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DISCIPLINARY PROCEEDINGS IN INDUSTRIES- PURPOSE,

OBJECTIVES AND STAGES

A Final Draft submitted in fulfilment of the course LABOUR LAWS-I, for


obtaining the degree B.B.A LL.B (HONS.) during the Academic Year 2018-
2019
SUBMITTED BY:
SUSHRUT SHEKHAR
Roll No. - 1859
B.B.A LL.B
SUBMITTED TO:
Ms. PALLAVI SHANKAR
FACULTY OF LABOUR LAWS-I

MARCH, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,


MITHAPUR, PATNA-800001
DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A., LL.B (Hons.) Project Report entitled

“Disciplinary proceedings in industries- Purpose, Objective and Stages” submitted at Chanakya

National Law University is an authentic record of my work carried out under the supervision of

Ms. Pallavi Shankar. I have not submitted this work elsewhere for any other degree or diploma. I

am fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: SUSHRUT SHEKHAR
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.
ACKNOWLEDGEMENT

I would like to thank my faculty Ms. Pallavi Shankar whose guidance helped me a lot with

structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with

materials throughout the project and without whom I couldn’t have completed it in the present

way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me

out at every stage of my project.

THANK YOU,
NAME: Sushrut Shekhar
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1859
SEMESTER – 4th
CONTENTS

OBJECTIVE OF STUDY
HYPOTHESIS
RESEARCH METHODOLOGY
SOURCES OF DATA
LIMITATION
1. Introduction.
2. Provisions As To Formation Of Disciplinary Proceedings
3. Advantage And Disadvantage Of Disciplinary Proceedings
4. Disciplinary Proceedings In Various Industries
5. Conclusion And Suggestion.
Bibliography
AIMS AND OBJECTIVES

1. The researcher tends to analyse the disciplinary proceedings prevalent in the industry.

2. The researcher tends to analyse the effect and object of such disciplinary proceedings.

HYPOTHESIS
The disciplinary process has as its main aim the improvement of an employee’s conduct,
attendance and performance.

RESEARCH METHODOLOGY
The researcher has followed doctrinal as well as non doctrinal method of research to complete
the project.

SOURCES OF DATA
1. The researcher relied on secondary sources to complete the project.
2.Secondary sources include the books and websites related to the topic.

LIMITATIONS:
The researcher has territorial and time limitations.
1. Introduction

Human resource is perhaps the most valuable asset of any organisation. It is the human resource
which exploits other resources in the organisation so as to achieve the organisational objectives.
The aim of the Human Resource Department, by whatever name it is known such as Personnel
Department, P&IR, etc, is to get the best out of the human resource of the organisation. For
achievement of this purpose, there are many sub-systems in the Human Resource Department
such as Grievance Handling, Counseling, Performance Appraisal, Career Planning, Training &
Development, etc. Reward and Punishment system is one of the sub-systems under the Human
Resource System. It is essential that every organisation, whether government or semi-
government or private, should have a well established reward and punishment system to ensure
that the people are made to work towards the fulfillment of the organisational goals. While the
reward system will encourage the employees to work better towards the achievement of
organisational goals, punishment system is used to prevent people from working against the
organisational goals.

Misconduct, or non-conforming behaviour, as it is sometimes called, can be tackled in many


ways such as counseling, warning, etc. In extreme cases such as, criminal breach of trust, theft,
fraud, etc. the employer is also at liberty to initiate action against the employee, if the
misconduct of the latter falls within the purview of the penal provisions of the law of the land.
However such proceedings generally conducted by the State agencies, are time consuming and
call for a high degree of proof. In addition to the above option, the employer also has an option
to deal with the erring employee within the terms of employment. In such an eventuality, the
employee may be awarded any penalty which may vary from the communication of displeasure,
to the severance of the employer-employee relationship i.e. dismissal from service. Disciplinary
authorities play a vital role in this context. Efficiency of the disciplinary authorities is an
essential pre-requisite for the effective functioning of the reward and punishment function, more
specifically the latter half of it.

There was a time when the employer was virtually free to hire and fire the employees. Over a
period of time, this common law notion has gone. Today an employer can inflict punishment on
an employee only after following some statutory provisions depending upon the nature of the
organisation. Briefly, the various statutory provisions which govern the actions of different types
of organisation are as under:

(a) Government: Part XIV of the Constitution relates to the terms of employment in respect of
persons appointed in connection with the affairs of the State. Any action against the employees
of the Union Government and the State Governments should conform to these Constitutional
provisions, which confer certain protections on the Government servants. These provisions are
applicable only to the employees of the various Ministries, Departments and Attached and
Subordinate Offices. Further, the employees, being citizens of the country also enjoy
Fundamental Rights guaranteed under Part III of the Constitution and can enforce them though
the Writ jurisdiction of the Courts. In addition to the constitutional provisions, there are certain
rules which are applicable to the conduct of the proceedings for taking action against the erring
employees. Central Civil Services (Classification, Control, and Appeal) Rules 1965 cover a vast
majority of the Central Government employees. Besides, there are also several other Rules which
are applicable to various sections of the employees in a number of services.

(b) Semi Governmental Organisations: By this, we mean the Public Sector Undertakings and
Autonomous Bodies and Societies controlled by the Government. Provisions of Part XIV of the
Constitution do not apply to the employees of these Organisations. However, as these
organisations can be brought within the definition of the term ‘State’ as contained in Article 12 of
the Constitution, the employees of these organisations are protected against the violation of their
Fundamental Rights by the orders of their employer. The action of the employer can be
challenged by the employees of these organisations on the grounds of arbitrariness, etc. These
organisations also have their own sets of rules for processing the cases for conducting the
disciplinary proceedings against their employees.

(c) Purely private organisations: These are governed by the various industrial and labour laws
of the country and the approved standing orders applicable for the establishment.

Although the CCS (CCA) Rules 1965 apply only to a limited number of employees in the
Government, essentially these are the codification of the Principles of Natural Justice, which are
required to be followed in any quasi judicial proceedings. Even the Constitutional protections
which are contained in Part XIV of the Constitution are the codification of the above Principles.
Hence, the procedures which are followed in most of the Government and semi-governmental
organisations are more or less similar. This handout is predominantly based on the CCS (CCA)
Rules 1965.

Complexity of the statutory provisions, significance of the stakes involved, high proportion and
frequency of the affected employees seeking judicial intervention, high percentage of the cases
being subjected to judicial scrutiny, huge volume of case law on the subject - are some of the
features of this subject. These, among others have sparked the need for a ready reference material
on the subject
2. Provisions As To Formation Of Disciplinary Proceedings

Article 309,310,311 are relevant to disciplinary proceedings. Article 309 is an enabling


provision that gives power to the legislature to enact laws governing the conditions of services
of the persons appointed in connection with the affairs of the states. Proviso to this article
provides that pending the enactment of laws, The President may frame rules for the above
purpose. The laws as well as rules to be framed for the purpose must be subject to the provision
of the constitutions.

Article 310 of the constitution contains what is known as the pleasure doctrine. It provides
that the term of appointment of the Government Servant shall be dependent upon the pleasure
of President. The same article also provides that the pleasure of the president can be over
ridden only by the express provisions of the constitution and nothing else.

A restriction on the pleasure of the president contained in the Article" 311. The first thing to
be noted that Article, 311 does not apply to defence personnel. The Supreme Court has
clarified that even the civilians working in connection with defence are not covered by the
provisions of Article 311. Further this article basically grants two protections to the civilian
Government Servants. This relates to "Who & How". The first part of the article provides that
no person shall be dismissed or removed from the service by an authority subordinate to the
one by which he was appointed. It means that if the employee is dismissed from the service his
case has to be considered by the authority who is equivalent to the rank of his appointing
authority. In case employee is dismissed or removed from the service by the authority lower
than the appointing authority it will be unconstitutional.

The Article 311 provides two protections to the Government employees. Further the second
protection granted by this Article is available in Clause 2 of this Article&, it relates how a
Government Servant can be dismissed or removed from the service or reduced in rank. It
provides that no one can be removed from the service without conducting the enquiry. The
same Article also indicate that the above mentioned enquiry must satisfy the following two
conditions:

 The individual concern must be informed of the charges.

 He must be granted a reasonable opportunity of being heard in respect of the


charges.

Reasonable opportunity has not been defined in the constitution but the Supreme Court of
India defines, through a number of decisions that includes, opportunity to know the
charges, must know the evidence laid by the disciplinary authority in support of charges,
inspection of documents, leading evidence in defence etc. Another important question
relating to the applicability of Article 311 is whether the Article provides protection both to
the permanent and employees. The Article does not specifically state as to whether the
provisions arc applicable to temporary employees also however the Supreme Court has
clarified that the protection to the temporary employees is available under any one of the
under mentioned circumstances.

 Where there is a Right to post

 Where there is vitiation of evil consequences


All Permanent employees have a right to post and hence are entitled for this protection. As
regards the temporary employees a reasonable opportunity of defence has to be afforded if
they are being vitiated by the evil consequences. Thus if a temporary employee is
discharged from the service by giving him One Month Notice without any reason, he can
be discharged on the basis of misconduct. In such cases an enquiry is necessary. Even
probationer will be entitle to the protection of enquiry.

Article 311 also provides that under certain circumstances an employee can be dismissed or
removed from the service or reduced in rank without any enquiry. These are the contents
arc given in second proviso of Article 311.i.e

 Where the penalty is being imposed on the ground of misconduct which has led to
his conviction on criminal charges

 Where the disciplinary authority is satisfied for the reason to be recorded that it is
not reasonably practicable to hold an enquiry in the case

 Where the president is satisfied that in the interest or the country it is not advisable
to hold the enquiry.

There may be circumstances where any Government Servant may be proceeded against any
criminal court. The criminal case might have been filed by the employer or the employee
might have been tried for an offence he has committed in his private life. It is relevant to
note that the standard of proof required in a criminal case is, proof beyond reasonable
doubt. Whereas in the departmental proceedings the standard of proof is preponderance of
probability. Thus if an employee has been held guilty in a criminal case it would be much
more easier to establish the charge in a departmental proceeding. Conducting a
departmental enquiry after the employee has been held guilty in a criminal case would
therefore be an exercise in futility. Hence the power granted by the second proviso to
Article 311 may be availed and appropriate penalty may be imposed on the employee. It
must be however be noted that this provision only grant's a power to the disciplinary
authority to impose the penalty without enqu1ry when the employee has been convicted in
a criminal case. It is not mandatory for the disciplinary authority to dismiss the employee
whenever he has been convicted in a criminal case. The concerned authority should go
through the judgment and can take the decision depending upon the circumstances of the
case.

Another fact is that when the disciplinary authority may impose penalty on the employee
without conducting any enquiry is when, the disciplinary authority is satisfied for reason to
be recorded that it: is not reasonable to hold the enquiry. The constitution does not require
the communication of the reason in the penalty order but the Supreme Court held in it's
judgment that it is desirable to communicate the reason in the penalty order. This will give
chance to the penalized employee complaining that the reason were fabricated after the
issue of penalty order.
An employee may be dismissed or removed from the service or reduced in rank without
conducting enquiry whenever The president is of the opinion that, in the interest of the
security of the country it is not expedient to hold an enquiry. In such cases the decision to
dispense with the enquiry is taken at the level of president and that too only on the ground
of the security of the country. Here, the word president has been used in constitutional
sense. The decision does not require personnel approval of the President. It would be
sufficient if the minister in charge takes the decision.

The above-mentioned provisions are applicable to the employees of the ministerial


departments attached and to the subordinate offices only. Yet the same are relevant to the
employees of public sector undertaking and the autonomous bodies. This is so because
similar provision exists in the service rules relating to a number of PSUs and autonomous
bodies.

In addition to XIV of the constitution Article 309 to 311 part -III of the Constitution 11 is
also relevant to the matter of disciplinary proceedings. Part-III of constitution contains the
funda111ental right. These are available against action of the State. The State is prohibited
from denying the right to equality etc. As per the current interpretation of Article 14, it
strikes at the roof of arbitr31'iness. Hence any employee affected by the arbitrary action of
the state can file a writ petition alleging violation of right to equality. Article 21 of the
constitution provides right to life and liberty. It state's no one shall be deprived of his right
to life and liberty except in accordance with the procedure established by law. According to
the present interpretation of Hon'ble Supreme Court the word life occurring in Articlc 7 21
of the Constitution does not denote mere existence. Life as mentioned in Article 21 relates
to dignified and meaningful life.

Hence, the deprivation of employment may amount to the deprivation of life. Hence Article
21 indirectly provides that no one can be deprived of his employment except in accordance
with the procedure of law. Besides this Hon'ble Supreme court has also stated in the case of
Menaka Gandhi Vs. Union of India (AIR 1978 SC 5678) that the phrase procedure
established by the law mentioned in the above Article refer to a procedure which is just
reasonable and fair and not any procedure which is arbitrary. Hence there is requirement for
the Governmental and Semi governmental organizations to ensure that employees are not
deprived of their employment (i.e. life) by an arbitrary procedure. Care must be taken to
see that a just, reasonable and fair procedure is followed in the disciplinary proceedings.
3. Disciplinary Procedure in Various Industries

The disciplinary procedure involves the following steps:


a. Preliminary Investigation:
First of all, a preliminary inquiry should be held to find out whether a prima facie case of
misconduct exists.
b. Issue of a Charge-sheet:
Once the prima facie case of misconduct is established, charge sheet is issued to the
employee. Charge sheet is merely a notice of the charge and provides the employee an
opportunity to explain his conduct. Therefore, charge sheet is generally known as a show
cause notice.
In the charge sheet, each charge should be clearly specified. There should be a separate
charge for each allegation and charge should not relate to any matter which has already been
decided upon. The charges so framed should be communicated to the individual along with
the statement of allegations on which the charges are based.
c. Suspension Pending Enquiry:
Depending on the gravity of charges, an employee may be suspended along with serving him
the charge sheet. The various circumstances which may warrant suspension of an individual
are:
i. When disciplinary proceeding is pending or contemplated.
ii. When engaged in the activities prejudicial to the interest or security of the state.
iii. Where a case in respect of any criminal offence is under investigation, inquiry or trial.
iv. Where continuance in office will prejudice investigation/ inquiry/trial.
v. When the presence of the employee in office is likely to affect discipline.
vi. When his continuous presence in office is against the wider public interest.
vii. Where a prima face case has been established as a result of criminal or departmental
proceedings leading to the conviction, revival, dismissal, etc.
viii. In case of the following acts of misconduct:
 Moral Turpitude
 Corruption, embezzlement
 Serious negligence in duty resulting in loss
 Desertion of duty
 Refusal or failure to carry out written orders
According to the Industrial Employment (Standing Orders) Act, 1946, the suspended worker
is to be paid subsistence allowance equal to one-half of his wages for the first ninety days of
suspension and three-fourths of the wages for the remaining period of suspensions, if the
delay in the completion of disciplinary proceedings is not due to the worker’s own conduct.
d. Notice of Enquiry:
In case the worker admits the charge, in his reply to the charge sheet, without any
qualification, the employer can go ahead in awarding punishment without further inquiry. But
if the worker does not admit the charge and the charge merits major penalty, the employer
must hold an enquiry to investigate into the charges. Proper and sufficient advance notice
should be given to the employee indicating the date, time and venue of the enquiry so that the
worker may prepare his case.
e. Conduct of Enquiry:
The enquiry should be conducted by an impartial and responsible officer. He should proceed
in a proper manner and examine witnesses. Fair opportunity should be given to the worker to
cross-examine the management witnesses.
f. Recording the Findings:
On the conclusion of the enquiry, the enquiry officer must record his findings and the reasons
thereof. As far as possible, he should refrain from recommending punishment and leave it to
the decision of the appropriate authority.
g. Awarding Punishment:
The management should decide the punishment purely on the basis of findings of the enquiry,
past record of the worker and gravity of the misconduct.
h. Communicating Punishment:
The punishment awarded to the worker should be communicated to him in written and the
earliest available opportunity. The letter of communication should contain reference to the
charge sheet, the enquiry and the findings. The date from which the punishment is to be
effective should also be mentioned.
4. Conclusion and Suggestions

If an employer makes a disciplinary procedure contractual, it will be able to require employees


to cooperate with the procedure, as a refusal by an employee to take part will amount to a breach
of contract. It will also assist in providing certainty for both the employer and the employee,
ensuring that both parties are aware of their rights and obligations relating to the procedure.

One of the main disadvantages to the employer of having a contractual disciplinary procedure is
that it will not be easy for the employer to change it. A change to the procedure would require a
change to each employee's contract. The employer would therefore have to consult with the
employees and seek their consent to the variation. Where the employees did not agree to the
changes, the employer could dismiss them and re-engage them under new contracts, but in doing
so would risk claims for unfair dismissal.

Another disadvantage is that, where a contractual disciplinary procedure exists but the employer
does not follow it, the employer will be in breach of contract. An employee dismissed on
disciplinary grounds where the employer has failed to follow its own contractual disciplinary
policy could bring a claim for wrongful dismissal (ie dismissal in breach of contract), although
damages for such a breach would be limited to payment for the notice period and for the time it
would have taken to carry out the contractual disciplinary procedure. The ability to bring a
breach of contract claim would benefit an employee who does not meet the eligibility
requirements for bringing a claim for unfair dismissal. If the procedure is not contractual, the
employee would be able to argue only that a failure to follow the procedure should be taken into
account in an unfair dismissal claim.
BIBLIOGRAPHY