MISCONDUCT AND DISCIPLINARY ACTION

WHAT IS MISCONDUCT?

Any act or omission on the part of an employee which is a breach of any duty, obligation
or assignment arising under or flowing from any law or contract of employment or
service rules or standing orders, settlements or awards or improper conduct or wrongful
behavior is a misconduct.

TYPE OF MISCONDUCTS

Minor Misconducts

The following acts or omission on the part of an employee shall amount to minor
misconduct:
1. Late coming
2. Absence from duty without leaves for a period of less than six days
3. Loitering, gossiping in department during working hours
4. Failure to ware tight clothes/specified uniform.
5. Negligence of duties or neglect of work.

Major Misconducts

The following acts or omission on the part of an employee shall amount to major
misconduct:
1. Willful insubordination or disobedience of any lawful and reasonable order of a
superior.
2. Going on legal strike or abetting, inciting, instigation.
3. Willful slowing down in performance in work or instigation there of.
4. Theft, fraud or dishonesty in connection with the employers business or
property.
5. Taking or giving bribes or any illegal gratification.
6. Habitual absenteeism without leave for more than 10 consecutive days or over
staying the sanctioned leave without sufficient grounds.
7. Habitual breach of any standing order or any law applicable to establishment.
8. Collection without the permission of the manager or any money within the
premises of establishment.
9. Engaging in trade within the premise sof establishment.
10. Drunkenness, Riotous, Disorderly or indecent behavior on the premises of the
establishment.
11. Commission of any acts subversive of discipline or rude behavior on the
premises of the establishment.
12. Habitual neglect of work or habitual negligence.
13. Canvassing for union membership or collection of union funds within the
premises of the establishment.
 14. Willful damage to work in process or any property of te establishment.
15. Holding meetings inside the premises of establishment without the permission of
the manager.
16. Disclosing to any unauthorized person any information in regard to the processes
of the establishment.
17. Gambling within the premises of establishment.
18. Smoking or spitting on the premises of the establishment, where it is prohibited.
19. Failure to observe safety instructions notified by the employer or interference
with the safety devices.
20. Distributing or exhibiting within the premises of establishment and bills,
pamphlets and posters.
21. Refusal to accept a charge sheet order or other communication served in
accordance with the standing orders.
22. Unauthorized possession of lethal weapon in the establishment.

PENALTIES FOR MINOR MISCONDUCT

Warning, fine, passing adverse entry in service records, recovery of loss of goods for
which the concerned workman is accountable, recovery from wages of the whole or part
of any loss caused by the workman through negligence.

PENALTIES FOR MAJOR MISCONDUCTS

The following penalties may be imposed for good and sufficient reasons if an employee
found guilty of major misconduct.

Warning or censure, withholding of increment, fine, stopping promotion, demotion,

suspension, discharge, dismissal, vacation of company quarter or any other punishment
which the manager may deem fit.

PROCEDURE FOR AWARDING PENALTIES FOR ACTS OF MINOR

MISCONDUCT

Where allegation of misconduct against the workman are of minor nature, he is called
upon the position verbally or otherwise. The manager or his authorized representative
after hearing the concerned workman will decide if the workman deserves any
punishment an if so pass orders accordingly. It is not necessary to hold enquiry in such
cases.
PROCEDURE AND CONDUCT OF ENQUIRY

1. The I.D Act or any other law does not prescribe any procedure to be followed by
the employer in domestic inquiry.

2. In the absence of any statutory provision, the domestic enquiry do need not
confirm to all the requirements of judicial proceedings, they however, must satisfy
the essentials of principle of natural justice.

3. The guiding principle therefore, is that domestic enquiry should be conducted

without bias and by giving the delinquent employee an opportunity for adequately
presenting his case.

4. Apart for compliance with the rules and principles of natural justice, the domestic
enquiry must be held honestly and bonafidely.

COMPLIANCE WITH RULES

1. In holding enquiry standing order in industrial employment should be followed as

the standing orders have force of law and constitute statutory terms of
employment.

2. In holding enquiry statutory rules framed for the purpose should also be followed.

3. The enquiry must be conducted by an authorized person.

SUSPENSION PENDING ENQUIRY

A workman who committed a major misconduct may be placed under suspension by the
manager. A workman under suspension shall not leave the town during the period of
suspension without prior permission of the manager. A workman who placed under
suspension pending enquiry shall be entitled during the period of such suspension to
subsistence allowance in the following manner:

(a) From the date of suspension till the date he replies to the charge sheet is
received by the manager (nil.)

(b) For the first 30 days from the date of receipt of reply of the charge sheet
50% of the normal wages and dearness allowance.

(c) For the next 30 days--- @ 60% of the normal wages and dearness
allowance
 (d) From the 91st day onwards--- @ 75% of normal wages and dearness
allowance.

The workman shall not be entitled to subsistence allowance in case he takes up

employment during the period of suspension.

CHARGE SHEET AND ENQUIRY

A) A workman against wage misconduct is alleged and is placed under suspension

shall be served with a charge sheet within a week from the date of suspension.
The charge sheet should be specific and give full details for the charges leveled
against him. The date, time and place of incident should be mentioned in the
charge sheet. When the misconduct depends on offending language, then actual
words used should be specified in the charge sheet. The workman shall be called
upon to submit his explanation within 48 hours, which may be extended for 6
days for sufficient reason on request in writing from the workman concerned.

B) If the workman admits the charges against him, no enquiry need to be held and it
shall be open to the manager to award punishment as he deems proper without
holding the enquiry.

C) If the workman does not submit his written explanation or explanation submitted
by him are not found to be satisfactory or if he denies the charges alleged against
him, an enquiry shall be held.

D) The workman concerned in enquiry shall sign at the end of each statement
recorded in his presence. Such workman may be assisted by another workman of
his choice but he must be working in the company.

E) The enquiry may be conducted either by the manager or any officer or person
appointed by him for the purpose.

F) The manager shall appoint an enquiry officer and management representative for
the purpose of conducting domestic enquiry.

G) Copy of the charge sheet along with all relevant documents should be handed over
to the enquiry officer.
NOTICE OF ENQUIRY

a) it is very necessary to convey to the charge sheeted workman the name of

the officer before whom he is to appear. The time, date and place of
enquiry should also be communicated in the notice of enquiry.

b) The management should give its evidence first to prove the charges
alleged against the workman.

c) The enquiry officer can ask the management to serve the notice of enquiry.

d) The enquiry officer should decide in the beginning as to which procedure

for major misconduct should be followed.

e) If the charges rest on documents alone, it is not necessary to adduce oral

evidence.

EX-PARTE PROCEEDINGS

1. If the employee does not attend on the date of enquiry fixed and
communicated then ex-parte proceedings can be taken against
him.

2. When the worker insist that he must be allowed to be represented

by is council and on refusal of the same he boycott the enquiry
the such enquiry could be held ex-parte.

3. When the worker knows the date of enquiry and does not
corporate then he enquiry officer or does not attend the
proceedings, he cannot complaint if the proceedings are ex-parte.

4. If the worker intentionally refuses to participate in the enquiry,

enquiry can be held ex-parte.

5. If the worker withdraws from the enquiry, it does not mean that
he admits the charges alleged against him. The enquiry officer
has to record evidence of the management in support of the
charges.
JUSTIFICATIONOF NON-ATTENDANCE BY WORKERS

1. Absence on account of protest is not justified. Even if some facility is denied the
worker is not justified to withdraw from the enquiry.

2. If certain documents or copies are not supplied to the workman and he withdraw
from the enquiry, it is not justified and enquiry could proceed ex-parte.

3. When a request of worker for being represented by an outsider or an advocate is

disallowed, he cannot walk out and if he does so, ex-parte proceeding is valid.

4. If absence is on account of genuine illness and he has asked an adjournment on

death grounds, it must be granted.

5. If an employee is on sanctioned leave and seeks adjournment on that ground, it

must be granted.

6. If an employee is on hunger strike and it is not possible for him to defend himself,
adjournment must be granted.

7. Adjournment is sought on the plea that the workman fears physical assault, the
adjournment may not be granted.

8. Enquiry can be held on a holiday also and in the absence an application of

adjournment, the enquiry officer is competent to proceed ex-parte.

9. Enquiry can be held even at night in case the concerned works day and night.

Grant of adjournment s discretion of the enquiry officer, but as such a discretion must be
exercised in a judicial and reasonable manner. An employee cannot be compelled to
attend enquiry. If an employee does not attend an enquiry, then it can be held ex-parte but
he cannot be charged for disobedience of orders.
ROLE OF THE MANGEMENT REPRESENTATIVE

1. In departmental enquiries, the punishing authorities play a dual role. The said
authority or its nominee conducts the enquiry on behalf of the management and
judges the action of the delinquent employee.

2. The role of management representative is similar to the case of public prosecutor

as he also conducts and pleads the case of management.

3. The role of MR is to conduct the case fairly and with full sense of responsibility.

4. It is not the duty of the MR to suggest any falsehood or suppress any facts.

5. The MR is also not expected to produce evidence, which stands to demolish his
own case.

6. The role of MR can only be discharged properly if he sis equipped with the full
knowledge of the case. The MR should also have the basic knowledge or
procedure and process of domestic enquiry as well as to carry out the cross-
examination of the charge sheeted employee as well of his defense witnesses.

PRODUCTION AND INSPECTON OF DOCUMENTS

When the charge sheeted employee thinks that certain document is likely to be useful for
his defense and is in the possession of the management when he can apply for its
production.

1. When a document is used against an employee, it should be disclosed to him.

2. Records of preliminary investigation if relied upon the management should be

disclosed to the employee.

3. Documents having no evidentiary value need not be disclosed.

4. If no reliance is placed on a document during enquiry then it need not to be

disclosed.

5. Documents necessary for cross-examination or defense should be made available

if asked for.

6. If no prejudice is caused to the delinquent employee by non-production of

documents, enquiry is not vitiated.

7. Inspection of documents can be given as an alternative to production of

documents.
 BIAS IN DEPARTMENTAL ENQUIRIES

A domestic enquiry must be held by an unbiased person. The bias in its proper
significance is departure from the standard of even-handed justice which the law requires
from those who occupy judicial office the doctrine of bias:

1. No man shall be judge in his own case.

2. Justice shall not only be done but manifestly and undoubtedly seem to be done.

APPRECIATION OF EVIDENCE

1. Even though the onus of proving the guilt rest on the management, the probability
or otherwise of the version of incident put forth by he workman has to be taken
into consideration in determining his guilt and it cannot be altogether ignored.

2. The E.O. while appreciating the evidence should take care that the charges against
the delinquent workman should no deemed to be proved merely on the facts that
the worker could not put up strong defense.

3. If the employee has not produced any defense during enquiry, it cannot give rise
to any presumption that whatever the employer witness states is correct.
Disposition of the witnesses has to be judged on their merits.

4. It is not necessary to prove motives behind the act of misconduct.

5. While appreciating the evidence the E.O. should be extra careful for the
disposition of chance witnesses.

6. The E.O. should not simply disbelief the witness or think unreliable, as the
witnesses are a close relation of either party. Similarly, merely that middle and
senior level officers depose for the management and the workers for the
delinquent employee is no reason to disbelief them.

7. The E.O. while appreciating the evidence should be conscious of the fact that the
credit of a witness does not depend upon his status. Truthfulness is not the
monopoly of persons who are rich and who hold high status.

8. it is not necessary that there should always be one witness to prove any charge.
The reason is that the evidence weighed and not counted.

9. The E.O. should not consider the events subsequent to incidence for which an
employee was charge sheeted.
10. In domestic enquiry the Doctrine of Benefit of Doubt is not applicable. Therefore,
an E.O. is under obligation to arrive at conclusion of facts.

11. It is not the concern of the E.O. as to whether the act mentioned in the charge
sheet has been proved or not.

12. E.O. is not interested with the power of imposing the punishment. His duty ends
with the finding of facts.

13. While drafting enquiry report, specific findings should be given on each charge
and in case of each person.

14. The finding should be specific and E.O. should come to conclusive findings of
guilt.
FINDINGS OF ENQUIRY

1. The whole object of holding a domestic enquiry against a delinquent workman is

to enable EO to decide upon the merits of charges leveled against the employee. It
is therefore, essential that the EO should submit the enquiry report indicating
clearly his conclusion and reasons in support thereof.

2. The EO should not hold anyone guilty of the charges on suspicion. Suspicion,
however reasonable, is not sufficient to punish the employee.

3. EO should not give the findings on assumption of facts and circumstances not
supported by evidence on record.

4. The findings of the enquiry should be based upon the enquiry records and the EO
should not impose his own knowledge of things while writing the report.

5. The EO is not justified in parting extraneous consideration while writing the

enquiry report.

6. While writing the findings, EO cannot omit from considering any material on
record. When EO disbelieves the worker and his witnesses he should give
sufficient reasons.

7. The EO should bear in mind that the interpretation of document is a question of

law. Admission of document thereof should be distinguished from the admission
of the contents of the document.

8. EO should not give findings outside the scope of the enquiry. The scope of the
enquiry is limited to the charges as mentioned in the charge sheet.