Facing Legal Hurdles: How to Proceed with Disciplinary Actions Without a Signed CSO Copy?

We are a corporate-based listed company with multiple divisions around the Maharashtra State. Workers are governed under Certified Standing Orders (hereinafter referred to as CSO) of the company. Accordingly, based on the provisions of the CSO, the management is initiating disciplinary actions against the wrongdoer. The said CSO was certified by the Labour Commissioner Mumbai in the year 1963.

Current Situation Regarding CSO Copies

At present, some domestic inquiries are in process, wherein the workers' representative has filed an application to provide a signed copy of the CSO. Last time, we tried to trace out the original signed CSO copy, but it was not available. We also inquired with the Labour Commissioner's office, where old records are also not available.

Court Proceedings and Directions

Meanwhile, the worker's representative filed an Interim Application before the Industrial Court for a stay on the inquiry proceedings until the CSO copy is provided for defense. The court did not allow the interim application for a stay on the inquiry but directed us to provide a copy of the CSO to them. As per the directions, we have provided an unsigned xerox copy of the CSO. The worker has filed another application to provide a signed copy. Now, we plan to proceed further to complete the inquiry.

Legal Concerns and Next Steps

Under the circumstances, since we are unable to provide a signed copy of the CSO, will the inquiries be considered as perverse and illegal? What steps need to be taken to continue and complete the domestic inquiry in the absence of a signed copy of the CSO?

Dear Shaik Ijaj, what transpired from your post is that your CSO is missing, and you want to initiate disciplinary actions with the workforce without a signed copy of the CSO. You should try to obtain a signed copy or consider going for re-certification. The model standing orders can be followed for the initiation of actions in the absence of a certified SO.

However, your organization has stirred up the issue with the workers without locating a CSO. It would be better to wait to find the CSO or have it certified. Alternatively, you can take the bold step of proceeding without it, similar to how many countries operate without a written constitution in cases of disciplinary exigencies.

Please let me know if you need any further assistance.

Kind regards, [Your Name]

Dear Mr. Shaik,

You may follow the Model Standing Order as prescribed in Maharashtra and try to have it implemented in your company. The domestic enquiry will be considered valid if the provisions are followed as per the Model Standing Order. Your advice/action is awaited.

At the outset, it may be noted that no court grants a stay order against disciplinary proceedings. It is true that your company has a certified standing order, and the workmen are aware of this fact. Since you have an unsigned copy of the certified standing order, you may obtain the same duly certified and proceed with the disciplinary proceedings. Failing to do so, if the workmen approach the labor court when challenging the validity or otherwise of the domestic inquiry held by the management, the court may vitiate the inquiry. Even though you follow the model standing order, there are still chances of vitiating the inquiry because you already have a certified standing order.

Regards,
Lakshmanan
S G Management Services
Kolkata

In my view, being unable to provide the original copy of the CSO will not, by itself, vitiate the inquiry proceedings. The MR should make a written submission before the Enquiry Officer stating that the original CSO will be provided as and when found, and the inquiry should proceed with the available CSO copy. With the appropriate ruling to this effect by the EO, and the fact that the Court has not stayed the proceedings, the inquiry, if proceeded further, will not suffer any infirmity.

Regards,
Vinayak Nagarkar
HR Consultant

You might have quoted in the charge sheet, misconduct under (...) clauses of Standing Orders of our Company. After the enquiry, if the workman is punished, the union may contest that the charges are null and void in court, stating that there is no CSO. Therefore, I feel it's better late than never to get the standing orders certified and then proceed.

Firstly, when your office determines that there is a prima facie violation of duty or service by the employee, proceed with the inquiry without hesitation and do not dwell on the absence of the CSO.

Secondly, the CSO will likely be accessible through the labor office, which may possess historical records that include the CSO due to past practices of maintaining such documents. As you are aware of the timeframe, locating the CSO should not be a time-consuming task. Additionally, consider checking old inquiry files where the CSO might be preserved under different names in the Personnel files.

In the past, inquiries were managed by the personnel department; however, the current practice involves various departments such as the legal cell, the inquiry office, and the establishment section.

Thirdly, ensure that the inquiry is conducted in compliance with the established norms to avoid any potential violations, thereby validating the process.

Lastly, do not tolerate any tactics aimed at delaying the proceedings or any arbitrary actions, as such actions could prove to be costly in the long term.

Best of luck...

Dear All,

If a standing order is created according to the Draft Standing Order and approved by the competent authority, you can take action against any employee at any time as specified in the standing order.

Addressing the Issue of Missing Certified Standing Orders

Yes, you have a ticklish issue. The union probably knows that you do not have any original certified copy of the Standing Orders and is trying to exploit that situation. However, you may have the reference of the certification, such as the date and proceeding number. Based on that, you may apply to the office of the Certifying Authority to obtain a certified copy. If you are unable to get it from there, apply under RTI and let them state that a certified copy is unavailable.

In law, there is a presumption that all governmental work is done according to rules, and it is for the party alleging otherwise to prove it (Evidence Act). Therefore, if you can produce some evidence that the Standing Orders were certified with a reference number and date, their validity can be presumed, and the burden of proving their illegality would shift to the opposite party.

Untraceability of the Original CSO: A Critical Issue

The untraceability of an important document like the original CSO and the tough legal resistance put forth by the delinquent employees on this score indicate only the messy handling of the HR Department of the organization. This situation gives rise to the following pertinent questions:

(1) The copies of the originally certified S.O would have been immediately sent to the unions that participated in the certification process by the Certifying Officer. Has the Management taken any steps to verify with such unions?

(2) What prevents the Management from applying for recertification if the untraceability of the original is authenticated by the Certifying Officer? Until then, can the provisions of the Model Standing Orders be applied if both are not contradictory to each other?

If "no" is the answer to the above questions, there is a possibility of some reasonable doubts that the Management wantonly tries to hide some failure on its part to amend the original in accordance with some subsequent material changes, such as the change of the name of the Company, classification of workmen, list of misconducts, and the like. Otherwise, why is the questioner so worried about the inquiry being declared null and void just because of the Management's inability to provide the copy of the original CSO? After all, whether the year of certification was 1963 or some other, no disciplinary inquiry violative of the Principles of Natural Justice, which remain the same, would be approved by the Certifying Officer.

The issue of missing original CSO of 1963

The missing original CSO of 1963 is not uncommon, as is the case with original documents of this type, where you could have only limited sets of them. The sheer wear and tear over nearly five and a half decades would practically render them illegible or unfit for use. There have been many instances where interested employees could play some dirty tricks and try to take advantage of it. However, for argument's sake, even if the CSO is missing, if the inquiry is conducted in accordance with the principles of natural justice, then it may not be held as vitiated by the court. More or less, all SOs contain very similar provisions, and the requirement of principles of natural justice is standard and known to all. Therefore, the fact that the original CSO could not be produced may not vitiate the inquiry. There is case law available stating that quoting the wrong rules will not vitiate the inquiry as long as the misconduct is properly mentioned and the procedure is followed.

Updating the Standing Orders (SO)

Since you have not been able to trace the original CSO, try to update the SO by adding new provisions (like the payment of subsistence allowance, fixed-term appointment, and prevention of sexual harassment measures) and apply for recertification.

Dear Ijaj ji,

My short and sweet answer to your query is that you should follow as per the certified SO. Get the SO recertified immediately.

Thank you.

Dear Sir,

You have the option to issue a fresh charge sheet under Model Standing Orders and proceed with the enquiry. If you proceed, it will also amount to contempt of court as the directions are not followed. Before the Court, you can file an application that a fresh charge sheet is issued, hence the complaint can be disposed of. In one of my client companies, we did the same, and the enquiry was conducted de novo. Ultimately, the matter was settled.

From the above posts, two things clearly emerge for the immediate action to be taken from your end:

1) Proceed with the inquiry and hold the disciplinary action part until CSO is authenticated.
2) Parallel action has to be taken to get the CSO draft registered.
3) In the meantime, if you can locate the evidence for distributing the previous standing order with the acknowledgment of the union, it will benefit you greatly.

V. Raghunathan
Chennai