Disciplinary Proceedings and Management Authority
Disciplinary proceedings were initiated against a permanent workman by one management, conducted by another management. The workman was under the impression that the proceedings were initiated by his direct employer, with no chance of any doubt about the identity of the second management. Based on an Ex-parte Domestic Enquiry Report conducted against the workman as per the Standing Orders applicable to workmen, the workman was dismissed from the service of the first management company by that second management.
During the course of the final procedure, the workman came to understand that the authority who did all those things was not from his employer's management. There was NO communication from the employer's management to the workman about the delegation of power to the second management to initiate the disciplinary procedure.
When the accused workman inquired with his immediate superior about the identity and locus standi of the authority who initiated the proceedings, the immediate superior replied that the authority is authorized to do so and the locus standi will be proved before the court of law.
Kindly let me know if the procedure initiated by one employer to dismiss an employee of another employer, as per authorization from that employer, is valid or null and void as per the prevailing rules in India?
Regards,
Jagdish K.
Kochi
From India, Kochi
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4Disciplinary proceedings were initiated against a permanent workman by one management, conducted by another management. The workman was under the impression that the proceedings were initiated by his direct employer, with no chance of any doubt about the identity of the second management. Based on an Ex-parte Domestic Enquiry Report conducted against the workman as per the Standing Orders applicable to workmen, the workman was dismissed from the service of the first management company by that second management.
During the course of the final procedure, the workman came to understand that the authority who did all those things was not from his employer's management. There was NO communication from the employer's management to the workman about the delegation of power to the second management to initiate the disciplinary procedure.
When the accused workman inquired with his immediate superior about the identity and locus standi of the authority who initiated the proceedings, the immediate superior replied that the authority is authorized to do so and the locus standi will be proved before the court of law.
Kindly let me know if the procedure initiated by one employer to dismiss an employee of another employer, as per authorization from that employer, is valid or null and void as per the prevailing rules in India?
Regards,
Jagdish K.
Kochi
From India, Kochi
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What is the meaning of "Second Management"? Was there a clause in the appointment letter about this dual management reporting? Is the employee a contract employee? Did the employee commit misconduct of any kind? First and second management - why would any management remove anyone from the job?
As of now, the employee can approach the labor officer of the area where his company is located. Possibly, he may not need to go to labor court. If there was no communication to the employee, then how is "second management" dismissing the employee? Please clarify.
Regards,
Dinesh Divekar
From India, Bangalore
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As of now, the employee can approach the labor officer of the area where his company is located. Possibly, he may not need to go to labor court. If there was no communication to the employee, then how is "second management" dismissing the employee? Please clarify.
Regards,
Dinesh Divekar
From India, Bangalore
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Disciplinary Jurisdiction and Employer-Employee Relationship
Disciplinary jurisdiction is one of the key tests whereby the employer-employee relationship is tested at the altar of law. This means that disciplinary control as an authority accrues to an employer only when there is an employer-employee relationship between the person against whom the disciplinary action is taken and the person who takes such disciplinary action. This is also because of the settled position in law that he who appoints can only terminate. Therefore, when the delinquent employee is not an employee of the second management, the second management cannot, under any circumstances, take disciplinary action against the said delinquent employee. Disciplinary jurisdiction and employer-employee relationship are coextensive and cannot be independent of each other; thus, they cannot be assigned, transferred, or delegated to a different employer.
Tripartite Relationship: Principal Employer, Contractor, and Contract Labour
If the case cited by you falls under the case of a tripartite relationship of principal employer-contractor and the contract labour, then the principal employer cannot take disciplinary action against the contract labour for any misconduct committed by him. Disciplinary action shall be taken only by the contractor as the immediate employer, and the immediate employer cannot delegate this authority to the principal employer. If such delegation is included in any clause in the contract for service between the principal employer and the contractor, it is likely that the principal employer runs the risk of stepping into the shoes of the employer and treating the delinquent employee as his employee.
Regards,
B. Saikumar
From India, Mumbai
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Disciplinary jurisdiction is one of the key tests whereby the employer-employee relationship is tested at the altar of law. This means that disciplinary control as an authority accrues to an employer only when there is an employer-employee relationship between the person against whom the disciplinary action is taken and the person who takes such disciplinary action. This is also because of the settled position in law that he who appoints can only terminate. Therefore, when the delinquent employee is not an employee of the second management, the second management cannot, under any circumstances, take disciplinary action against the said delinquent employee. Disciplinary jurisdiction and employer-employee relationship are coextensive and cannot be independent of each other; thus, they cannot be assigned, transferred, or delegated to a different employer.
Tripartite Relationship: Principal Employer, Contractor, and Contract Labour
If the case cited by you falls under the case of a tripartite relationship of principal employer-contractor and the contract labour, then the principal employer cannot take disciplinary action against the contract labour for any misconduct committed by him. Disciplinary action shall be taken only by the contractor as the immediate employer, and the immediate employer cannot delegate this authority to the principal employer. If such delegation is included in any clause in the contract for service between the principal employer and the contractor, it is likely that the principal employer runs the risk of stepping into the shoes of the employer and treating the delinquent employee as his employee.
Regards,
B. Saikumar
From India, Mumbai
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I think it is difficult to give an answer to the questions you are raising because we do not know the details, circumstances, and the reason why the "second management" started the proceedings, or what the proceeding is about and what the original misconduct is. Any answer you get from this group, in the absence of that information, will be potentially misleading. I would suggest that you take up the matter with the appropriate labor officer/commissioner. If you do not get a satisfactory answer from there, it may be a good idea to go to a lawyer who will be able to decide based on the full facts and review of the charge sheet, details of the disciplinary action, and termination letter.
From India, Mumbai
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From India, Mumbai
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Inquiry and Charge Sheet Authority
The charge sheet issuing authority can only hold an inquiry against a delinquent employee. The inquiry officer is also appointed by the authorized signatory as per the law.
There is no provision for conducting an inquiry by management other than the employer of the employee. Therefore, the question raised by Shri Jagdish Ji needs more clarity in their query.
Regards
From India
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The charge sheet issuing authority can only hold an inquiry against a delinquent employee. The inquiry officer is also appointed by the authorized signatory as per the law.
There is no provision for conducting an inquiry by management other than the employer of the employee. Therefore, the question raised by Shri Jagdish Ji needs more clarity in their query.
Regards
From India
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In my point of view, it is not the proper way of dismissal procedure. In every organization, there are lots of workers, each with a different mindset. Every worker is thinking about how to act as a good employee and how to receive appreciation from their superiors. In this way, somebody might provide incorrect information.
HR Approach to Dismissal Procedures
In our HR approach, the decision we need to make is to first study the problem and inquire with other workers. After that, we can reach a conclusion on this matter. Then, we can proceed with the dismissal formalities.
Regards
From India, Jamnagar
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HR Approach to Dismissal Procedures
In our HR approach, the decision we need to make is to first study the problem and inquire with other workers. After that, we can reach a conclusion on this matter. Then, we can proceed with the dismissal formalities.
Regards
From India, Jamnagar
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Apropos to Dinesh and Saikumar, I ask you, Jagdeesh, what do you mean by first management and second management? Is the so-called second management a 'contractee' and the first management a 'contractor' as suggested by Dinesh? If so, Saikumar's presumption is correct. My point is that there are unscrupulous employers as well as scrupulous employers practicing unscrupulous means such as multi-level marketing, direct marketing without any intermediaries. Therefore, please state exactly what has happened.
From India, Salem
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From India, Salem
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Disciplinary Actions and Employee Dismissal Conditions
Please note that disciplinary actions must be initiated against any employee under the following necessary and sufficient conditions:
1. There must be a direct Employee & Employer relationship.
2. They must have committed misconduct within the organization.
3. The misconduct must be proven during the disciplinary inquiry.
4. The employee must be given ample opportunity to plead and justify their position in their favor.
Only when the above conditions are met can the employee be dismissed.
In the case mentioned, it is understood that the previous employer has left a negative impression. However, misconduct and other relevant information can be identified during the employee background check. This process must be communicated, and free consent should be obtained from the employee. It should also be included as a clause in the employment contract. Based on this report, termination of the appointment can be considered if negative facts are discovered during the background check.
Regards,
RK
From India, Calcutta
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Please note that disciplinary actions must be initiated against any employee under the following necessary and sufficient conditions:
1. There must be a direct Employee & Employer relationship.
2. They must have committed misconduct within the organization.
3. The misconduct must be proven during the disciplinary inquiry.
4. The employee must be given ample opportunity to plead and justify their position in their favor.
Only when the above conditions are met can the employee be dismissed.
In the case mentioned, it is understood that the previous employer has left a negative impression. However, misconduct and other relevant information can be identified during the employee background check. This process must be communicated, and free consent should be obtained from the employee. It should also be included as a clause in the employment contract. Based on this report, termination of the appointment can be considered if negative facts are discovered during the background check.
Regards,
RK
From India, Calcutta
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