PURPOSE AND OBJECTIVES OF DISCIPLINARY ACTION
The purpose of discipline according to Dessler (2001) is to encourage employees to behave sensibly at work, where being sensible is defined as adhering to rules and regulations. In an organisation, rules and regulations serve about the same purpose that laws do in society; discipline is called for when one of these rules or regulations is violated (Bittel & Newstrom, 1990).
Following are some of the purposes and objectives of disciplinary action:
- To enforce rules and regulations.
- To punish the offender.
- To serve as an example to others to strictly follow rules.
- To ensure the smooth running of the organisation.
- To increase working efficiency.
- To maintain industrial peace.
- To improve working relations and tolerance.
- To develop a working culture which improves performance.
Dessler (2001) opines that a fair and just discipline process is based on three foundations: rules and regulations, a system of progressive penalties and an appeals process.
Let us probe this a bit more. Dessler (2001) states that a set of clear rules and regulations is the first foundation. These rules address things like theft, destruction of company property, drinking on the job and insubordination. The purpose of these rules is to inform employees ahead of time as to what is and is not acceptable behaviour. This is usually done during the employee’s orientation.
A system of progressive penalties is the second foundation of effective disciplining. Penalties, according to Dessler, may range from oral warning to written warnings to suspension from the job to discharge. The severity of the penalty is usually a function of the type of offence and the number of times the offence has been committed.
Finally, there should be an appeals process as part of the disciplinary process; this helps to ensure that discipline is meted out fairly and equitably.
Right to Take Disciplinary Action
Right to take disciplinary action emanates from employer-employee relationship and is regulated by contract of employment, standing order of the company (for workers) or conduct and discipline (appeal) rules (for supervisory staff) of the organisation promptness in disciplinary cases is essential. It has to be ascertained which disciplinary rules are applicable to the delinquent employee for taking action.
DISCIPLINARY ACTION PROCEDURE
To start with, based on any misconduct committed by the employee or complaint, a preliminary enquiry is called for. Then disciplinary authority has to initiate action. The following authorities are laid by the organisation for various levels of employees:
a) Disciplinary authority;
b) Appellate authority; and
c) Reviewing authority.
Based on judicial pronouncement, elaborate procedure have been evolved which has to be followed to avoid infirmities in the disciplinary action. Various stages involved are briefly indicated as under:
i) preliminary enquiry,
ii) framing and serving of charge sheet,
iii) holding of domestic enquiry,
iv) report of the enquiry officer,
v) consideration of the report of the enquiry officer by disciplinary authority,
vi) order of punishment and its communication, and
Stages of Disciplinary Proceedings are explained through Flow Chart (Figure 2)
STAGES OF DISCIPLINARY ACTION PROCEEDINGS
1) Issue of the Charge-Sheet
Delinquent employee is to be issued a charge-sheet call him to submit his explanation within a specified period of time. This charge-sheet should be drafted in a clear and unambiguous language so that the workman does not have any difficulty in understanding the charges that he has to answer. Wherever possible, the relevant clause of the company’s standing orders should be mentioned in a charge-sheet. If the charge relates to an incident, the date, time and place of the occurrence should be mentioned. Proper care should be taken in framing the charge-sheet, for the validity of the punishment would depend on the enquiry of the misconduct mentioned in the charge-sheet. The charge-sheet should be in the local language.
The charge-sheet framed against delinquent employee and duly signed by the disciplinary authority should be served on him personally if possible and acknowledgement to the effect should be obtained from him. In case the workman is absent, or if he refuses to accept the charge-sheet when presented to him, the same should be sent to his local and home addresses by post under-registered cover with acknowledgements due, after getting his refusal attested by two witnesses. In case the charge-sheet is returned unserved with the remarks of the postal authorities, the same should be kept intact without opening. In such a case, the employer should display the charge-sheet on the notice board or act in accordance with the provisions of the standing orders. In some cases, it may be necessary to public the contents of the charge-sheet in a local newspaper having wide publicity.
2) Suspension Pending Enquiry
In a case where the charges levelled against a workman are of serious nature and it is considered by the disciplinary authority that his physical presence might endanger the safety of other workmen, or if it is apprehended that he might intimidate others or tamper with the evidence, he may be suspended. During the period of suspension pending enquiry, the workman will get subsistence allowance as per rules.
3) Consideration of the Explanation
After a charge-sheet has been served on a workman for reply he may submit his explanation:
i) admitting the charges and requesting for mercy, or
ii) denying the charges and requesting for an enquiry, or
iii) not submitting any explanation at all, or
iv) requesting for more time to submit explanation.
In a case where the workman admits the charge which is of a minor nature and begs for mercy, no enquiry is held and decision is taken accordingly on the charge-sheet. If, however the misconduct is serious enough to warrant discharge or dismissal, the management should still arrange to hold a proper enquiry, the admission of the charges notwithstanding.
In a case where the workman submits an explanation mentioning that the charges levelled against him are false, baseless, motivated, concocted, etc. A proper enquiry as per procedure should be held before awarding any punishment.
When the workman fails to submit any explanation within the specified time limit, the management should take steps to hold a proper enquiry.
When the workman concerned makes a bonafide request on reasonable grounds for extension of time to submit explanation, the same should be granted.
4) Notice for Holding the Enquiry
After consideration of the explanation of the charge-sheeted workman or when no reply is received within the specified time limit, the disciplinary authority should issue an order appointing an enquiry officer or an enquiry committee to hold the enquiry of the charge-sheet. The enquiry officer can be an official of the company, or even an outsider, but care should be taken to appoint only such a person as enquiry officer who is neither a witness nor is personally interested in any way in the matter for which the charge-sheet has been issued. It should also contain the name of the management representative.
Thereafter, the enquiry officer should issue a notice of enquiry. This notice of enquiry should clearly mention the date, time and place of enquiry. It should ask the workman to present himself with his witnesses/documentary evidence, if any, for the enquiry. It should also be mentioned in the notice of enquiry that if the workman fails to attend the enquiry on the appointed date and time, the same will he held ex-parte. A reasonable period of time should be given to the workman for preparing his defence before the enquiry is held.
5) Holding of the Enquiry
The object of holding an enquiry is to find out whether the workman is guilty of the charges levelled against him in the charge-sheet, or not. In doing so, the enquiry officer gives the workman a reasonable opportunity to defend himself by cross examining the witnesses/documentary evidence/exhibits produced against him and by examining the witnesses/documentary evidence in his defence. The workman concerned can also make statement in his defence apart from what is stated in reply to the charge-sheet. It should be clearly understood that it is for the management’s representative, i.e., evidence officer to prove the charges against a workman by adducing evidence during the enquiry and it is not the workman who has to prove his innocence. Unless management side has been able to prove the case against the workman, he should not be considered guilty.
6) The Enquiry
On the appointed date and time, fixed for the enquiry, the following persons should be present apart from the enquiry officer.
a) Presenting Officer: He is the person who will lead the case from the management’s side by producing witnesses and relevant documentary evidence in support of the charge. He may himself be a witness, in which case he is the first person to be examined. The presenting officer has a right to cross-examine a charge-sheeted workman as well as the witness/documentary evidence produced by him.
b) Delinquent Employee: No enquiry can be said to have been held as per procedure in the absence of the charge-sheeted employee. However if he refuses to take part in the enquiry after presenting himself, or when he does not report for the enquiry despite receiving the notice to him, the enquiry may proceed ex-parte, provided in the notice of the enquiry a specific mention to that effect had been made. Also, if during the enquiry, the delinquent employee withdraws himself, the same may be held ex-parte. In such a case, it is not advisable to postpone the enquiry and give another opportunity to the delinquent employee rather than holding ex-parte enquiry. In a case, where the delinquent employee turns up for the enquiry after some witnesses have been examined, it would be proper for the enquiry officer to allow him to participate in the enquiry after recording this fact in the proceedings. The enquiry officer should recall the witnesses who have already been examined in the absence of the delinquent employee so that he get an opportunity to cross-examine such witnesses.
c) Representative of the Delinquent Employee: If the delinquent employee writes to the charge-sheet or makes a subsequent request that he should be allowed to take a knowledgeable co-worker of his choice to assist him in the enquiry, the same should normally be allowed. In some companies, union committee member of the recognised trade union is allowed to attend an enquiry on the specific request of the workman, to either assist him or play the role of an observer as per procedure.
d) The Procedure of Enquiry: At the commencement of the enquiry, if the delinquent employee is present, the enquiry officer should record the date, time and place of enquiry, names of the persons present and obtain their signatures on the order-sheet. Thereafter, he should proceed as follows:
- Read out and explain the charges and the reply of the charge-sheet to the delinquent employee and get his confirmation to that effect. In case the delinquent employee has not accepted the charge in reply to the charge-sheet, he should be asked if he pleads guilty of the charges. If the charges are admitted, that should be recorded and signatures of all concerned, with date, should be taken. A full-fledged enquiry need not be held if the misconduct is of a minor nature. In case the charge, if proved, is serious enough to warrant discharge or dismissal, the proper course is to hold the enquiry.
- Explain to the delinquent employee concerned the procedure to be followed in the enquiry, viz., that the presenting officer will produce witnesses/documentary evidence/exhibits in support of the charge and the delinquent employee will have opportunity to cross examine. Thereafter the delinquent employee should be given opportunity to produce his witnesses/ and the management representative will have a right to cross-examine them.
- The delinquent employee will have further opportunity to make statement, if any, in his defence. At any stage of the enquiry, the enquiry officer can seek clarification from any witness or the delinquent employee by putting questions to him. Neither the presenting officer nor the delinquent employee can put leading questions to their respective witnesses.
- Witnesses in support of the charge are to be examined one by one in the presence of the delinquent employee.
- The charge-sheeted workman is to be given an opportunity to cross-examine management’s witnesses. In case he declines to cross-examine any witness, an endorsement to that effect should be recorded by the enquiry officer.
- The delinquent employee should be asked to produce his own witnesses one by one and the presenting officer will be allowed to cross-examine them. The delinquent employee should be asked to give his statement after his witnesses are examined and cross-examined. He may also produce documentary evidence, if any. In case the delinquent employee declines to produce any witness/documentary evidence or declines to give any statement, the enquiry officer should make a record to that effect in the order-sheet and obtain signatures of all concerned. If the enquiry remains incomplete in the first sitting and some more witnesses are required to be examined, it may be continued or any other day mutually agreed by both sides. In such a case, the enquiry officer should make a suitable endorsement in the order-sheet and obtain signatures of all concerned.
- On each page of the enquiry proceedings, the signature with date of the charge-sheeted workman, his representative, if any, the concerned witness and the management representative should be taken. The concerned witness should sign on each page of his statement only. The enquiry officer will sign on each page of the proceedings after endorsing that the statement has been recorded by him and explained to the parties in their language before they were asked to sign. If the delinquent employee refuses to put his signature even after he had been asked to do so, the enquiry officer should make an endorsement to that effect and get it attested by others present.
e) Ex-parte Enquiry: If, on the day fixed for the enquiry, the delinquent employee does not turn up, an ex-parte enquiry may be held by following the usual procedure. In such an enquiry, the presenting officer has to lead the evidence against the charge-sheeted workman. The enquiry officer, by putting questions to the witnesses, get facers to come to reasonable conclusion about the validity or otherwise of the charges. As stated earlier, it is advisable to fix another date of enquiry, instead of holding an ex-parte enquiry on the first sitting itself.
The Enquiry Report: After the enquiry is over the enquiry officer makes an appreciation of the evidence on record and comes to his conclusion. If there is no corroborative evidence on a particular point, the enquiry officer has to give his own reasons for accepting or rejecting the evidence of such a witness. The enquiry report is a document which should clearly indicate whether the charges levelled against the delinquent employee are proved or not. The conclusion of the enquiry officer should be logical and based only on evidence brought out during the enquiry. The enquiry officer may record clearly and precisely his conclusions with reasons for the same. There is no place for any conjecture or surmises in the enquiry report. It should be such that as per the evidence on record, any impartial man, not connected with the case, should be able to come to the same conclusion as that of the enquiry officer.
7) Final Decision of the Disciplinary Authority
The enquiry report is submitted to the Disciplinary Authority. Before he takes a decision on the findings of the enquiry officer, he is required to furnish a copy of the enquiry officer’s report to the concerned employee. If he agrees with the findings of the enquiry officer, after considering the gravity of the misconduct and the past record of the delinquent employee equitable treatment with precedents of action taken, etc., he may pass an order on the quantum of punishment after recording his reasons for the same in writing. An order in writing is passed to that effect and is communicated to the delinquent employee.
In case the disciplinary authority decides to punish the employee for his misconduct, the following are the punishments, which he can impose, depending upon the severeness of the misconduct. There are two kinds of punishment:
i) Minor Punishments
a) Warning or Sensor;
b) Fine (keeping the provisions of Section 8 of Payment of Wages Act in view); and
c) Withholding of increment (either with cumulative effect or non-cumulative effect).
ii) Major Punishments
b) Discharge; and
A letter communicating the order of discharge/dismissal should set out clearly the charge(s) proved against the delinquent employee and the date from which the order is to become effective. Normally, the order of discharge/dismissal should be effective from the date of the order, unless there is an express provision in the standing orders to the contrary.
An employee can appeal against an order imposing upon him any of the penalties. The appellate authority may confirm, enhance, reduce or set-aside the penalty.
It is the employer’s right to direct its internal administration and maintain discipline. However, before passing an order of discharge or dismissal, the employer has to arrange for a fair and proper enquiry in consonance with the principles of natural justice. The reason is that its decision may not be reversed by the adjudicator at a later date, if the workman raises an industrial dispute challenging the order.
A domestic enquiry need not be conducted in accordance with the technical requirements of a criminal trial but they must fairly conducted and in holding them, consideration of “fair play” and “natural justice” must govern the conduct of the enquiry officer. A domestic enquiry must be conducted with an open mind, honestly and bonafide, with a view to determine whether the charge framed against the delinquent employee is proved or not.
In today’s context, no employer can discharge or dismiss a delinquent workman even for a serious misconduct without following an elaborate procedure for taking disciplinary action. An employer can be guilty and penalised, if the adjudicator finds that there was want of good faith; or there was victimisation or unfair labour practices; or the management was guilty of a basic error or violation of a principle of natural justice; or on the grounds that the finding was completely baseless or perverse.
LEGAL PROVISIONS RELATING TO DISCHARGE OR DISMISSAL (UNDER INDUSRIAL DISPUTE ACT, 1947)
i) Individual Dispute
Individual disputes are not covered by the Industrial Disputes Act, 1947, except dispute of an individual workman relating to his discharge, dismissal, retrenchment and termination from service, which is to be considered as an industrial dispute under the Act (Sec.2a).
ii) Prior to Introduction of Sec. II A
In 1971, an employer could discharge or dismiss a workman for misconduct as per standing orders after following the procedure for conducting a domestic enquiry. The management’s decision could not have been challenged before labour court, if enquiry was fairly and properly conducted as per the principles of natural justice. The court could not interfere with quantum of punishment. However, court has powers to interfere only when: (SCO Case – SC – 1958)
i) there was want of good faith, or
ii) there was victimisation or unfair labour practice, or
iii) violation of principles of natural justice, or
iv) findings was completely baseless or perverse.
iii) Position under Sec. llA
Section II- A was inserted in the Act by the Industrial Disputes (Amendment) Act, 1971, w.e.f. 15.12.1971. The Statement of objects and reasons specifically referred to the decision of the Supreme Court in Indian Iron & Steel Co. Ltd. and Another vs. their Workmen (1958-1 LLJ.260). It also referred to recommendation No.119 of the International Labour Organisation, that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination, among others, to a neutral body such as an arbitrator, a court, an arbitration committee or a similar body.
Effect of Section llA
Prior to the introduction of Section II-A, the Tribunal had no power to interfere with the finding of misconduct recorded in the domestic enquiry unless there existed one or other infirmities pointed out by the Supreme court in the case of Indian Iron & Steel Co. Ltd., The conduct of disciplinary proceedings and punishment to be imposed were all considered to be managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. But now under this Section, the Tribunal is clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by employer established the misconduct alleged against a workman. The limitations imposed on the powers of the Tribunal by the decision in the Indian Iron & Steel Co. Ltd. Can no longer be invoked by an employer. Vaidialingam J. held: “The tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of employer has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter.” Ultimately, the Tribunal may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge.
Under this Section, for the first time, power has been given to tribunal to satisfy itself whether misconduct is proved. This is particularly so, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power also for the fIrst time, to interfere with the punishment imposed by an employer. When such wide powers have now been conferred on tribunals, the Legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the proviso. The Proviso only emphasises that the tribunal has to satisfy itself one way or the other regarding misconduct, punishment and relief to be granted to workmen only on the basis of the “materials on record” before it.
Section ll-A does not cover retrenchment or retirement cases, because the section clearly indicates that it is for discharge and dismissal cases only.
iv) Industrial Dispute (Amendment) Act, 1982
An employer may be held guilty of unfair labour practice, in case court finds dismissal/discharge is to be: (i) on account of victimisation , (ii) not in good faith, (iii) in utter disregard of natural justice, (iv) for patently false reasons or disportionate punishment. Apart from the remedy of reinstatement of workman, the employer is liable for the penalty under Sec.254.