Hello friends, I need your valuable advice for my query below. During suspension pending enquiry proceedings, can the delinquent employee (petitioner) appoint a lawyer to conduct the disciplinary proceedings on his behalf? Please provide sufficient court orders that authorize him to engage a lawyer.
Thank you,
Sreedevi
From India, Thiruvananthapuram
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1Thank you,
Sreedevi
From India, Thiruvananthapuram
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Purpose of Conducting a Domestic Inquiry
The purpose of conducting a domestic inquiry is to allow or offer sufficient opportunity to the delinquent employee who is charged with misconduct. Normally, an ordinary employee is not well aware of the procedures and practices followed in the inquiry. Also, they may not have the skills to pose cross-questions to the management's witnesses and thus defend their case. Hence, the assistance of a co-worker or a union representative has been permitted by making specific provisions in the Model Standing Orders.
In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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The purpose of conducting a domestic inquiry is to allow or offer sufficient opportunity to the delinquent employee who is charged with misconduct. Normally, an ordinary employee is not well aware of the procedures and practices followed in the inquiry. Also, they may not have the skills to pose cross-questions to the management's witnesses and thus defend their case. Hence, the assistance of a co-worker or a union representative has been permitted by making specific provisions in the Model Standing Orders.
In cases where management is represented in the inquiry by a skilled, experienced, and trained individual in law or by a lawyer, denial of the assistance of an advocate is not advisable. Similarly, if the charges are complicated and an ordinary individual cannot easily understand them, legal assistance should be allowed to be taken by the employee.
The provisions of the Model Standing Orders of Maharashtra State are to be read liberally and not strictly.
From India, Kolhapur
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The relevant provision of Model Standing order is attached
From India, Kolhapur
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From India, Kolhapur
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Employee and Advocate Roles in Disciplinary Proceedings
It is the general practice that an employee, along with the advocate, is allowed to deal with matters. However, it is not acceptable for the advocate to handle matters alone in the absence of an employee, unless the employee is physically or mentally unable to attend and deal with them. In the presence of an employee, the advocate can deal with all matters, inquiries, and related procedures completely.
From India, Bangalore
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It is the general practice that an employee, along with the advocate, is allowed to deal with matters. However, it is not acceptable for the advocate to handle matters alone in the absence of an employee, unless the employee is physically or mentally unable to attend and deal with them. In the presence of an employee, the advocate can deal with all matters, inquiries, and related procedures completely.
From India, Bangalore
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In the normal course of a domestic enquiry, the engagement of a lawyer by the delinquent employee is not allowed unless the rules for the conduct of such an enquiry permit it. I am attaching two judgments in this regard:
(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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(i) A Supreme Court Judgment in Management of National Seeds Corporation v. K V Rama Reddy, and
(ii) A Judgment by the Madurai Bench of the Madras High Court in V Mathivanan v. State Bank of India.
I have taken the liberty of highlighting a couple of paragraphs in the Supreme Court Judgment. Please note that this highlighting is not a part of the judgment itself.
I trust you would find these helpful in arriving at a decision regarding engaging a lawyer.
Regards,
Raju Bhatnagar
From India, Bangalore
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Representation by an Advocate
If the rules permit or if the management is represented by an advocate, then the employee is entitled to be represented by an advocate. This is the general rule. However, there are court rulings holding that if the charges are very complicated to defend, then an advocate can be allowed for compliance with natural justice.
Kerala Specific Guidelines
If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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If the rules permit or if the management is represented by an advocate, then the employee is entitled to be represented by an advocate. This is the general rule. However, there are court rulings holding that if the charges are very complicated to defend, then an advocate can be allowed for compliance with natural justice.
Kerala Specific Guidelines
If your establishment is in Kerala, follow only the model standing orders under Kerala Standing Orders rules.
Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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Dear friends,
It's generally accepted that a charged employee has the privilege to represent himself through a Union representative. Suppose the same Union representative happens to be a law graduate, even if not a practicing advocate, whether as an employee or a non-employee but part of the Union. In such cases, how could the lawyer be denied the opportunity to represent the charged/accused employee? I have encountered many union office bearers who are not employees per se but are prominent politicians, practicing advocates, prominent labor leaders, and sometimes retired employees. They can still participate in such disputes and inquiries. They can also sign settlements and agreements on behalf of the Union/employees, such as wage settlements and conciliations. How can they be denied the opportunity to assist or participate in the inquiry? Some member advocates in practice might like to contribute with their experiences.
Regards,
From India, Bangalore
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It's generally accepted that a charged employee has the privilege to represent himself through a Union representative. Suppose the same Union representative happens to be a law graduate, even if not a practicing advocate, whether as an employee or a non-employee but part of the Union. In such cases, how could the lawyer be denied the opportunity to represent the charged/accused employee? I have encountered many union office bearers who are not employees per se but are prominent politicians, practicing advocates, prominent labor leaders, and sometimes retired employees. They can still participate in such disputes and inquiries. They can also sign settlements and agreements on behalf of the Union/employees, such as wage settlements and conciliations. How can they be denied the opportunity to assist or participate in the inquiry? Some member advocates in practice might like to contribute with their experiences.
Regards,
From India, Bangalore
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The judicial dictum is well settled that the assistance of an advocate cannot be allowed unless the circumstances pointed out in the comments of Shri Varghese Mathew & Raju Bhatnagar are met. If advocates are to be allowed at free will, then it will no longer be departmental enquiries and will be no different than any court proceeding. So, the assistance of an advocate is not by default and is to be allowed only where the Presenting Officer is a trained legal mind (like a practicing advocate or a prosecutor from the Police Establishment) and where the facts are too complicated and carry legal issues which have not been settled so far by the higher courts.
Regards,
KK
From India, Bhopal
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Regards,
KK
From India, Bhopal
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Final Consideration on Standing Orders
One final point in this matter. If any of the members are preparing standing orders, make them in such a way that only a coworker can be allowed to assist the delinquent employee, and not an advocate or trade union (TU) leaders. A coworker may be a TU executive, but it is of less consequence than an external leader who, in most cases, will be an advocate or a politician who will complicate the inquiry. The existing standing orders can also be amended along these lines.
Regards,
Varghese Mathew
Labour Law Adviser
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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One final point in this matter. If any of the members are preparing standing orders, make them in such a way that only a coworker can be allowed to assist the delinquent employee, and not an advocate or trade union (TU) leaders. A coworker may be a TU executive, but it is of less consequence than an external leader who, in most cases, will be an advocate or a politician who will complicate the inquiry. The existing standing orders can also be amended along these lines.
Regards,
Varghese Mathew
Labour Law Adviser
[Phone Number Removed For Privacy Reasons]
From India, Thiruvananthapuram
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Section 30 of the Advocates Act came into force on 15.6.2011. Parliament, in its wisdom, has given absolute rights to advocates. An advocate shall have the right to practice before any person authorized to take evidence. In a departmental inquiry, the inquiry officer has been empowered to take evidence. Hence, any provisions that bar the advocate are ultra vires to Section 30 of the Advocates Act, read with Article 19(5) of the Constitution of India. Various High Courts have held this, stating that any judgment prior to 2011 taking a contrary view is negated.
From India, Pune
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From India, Pune
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