Misconduct - Shall we go for punishment by dismissing him or Suspend him for 4 days?

Dear Colleagues,

We have one case of misconduct. The employee is in the staff category and falls under the unionized category. The misconduct is that he brought a bottle of foreign liquor by hiding it behind his jacket while he went out during recess. While returning after the 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 attempted 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, in which he 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 statements of the security guard and supervisor, and also video clips from the 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, it fell down. Then he tried to push it with his leg and escape. The security supervisors conducted a breath analyzer test, and he tested negative, with zero alcohol. He was sent home, and we have suspended him pending a domestic inquiry.

Now we need to make a final decision after completing the domestic inquiry:

1. Shall we go for capital punishment by dismissing him after conducting a domestic inquiry, 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 labor court if this case goes to court?

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

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 to and it has been upheld.

In case you are proceeding on the basis of a violation of the Gujarat Prohibition statute, then you may have to await a decision of the competent court.

Thank you, KKHR, for your response.

Our standing order says that drunkenness, riotous, disorderly, or indecent behavior on the premises of the Undertaking shall amount to misconduct.

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 misconduct under the relevant clauses of the Standing Orders quoted by you.

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

It would be better if you wish to proceed against him under the Gujarat prohibition law after consulting a legal expert on this subject. Pending that, suspend him in the meantime for investigation and the final outcome. Pay him a subsistence allowance as provided for in the Standing Orders.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

No, I differ from the views expressed by respected Vinayak Sir. Carrying liquor in person in a state where there is prohibition is definitely disorderly and indecent behavior. You can go ahead with the disciplinary action. As regards punishment as opined earlier, please review.

My view is that 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 workplace shall definitely amount to severe misconduct and gross indiscipline, and he shall be subject to disciplinary action.

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

It is advisable that you can go ahead with a domestic enquiry, prove the charges levelled against him, and further consult with a registered legal practitioner 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.

Dear colleagues,

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

I reiterate that the clauses chosen and contained in the charge sheet under reference are irrelevant, inapplicable, and therefore bound to fail as the evidence is against it (breath analyzer 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

Any criminal activity is misconduct, regardless of whether it is specifically outlined in the standing orders.

Therefore, as this constitutes criminal activity, you are within your rights to impose termination of employment. The courts are unlikely to oppose it, especially with irrefutable evidence such as CCTV footage.

You may be legally obligated to report this matter to the police station, and failing to do so could lead to trouble. I recommend consulting your corporate lawyers for further clarification on this issue.

Thank you all for your valuable responses.

I have discussed with our labor lawyer. He has confirmed that we can initiate a domestic inquiry by giving him time and opportunity to defend his case. Finally, if management wants to dismiss, we can indeed dismiss as the case is strong in favor of the company.

Once again, thanking you.

Dear all contributing experts and CiteHR member Salil Menon,

I appreciate that all the Contributing Experts have given their valuable opinions, and 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 a liquor bottle happened.

2. As narrated by you, the employee came out during recess, and while returning to the 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 the backside of his jacket? He could have gone unnoticed easily. The CCTV footage needs to be analyzed more carefully. The statement of security guards and Security Incharge also needs to be recorded and analyzed.

3. Although such an activity is definitely misconduct, being disorderly behavior and against the prohibition law of the state, taking disciplinary action by suspending the employee pending inquiry is advisable.

4. The internal inquiry has to be conducted following 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 matter whether the charge sheet succeeds or fails, but a message should go to the employees that Management is conscious of the misbehavior/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 the right to differ from the findings of the inquiry officer and come to his own conclusion after considering all the evidence on record of the inquiry.

9. The quantum of punishment should commensurate with the gravity of misconduct, and the 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 the company has suffered a huge loss or lost its goodwill in the industry due to the misconduct of an employee, or there was a grave criminal offense committed by an employee for which there is a punishment of imprisonment.

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

Any further query will be welcome.

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

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

The punishment should be decided in accordance with the standing orders applicable to your industry.

- S.K. Mittal
9319956443

Mr. Mittal,

My query to you is, what happens if the activity specifically is not listed in the Standing Orders. The misconduct list is not (and can not) be comprehensive. For example, no one has a misconduct for 'Murder of employee in or out of the premises' (sorry taking a wild example)

So in this case, it is a criminal activity (carrying liquor in a dry state) and it may not be in the Standing Orders because no one ever thought it will happen. So does that mean the person can not be removed from the job for it? Or what clause or what reason should they use for it?

For example, in Central Model Standing Orders, the following only are Misconduct :

(a) wilful in subordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) theft, fraud or dishonesty in connection with the employer’s business or
property,
(c) willful damage to or loss of employer’s goods or property,
(d) taking or giving bribes or any illegal gratification,
(e) habitual absence without leave or absence without leave for more than 10 days,
(f) habitual late attendance,
(g) habitual breach of any law applicable to the establishment,
(h) riotous or disorderly behaviors during working hours at the establishment or any act discipline,
(i) habitual negligence or neglect of work,
subversive of
(j) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month.
(k) striking work or inciting others to strike work in contravention of the provision of any law, or rule having the force of law.

So, the person can be removed only if he repeatedly brings liquor into the factory in violation of Dry State law?
I hope there is a way out on this

Before issuing a charge memo, don't think of punishment. Conduct the domestic enquiry following the principles of natural justice. If the charges leveled against the delinquent are proved, then you can award major punishment as per your Standing Orders. Suspension pending enquiry is advisable because it will send a warning message to other employees who want to commit misconduct.

Before passing the order of dismissal, you have to verify whether 2k disputes (in respect of the delinquent-union) are pending with the court or not?

Thank you very much, C. M. L. Srivastava, sir.

Shri C M L Srivastava is working as a fireman in the Fire & Safety Department. Our facility is a power plant, and he operates in hazardous areas. Recently, he was observed transferring a hidden bottle from the backside of his pants to his pocket after being frisked. Thank you.

Dear colleagues,

After perusing the expert views of the learned colleagues above, I would advise the poster to consider the following:

1. The misconduct apparently committed by the concerned employee, as has emerged from the facts narrated, is only carrying/possessing a foreign liquor bottle, which is a criminal act as per the state's prohibition law. He was found to be carrying it in the back pocket during working hours while he was on duty at the security entrance by the security staff on duty. His breathalyzer test was negative, and he did not indulge in riotous, indecent behavior in a state of drunkenness. Therefore, he needs to be booked under appropriate charges contained in the Standing Orders, and a domestic inquiry should be ordered and completed, having regard to the principles of natural justice.

The question of the punishment will have to be decided after the charges are proved, the gravity of the same, aggravating and extenuating circumstances if any, as well as his past record.

The action of dismissal, if taken, is bound to be challenged in the labor court, and therefore, a foolproof case has to be made out, keeping in mind a variety of legal aspects as all the issues will be wide open before the court right from the fairness of the inquiry, its merit, punishment whether in proportion to the gravity of the misconduct, etc.

To give a deterrent message to other workers, it would be an appropriate action if the concerned employee is placed under suspension pending the inquiry as well as examining whether he can be proceeded against parallelly for this misconduct under the Gujarat Prohibition law.

Hope you benefit from the advice of the competent labor lawyer.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

Vinayak,

I asked this before, but I need to repeat it.

This specific act of carrying alcohol and of generally violating any law is not there in most standing orders. As I have stated earlier, it is not even in the model standing orders.

In such a case, what happens? How can you hold him guilty of misconduct that is not in the standing orders? But the intent of the legislation and of the management is not to let him go on account of the fact that he has been caught only once.

So how exactly should the domestic inquiry and the punishment be undertaken? What is the ground (or rule) to be done under?

Dear CiteHR member Shri Salil Menon ji,

I express my gratitude for the information provided about the delinquent employee and the industry to which the case pertains. My opinion is as follows:

1. All the Contributing Experts have offered advice relevant to the issue. It is evident that there are differing views for and against, providing a basis for better discretion and decision-making.

2. Turning to the merits of the case from the Management's perspective, I emphasize that a Fireman working in the Fire Dept. of a power plant is expected to be highly disciplined, vigilant, and alert at all times during duty hours to safeguard the plant against any mishaps. The attempt by a Fireman to bring foreign liquor onto the plant premises poses a threat to the safety and security of the plant. Such an act could endanger not only his own life but also the lives of other employees on duty at that time. This conduct can be classified as gross indiscipline, warranting disciplinary proceedings against the delinquent Fireman.

3. The employee in question should be suspended immediately pending an inquiry. The charge sheet should be meticulously drafted, witness statements recorded and signed, and witness identities confirmed. Following the employee's response to the charge sheet, an Inquiry Officer and a Presenting Officer should be appointed. The Inquiry Officer should be a different officer from the Disciplinary Authority.

4. The Inquiry Officer should conduct the inquiry promptly in line with existing rules or, if absent, in line with the principles of natural justice, and submit the inquiry report to the Disciplinary Authority.

5. The Disciplinary Authority will review the Inquiry Officer's findings and the evidence on record before making a decision based on the severity of the misconduct.

6. It would be premature to speculate on the penalty to be imposed before receiving the inquiry report. This decision should be left to the discretion of the Disciplinary Authority to avoid influencing their judgment.

7. The matter should also be reported to the local police due to the violation of prohibition laws applicable in the State. Legal proceedings will follow their due course, and both departmental and police proceedings can occur simultaneously.

I trust this addresses your queries. If you have any further points to discuss, please feel free to raise them.

Best regards to all Contributing Experts,

Expressing my thanks,
Chandra Mani Lal Srivastava
Master Consultant & Disciplinary Proceedings Expert
srivastavacmlal@gmail.com / 9315516083
New Delhi/23.01.2022/9:58 pm

Dear Saswat and contributing colleagues,

Assuming that Model Standing Orders are applicable to this establishment, the act of the delinquent employee will fall within the generic clause "The act subversive of good discipline and good behavior" listed in the MSO, along with "habitual" breaching of the rules (provided the concerned employee had indulged in it more than three occasions, which has to be factually verified with documents and then booked under this clause).

It is not necessary that all the specific acts of misconducts such as "possession of liquor while on duty" should be included in the misconducts in the Certified/MSO list. The generic clause referred to above is generally invoked along with specific acts, if any, in the chargesheet.

The chargesheet needs to be well-worded with the facts, and the domestic inquiry proceeded with. The EO and disciplinary authority have to be separate, independent, and the inquiry has to be conducted strictly according to the principles of natural justice.

As regards the punishment aspect, it is premature to give specific advice on the type and gravity unless the report of the EO is made available.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

Dear Salil-Menon and all CiteHR Members,

Thank you all for your contributions; I have learned a lot from your discussions.

Attached is a helpful Legal Guide for HR Management - "Dealing with Problem Employees." Perhaps it could be beneficial to some of you.

Best regards to you all,
John Chiang