In the last post (Part 1), we have discussed about charge sheet and explanation thereto and its evaluation under the labour laws in India. The frequent question one may face is why domestic enquiry or departmental proceeding is required.
An employee cannot be terminated from his service by way of punishment for any misconduct unless an opportunity is given to him to defend himself in the enquiry to be conducted by the employer. It is necessary to conduct an enquiry against the employee for the purpose of finding out whether the proposed action (punishment) is warranted or not. In private sector, holding of domestic enquiry is laid down by standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. Where no procedure is laid down by any statute, award or settlement, the employer is required to follow a reasonable procedure following principle of natural justice. Now question may come as to what is actually principle of natural justice.
Restricting ourselves only to domestic enquiry, we can say principle of natural justice are those rules which have been laid down by the Courts as being minimum protection of rights of an employee. These principles are well settled. First, every employee whose rights have been affected must have a reasonable notice of the case he has to deal with. Secondly, he must have reasonable opportunity of being heard in his defence. Thirdly, hearing must be conducted by an impartial person (That is why most employers prefer to engage an independent labour law advocate) and fourthly, the authority must act in good faith and not arbitrarily but reasonably.
Let us now further proceed step wise hereunder:
4. Commencement of Enquiry
If the charge sheeted employee refutes the charges or deny the allegations levelled against him or remains silent without giving any reply, the management is at liberty to initiate domestic enquiry to enquire into the charges appointing an independent person as enquiry officer, preferably a labour law advocate, to hold the enquiry. The management, however, should make sure that the charge sheet has been duly served upon the charge sheeted employee.
5. Appointment of Enquiry Officer
The enquiry officer should be an outsider and an Advocate or may be from with the origination (but not suggested). However, the primary concern is that he should be an impartial man and not biased against the charge sheeted employee.
6. Issuance of Notice of Enquiry
Once the management has appointed enquiry officer, it can intimate the time, date and venue of the first sitting of enquiry by sending notice of enquiry to the charge sheeted employee. The name of the enquiry officer, who has been appointed by the management and would conduct the enquiry, is also required to be mentioned in the said notice of enquiry.
Once the notice of enquiry is duly served upon the charge sheeted employee, the management should make necessary arrangements so that the enquiry could be held on the scheduled date, time and venue without any hassle. In the next part, we will discuss about the enquiry proceedings under the labour laws in India.
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