Can an Office Clerk Serve as a Management Representative in Domestic Enquiries?

Can an Office Clerk be a Management Representative/Presenting Officer in Domestic Enquiries?

YES/NO.

Please provide more information to arrive at a justified suggestion. What is the misconduct? What is the designation of the charge-sheeted employee?

Although technically, the advice given by Mr. Koragaonkar is correct, it is customary to have senior officers (or an officer/executive grade) comparable to the rank of the CSE as the Presenting Officer/Management Representative. A clerk does not belong to the supervisory/managerial grade; hence, it would not be proper to make him a PO/MR. This can be resorted to only if you do not have officers/managers in your company, and that is what it conveys.

Warm regards.

I have given a specific and to-the-point answer to your specific and to-the-point question. I endorse our Super Moderator, Raj Kumar Ji. You need to assess the ability of the EO to conduct the inquiry and the ability of the MR to represent/lead your case, examine/cross-examine the witnesses, etc. Please do not take the inquiry lightly.

One must observe that the law is based on this line. If you peruse the CCS (CCA) Rules or even RS (D & A) rules of the central government, then you will find that there are provisions that require the EO or the PO not to be below the rank of the delinquent or the disciplinary authority. This is done with a view to the protections provided to government employees under Article 311 of the Constitution of India. However, all other employees who do not classify as government servants are not entitled to the benefits of Art. 311.

Principles of Natural Justice

Now, the requirement is only that there must be no violation of the principles of natural justice. Broadly speaking, the principles of natural justice, although not a straightjacket formula, dictate that no one should be condemned unheard, and further, no one can be a judge in their own cause. Thus, in view of the above-enunciated principles, there won't be a fallacy in appointing an office clerk as a PO if he has no involvement in the matter (This I say on the safer side) because ultimately, the judge in any case shall be the EO only and not the PO.

Regards,
Pankaj Agnihotri.

Pankaj Agnihotri and Raj Kumar have cited certain key factors to be considered while appointing Presenting Officers. You have not shed any light on the circumstances that are compelling you to consider the option of making a clerk a presenting officer. However, the following guidelines may be of help.

1) Presenting the case and leading evidence on behalf of management before an enquiry officer, in my view, is an administrative function and cannot fall under the purview of any categories of functions referred to under Sec.2(s) of the Industrial Disputes Act, and hence, a clerk who is a workman cannot be entrusted with an administrative function.

2) Presenting is not an ordinary job but a huge responsibility. It requires a proper understanding of procedures and principles of natural justice, the ability to interpret the evidence, and apply it to the case to prove the delinquent guilty. For example, proving fraud needs a technical understanding of procedures and accounting principles, etc., to effectively prove guilt. Any improper presentation may prove costly, both to the employee or the employer. It all depends on the nature of misconduct and the status of the delinquent employee.

3) Government establishments and industrial establishments in the public sector have their own disciplinary rules and procedures defining every step in the disciplinary process, such as appointing Presenting Officers, Enquiry Officers, and defense representatives, etc. In respect to the private sector covered by Standing Orders, the certified Standing Orders will cover this issue. They need to follow them.

4) If the establishment's standing orders are silent, or it is one not covered by standing orders, or it is one that does not have any rules, such establishments may consider appointing any officer for presenting the case. Alternatively, if for any reason this is not possible, it may consider appointing an outsider like an ex-officer from a company acquainted with disciplinary matters, as a Presenting Officer.

I highly appreciate your response, which is based on sound reasoning and references. It provides good learning on guidelines for appointing a Presenting Officer/Management Representative in Domestic Enquiries.

Warm regards.

I too appreciate the answer by Sai Kumar ji, which is based on sound reasoning and valid references. Thanks, Sai Kumar ji, for your participation not only in this particular discussion but in all your discussions, which are good learning for the members of this forum. We have very few members as knowledgeable as Sai Kumar ji, who make the discussions meaningful.

I also appreciate and thank Venkatadri ji for asking this question.