Is it mandatory to take oath before the enquiry starts for each and every person who are summoned since IC vested civil court procedures as per SHWW Act. Please clarify.
From India, Villupuram
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2From India, Villupuram
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Dear Colleague,
To the best of my knowledge, it is not necessary to administer an oath in this inquiry, which is like a domestic inquiry, although powers are vested to summon witnesses.
Regards, Vinayak Nagarkar HR Consultant.
From India, Mumbai
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To the best of my knowledge, it is not necessary to administer an oath in this inquiry, which is like a domestic inquiry, although powers are vested to summon witnesses.
Regards, Vinayak Nagarkar HR Consultant.
From India, Mumbai
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Clarification on Oath Requirement in IC Inquiry Proceedings
Your Point: "Is it mandatory to take an oath before the IC Inquiry Proceedings by persons (the Complainant, the Respondent, or the Witnesses) testifying before the IC in connection with an ongoing inquiry into a SH Complaint?"
Kritarth Team's Offer
For such internal inquiries conducted by the IC to ascertain the facts related to the SHC, there is no need for the IC to administer an oath. This is because:
i) Such inquiries are not guided by the Indian Evidence Act 1872, as is otherwise applicable in the courts of law.
ii) The Supreme Court and High Courts have held that administering an "oath" creates some sort of onus, liability, obligation, compulsion, binding, burden, and the like on those testifying/deposing before the IC—a quasi-judicial body—and constricts free will, taking away a choice or voluntariness from such persons. In some ways, it amounts to duress or extorting an involuntary submission. Our judiciary in court cases has observed that the person testifying should be insulated from any compulsion, duty, burden, or undue influence, like seeking and securing admission of information which might jeopardize a "voluntary offering," subtle or crude, thereby overshadowing their fundamental right. In this context, the recent ruling of the Sikkim HC in March 2018 serves as an eye-opener.
Objective of Internal Inquiries
Our judiciary also held that such internal inquiry's objective is to go by the preponderance of possibilities or probabilities presented before the IC or similar domestic/managerial inquiries. Kritarth Team goes by the aforesaid views so understood and refrains from administering any oath. Instead, we take due and diligent care to explain/describe to those present and participating in the IC Inquiry Proceedings the following:
1. The "Charge of Misconduct" leveled against the Respondent and the Complainant;
2. Explanation in defense submitted by the Respondent in reply to the allegations;
3. Principles of Natural Justice - How the IC and others will actualize the Twin Principles of Natural Justice;
4. Inquiry Procedures prescribed for such internal inquiries by our judiciary from time to time;
5. Steps/Order of Events to be adhered to/followed by the IC; who testifies first and the subsequent sequence.
Once the Complainant, the Respondent, and the Witnesses reaffirm that each of them understood all of the above, the ICs served by us as IC Member (External) commence, conduct, and conclude the IC Inquiry Proceedings and prepare the Inquiry Reports with "Definite" and "Conclusive" findings which are "Final" and "Binding" - which we all know now.
Awareness and Training Programs
Whenever and wherever Kritarth Team conducts the mandatory A) Twin Programs for the IC Members and B) Awareness Programs for the Employees, at regular intervals, we share the aforesaid information, also with the Employers/Management Teams. As we know, the mandatory A) Twin Programs for the IC Members and B) Awareness Programs for the Employees, at regular intervals, must be organized by every employer under Section -19 of the SHWW (P, P&R) Act 2013 and reported to the District Officer and the ROC.
Regards, Kritarth Team of Spl Educators and Serving IC Member (External) 1st July 2018 Kritarth Team
From India, Delhi
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Your Point: "Is it mandatory to take an oath before the IC Inquiry Proceedings by persons (the Complainant, the Respondent, or the Witnesses) testifying before the IC in connection with an ongoing inquiry into a SH Complaint?"
Kritarth Team's Offer
For such internal inquiries conducted by the IC to ascertain the facts related to the SHC, there is no need for the IC to administer an oath. This is because:
i) Such inquiries are not guided by the Indian Evidence Act 1872, as is otherwise applicable in the courts of law.
ii) The Supreme Court and High Courts have held that administering an "oath" creates some sort of onus, liability, obligation, compulsion, binding, burden, and the like on those testifying/deposing before the IC—a quasi-judicial body—and constricts free will, taking away a choice or voluntariness from such persons. In some ways, it amounts to duress or extorting an involuntary submission. Our judiciary in court cases has observed that the person testifying should be insulated from any compulsion, duty, burden, or undue influence, like seeking and securing admission of information which might jeopardize a "voluntary offering," subtle or crude, thereby overshadowing their fundamental right. In this context, the recent ruling of the Sikkim HC in March 2018 serves as an eye-opener.
Objective of Internal Inquiries
Our judiciary also held that such internal inquiry's objective is to go by the preponderance of possibilities or probabilities presented before the IC or similar domestic/managerial inquiries. Kritarth Team goes by the aforesaid views so understood and refrains from administering any oath. Instead, we take due and diligent care to explain/describe to those present and participating in the IC Inquiry Proceedings the following:
1. The "Charge of Misconduct" leveled against the Respondent and the Complainant;
2. Explanation in defense submitted by the Respondent in reply to the allegations;
3. Principles of Natural Justice - How the IC and others will actualize the Twin Principles of Natural Justice;
4. Inquiry Procedures prescribed for such internal inquiries by our judiciary from time to time;
5. Steps/Order of Events to be adhered to/followed by the IC; who testifies first and the subsequent sequence.
Once the Complainant, the Respondent, and the Witnesses reaffirm that each of them understood all of the above, the ICs served by us as IC Member (External) commence, conduct, and conclude the IC Inquiry Proceedings and prepare the Inquiry Reports with "Definite" and "Conclusive" findings which are "Final" and "Binding" - which we all know now.
Awareness and Training Programs
Whenever and wherever Kritarth Team conducts the mandatory A) Twin Programs for the IC Members and B) Awareness Programs for the Employees, at regular intervals, we share the aforesaid information, also with the Employers/Management Teams. As we know, the mandatory A) Twin Programs for the IC Members and B) Awareness Programs for the Employees, at regular intervals, must be organized by every employer under Section -19 of the SHWW (P, P&R) Act 2013 and reported to the District Officer and the ROC.
Regards, Kritarth Team of Spl Educators and Serving IC Member (External) 1st July 2018 Kritarth Team
From India, Delhi
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No, it is not needed. The disciplinary proceedings are not judicial proceedings warranting an oath procedure for the witnesses. They are quasi-judicial (semi-judicial) proceedings, and compliance with the principles of natural justice is all that is called for.
From India, Mumbai
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From India, Mumbai
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Oath Requirement in IC Inquiries
It is not necessary to take an oath before the inquiry starts. When the Internal Committee (IC) begins an inquiry into a complaint, the law demands that it must take an oath, as the IC is vested with the powers of a Civil Court while conducting the inquiry.
Section 11, sub-section 3, clearly stipulates that the IC shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; and (c) any other matters which may be prescribed.
Hence, it is my considered opinion that the IC should abide by the stipulations set out under Section 11(3) of the Act.
Regards,
P.S. Lakshmanan
S. G. Management Services
(PAN INDIA Consultant – Labour Law Compliance, PF, ESI, P Tax, Benefit Management & POSH Compliance)
Kolkata
From India, Kolkata
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It is not necessary to take an oath before the inquiry starts. When the Internal Committee (IC) begins an inquiry into a complaint, the law demands that it must take an oath, as the IC is vested with the powers of a Civil Court while conducting the inquiry.
Section 11, sub-section 3, clearly stipulates that the IC shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; and (c) any other matters which may be prescribed.
Hence, it is my considered opinion that the IC should abide by the stipulations set out under Section 11(3) of the Act.
Regards,
P.S. Lakshmanan
S. G. Management Services
(PAN INDIA Consultant – Labour Law Compliance, PF, ESI, P Tax, Benefit Management & POSH Compliance)
Kolkata
From India, Kolkata
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Where is the problem in taking an oath? What is an oath and why is it important to understand? An oath is essentially a promise, particularly that you will speak the truth or that what you have said is true.
The statement that is recorded must be signed by the individual with a note stating, "The recorded version is nothing but true to the best of his/her knowledge and belief."
From India, Mumbai
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The statement that is recorded must be signed by the individual with a note stating, "The recorded version is nothing but true to the best of his/her knowledge and belief."
From India, Mumbai
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