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455 S.K. E.M.: O.P. Malhotrcr's Law Oflndustrial Disputes
455 S.K. E.M.: O.P. Malhotrcr's Law Oflndustrial Disputes
Rai Bahadur Diwai~ Badri Das V. IT, 1962 ILLJ 366(SC), per Gajendragadkar, J. Pu11.jab National Bank V. I.T., 1957 ILLJ 455 (SC), per S.K. Das, J. Rao, E.M. (2004). O.P. Malhotrcr's The Law oflndustrial Disputes, Gth ed. Lexis Nexis Butterwo~fl~s, p. 19. Sinlia G.P. and Sinha, P.R.N. (1 986). Industrial Relatiorrs and Labour Legislution,, 2nd ed. Oxford & IBH, New Delhi.
Introduction Indiscipline: Nature, Scope and Prevention The "Red-hot-stove" Rule Indiscipline: Nature and Causes Individual vs Collective Indiscipline
17.6 Misconduct 17.7 17.8 17.9 Strict Eufo~~ceriient of Discipline Acts of Misconduct: Classificatiori Disciplinary Action
17.10 Charge Slieet 17.1 1 Domestic Enquiry 17.12 Penal Disposal ofthe Case 17.13 I-Iiel-arcliyof Punishments 17.14 Summary 17.1 5 Self-Assess~iient Questions 17.1 6 Furtller Readings
The expression 'disciplinary action', in its widest amplitude, means "any conditioning of f~lture behaviour by tlie application of eitlier rewards or punishments. This approacli colnprises botli tlie positive and negative actions geared to ensure that, while with the norms of workon duty, the eliiployees conduct themselves in accordi~ig related behaviour. Positive ~notivational initiatives include praise, participation and incentives, whereas negative tecliniques ilivolve punishments such as warning, censure, suspension, stoppage of increment, reversion and dismissal. Botli the types of actions aim at:co~~clitio~~iilg the elnployee behaviour. However, the expression 'disciplinary action' lias over time acquired a special connotation to meall tlie application of penalties that lead to an inhibition of u~ldesirable behaviour. In this sense, it is ge~ierally uliderstood to be exclusively concerned with negative motivation. Tliougli a ~iiajority of employees do conforln to orders, procedures, rules and regulations, a good nmiiber of them still require the stilnulus generated by punishments. One of the most difficult tasks of supel-visory personnel is tlie effective administration of negative disciplinary action.
Grievs~iceI-landling
and Discipline
2)
To obtain a willing acceptance ofthe rules, regulations and procedures of an organisation so that organisational objectives can be attained. To develop among the e~nployees a spirit oftolerance and a desire to make adjustments. To give and seek direction and responsibility. To create an atmosphere of respect for human personality and lluman relations. To incrcase the working efficiency and morale of the employees. To impart an elernent of certainty despite several differences in informal behaviour patterns and other related changes in an organisation.
3)
4)
5) 6)
17.3
The idcal mechanism for enforcement of discip line should remind ofthe red-hot-stove. A red-hot-stove has four important characteristics: (i) advance warning; (ii) immediate effect; (iii) consistency; and (iv) impersonal approach. i) ii)
Advance warning: It tell us in advance "don 't tozich nze, you will sz~ffer". Immediate effect: He, who disregards the warning and ventures to lay his fingers on it, will get the result insta~ltaneously.
iii) Consistency: Every time we touch it, we get the same result without any let-up.
iv) Impersonal approach: It doesn't play favourites; its functioning transcends the
right pairs of love and hatred, friend and foe, etc.; it guarantees tlle fi~ndamental to equality, more dispassionately than any court of law does. Every one who touches it shall get Ilirnself burnt, regardless of his status and position. These four cllaracteristicsshould, of necessity, inform any disciplinary administration. Laxity on the part of management can whittle down the entire process to the ultimate detriment of the organisation. Even the preventive measures initiated with all the good intentions will lose their significance in such a dispensation, because tlle employees about the ineffectiveness of lnanage~nent in enforcing discipline in the are co~lfideilt event of violation.
17.4
Simply defined, 'discipline' means "adherence to the norms o f behnviour ". It is a state of mind consisting ofboth atlitudinal and bellavioural aspects. The environment
30
in whicl~ an individual was brought up, his childhood experiences, the influence ofthe primary group or groups of which he is a member, his personallfa~nily life, his successes and failures, his expectations and frustrations - all have avital impact on his attitude towards discipline. These coupled with work practices and organisational culture exercise a great deal of influence, one way or the other, 011 his behaviour in the worlcplace. I t is extremely dirficult, if not totally impossible, to capture the entire range and variety of factors that cause indiscipline and is even more difficult to draw generalised inferences of i~niversal validity. The co~nplexity of tlie problem is largely interaction of individual variables with those ofthe due to the i~npredictable environment, Even though it is possible to assert in a general way that certain actions 01. stitni~li fsom management may cause an adverse reaction among workmen, stil I, in avast majority of cases, acts of indisicipline are situation-specific and defy prediction in precise terms.
Discipline in Industry
17.5
lndividi~al indiscipline is ~nanifested in deviant behaviour oremployees acting alone as, for instance, habitual absence, negligence, theft, insubordination, disorderly behaviour, li.aucl, tarcliness and the lilce. In a very general sense, acts of individual indiscipline are relatively simple and are capable of being explained in terms of causation. Collective indiscipline is more complex both in form ant1 substance and is often elusive of rational explanation, posing a serious threat to indilstrial peace, harmony ancl productivity. Cancel-tecl go-slow, illegal strike, militancy and inter-group altercations culminating in violence can be cited as illustrations of collective indiscipline.
1.6
MISCONDUCT
The expression 'niisconduct' has not been defined either in the Industrial Disputes Act, 1947 or in the Industrial Employment (Standing Orden) Act, 1946. The dictionary meaning of the word 'n~iscondiict'is: "itnpt'oper behaviour; intentional wrong doing or deliberate violation of a rule of standard of behaviour". In so far as the industrial employment is concerned, a workman has certain express or implied obligations toward his employer. Any conduct on the part of an employee inconsistent with the faithfit1 discharge of his duties towards his employe^. would be treated as an act of misconcluct. Any breach of the express or implied duties of an e~nployee towards his employer, therefore, unless it be oftrifling nature, would constitute misconduct. In industrial law, the word 'misconcluct' has acquired a specific connotation. It cannot mean inefficiency or slaclcness. It is something far more positive and certainly cleliberate. The charge of 'misconduct', therefore, is the charge ofsome positive act or of conduct, wliich would be quite incompatible with the express andlor impliecl terms of relationship of the employee to the employer. What is 'misconduct' wi I I naturally depend upon the circumstances of each case.' The Labour Appellate Tribunal laid clown the following criteria for determining whether the act woiild be an act of ~nisconduct: (i) it is inconsistent with the fulfil1111entof the express or implied conditions of service, (ii) is directly Iinlced with the general relationship of employer and employee, (iii) has adirecl connection with the contentment or comfort ofthe men at worlc, and (iv) has a material bearing on the smooth and efficient working o f t l ~ concern. e If tlie answer to anyone ofthe above criteria is in the affirmative, the act i l l question would amoimt to an act of misconduct. In any case, the act of misconduct n~ust have some relation with the elnployee's duties to tlie empl~yer.~
2) Communicate
The rules ofdiscipline sl~ould be communicated to all the worlcn~en. It is desirable to si~pply a copy of the Standing Orders (both in English and the vernacular) to each workman at the time of his joining the organisation. T11e objective is to make the workers aware of the norms of behaviour as also the acts of misconduct. Communicatio~~ of the rules of discipline at the tinle of entry serves the important purpose of 'advance warning' of the "red-hot-stove" rule.
I~idividual grievances s h o ~ ~be l d promptly attended to and redressed within a and time-bound procedure for hearing and reasonable time. A formal ~nachine~y redressal of grievances will help in arresting job-related deviant behaviour.
Continuing Education
It is essential that suitable mechanisms are designed and put in place for conti~luous education of workers. The education process should cover all aspects relating to ernploy~nent relatio~lsl~ip, statutory and non-statutory benefits, rights, duties and obligations of the parties toward each other, discipline, technology, production, productivity, safety, quality and the like.
17.8
Misconduct in industrial employment can broadly be dealt with under the following categories, though this classification is by no means exclusive. A few acts of misconduct lnay fall under more than one category.
Discipline in Industry
b)
c)
d)
e)
f)
g)
Preventing a superior officer fro111 discharging his duties toward the management; Constructing a pucca structure in the labour quarters contrary to the directions and the subsequent refusal to dismantle the same in of the tna~lage~ne~lt disobedience to the order of the management;
Riotous or disorderly bellaviour; Damage to the property and/or reputation of the company.
e
e
A particulal. act is said to involve moral turpitude, (i) if the act leading to a conviction shock the moral conscience of society in general, by acrinlinal court is such as coi~ld ii) if the motive which led to the act is a base one and iii) if on account of the act having been co~nin itted the perpetrator coi~ld be considered to be of a depraved clzaracter or a person who is to be loolted down upon by the society.
Activity A
Make a list of aims and objectives of discipline. Do you think that these aims and discipline in your organisatioli or ally organisation objectives are useful i n maintainil~g you are fa'amiliar with?
17.9
DISCIPLINARY ACTION
On receipt of a colnplaint alleging that an einployee llas committed an act of misconduct, whicll falls in any ofthe categories mentioned above and as provided for in the standing orders of the company, the officer designated as the disciplinary authority may, at his discretioil and subject to his having satisfied that the complaint is worth pursuing, initiate disciplinary action as provided in tlie standing orders ofthe company. Briefly, disciplinary action involves the following steps:
17.10
CHARGE SHEET
-
Discipline in Industry
- - -
Charge sheet is the document, which sets out the alleged acts of omissions and/or commissions on the part of the workman. In other words, it is a statement of allegations. The designated officer, who signs the charge sheet, merely comlnunicates the allegations to the workman. He does not attest to the colnlnission or omission thereof, as the investigation into the allegations is yet to commence. The charge-sheet should be precise as to the nature of the misconduct alleged, the place, date and time at which the act was alleged to have been committed, the consequences ofany such commission, i.e., the extent of damage to the property of the company or the extent of injuries caused to any person in the process, and all the relevant details. It should also make a reference to the corresponding acts of misconduct enumerated in the standing orders under which the alleged omission or colnlnission falls. The workman should be given reasonable opportunity to explain to the charges.
7 . 11 -
DOMESTIC ENQUIRY
-
Where a workman denies the allegations in response to the charge sheet, and the management desires to find out the truth of the matter, no action can be taken against s senquiry is conducted into the charges. The domestic the worl<manuntil and ~ ~ n l ean enquiry should be held by an impartial officer, who has no knowledge of the misconduct and who is not a witness to the misconduct and who is not avictiln of the misconduct. 'The workman should be given sufficient notice of the date, time and venue of the enquiry. I-le should be given every opportunity to conduct his defence at the enquiry by examining his witnesses, if any, including himself and by crossexamining the management's witnesses. He should be permitted to take extracts of a 1I the relevant doc~lments and statements before the comme~~ce~nent ofthe enquiry so that he can prepare and organise his del'encc. He should be permitted to take the assistance of a co-workman or an office-bearer of the bnion to conduct his defence, if he so desires. The enquiry should be conduct in a Fair manner. The enquiry should be conducted in can7er0, i.c., in private and should not be open to the public to view the procceclings.
17.12
Once the enquiry is completed in all respects, the enquiry officer should submit his report to the disciplinary authority indicating therein whether, on tlie material on record and on a consideration ofthe evidence adduced by either side, the charges , alleged against the workmali have been proved or not. Tlie disciplinary authority should apply his mind to the facts ofthe case as borne out by the proceedings ofthe enquiry and tlic findings of the enquiry officer before taking a decision as regards the quantum of punishment. The punishment sl~oulcl in no case be disproportioliate to the act of lnisconduct alleged and proved, Once a decisioli is taken on the quantum of punishment, the disciplinary authority should communicate the same to the worklnan in writing. The punishment takes effect, not when the disciplinary authority took the to the workman concerned. decision, but only when it is co~ii~nunicated
17.13
HIERARCHY OF PUNISHMENTS
The standing orders /service rules provide for the followi~lg punishments i n the ascending orcler of gravity. Warning 2 ) Censurc 3) Suspension without wages for a period not exceeding 15 days. 1)
4)
5) 6) admits the charges unconditionally and seeks pardon of the Where the work~nan management, there is no need to proceed filrther, and the disciplinary aut1101.ity may straightaway impose any punishment other than dismissal on the strength of the However, if the unconditional admission or, at his discretion, exonerate the worlat-~an. misconduct is so grave as to warrant the punisliinent of dismissal, notwithstanding the unconclitional admission, the disciplinary authority has to hold a for~nal enquiry, so that the worlunan does not retract from the written explanation at a later stage.
Activity B
Stoppage of increment for a maximum period of three years, if the employee is in a graded scale of pay. Reversion to the next lower grade Dismissal from service.
J3riefly explain what kind of disciplinedo you think that could enhance the overall performance ofthe organisation and why?
17.14
SUMMARY
Absence of discipline tells upon the f~~nctioning of industries and the society. Importance of discipline has to be realised by all concerned and lnaintenance of of both the workers and management. discipline should be joint respo~lsibility DiscipIine is a two-way traffic and a breach of discipline on the part of either party in an organisation will cause unrest. The approach to managing discipline depends to a great extent upon managerial philosoplly, culture and attitude towards the en~ployees. A negative approach to discipline relies heavily 011 punitive measures and in line with the traditional ~nanagerial attitude of "hire and fire" and obedience to orders. On the other hand, a constructive approach stresses on modifying forbidden behaviour by taking positive steps like: educating, counselling, etc. The concept of positive discipline proitlotion aims at the generation of a sense of self-discipline and disciplined behaviour in all the human beings in a dynamic organisational setting, instead o f discipline imposed by force or punishment. The approach to the disciplina~y action in ~llost cases sl~ould be corrective rather than punitive. Further, the positive discipline . maintenance should form an integral part of huina~l resource development efforts of an organisation.
i.
17.15
I)
2)
SELF-ASSESSMENT QUESTIONS
3)
Define discipline. Explain how discipline should be maintained in an organ isation. Explaiil the process of disciplinary action and its advantages and disadvantages. Explain the procedure of holding domestic enquiry against an erring employee.
-
17.16
FURTHER READINGS
I
W.M. Aganani Vs Badri Das, 1963 ILLJ 684 (691).(SC) per Gajendragadkar, J. Workmen of Shalimar Rope Works Ltd. Vs Management, 1953,584 LAT.
6.-'(3
I ~ ~ ~ ~ ~ , ~ ~i I I ~ :LII~,IC I,I:L
1'11
(.
r<
L;
t?,~di;iiw~:~
1. 2. 3.
Concept, Scope and Approaches to Industrial Relations Evolution of Industrial Relations and Current Developoments Constit~~tional and Legal Framework of Industrial Relations : Conventions, ID Act, Trade Union Act
r l ~ ' ~ ~i ~ L J:t w ~i~ L iU ~ ~c fi~,"i~;~~~~
i!
4. 5. 6. 7. 8.
.j
Trade Uilioil Development and Fuilctions Trade Union Structure and Recognition Managing Trade Unions Managerial Unioilism Employers' Organisations
C~anlliln.cUive iE:,rlrg;ainniung
'3
9. 10. 11.
Nature and Content of Collective Bargaining Negotiation Slcills Issues and Trends in Collective Bargaining
~EIIRR nslRoglec U nnu~ollvennneull
-B
12. 13. 14.
5
Evolution, Structure and Process Design and Dynamics of Participative Forums Strategies for In~plementing Participation
Ca.iev;numcc I-Ii~snaiiIliiia~ ;nunel MdiscipBimc
Grievance Function in Industrial Relations Conciliation, Arbitration and Adjudication Discipline in Industry
Trcrads iaa EnnpBoyrnneaat Reli~tionns
18. 19.