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Dhruv Grover. 5th Year, Symbiosis Law School, Pune.
“The aim of the rules of natural justice is to secure justice or to put it negatively, to prevent the miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law but supplement it.”
The principles of natural justice are the rules laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights. These rules prevent such authority from doing injustice.
Following are the four principles :
1. Every person must have a reasonable notice of the case he has to meet if his civil rights are affected.
2. Every person must have the opportunity to be heard to defend himself.
3. The case must be heard by an impartial tribunal.
4. The authority must act fairly and reasonably and not arbitrarily.
Coming to the topic of this paper , Domestic Enquiry, is clearly based on the principles of Natural Justice and fair play . Today, “domestic enquiry”, occupies a very important position in Industrial Law. Domestic Enquiry essentially means an enquiry into the charges of indiscipline and misconduct framed against a workman or an employee and the term “ domestic” clearly suggest that it is a purely internal matter between an employer and his employees.
Even though the term ‘misconduct’ is not defined in any legislation governing labour laws in India , the Supreme Court in the case of : State of Punjab v. Ram Singh Ex. Constable held that misconduct can involve moral turpitude, improper or wrongful behavior , willful in character, doing a forbidden act or a transgression of well established rules of action or code of conduct. However, the Supreme Court was quick to point out that a mere element of judgment or carelessness or mere negligence in the performance or carrying out of duties does not come within the ambit of the term “misconduct”.
These enquiries mainly provide an opportunity to the worker to clearly explain his stance and prevent him from being punished arbitrarily, when he is innocent. Furthermore, a reasonable opportunity must be given to the delinquent workers to meet the charges framed against them and during the course of such an enquiry the employee must be given the liberty to choose the person to represent his/her cases.
If the rules of domestic enquiry do not lay a clear embargo on the right of the delinquent to represented by a legal practitioner, then , it would be the discretion of the enquiry officer to allow or disallow the person to be represented by a legal practitioner after considering the nature of the adjudication and the enquiry.
With the increasing importance of the basic tenets of human rights and equality, law has it mandatory for the employer to work in a just and fair manner with his workers , knowing well that the employees are weaker party in the industrial relations. Thus, it is of utmost importance for the employers to carry out the enquiries in accordance with the principles of natural justice.
Simply put, the rule of ‘hire and fire’ no longer holds in this field. Article 311 of the Constitution of India provides that no person who is a member of the civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he is appointed.
Furthermore, Article 311(2) provides that with the reference to persons abovementioned , there shall be no person can be dismissed or removed or reduced in rank , unless :
a) An inquiry is held.
b) In the inquiry , he is informed of the charges framed.
c) The person is given the opportunity to defend himself.
In the private sector, the holding of a domestic enquiry is laid down by standing orders framed under the Industrial Employment (Standing Orders)Act, 1946. The procedure for holding enquiries has also been laid down by awards of settlements under the Industrial Disputes Act,1947.
NEED/IMPORTANCE FOR DOMESTIC ENQUIRY.
“Where a workman is accused of misconduct, a domestic enquiry has to be held against him in accordance with the provisions contained in the Standing orders governing the industrial establishment or in the absence of such Standing order in accordance with the principles of natural justice. After such a domestic enquiry is held it would be open to the employer to impose a penalty including one of termination of service howsoever styled.”
Today, with the growing industrialization, a variety of disputes have arisen for which the knowledge of Industrial Law is a must. Thus, in order to avoid discord between the employers and the workmen, it is essential that both the employers and the workers know of the rights , duties , responsibilities and obligations laid down in the Industrial Law.
Getting into litigation is never a comfortable choice for the employers or the employees as it results in waste of time and energy and it goes without saying huge outflow of money.
To add,even in the case of abandonment of service , an employer has to give notice to the workman and hold an enquiry since it is for the employer to prove such abandonment. In this age of economic growth, the society requires industrial peace so that production is not hampered and by holding such enquiries the level of “arbitrariness and consequential grievance and unrest is avoided.”
Domestic Enquiry, to reiterate , is based on the principles of natural justice and promises to work on just and fair grounds. In the case of Union of India and Ors. v. Mohmd. Ramzan Khan , the Supreme Court held that :
Whenever there is an enquiry officer , he duly furnishes a report to the disciplinary authority at the conclusion of the enquiry thereby holding the delinquent guilty of all or any of the charges and proposing any particular punishment or not . Now, once this made , the delinquent is entitled a copy of the same and he is also allowed to make a representation against it. If the report is not duly furnished as abovementioned then it shall be against the principles of natural justice and shall be liable to be challenged.
Under the system of Domestic Enquiry, there is no disparity(inequality) and even the Supreme court in the judgment of Director, BCG vaccine v. S.Pandian and Ors. made it very clear that the payment of legal charges to the legal practitioner assisting the employees in the departmental inquiry shall be at the same rate as was available to the presenting officer who was a legal practitioner.
Even when the facts are indisputable or when the facts are admitted by the workman/employee, an enquiry is required. An enquiry is a condition precedent for inflicting penalty of termination o service. Even if the employer makes a plea that allegations and charges made against an employee have been admitted , even then an enquiry is necessary. Thus, the legal maxim “audi alteram partem” i.e. right to hear the party. In no manner whatsoever, does the employer get the upper hand in any situation and Domestic Enquiry is for the purpose of serving justice.
Essential Ingredients of Domestic Enquiry.
The evidence which is served during the enquiry serves the dual purpose of establishing the charges and determining the penalty. If no evidence is adduced during the enquiry the right to reasonable opportunity of being heard in respect of the charges will be plain illusory. It is only on the basis of the evidence adduced during the enquiry that the person facing the enquiry may effectively exercise his right of being heard in respect of the charges against him by showing the charges have not been established and that penalty of dismissal, removal or reduction is rank, is not justified.
The Process of Holding Domestic Enquiries ( In Brief ) :
The first and primary step is to carry out a preliminary investigation before the employer holds a disciplinary enquiry in order to find out whether a prima facie case of misconduct is evident. Thus,the enquiry should be the result of a preliminary investigation should bot be adopted merely as a matter of course.
After a preliminary investigation is carried out and prima facie case of misconduct is established, the following stages of disciplinary enquiry should be followed :
1. Issue and service of a charge sheet calling upon the employee to submit an explanation.
2. Consideration of the explanation.
3. Giving notice of an enquiry into the charge in case of unsatisfactory explanation.
4. Suspension with or without pay ,pending enquiry( if needed)
5. Enquiry into the charge:
· Deciding as to who should conduct.
· Deciding as how to proceed.
· Deciding about the order of the examining witnesses.
6. Recording of findings by the enquiry officer.
7. Punishment decision.
8. Communication of punishment.
Natural Justice has been defined as Universal Justice and fundamental justice . The concept of Domestic Enquiry is based on these very sound principles of Natural Justice. This entire system has been primarily made to protect the interests and rights of the workers in the age of rising industrial disputes .
The question , I put forth : Is this Idealistic system of delivering justice to the workers working efficiently or is it just a mere sham ?
I would give my perspective on Domestic Enquiry ( based on the articles and case laws read) that this system which promises to safeguard the rights of the workers has taken away the rights more than protecting it .
There are so many instances or to put it differently, it is the new trend , to appoint an Enquiry Officer , who is well acquainted with the employers so that the decision passed him can be in favor of the employers. This is a very sad situation because the poor workman , who bestows faith in this justice system doesn’t realize he is subject to trickery.
Due to his lack of intellect and understanding of the workings of the system , the workman is adjudged guilty .
I would love to believe that if Domestic Enquiry functions as it ought to then it shall only be a boon for the workman and the society at large.
# A.K.Kraipak v. Union of India 1969(2)SSC 262.
# Relations , Arun Monappa ,Third Edition , Tata McGlaw Publishing Company Limited page 83.
# Mahabir Prasad v. State , AIR 1979 SC 1302.
# Industrial Relations , Arun Monappa ,Third Edition , Tata McGlaw Publishing Company Limited page 56.
# 1992 AIR 2188
# The Dunlop Company v. Workmen 1965 AIR 1316.
# Board of Trustees v. Dilip Kumar Raghavendranath 1983 AIR 109 ; Denning in Pet v. Greyhound Racing Association Ltd. 1968(2) ALL E.R. 545.
# IJMER. Accessed September 8, 2013. http://www.ijmer.in/pdf/volume1-issue2-2012/199-202.pdf.
# Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State
1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.
2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply
where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final
# 1979 AIR 1652
# Gaurishankar Vishwakarma v. Eagle Spring Industries (P) Ltd. 1988 (1) CLR 38.
# 1991 AIR 471.
# 1996 (2) CTC 52.
# Relations , Arun Monappa ,Third Edition , Tata McGlaw Publishing Company Limited page 58.
The author can be reached at: groverindia@@legalserviceindia.com