In the earlier articles (Part 1 and Part 2), we have already discussed about the necessity of holding domestic enquiry, components of charge sheet, evaluation of reply/ explanation thereto and importance of principle of natural justice in holding domestic enquiry/ departmental proceeding. In this article, we will further discuss about the procedure of holding domestic enquiry under the labour laws in India.
7. Enquiry Proceedings
i. It is desirable that the enquiry officer maintains written records of the enquiry proceedings
ii. Enquiry officer should:
a. Record the adjournment of the proceedings
b. Sign the proceeding himself, beside taking signatures of the management representative as well as charge sheeted employee
c. Every page of the proceedings should also be marginally signed or initiated by both parties as well as the enquiry officer
d. On the first sitting of the enquiry, the enquiry officer should read the charges and explain it to the charge sheeted employee and seek for his additional explanation, if any, assuming that the charge sheeted employee has already submitted his explanation to the charge sheet. If the charge sheeted employee gives further explanation, then the enquiry officer should record the same.
e. Sufficient opportunity is to be given by the enquiry officer to the charge sheeted employee to prepare for his defence.
iii. The enquiry officer should give opportunity to the charge sheeted to inspect the documents as listed in the charge sheet or submitted in the enquiry. The copies of documents as relied upon by the management and submitted before the enquiry officer is to be supplied to the charge sheeted employee.
iv. The charge sheeted employee should be allowed to be assisted or represented by co-employee and this clause should be mentioned in the notice of enquiry.
8. Evidence during the enquiry proceeding
The management would be required to open the case by leading evidence first.
a. Statement is the oral evidence given by the witness(es) before the enquiry officer
b. Every statement comprises of three parts and should be recorded in the following manner:
i. Examination in chief
ii. Cross examination
iii. Re-examination
The enquiry officer is at liberty, if he finds it is necessary, to put questions to the witnesses.
9. Procedure in brief
The enquiry officer on the first sitting of the enquiry should explain about the charges and ask for explanation from the charge sheeted employee. Such explanation, apart from any explanation/ reply given earlier, should be noted in the proceedings. Thereafter, the enquiry officer is required to explain in details the procedure of enquiry to be adapted by him to the charge sheeted employee and the same is to be recorded. Once the procedure is explained to the charge sheeted employee, the enquiry officer may ask the parties i.e. the management representative and the charge sheeted employee to submit any documents they would like to rely upon with a copy to the other party. Enquiry officer should make sure that the documents relied upon by the management have been duly served upon the charge sheeted employee and he has got ample opportunity to inspect those documents.
In the next step, the enquiry officer should ask the management to open its case by adducing evidences. Management may call its witness(es) to give their statements. Opportunity is to be given to the charge sheeted employee to cross examine the witness(es) of the management. Once the evidence of management is concluded, the enquiry officer should invite the charge sheeted employee to give his statement (evidence) along with other witness(es), if any. In the similar manner, management would also get the opportunity to cross examine the charge sheeted employee and his witness(es). The enquiry officer, if he finds it necessary, may put any question to any witness(es). The entire proceedings (i.e. examination in chief/ statements and cross examination) should be recorded in writing.
The details of procedure as explained herein above at clause 9, in practical sense, cannot be completed in a single day. At least 4-5 sittings are normally required to complete an enquiry based on a basic charge (like unauthorized absence) and single witness from both sides. Whatever may be the case, the copies of day to day proceeding needs to be handed over the charge sheeted employee.
In the next and final article, we will conclude this topic of procedure of holding domestic enquiry/ departmental proceedings by discussing about the report of enquiry and provisions of punishments based on the report.
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