In the said order, the misconducts committed by the petitioner were listed out. The misconduct committed on 04.02.2003 became the focal point to come to the conclusion that any further enquiry will be impracticable. The written complaints made against the petitioner became materials on which the respondents came to the conclusion that charges have been proved and since the respondent Institute being an educational institution and the petitioner had scant regard for any discipline as he had exhibited contempt to his superiors and colleagues, it was thought that removal from service would be proper punishment. The petitioner filed a writ petition being W.P. No. 7510 of 2003 challenging the order of removal."

According to paragraph 10 of the judgment, the employee in the above-referred case was punished for a specific misconduct. Punishment for misconduct, as you would agree, is a stigma. However, the dismissal was not preceded by an enquiry, and the employer has specifically stated that it was impracticable to proceed with the enquiry. Can this action of the employer in imposing a punishment of removal from service be regarded as discharge simpliciter?

Regards

The judgment referred to by me nowhere says that only in cases of allegations of a serious nature the inquiry could be dispensed with. I request you to read the judgment of the Honourable Supreme Court in Workmen of Firestone Tyre and Rubber Co of India (Pvt) Ltd., vs Management 1973 I LLJ 278. This judgment refers to the consequences in cases where the employer had dismissed a worker without conducting an inquiry. This judgment has not yet been overruled or modified and has been followed in the subsequent decisions of the Honourable Supreme Court and the various High Courts. The main points of the judgment find a place in the judgment referred to by me in this thread. This judgment and the subsequent judgments in which this judgment was considered by the Honourable Supreme Court do not say that a worker could be dismissed without an inquiry only for serious misconducts.

Regards

Mr. Sivasanakarn has well explained the distinction between a discharge simpliciter and dismissal, and there is no dispute about it. However, Mr. Harikrishnan's point of view that an employee can be dismissed by way of punishment for misconduct even without conducting an inquiry, despite the fact that such dismissal is stigmatic, also has substance and force in it. However, certain conditions need to be fulfilled.

1) It shall be impractical to conduct an inquiry against the delinquent employee.
2) The misconduct is such that it merits dismissal.
3) There shall be provision in service rules or standing orders enabling the employer to dismiss an employee without an inquiry when it is, in its opinion, not practical to conduct one.

The law is well settled on this issue, permitting in exceptional cases to dispense with an inquiry and impose a penalty. That's how, in my view, one can understand the implication of the judgment.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai