The preliminary enquiry is an informal enquiry which is different from the formal enquiry. Here formal enquiry refers to the Domestic Enquiry procedure itself. The employer cannot punish an employee based on the result of the preliminary enquiry. The Objectives of the preliminary enquiry are as follows:
- Though not a statutory obligation, it is desirable to have such an enquiry conducted, for the employer to decide whether there is adequate material for initiating a formal enquiry.
- To find out if prima facie a case is made out against the employee.
- Often the preliminary enquiry forms the basis for framing of the charge-sheet.
Misconduct means bad or unlawful behaviour which is willful in character and it should be capable of subverting the discipline or good behaviour or detrimental to the interest of the employer. Thought the above meaning may not be exhaustive, the dictionary meaning of the word ‘misconduct’ does not acquire the completeness of the terminology as implied in the Industrial law since here, ‘misconduct’ means something more positive and certainly more deliberate.
MISCONDUCT – IF COMMITTED OUTSIDE THE PREMISES OF THE ESTABLISHMENT
Normally a misconduct committed outside the office/ factory premises does not constitute misconduct punishable under the Certified Standing Orders (CSO) since the employer has got no extra territorial jurisdiction. Nevertheless, under certain circumstances, acts committed outside the office/ factory premises can be treated as misconduct as punishable under the CSO if such misconduct has a rational and casual connection with his employment; and subverting the discipline or good behaviour of the establishment. All facilities maintained by the employer can also be treated as premises for this purpose. The expression “misconduct committed on the premises” has a wider meaning than the expression “misconduct committed in the premises”.
In Muralidhar Raghoji Savant Vs Mather & Platt (I) Limited and Other 1991 (II) CLR 817, the Bombay High Court took the view that “………, if the act of misconduct, though occurring outside the industrial establishment, has a rational nexus of impinging upon the industrial relations, then the act would be subversive of discipline on the premises of the establishment”
Other such case for misconduct were on instances of
a. Assault of supervisor by the workers outside the premises
b. Misappropriation of the money, while outside the premises, intended to be deposited in the bank
c. For manhandling loyal workmen who were being brought to the factory in a bus chartered by the company on a day of a strike.
What if a particular misconduct is not enumerated in the Certified Standing Orders?
In line with the decisions of the Supreme Court, the employer cannot take disciplinary action against a workman, under the CSO, for committing a misconduct which is not enumerated in the CSO.
SUSPENSION PENDING ENQUIRY
The Supreme Court had said that it will not be an administrative routine or an automatic order to suspend an employee [State of Orissa Vs. Bimal Kumar Mohanty, 1994 4 SCC 126; 1994 CLR 615 (SC)]. Interim suspension is not a punishment. The interim suspension is affected as a measure of ‘procedural convenience’ to hold an enquiry against the delinquent employee. A Division Bench of the Supreme Court explained in P.L. Shaw Vs. Union of India and Other, 1989 (I) CLR 270 that an order of (interim) suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings against him.
Suspension from service, in the industrial law, are of two types.
- One is the suspension as punishment for a proved misconduct and ordinarily known as ‘punitive punishment’
- The second is suspension pending enquiry into the charges leveled against an employee and ordinarily known as ‘interim suspension’
Suspension is normally affected to restrain employee against whom an enquiry is contemplated
1. from availing further opportunity to perpetrate the alleged misconduct and
2. to prevent a opportunity to him to scuttle the enquiry or investigation and
3. to win over the witness or to impede the progress of the investigation or enquiry
RIGHT OF AN EMPLOYER TO SUSPEND HIS EMPLOYEE PENDING ENQUIRY
In State of Orissa vs. Bimal Kumar Mohanty, 1994 (I) LLN 889 SC DB has stated that the employer can exercise his right particularly when grave charges of misconduct such as serious acts of omission or commission; or defalcation of funds etc. are alleged against the employee.
The Bombay High Court felt in Municipal Corporation of Greater Bombay and another vs. Laxman Saidoo Timmanapyati and other, 1991 (I) CLR 653 that suspension is not be misunderstood as being a punitive measure and in order to avoid the obnoxious practice of unjustified suspension for indefinite periods, it would be a healthy practice to insist on the suspending authority passing a reasoned order. Then courts would find it difficult to assume that there was no due application of mind and that the authority has not acted capriciously and arbitrarily.
INTERIM SUSPENSION – STANDING ORDERS OR SERVICE CONDITIONS
The rational of the decision of the Supreme Court in the case of P.R. Naik vs. Union of India, AIR 1972 SC 554 was that when an enquiry is contemplated, suspension cannot be ordered unless the Rules provide to that effect.
REVOCATION OF SUSPENSION
Revocation of suspension by the employer – The Order of suspension pending enquiry can be revoked by the employer himself or at the request of the suspended employee, if the circumstances do not warrant continuation of the employee under suspension. Such revocation is purely at the discretion of the employer.
SUSPENSION BEFORE CHARGE-SHEET
Where disciplinary action is proposed or contemplated, an employee can be suspended and there is no need for issue of any charge-sheet before suspension, as para 521(10)(b) of Shastri award modified by bipartite settlement. [S.B.I. vs. Barbans Lal AIR 2000 SC 2219; 2000 (6) SCC 504]
The relationship between the employer and the employee is temporarily suspended when the employee is under suspension. During the period of suspension the employee can neither take any employment elsewhere nor take any profession or trade etc. Therefore, it is obligatory on the part of the employer to pay certain ‘sum’ though not full wages, to the employee during the period of suspension. That ‘sum’ of amount is known as ‘subsistence allowance’. The quantum of subsistence allowance should be revised and paid to the suspended employee from time to time in accordance with the Standing Orders; and also in accordance with the increase in the salary of the suspended employee if any, due to wage settlement, agreements or annual increments etc.
Things to remember regarding Subsistence Allowance
1. Subsistence allowance means minimum livelihood
2. Non payment of subsistence allowance vitiates enquiry
The amount of subsistence once paid to the suspended employee cannot be recovered from him later on though he was held guilty, unless the relevant rules or the Standing Orders permit the employer to do so. Harinath Sigh vs. District Administrative Committee of Preliminary Agriculture Co-operative Credit Societies, 1992 (II) LLN 324 Allahabad HC. • Balwant Rai Patel vs. State of Maharashtra, AIR 1968 (SC) 800 – If there is no express term relating to payment of subsistence allowance during such suspension or there no statutory provision in any enactment or rule, the employee is entitled to his full remuneration for the period of interim suspension. The Subsistence Allowance commonly payable to employees is concerned is at the rates mentioned below
• First 90 days – at the rate of 50% of the wages
• 91 to 180 days – at the rate of 75% of the wages
• More than 180 days – at the rate of 100% of the wages.
Whereas, if enquiry is prolonged exceeding 90/180 days to due to reasons attributed to the charge sheeted employee then subsistence allowance will continue to be @1/2 of wages
THE CHARGE-SHEET ‘CHARGE-SHEET’ – A Charge-sheet is the charter of misconducts which the Disciplinary Authority intends to prove against the delinquent (charge-sheeted) employee. Disciplinary Procedure commences with the service of charge-sheet on the delinquent employee. A charge-sheet should contain all the allegations intended to be proved in the domestic enquiry.
LANGUAGE OF THE CHARGE-SHEET The purpose of framing the charge is to bring to the notice of the delinquent employee, with reasonable certainty, the facts constituting the misconduct alleged to have been committed by him.
There is no specific or prescribed for in which a charge has to be framed but should
• have reasonable certainty and particularized charge
• be conveyed the exact nature of the alleged misconduct in a way that would enable him to meet the charge effectively.
• If a wrong misconduct is quoted while adverting to a particulars of set of facts, it is no answer to say that the matter comes with another type of enumerated misconduct. When the nature of charge does not co-relate with the alleged facts stated in the charge-sheet such charge-sheet will be defective and hence would be vitiated. [M.L.L. Kumar vs Divisional Manager, 1989 (59) FLR 597 Andra Pradesh HC]
• The words used in a charge memo had already drawn a positive conclusion against the delinquent employee – The Calcutta HC in the case of Swanakumar Biswas vs United Bank of India, 1992 Lab IC 1499 in its view stated for a similar case that ‘the article of charges are the substance of imputation of misconduct’.
NATURE OF THE CHARGE SHEET
If the charges are imprecise and indefinite, the person charged cannot understand them and cannot defend himself effectively and the resulting enquiry would not be a fair and just one.
• The SC took the view in Sawal Singh vs. State of Rajasthan 1986 (II) LLN 91 that when the charges framed against the delinquent were vague and even the delinquent has made no allegation of the vagueness of the charges either before the EO or a court of law, the fact that the delinquent had participated in the inquiry would not exonerate the employer to bring home the charges.
• The fact that voluminous evidence is led in the enquiry is no substitute for a charge sheet clearly setting forth the allegations with sufficient precision and particulars. This is the barest minimum of requirements of a charge sheet consistent with the principles of natural justice. Miraj Taluk Girni Kamgar Sangh vs. Shree Gajanan Weaving Mills and Others, 1992 (II) LLJ 686 Bombay HC
• If an employee has to be charge-sheeted for moving in a suspicious manner, the conduct of the employee, which what exactly gave rise to suspicion, should be mentioned in the charge-sheet, otherwise, such charge will be deemed vague. Dayashankar Singh vs Union of India 1992 (II) CLR 107 Bombay HC (DB).
• If the charge is that the employee used abusive words in a given context, the same should be spelt out in the charge sheet and it should contain the description and details as to in which manner that incident took place. Dinanath Pandey vs. State of Uttar Pradesh, Charles vs. First Additional Labour Court, Madras and another 1994 (II) LLN 181 In case of the same employee who needs to be served charge-sheet o different account of misconducts The employee has engaged in 2 or more misconducts which are having no nexus to each other then it is advisable to issue 2 or more charge-sheets enumerating the charges. Nevertheless, domestic enquiry can be conducted together.
WHO CAN ISSUE A CHARGE-SHEET – DISCIPLINARY AUTHORITY
A few things to be remembered
1. Only the Disciplinary Authority is competent to initiate proceedings and frame charges. [K. Balasubrahmanian vs. T.N. Civil Supplies Corporation, 2000 (1) LLN 839, Madras H.C.]
2. An authority subordinate to the Appointing Authority cannot validly terminate the service of an Employee.
3. Complainant cannot be the disciplinary authority. [Kamta Prasad vs. State of U.P., 1999 I CLR 830 ALL H.C.]
Ordinarily the Appointing Authority/ Disciplinary Authority have to issue the charge-sheet to the delinquent employee. However, there is proposition in the law that a Subordinate Authority cannot issue the charge-sheet.
• It is not necessary for the authority that has to pass the Order of dismissal to initiate the enquiry itself and even if the charge sheet was not issued by a person who is designated authority the same is not infirmity as to render the whole proceedings illegal and void. Workmen of Indian Overseas Bank vs. Indian Bank and another 1973 (I) LLJ 316
• In S. Nagiah vs. Indian Aluminium Company Limited 1990 (II) LLN 750 a Division Bench of Karnataka HC held that the disciplinary enquiry is only for the purpose of establishing guilt of the workman. Beyond that there is no logic in stating that charge-memo must be issued by the competent officer. It cannot be contended that initiation of disciplinary enquiry leads on ultimately to the order of dismissal and where therefore foundation has not been properly laid, the edifice cannot remain.
• …………..and if it can be established that a subordinate authority has either express or implied approval to the same by the appointing authority/ disciplinary authority, then the departmental proceedings initiated at the instance of such subordinate cannot be vitiated. Gramphone Company of India Limited vs. State of West Bengal and others, 1991 (II) CLR 558 Calcutta HC
DELAY IN ISSUING CHARGE SHEET AND EFFECT THEREOF
A delayed or stale charge-sheet cannot be proceeded with since enquiry held on such charge-sheet suffers from breach of natural justice. The unexplained delay is initiating the departmental enquiry can lead to the presumption that the enquiry was abandoned or charges have been give up.
• When there is considerable delay in issuing the charge-sheet and in the meanwhile the delinquent employee was promoted on several occasions, it could construe to mean that the misconduct, if any, prior to the date of promotion was condoned by the employer. [R.K. Gupta vs. Coal India Limited and others, 1993 (I) LLJ 931 Calcutta HC ]
• When an employee was placed under suspension pending enquiry and the charge-sheet was not filed even passing of five years of suspension, the Gujarat HC held that suspension cannot be justified. [M.D. Indrodia (Dr.) vs. State of Gujarat and Others, 1992 (II) CLR 720.]
• When there is undue and unexplained delay is commencement of departmental enquiry, it could not be fair to an employee. [Food Corporation of India Employees Association, West Zone & Anr, 2007 II CLR 453 (BOM DB)]
THE CHARGE-SHEET AND THE EXPLANATION
The purpose of issuing charge-sheet to the delinquent employee is to consider his explanation, if any and whether to initiate a domestic enquiry or not against him. Strictly speaking, it is not a statutory obligation that the employer has to seek the explanation from the delinquent workman before initiating the disciplinary actions, nor the delinquent workman can demand for such an opportunity.
• The workman was charge-sheeted for certain misconducts in M. H. Devendrappa vs. Karnataka Small Industries Development Corporation 1988 (I) CLR 274. Though he submitted as explanation, he declined to take part in the enquiry proceedings. The enquiry was therefore completed ex parte.
• The Allahabad High Court setting aside the order of dismissal held that “it appears that the respondents (management) were under the misconception about the law that if an accused employee does not reply to the charge-sheet, then he need not be given opportunity of hearing in the enquiry. Even if it is correct that the petitioner (workman) did not submit any reply to the charge sheet, it was incumbent on the EO to have sent a notice to the petitioner informing him of the enquiry. Since this was not done the rules of Natural Justice have been violated. [Uma Shankar Yadav vs Register Co-operative Societies and others 1992 (II) CLR 1088]
Defects usually noticed in charge-sheets
1. Date, time and place of incident are not mentioned
2. How and where the order of insubordination is disobeyed or how insubordination or indiscipline has taken place are not mentioned
3. Mis-discription of the acts or omissions
4. Charge-sheet is not issued by the competent authority
5. Sufficient time is not given to the delinquent employee to submit his explanation to the show-cause notice/ charge-sheet
ASSISTANCE TO DELINQUENT EMPLOYEE
The Certified Standing Orders provides for provision wherein the Delinquent Employee can seek assistance from his fellow employees.
THE ENQUIRY OFFICER
An Enquiry should not in any way be connected or interested in the matter being enquired by him. Even the preliminary enquiry cannot have been conducted by the Enquiry Office.
Who CAN be an Enquiry Officer?
• A lawyer engaged by the Management can also be an Enquiry officer; Saran Motors vs. Viswanath and Others 1964 (II) LLJ 139
• The Law Officer was entrusted the domestic enquiry and the same does not vitiate the enquiry; Francis vs. Bank of Cochin Limited, 1988 (I) CLR 49
• The Officer selected (as Enquiry Officer) should be sufficiently senior rank and one who is not suspected of any prejudice or bias against the accused.
• Appointing and Advocate as Enquiry Officer does not vitiate the enquiry; T. Raja Reddy vs. Labour Court, Hyderabad and another 1992 (I) LLN 757 Who CANNOT be an Enquiry Officer?
• A person cannot be appointed as ‘Enquiry Officer’ if he has a ‘bias’.Bias are of 3 types – pecuniary bias, personal bias and official bias; Secretary to Govt.Transport Department vs. Munuswamy 1988 SCC Suppl 651
Change of the Enquiry Officer
The settled position of law in this regard is that a request for change of Enquiry Officer is to be decided not from the point of view of the employer or the Disciplinary Authority but from the angle of the delinquent employee as to whether on the facts and circumstances of the case it could be said that it was possible for the delinquent employee to develop a reasonable apprehension of bias in the Enquiry Officer against him; Harekrishna Das vs. Union of India and Others, 1993 (I) LLJ 20 Orissa HC
Enquiry Officer and the Employer
The Disciplinary Authority is not bound by the Enquiry Officer’s findings or recommendations and he can arrive at his own conclusion; AN D’silva vs. Union of India AIR 1962 SC 1130
REQUISITES OF A PROPER ENQUIRY
An enquiry cannot be said to have been properly held unless the following procedures was followed
1. The employee proceeded against has been informed clearly of the charges leveled against him;
2. The witness are examined ordinarily in the presence of the employee in respect of the charges;
3. The employee is given fair opportunity to cross-examine the witness.
4. He is given fair opportunity to examine witness including himself.
5. The EO records his findings with reason for the same in his report.
THE EXAMINATION OF WITNESS
Who should be examined first? It is normal procedure that in a domestic enquiry, the management witness have to be examined first by the Presenting Officer and then opportunity has to be given to the delinquent employee or his representative to cross examine, as and when each of the managements witness was examined-in-chief. Later, the Defence witness may be examined by the delinquent employee or his representative and may be cross examined by the Presenting Officer.
• One important point in this context to note is that it is the duty of the delinquent employee to produce his witness for examination before the Enquiry Officer, like the management does for its witness, as observed by the Supreme Court in the case of Tata Oil Mills vs. their workmen, 1964 (II) LLJ 113
• Under no circumstances a workman whose conduct is subject to disciplinary proceedings, should be examined in the firs instance; Observed by Supreme Court in Associated Cement Companies Limited vs. Their Workmen 1963 (II) LLJ 396 and in Allahabad HC in Central Railway, Bombay V.T. vs. Raghubir Singh 1982 (II) LLN 435
• However, in the instance where the workman has categorically admitted the charges leveled against him, then examination of the workman in the first instance might be justified – Supreme Court held in Central Bank of India limited vs. Karunamoy Banerjee, 1967 (2) LLJ 739
Cross examination of the Management Witness
In the interest of justice and fair play, it is for the Enquiry Officer to ask the delinquent employee to cross examine the management witness. This obligation on the part of the Enquiry Officer is required by the principles of natural justice, the Enquiry Officer should conduct the enquiry in a manner required of him and it would be immaterial whether the delinquent employee asked for time or not [Anand G Joshi vs. Maharashtra State Financial Corporation and others, 1991 (I) CLR 396 Bombay HC]
However, it is not absolute preposition of law that a refusal or denial of opportunity to the delinquent employee to cross examine the management witness should necessarily vitiate the enquiry proceedings. It mostly depends on the facts and circumstances of each particular case. The test is that whether any prejudice was caused to the delinquent employee by refusing or denying such opportunity. A three judge division bench of the Supreme Court explained this concept in the case of K.L.Tripathi vs, State Bank of India and Others 1984 (I) LLN 19 Examination of Witness in the presence of the delinquent employee.
The basic principle of law requires that ordinarily the witness should be examined in the presence of the delinquent in a regular enquiry, because recording evidence in the presence of delinquent employee serves a very important purpose. The witness knows that he is giving evidence against a particular individual who is present before him and, therefore, he is cautious in making his statement leaving little room for convenient statements. [Supreme Court in Khardah & Company Limited vs. The Workmen, AIR 1964 SC 719]
Examination of Witness by the Enquiry Officer
It is the primary duty of the Enquiry Officer to elicit the truth from the witness to make his findings. Therefore, the Enquiry Officer can also examine witness by asking questions for ‘clarifications’ as and when required and such putting questions for clarifications cannot vitiate the enquiry proceedings.
• Bombay HC in Sukhdev Viswanath Graje vs. Food Corporation of India, 1980 (II) CLR 18 and Calcutta HC in Machinery Manufacturing Corporation Limited vs. Pal (PN) and Others 1963 (I) LLJ 131, held that the charge of bias on the ground that the Enquiry Officer himself cross-examined the witness cannot be sustained.
• In Mulchandani Electrical & Radio Industries vs. the Workmen, AIR 1975 SC 2125 also the Supreme Court took the view that the Enquiry Officer is entitled to question the witness, so long as the delinquent employee is permitted to cross examine the witness, and that this will jot vitiate the enquiry or make it unfair.
• But the Bombay HC observed in Muralidharan Sitaram Rane vs. State Maharashtra,. 1990 (I) CLR 357 that one fails to understand why the Enquiry Officer had to question the petitioner (accused employee) in such great detail when the Presenting Officer was present at the enquiry and he could have legitimately cross examined the petitioner. Instead of allowing the Presenting officer to do his duty, the Enquiry Officer assumed the role a cross-examiner and by such conduct he assumed the role both of the Prosecutor and also the Judge. On this ground the enquiry is vitiated.
Who can be/ cannot be a witness in the Domestic Enquiry
• The Presenting Officer can examine himself as a witness and a domestic enquiry does not stand vitiated – Glaxo India Limited, Madras vs. Presenting Officer, Labour Court, Guntur and another, 1993 (I) LLJ 626 Andhra Pradesh HC
• Even though there is no absolute prohibition on Presenting Officer doubling as a witness it is unhealthy and improper – Nabisha Hussein Shaik vs. K.K. Uppal and others 1992 (I) CLR 148
• The dismissing authority cannot be a management witness – R Henry Baskar vs. Group General Manager, Bharat Heavy Electricals Limited, Tiruchirapalli and Others 1995 (I) LLN 519 Language Choice of language during the Enquiry proceedings will be as per the applicable Standing Orders. Evidence
• Mere suspicion should not be allowed to take place of proof even in domestic enquiries – Supreme Court in Union of India vs. H.C. Goel AIR 1964 SC 364
• The Supreme Court in State of Haryana and another vs. Rattan Singh AIR 1977 SC 1512 also pointed out that in a domestic enquiry strict and sophisticated rules of evidence under the Evidence Act may not apply and all material which are logically probative for a prudent mind are permissible.
• There should not a be an allergy to the ‘hearsay evidence’ provided it has reasonable nexus and credibility [Gujarat State Transport Corporation vs. Karsandas Narsi Trambadia 1993 (I) CLR 182 Guajrat HC]
A domestic enquiry cannot be closed for non-participation of the accused. The Management is not absolved of its duty from following the prescribed procedure even if the workman has withdrawn from the disciplinary enquiry. The Enquiry Officer closed the enquiry and passed an order dismissing the workman from service without completing the Domestic Enquiry. The court ruled that the enquiry should have been completed and all evidence should have been taken ex-parte. The further proceedings as to recordings of the conclusion should also have been followed and it is only thereafter that the punishment could be imposed. The Order of dismissal was set aside. [Imperial Tobacco Co Ltd vs. Workmen AIR 1962 SC 1348; (1961)II LLJ 414 (SC)]
In the case where an employee was given opportunities to participate in the enquiry but in spite of this the employee failed to attend the enquiry. In such case ex-parte enquiry was considered valid, though enquiry formalities had to be adhere to. [Ashok kumar Choudhary vs. Calcutte Port & Ors 1993 LLR 377 (Cal H.C.)]
DE NOVO ENQUIRY
De Novo enquiry is a terminology for reopening of a disciplinary enquiry. In case there has been an enquiry where some serious defects have crept in then the enquiry can be reopened and may be started afresh which may or may not consider previous material and evidence.
SUPPLY OF ENQUIRY REPORT AND OTHER DOCUMENTS TO THE DELINQUENT EMPLOYEE
It is settle law that after issuing of charge sheet, if the management seeks to rely on any document in proof of charge, then the copies of those documents need to be supplied to the delinquent employee – State Bank of India and others vs. D.C. Aggarwal and another, 1993 (I) SC DB and in the case of Indian Airlines vs. S.N. Haridas 2007 I CLR 537 (Bom) Supply of Enquiry report – Sub Article (2) of Article 311 of the original Constitution says “No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him” The Enquiry Report can also be supplied along with the second show-cause notice and the very issue of the second show-cause notice is very essential especially in the case where termination of the employee is envisaged.
Punishment Order can only be served by the Competent Authority and the punishment has to be in line with what is listed in the Certified Standing Orders. The following principles have been advocated by the court of law in awarding punishment to the employee found guilty in the domestic enquiry
1. The punishment should not be disproportionate to the gravity or severity of the misconduct.
2. Ordinarily different kinds of punishment should not be awarded to different employees when the misconduct committed by them is same or similar
3. Past service record of the employee would be a valid criterion for awarding punishment
4. Punishment of dismissal should not be awarded with retrospective effect
5. Principle of ‘double jeopardy’ does not apply to punishment awarded by the Domestic tribunals
Delayed Punishment Order of Dismissal not upheld by Court – Appointed in 1981 on the basis of declaration as Scheduled Caste. On 07-07-1992 the respondent had called upon the petitioner to show cause as to why action should not be taken against him for having represented that he belongs to Scheduled Caste. Nothing done thereafter till 30-05-2001, when on the strength of the show-cause notice the Corporation issued dismissal order. Held, if the respondent was earnest in the matter, it ought to have at least taken a decision in the year 1992 after the petitioner replied to the show-cause notice. Since the petitioner’s record is otherwise unblemished, the petitioner is allowed and the termination order dt. 30-05-2001 is set aside. Dharmendra J. Solanki vs. Hindustan Petroleum Corporation Ltd & Anr., 2002 CLR I 200 (Bom D.B.)
The circumstances and events that lead to the misconduct will also have to be taken into consideration while contemplating termination of an employee on the first instance of the below mentioned misconducts. The misconducts deemed fit for termination in the first instance are
1. Theft, fraud or dishonesty in connection with company’s or of another workman’s property within the premises.
2. Securing employment in the Company by giving false information regarding one’s age or qualification or caste.
3. Securing or attempting to secure in a fraudulent manner pecuniary advantages from the company’s or from the funds created by the Company. This has been supported by various case laws
APPROVAL APPLICATION TO BE OBTAINED REQUIREMENT u/s 33 (2) (b) OF THE ID ACT
The approval application is sought as per requirement u/s 33 (2) (b) of the ID Act and has to be filed before the Conciliation Officer or the Tribunal in case of termination of the services of an employee wherein the employee is a beneficiary of any conciliation in process or is being represented in any dispute pending before either of the authorities.
The Approval application will have to be filed on the same day the dismissal/ discharge orders are served to the employee. Such an application is required only in the case of dismissal/discharge of an employee wherein there are disputes pending. The approval application is sought as per requirement u/s 33 (2)(b) of the ID Act.
Points to remember
1. Approval Application
The approval application shall be printed on green sheet with double spacing on both sides of the paper
Two copies of the application have to be submitted to Tribunal (in case of only one respondent). The number of copies will have to be accordingly increased if the numbers of respondents are more.
The documents referred to in the application needs to be attached to the approval application.
An index has to be prepared listing the details of the documents annexed.
Mail cover(s) with the respondent(s) address will have to be attached with appropriate stamp (also considering weight of the documents and destination it has to reach i.e. the respondents address).
2. The following line will have to be included in the approval application ‘A copy of this application has also been sent to the Respondent along with the communication dated xx-xx-xxxx. Acknowledgement of service of the application on the Respondent will be filed, no sooner it is received’.
Due to practical and procedural issues, submitting an acknowledged copy of the punishment order along with the approval application is difficult, hence this line.
3. Tribunal does not provide any acknowledgement of having received the approval application from the petitioner. But they do a make a register entry. The only method of receiving acknowledgment is by sending the approval application by RPAD.
4. The approval application is only acted upon when an acknowledged copy of the punishment order by the employee is submitted to Tribunal.
5. Approval application need not be submitted to all the courts if there are multiple issues pending at various courts and if the employee in question is party to the issues. Application filed with any one authority, preferably the higher authority, is enough notice and compliance u/s 33 (2)(b) of the ID Act.
The 3 important conditions that the Tribunal is looking for in such an approval application are
1. Whether the action is of discharge or dismissal
2. payment of notice pay for one month and
3. making an application for approval of the action taken …..all together on the same day!!!!