Disciplinary Proceeding

Krishna Pal Malik Asst. Prof. MGLI, Ahmedabad

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Discipline at working place

An organisation, whether a club, a school, an institution, a factory, a company or an office, has to have a framework of policies, rules, regulations and procedure to carry on its tasks. These are necessary to enable it to function in a orderly way. These also enable its members to discharge their duties smoothly, effectively and profitably. This orderly conduct based on definite standards and clear guidelines, is called discipline. Discipline prevails in an organisation, when its members willingly do what they are required to do under the rules and consciously avoid action that interferes with the rights, privileges and duties of others. In a broader sense, discipline thus indicates the sprit and confidence with which the members of an organisation perform their tasks.
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Ingredients of discipline

Announcement : The pattern of behaviour expected of the employees, must be announced in unambiguous terms by laying down clearly the standards of norms. The justifications for these standard should also be made known to avoid any misunderstanding. Advance warning : The employees must be cautioned beforehand. They should be kept informed of the type of lapses or failures in their behaviour that would be construes acts of indiscipline, with nature of punishment attract on commission or omission. Immediacy : In case of breach of discipline, action must be initiated immediately. Impartiality : Discipline enforcing authority should be impartial and make his action consistent, without any discrimination of status. Impersonality : The authorities must not feel happy and unhappy over punishing or letting off an employee. Authority must not be emotionally involved.
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Different Approaches to Disciplinary Action Legalistic Approach Humanitarian Approach Human Resource Approach Behavioral Approach Leadership Approach Disciplinary process Finding the facts Constructive counselling Verbal Reprimand Written Reprimand Penal measure
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Stages in departmental action

(i) Issue of charge-sheet, which may or may not be preceded by a show cause notice; (ii) Holding of an enquiry in all cases except where the misconduct is of a minor nature and the service rules specially provide that enquiry would not be held in such cases; (iii) Recording of finding by the Enquiry Authority; (iv) Consideration of findings of the Enquiry Authority by the Disciplinary or Competent Authority; (v) Tentative decision regarding penalty and second bearing on the nature of proposed penalty, if the rule so provide; (vi) Final order and communication of the same; and (v) consideration of the appeal, if any, by the Appellate Authority and its disposal.
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Principle of Natural justice

Natural justice has meant many things to many writers, lawyers, jurists and system of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straight jacket of rigid formula. Natural justice is a concept of common law and signifies fundamental rules of judicial procedure. Lord Widgery : The principle of natural justice was these fundamental rules, the breach of which will prevent justice from being seen to be done. [R V Ilosenball (1977) 1 WLR 766] Lord Harman - what than are requirements of natural justice is a case of this kind? First, I think that the person accused should know the nature of accusation made; secondly that he should be given an opportunity to state his case, and thirdly of course that the tribunal should act in good faith. I do not think that there really is anything mare. -

SC on Natural Justice

The concept of natural justice has under gone a great deal of change in the recent years. In the past, it was thought that it included two rules, namely, (1) no one shall be judge in his own (Nemo debet lesse judex in propia causa) and (2) No decision shall be given against a party with out affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that it is quasi judicial inquiries must be held in good faith without bias and not arbitrarily or unreasonably. But in the course of year many more subsidiary rule; came to be added to the rules of natural justice. [AK Kruipak v. UOI, AIR 1970 SC 150]
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 In another case, SC held that Rules of natural justice are not embodied rules nor they can be elevated to the position of fundamental rights. The aims are to secure justice or to prevent miscarriage of justice these rule. It can be operate only in the areas not covered by any law validly made. If a statutory provision can be read consistently with the principle of natural justice, the court should do so. But if a statutory provisions either specifically or by necessary implication excludes the application of any rule of natural justice. In such circumstances the court cannot ignore the mandate of legislature or the statutory authority and read into concerted provision the principle of natural justice. [UOI V JN Sinha AIR 1971 SC 40] The SC again reviewed the principle of natural justice and brought it, near to meaning of due process and said that process shall be just, fair and reasonable. [Menka Gandhi V UOI (1978) 1 SCC 248]
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Justice VR Krishna Iyer

It should be noted that the aims of the rule of natural justice is to secure justice and to prevent miscarriage of justice. He observed natural justice is a pervasive fact of secular law where a spiritual touch enlivens, administration and adjudication, to make fairness a creed of life. It has may colour and shades may forms and shapes and shave where valid law excludes, it applies when people are effected but acts of authority. It is the bone of the healthy Govt., recognised from earliest times and not a mystic testament of judge made law. Today it application must be sustained by current legislation, case law or other extent principle not the hoary chords of legend and history. [Mohinder Singh v. Election Commissioner, AIR 1978 SC 851]

Principles of natural justice

Principle of natural justice can be broadly classified under the following three categories.

An authority cannot be a judge in his own case. An authority cannot be condemned unheard. An authority should decide only if it hears.

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[1] An authority cannot be a judge in his own case

The rule that an authority cannot be a judge in his own case follows from the fact that a judge must decide impartially between the parties before him and he should not have no direct interest in the subject of the enquiry which would lead him to decide the matter in favour of one of the parties. The principle that no man shall be a judge in his own case or nemo judex is causa sua is an ancient principle in common law. It was subsequent developed within a view to strengthen the public confidence is administration of justice. This is based on the principle that justice should not only be done but must manifestly and undoable seen to be done. It should be noted that this disqualification on the ground of bias or interest, which disqualifies a judge, falls into three classes
Pecuniary Bias or interest Personal bias or interest Official Bias or interest

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Illustrative case law

A DSP held a departmental enquiry against the respondent, a police constable. As one of the witness against the respondent turned hostile and DSP himself went into the box to depose to what the witness had admitted at the earlier stage. He assumed to complete the enquiry and passed an order of dismissal. The SC held that the rule of natural justice were completely discarded and all canon of fair play were grievously violated. It was observed in this case that the two roles could not be obviously be played by one and the same person. It is futile to except that he could, in circumstances, hold the scale even. It socks ones notion or judicial propriety and fair play. [State of UP v. Mohammed Uooh 1958 SCR 595]

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[2] An authority cannot be condemned unheard

The rule that no man shall be condemned unheard, or the rule of audi alteram partem, would involve two propositions. * The person who is to be condemned or whose rights are to be affected must have notice of such proceedings. * He must have a reasonable opportunity to be heard. Notice : Before any action is taken the affected party must be given a notice to show cause against the proposal action and seek his explanation. It is a sine qua non of the right of fair hearing. Any order passed without giving notice is against the principle of natural justice and is void abinitio. The SC held that if the enquiry is under Art-311, two notices (first for charges or allegations and second for purposed punishment) should be given. Where a notice regarding one charge has been given the person cannot be punished for a different charge for which no notice or opportunity of being heard was given to him. [UOI v. Tulso Ram Patel, (1985) and Gupta v UOI (1989)] Hearing : The second requirement of the maxim Audi alteram partem is that the person concerned must be given an opportunity of being heard before any adverse action is taken against him.
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Illustrative case
This historical case has rightly been described as the magna carta of natural justice. In this case the plaintiff, a chief constable had been prosecuted but acquitted on certain charges of conspiracy. In the course of judgement the presiding judge against the plaintiffs character as a senior police officer made certain observation. Taking into account those observation the watch committee dismissed the plaintiff from service. The court of appeal held that the watch committee was acting an administrative authority and was not exercising judicial or quasijudicial power, and therefore, the principle of natural justice did not apply to their proceedings for dismissal. Dismissal could not be exercised without giving a reasonable opportunity of being heard and with out observing the principles of natural justice. The order of the dismissal was, therefore held to be illegal. [Ridge V. Baldwn (1964) AC 40]
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[3] An authority should decide only if it hears

It is a cardinal aspect of the principle of natural justice that he who hears must decide. This is a natural corollary to the principle of reasonable opportunity and Audi alteram partem. This principle is fully illustrated by the decision of the SC in this case. Here the GM of APSRTC undertaking invited objections in respect of a scheme for nationalisation of bus transport in certain areas of the State. The Secretary in charge of the of the Transport Ministry submitted the report to the CM, after hearing the objections the CM finally disposed of the case and passed an order, approving the scheme of nationalisation. The order was challenged in the SC. The SC held that the CM who did not hear the objections passed an order and therefore, it was contrary to the principles of natural justice. [Gulapalli Nageshwer Rao V. APSRTC]
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Violation of rule of natural justice

Where one student who was charged with coping at the examination, debarred without giving him a reasonable opportunity to be hearted. [Board of HS v. UOI]
Where the personnel hearing was given by an officer, but the order passed by another officer. Where one of the members of selection committee was also a candidate himself. [Kaipak v. UOI] Where the chairman of a tribunal confirmed an order of the review committee, of which he himself was a member. [Mahapatra v. UOI]
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Exceptions (Rule of natural justice was not violated)

Where an opportunity to be hearted was given to the petitioner, but he did not avail of it. [Jethamal v. UOI] Where although statements of witnesses were recorded in the absence of petitioner, such statements were made available to him and witnesses were also allowed to be cross-examined. [State of UP v. Gupta, AIR1970] Where legal assistance was not afforded, because there were no complicated question of fact or question of law involved. [K Chandra v. UOI, AIR 1974] Where in the case of smuggling the petitioner was heard in person, appeared through counsel, and examined his witness. [Shermal v. Collector, AIR 1956 Cal 621]
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Misconduct in industries [R.14 (3)]

(a) Wilful insubordination or disobedience, whether alone or in combination with others to any lawful and reasonable order of a superior, (b) Theft, fraud or dishonesty in connection with the employers business or property, (c) Wilful damage to or loss of employers goods or property, (d) Taking or giving bribes or any illegal gratification, (e) Habitual absence without leave or absence without leave for 10+ days, (f) Habitual late attendance, (g) Habitual breach of any law applicable to the establishment, (h) Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, (i) Habitual negligence or neglect of work, (j) Frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month, (k) Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
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Disciplinary action for misconduct [R.14]

A workman may be fined up to 3% of his wages in a month for any of the acts and omissions. Specify the acts and omissions which the employer may notify with the previous approval of the appropriate Government or of the prescribed authority in POW Act. A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice if he is found to be guilty of misconduct. Where a disciplinary proceeding against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may, by order in writing, suspend him with effect from such date as may be specified in the under. A statement setting out in detail the reasons for such suspension shall be supplied to the workman within a week from the date of suspension.
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The proceedings of the enquiry

A workman who is placed under suspension shall be paid subsistence allowance in accordance with the provisions of S.10-A of the Act. In the enquiry, the workman shall be entitled to appear in person or to be represented by an office-bearer of a trade union of which he is a member. The proceedings of the enquiry shall be recorded in Hindi or in English, or in the language of the State where the industrial establishment is located whichever is preferred by the workman. The proceedings of the inquiry shall be completed within a period of three months:

Provided that the period of three months may, for reasons to be recorded in writing, be extended by such further period as may be deemed necessary by the inquiry officer.

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Payment of subsistence allowance [S.10-A]

Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance. At the rate of 50% of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and at the rate of 75% of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman. If any dispute arises regarding the subsistence allowance payable to a workman, the workman or the employer concerned may refer the dispute to the Labour Court having jurisdiction. If, provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.
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Conclusion of enquiry or proceeding

If on the conclusion of the enquiry or, as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and if it is considered, after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly. If on the conclusion of the inquiry, or as the case may be, of the criminal proceedings, the workman has been found to be not guilty of any of the charges framed against him, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension after deducting the subsistence allowance paid to him for such period.

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Deemed to be absent from duty during suspension

When an order of dismissal is passed, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period and the subsistence allowance already paid to him shall be recovered. Where the period between the date on which the workman was suspended from duty pending the inquiry or investigation or trial and the date on which an order of suspension was passed, exceeds four days, the workman shall be deemed to have been suspended only for four days or for such shorter period as is specified in the said order of suspension and for the remaining period he shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period.

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Deemed to be on duty during suspension

Where an order imposing fine or stoppage of annual increment or reduction in rank is passed, the workman shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension after deducting the subsistence allowance paid to him for such period.

In the case of a workman to whom the provisions of Article 311 (2) of the Constitution apply, the provisions of that article shall be complied with.
The payment of subsistence allowance under this standing order shall be subject to the workman concerned not taking up any employment during the period of suspension.

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Awarding of punishment

In awarding punishment under this standing order, the authority imposing the punishment shall take into account the gravity of misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances, that may exist. A copy of the order passed by the authority imposing the punishment] shall be supplied to the workman concerned.

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Appeal

A workman aggrieved by an order imposing punishment may, within 21 days from the date of receipt of the order, appeal to the appellate authority. The employer shall, specify the appellate authority. The appellate authority, after giving an opportunity to the workman of being heard shall pass such order as he thinks proper on the appeal within fifteen days of its receipt and communicate the same to the workman in writing.

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Termination of employment [R.13]

For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman-one months notice in the case of monthly-rated workmen, and two weeks notice in the case of other workmen; one months or two weeks pay, as the case may be, may be paid in the lieu of notice. No temporary workmen whether monthly rated, weekly-rated, or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in para 14. Where the employment of any workman is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.
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Certificate on termination of service [R.16]

Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service. There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement, and every person is entitled to take such certificate.

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