1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

Domestic Enquiry

SUBJECT

Labour Law I

NAME OF THE FACULTY

Prof R. Bharat Kumar

Name of the Candidate

Roll No. & Semester

k. Chandra sai kumar

(2018021) 5th
semester
 SYN0PSIS
NAME OF THE PROJECT: DOMESTIC ENQUIRY

ABSTRACT: An enquiry held by the management against its empl0yees f0r certain acts 0f
alleged misc0nduct is called “D0mestic enquiry” 0r “Departmental enquiry”. In industrial
adjudicati0n d0mestic enquiry has acquired c0nsiderable significance.

D0mestic enquiry is anal0g0us t0 trial in a c0urt 0f law with difference that while trial in the
c0urt is f0r crimes d0ne against the State 0r S0ciety, d0mestic enquiry is c0nducted f0r
0ffences against the establishment f0r misc0nduct punishable under the Standing
0rders/C0mpanies' Rules and Regulati0ns, etc., applicable t0 the establishment where the
w0rker is empl0yed. Further, the trial in the c0urt is in acc0rdance with the Criminal
Pr0cedure C0de, while d0mestic enquiry is c0nducted in terms 0f what is called `Natural
Justice". An0ther difference is that the enquiry 0fficer while examining the evidence and
pr0n0uncing 0n. the guilt is n0t supp0sed t0 award penalty which is left t0 a superi0r 0fficer
wh0 is the empl0yer 0r the app0inting auth0rity. Still an0ther difference is that a misc0nduct
under the Standing 0rders/C0mpanies' rules and regulati0ns, etc., may 0r may n0t be a crime
under the Indian Penal C0de. D0mestic enquiry is n0t a legal requirement under the Industrial
Disputes Act 0r 0ther substantive laws such as the Fact0ries Act, Mines Act, etc. but has been
pr0vided under the standing 0rders t0 the framed under the Industrial Empl0yment (Standing
0rders) Act. This Act is presently applicable 0nly t0 large establishments empl0ying n0t less
than 50 w0rkmen and as such smaller establishments empl0ying less than 50 w0rkers are n0t
c0vered by this Act. H0wever, the case law established 0ver a l0ng peri0d has made it
0bligat0ry f0r the empl0yers t0 h0ld a fair and just enquiry t0 pr0ve the misc0nduct alleged
against the empl0yee bef0re awarding any seri0us punishment. Dismissal 0r any maj0r n0tice
against an empl0yee with0ut h0lding a fair and just d0mestic enquiry am0unts t0 vi0lati0n 0f
principles 0f natural justice and is fr0wned up0n by the Lab0ur C0urts/Industrial Tribunals;
s0 much s0, dismissal with0ut h0lding regular enquiry is deemed an illegality. (Pr0vincial
Transp0rt Services Vs. State Industrial C0urt1). Further, as the d0mestic inquiry is usually

c0nducted by an 0fficer sub0rdinate t0 0r paid by the empl0yer, the w0rkman l00ks up0n it
as an exercise, designed t0 tie the l00se ends in the allegati0ns and tighten the n00se ar0und
the w0rker's neck. F0r this reas0n, he may n0t take it seri0usly and may suffer in default.

1
Pr0vincial Transp0rt Services Vs. State Industrial C0urt AIR 1963 SC 114.
Bef0re any punishment f0r misc0nduct is awarded 0bservance 0f principles 0f natural justice
in f0rm 0f inquiry is a must. This principle is als0 kn0wn as principles 0f justice equity and
fair play.

There are tw0 main ingredients 0f natural justice

AUDI ALTERAM PARTEM - Hear the 0ther side

NEMo JUDEX IN CAUSUA - N0 pers0n can be judge in his 0wn cause, there sh0uld n0t
be bias.

The aim is t0 prevent miscarriage 0f justice.

Objectives:

 how to impart the principles of Natural Justice in practice

 the concept of domestic enquiry the concept of charge-sheet,
 suspension pending enquiry;
 different other aspects of domestic enquiry and domestic enquiry proper
 awarding and communicating punishment
 in what circumstances Court intervenes

RESEARCH METH0D0L0GY: The research will be d0ctrinal kind 0f research by

referring b00ks and 0ther 0nline res0urces. Nature 0f the study is

i. Explanat0ry study
ii. Descriptive study
iii. Analytical study
Research questi0n: 1) How to determine if the allegations are fit enough for issuing
charge sheet?

2) Whether examining any witness in the absence of the employee is justifiable or not?
S0URCES:

1) Primary s0urces: The primary s0urces 0f the study are the case laws which were
decided by supreme c0urt and high c0urts and Industrial Disputes Act, 1947.
2) Sec0ndary s0urces: The sec0ndary s0urces 0f this study are publicati0n 0f b00ks
and articles.
3) M0de 0f Citati0n: Blue B00k 20th Editi0n.

SC0PE 0F THE STUDY: The sc0pe 0f the study is limited t0 Industrial Disputes Act, 1947.

SIGNIFICANCE 0F THE STUDY: Thr0ugh this research,

 0ne can understand the c0ncept and procedure of Domestic enquiry under the purview 0f
Industrial Disputes Act, 1947.
 ACKNOWLEDGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Prof R.
Bharat Kumar for giving me a golden opportunity to take up this project regarding-
DOMESTIC ENQUIRY. I have tried my best to collect information about the project in
various possible ways to depict clear picture about the given project topic.
 TABLE OF CONTENTS

1) INTRODUCTION…..............................................................................................7

2) DOMESTIC ENQUIRY........................................................................8

3) NEED FOR DOMESTIC ENQUIRY....................................................................8

4) CONCEPT…............................................................................................................9

5) DOMESTIC ENQUIRY AND DEPARTMENTAL ENQUIRY…..................10

6) PRINCIPLES OF DOMESTIC ENQUIRY….....................................................11

7) PROCESS OF DOMESTIC ENQUIRY...............................................................12

8) CHARGESHEET....................................................................................................13

9) ENQUIRY…..........................................................................................................13

10) ROLE OF ENQUIRY OFFICER…....................................................................14

11) FUNCTIONS OF ENQUIRY OFFICER…........................................................15

12) ENQUIRY FINDINGS.........................................................................16

13) OTHER SALIENT POINTS.................................................................16

14) CASE ANALYSIS..................................................................................................23

INTRODUCTION

A domestic inquiry is an internal hearing held by an employer to ascertain whether an

employee is guilty of misconduct. The purpose of a domestic inquiry is to find out the truth of
the allegations made against the workman.

The Industrial Court, in the course of adjudicating whether a dismissal is without just cause
or excuse within the context of Section 20 of the Industrial

Relations Act 1967, does not merely examine whether there were proper grounds for the
employer to terminate the services of the employee but also examines whether the process by
which the employee was terminated was fair or unfair.

This aspect of “procedural fairness” in the taking of disciplinary action, against an employee
may often be a crucial factor in deciding whether the dismissal will be upheld by the Court.

It is therefore, imperative to recognise that upholding a dismissal in the Industrial Court

involves satisfying 2 criteria:

(a)That there were proper grounds for terminating the employee;

(b) That the procedure by which the employee was terminated was fair.

In conducting a domestic inquiry the rules of natural justice must be adhered to. Justice must
not only be done but must be seen to be done; the “twin pillars” of natural justice being “No
person shall be condemned unheard” and “No person shall sit in judgment in his own cause
or in any in which he is interested”.

DEFINITION OF THE TERM-DOMESTIC ENQUIRY:

Based on the above description of domestic enquiry, we understand that the term domestic
enquiry is mainly used to refer to an enquiry into the charges of indiscipline and misconduct
by an employee.

In common parlance, domestic enquiry means departmental enquiry or domestic tribunal. In

such enquiries, the matter is decided by administrative officers and not by courts of law. In
cases of alleged indiscipline, it is common for disciplinary authorities in a department or in
an
industry to appoint an officer or officers to inquire into the allegations against an employee.
These enquiries are commonly known as ‘Domestic Enquiries’.

NEED FOR DOMESTIC ENQUIRY

For the smooth functioning of an industry, the defined codes of discipline, contracts of
service by awards, agreements and standing orders must be adhered to. In the event of an
employee not complying with these codes of conduct, he is liable to face disciplinary actions
initiated by the Management according to the Standing Order. This procedure is called
Domestic Enquiry and it is conducted in accordance with the standing order/agreements.
CONCEPT

Domestic enquiry is similar to a trial in a court of law, but while a trial in a court is for crimes
done against society, domestic enquiry is conducted for offences committed against the
establishment for misconduct, punishable under the standing orders/rules and regulations of
the organization. Further, while a trail in a court is in accordance with the criminal procedure
code, civil procedure code, evidence act, the domestic enquiry is conducted in terms of what
is known as ‘Natural Justice’.

Also, the enquiry officer while examining the evidence and pronouncing on the guilt is not
authorized to penalize the employee. It is only the employer or the appointing authority also
known as notified disciplinary authority who can pronounce the penalty.

Domestic enquiry is not considered as a legal requirement under the Industrial Disputes Act,
or other substantive laws such as the Factories act, Mines Act, etc. but has been provided
under the standing orders to be framed in the Industrial Employment (Standing Order Act)
1946. As a result it is now well-established that such standing orders have the force of law
and constitute statutory terms of employment.

The case law established over a long period has made it obligatory for the employers to hold
a fair and just enquiry to prove the misconduct before awarding any serious punishment.
Dismissal of an employee without holding a fair and just domestic enquiry amounts to the
violation of the principles of natural justice and is frowned upon by the Labour
Courts/Industrial Tribunals and adverse conclusions may be drawn against the employer not
holding a domestic enquiry, in so much so that the dismissal without holding a domestic
enquiry is deemed to be illegal.
DOMESTIC ENQUIRY AND DEPARTMENTAL ENQUIRY

The term ‘domestic enquiry’ is commonly used in connection with an enquiry against
industrial or commercial workers. On the other hand, the enquiry against Govt. Servant is
called as a ‘Departmental Enquiry’. But there is no hard and fast rule for use of these terms.
Still there are essential differences between the enquiries into the charges against the
industrial workers and Govt. Servants. The public servants have their safe guards provided in
Article 311 of the Constitution of India. No such provisions are available for industrial or
commercial workers. Also, the Public Servants Enquiries Act 1850 is in vogue in the statute
book.

PRINCIPLES OF DOMESTIC ENQUIRY

1. Rule of Natural Justice must be observed.

2. The delinquent is entitled to a just hearing.

3. He can call for his own evidence.

4. Cross-examine any witness called by the prosecution.

5. Where rules are laid down, the procedure of such rules must be followed.

6. Disclose to the employee concerned, the documents of records and offer him an
opportunity to deal with it.

7. Do not examine any witness in the absence of the employee.

8. The enquiry officer is at liberty to disallow any evidence after recording the reasons in
writing.

PROCESS OF DOMESTIC ENQUIRY

CHARGE SHEET

When the management comes to know that a particular act of misconduct has been
committed by an employee, they should hold a preliminary enquiry into the matter. Such an
enquiry may be termed as Fact-Finding Enquiry. The delinquent may also be interrogated
during the enquiry. The object is to arrive at a conclusion whether a prima facie case exists
for taking disciplinary action against the workman concerned. In the preliminary enquiry, if
the management is satisfied that an act of misconduct has been committed which would
necessitate
taking some disciplinary action against the employee concerned, then the charge sheet will be
issued.

Charge Sheet is not an accusation made or information given in abstract but an accusation
made against a person in respect an act committed or omitted in violation. In other words, it
is an accusation made against a person in respect of an offence alleged to have been
committed by him.

The employer cannot justify his action on any grounds other than those contained in the
charge sheet. The charge sheet, however, is not expected to be a record of evidence. The
person signing the charge sheet is not an accuser. He does not make himself responsible for
the truth of the facts set out in charge sheet. He merely tells the accused what he is supposed
to have done (Bennet Coleman & Co)2 .

The charge sheet must clearly set forth the charge and ask the delinquent to submit his
explanation within a reasonable time, i.e. within 24 or 48 hours depending on the gravity of
the misconduct.

The charge sheet should mention the misconduct committed, the date and time of its
commission and the relevant section of the Standing orders under which the misconduct falls.
There may, however, be a situation where an employee may commit an act of misconduct
which does not fall under the list of misconducts mentioned in the standing orders. Even, in
that situation, the employer is at liberty to take disciplinary action for the sake of discipline
and proper order in his organization, but the question has to be dealt in a reasonable manner
and in accordance with common sense.

In the charge sheet, as far as practicable, the same phraseology may be sued as in the standing
orders.

This would help the worker to understand the charge clearly and the extent of punishment he
may be inflicted upon. However, omission to refer the clause of standing orders in the charge
sheet does not make it irregular.

The Supreme Court in Powari Tea Estate Vs. M.K. Barktaki3 held that the charge must not
contain any expression which would give rise to reasonable apprehension in the mind of the

2
LAC p.2 1956
3
(1965 II LLJ 102)
workman against whom the enquiry is held that the management has already made up its
mind as to his guilt. So, it must only state the misconduct alleged for which the enquiry has to
take place. The charge sheet must be signed by a competent authority.

Usually, such a competent authority is the Disciplinary Authority who is also authorised to
inflict punishment. The charge sheet should be drafted very carefully and served properly. It
is important that the charge sheet contains the following details:

 - Name of the person charged

 - Employee number

 - Address

 - Date, Time & Place of Occurrence

 - Narration of the misconduct alleged

 - Relevant clause and specific act of misconduct under the standing orders/ settlement.

 - Calling for an explanation within a stipulated time

 - If the charge rests on a written report, a copy of that report to be enclosed.

The charge should be specific and clear and never vague, Incidental matters not connected
with the charge and or irrelevant should be omitted from the charge.

Where an employee is to be suspended prior to holding of enquiry it would not be proper to

mention in the charge sheet that “Considering the gravity of the misconduct, you are
suspended from pay and duty”. It would be appropriate to mention “pending enquiry into the
charge framed against you, you are suspended from pay and duty”.

At no stage before the issue of final orders there should be any indication that management
has pre-determined the outcome of the case. If the disciplinary authority is likely to be a
witness in support of the charge, it would be preferable for some other officer of the company
to sign the charge sheet.

In case he happens to be a witness he should never conduct the enquiry. The charge sheet is
usually served to the delinquent in the office time in the presence of a witness. It he refused to
receive the same, it may be exhibited in the notice-board of the establishment. Another
alternative is to send the charge sheet by Registered Post/Acknowledgement Due’ to the
known postal address. If it still remains un-served it is necessary that the charge is published
in two newspapers, one in English and another in the local language which has a large
circulation.

The same procedure may be followed while issuing letter calling the delinquent for enquiry.
Relevant provisions of standing orders will have to be complied with while serving a charge
sheet. The obligation of the employer is only to send the notice to the accused. If he refuses to
accept the notice, he does so at his own risk.

The employer will be entitled to proceed with the enquiry ex-parte. Where a worker refuses
to receive a charge sheet, the same could be treated as misconduct and it would be desirable
to issue another charge sheet and the enquiry held on the original and on the second charge
sheet
- if there is specific mention in the standing orders listing out the ‘refusal to receive the
charge sheet or communication’ as misconduct.

ENQUIRY

Enquiry means:

1. Hearing of the Case

2. Recording Evidence

3. Admitting Documents

4. General completion of the records upon which a finding would be based

Evidence:

General Aspect: Evidence in legal sense consists principally of oral testimony or witnesses,
written documents and various other subjects perceptible by the senses.

Proof: Proof is the process of adducing evidence before a judicial body. The purpose of the
proof is to aid the tribunal in finding the facts.

Important Aspects of Evidence : The correct method of appreciating and assessing the
evidence of a witness is by scrutinizing the evidence on its merits and it is only when a doubt
arises whether the witness is in fact deposing to the truth or not, that the necessity would arise
to investigate into the possible reasons for his conduct and what would have motivated the
same,
such as intimate interest in the person on whose behalf he had come to give evidence, or
strong enmity against whom he had come to give evidence.

Important Aspects of Evidence: Demeanour, Veracity, Enmity, Bias, Low standard, Previous
conviction, Doubtful character. Sometimes the evidence may suffer because of:

A. Lapse of memory

B. Of inability to observe minutely

C. Recount and recite correctly

Conducting the Enquiry

When a person of authority or one who is competent to take disciplinary action gets a
complaint, it is left to him to make such investigation of Preliminary Enquiry as he considers
it fit together the information and find out the truth of the complaint and the evidence
available in support of it.

During such preliminary enquiry the person making the investigation need not follow any
rules and regulations or principles of natural justice. Even the person against whom charges
are going to be framed may be questioned during the process of preliminary enquiry.
Preliminary Enquiry:

Before framing the charges the disciplinary authorities occasionally make a preliminary
investigation or fact finding enquiry with a view to satisfy themselves whether any
disciplinary action against the workmen should be launched or not. Such investigations are
termed as preliminary enquiries. In such investigations there may be ex-parte examination
and ex-parte reports. The depositions of the witnesses in such investigations, if any, or the
reports in the investigations are meant merely for ascertaining whether there is any prima
facie case justifying disciplinary proceedings. (Fire Stone Tyres Vs. their Workmen 1967
II ILJ 715 SC)

Purpose of Preliminary Enquiry

Sometimes allegations against persons are made in a frivolous, reckless and prejudiced
manner. A preliminary analysis may well throw light on the allegations and help the authority
concerned to know if there is a prima facie case and there are good reasons to frame charges
against the person.
It would be wrong to pre-determine the guilt of the person in a preliminary enquiry however
strong the evidence gathered during the preliminary enquiry may be. Such an evidence could
only help the authority to frame charges against whom certain allegations have been made.
Preliminary enquiries are held as for as possible orally and only the person making the
enquiry records it in writing.

Enquiry Proceedings

Before embarking on an enquiry, the management should be sure that a specific misconduct
exists and that it is not ambiguous about the facts of the misconduct. Attempting disciplinary
action, with extreme punishment on flimsy grounds and undependable witnesses, is
dangerous. If it is not sure of the facts of the case from the evidence available, it will be better
to take a lenient view and let off the workman with a warning.

Where the explanation of the employee is not satisfactory and the management is sure of its
case, a letter has to be sent to the delinquent stating that it has been decided to hold an
enquiry into the charges on a particular date, time and place. In the same letter the following
may be added.

‘At the enquiry you will be given full opportunity to conduct your defence by examining your
witnesses and cross examining the witnesses against you. Should you fail to be present for the
enquiry as advised, the enquiry will be held ex-parte.’

An enquiry may be held for an employee individually or for several employees where acts of
misconduct charged relate to several employees and the charge is common. It is better that
the proceedings of the enquiry are recorded by the enquiry officer in his own handwriting.
The delinquent should be asked if he understood the charges leveled against him. If the
delinquent refuses, the charges be further explained to him, the enquiry officer should oblige
him. The delinquent should also be asked if he accepts the charge.

If he accepts the charge the matter normally ends there. But if he pleads not guilty the enquiry
proceedings start in right earnest. If the standing orders provide for giving assistance to the
workman at the time of the enquiry either by allowing a union office bearer or a co-worker, a
question should be put to the delinquent asking him whether he desires to avail the
opportunity and the same should be recorded. If he says yes, such assistance should be
allowed.
There is no rigid pattern in which an enquiry should be proceeded in examining the
witnesses. But the normal pattern is that the evidence in respect of the charge is heard first
one by one. Each of these witnesses would then be subject to cross- examination by the
delinquent.

When this is over, the delinquent should be asked if he has witnesses to give the evidence
which would be subject to cross-examination by the management representative, if present. In
cases where management has only one witness in support of the charge, the same person may
go ahead with the cross-examination. But if reliance is made on more than one witness, it is
better that the management appoints a representative to do the cross-examination.

If the delinquent cites witnesses who are his fellow employees, arrangement should be made
by enquiry officer to procure them. If the witnesses cited are outsiders over whom the
employer has no control, it is the responsibility of the delinquent alone to present them at the
enquiry. Care should be taken to see that all the witnesses are examined in the presence of the
delinquent.

Adjournments requested by the delinquent on reasonable grounds should be granted.

Hastening the enquiry, disregarding the formalities to be observed will vitiate the enquiry.
Signature of the person giving evidence should be obtained in every page where the
evidence is recorded and also at the conclusion of the evidence. The enquiry officer, the
management representative, the delinquent and his co-worker should sign the proceedings in
all the pages.

ROLE OF ENQUIRY OFFICER

An Enquiry Officer is an agent of the Disciplinary Authority on a fact finding mission. He is

more or less like a judge or what may be called, “Quasi Judicial Tribunal”. He is expected to
conduct the enquiry in an impartial, unbiased, fair way with open mind. He should not take
the role of the Presenting Officer or Defence Representative.

He need not follow rules or procedures of Courts or apply the provisions of Evidence Act or
any other law. If the delinquent employee objects to the enquiry officer conducting the
enquiry on the ground that the enquiry officer has a prejudice or bias against him, the enquiry
officer should refer the matter to the disciplinary authority, before conducting the enquiry.
The enquiry officer should elicit information on all material points.

Wherein an enquiry, a witness gives evidence on material points to corroborate the testimony
of complainant about his hearing the conversation between the complainant and the
delinquent worker, it is essential that the distance between the witness and the place of
occurrence is also
ascertained to find out if the witness could have really heard it. Even if this point is not
brought out by the respective parties at the enquiry, the enquiry officer will have to bring out
this point.

The Enquiry Officer should be considerate but at the same time firm. He should not cross-
examine and put leading questions. The questions asked by him should not give an
impression that he is acting in a partial manner. He is entitled to ask for any clarification on
the evidence tendered but this should be done in a way that any inference of partiality is not
revealed. He should not normally ask questions resembling cross-examination.

Where the question of victimisation is alleged by the delinquent for his being a member of
the minority/unrecognized union that the case was foisted against him at the instance of the
majority / recognised union, the enquiry officer should not brush aside the suggestion by
saying that he is not interested in union politics, but should bestow efforts to find out the
necessity for such plea being allowed and take a decision.

If the employee against whom the enquiry is held misbehaves with the enquiry officer or with
the witnesses or with any other person present during the enquiry or does any act hindering
the smooth conduct of the enquiry such fact shall be recorded by the enquiry officer.

If the employee against whom the enquiry is held leaves the enquiry during the conduct of the
proceedings without the permission of the enquiry officer, the enquiry officer may at his
discretion, proceed with the enquiry without the employee being present after recording such
fact.

Functions of Enquiry Officer

An Enquiry Officer should complete the enquiry and submit his findings to the Disciplinary
Authority as expeditiously as possible. To this end he should:

1. Advise the date of the first hearing to the employee. He may also advise about the list of
documents and witnesses to be relied upon by the prosecution and forward copies of the
documents which would be received by him from the Presenting Officer.

2. Following are the persons allowed in an enquiry proceeding:

 Delinquent employee

 Presenting Officer
 Defence Representative if any

 Only one witness, at a time who is being examined

3. Ensure that the employee is present during all sittings of the enquiry. Without his presence,
enquiry should not be conducted.

4. At the enquiry, ensure identity of the employee and ascertain basic details about him, such
as name, age, etc.

5. Ask the employee whether he has received the charge sheet quoting the charge sheet
number and date.

6. Read out the charges one by one and ask him whether he admits the charge. If the
employee pleads guilty for a charge proceed to the next charge. If he does not plead guilty to
the charges, ask him if he is going to be represented by any defence representative. If so,
obtain letter from the employee appointing defence representative.

7. Ensure that the defence representative is no one other than a representative of a registered
union, or with the permission of the Disciplinary Authority, a lawyer. The defence
representative need not necessarily be a representative of the recognised union. If the
employee wishes to engage a lawyer, the matter should be referred to the Disciplinary
Authority and further proceedings should be held only on receipt of his advices.

8. Advise the Presenting Officer to present his case and then to start examination-in-chief of
his witnesses. Immediately after examination-in-chief of each witness is over, allow the
witness to be cross-examined by the Defence Representative and to be re-examined by the
Presenting Officer after the cross-examination is over.

9. Then ask the Defence Representative to conduct examination-in-chief of the defence

witnesses also and then follow a similar procedure as above.

10. After each witness has been disposed of obtain the signatures of all present, in the
recorded note book on each page. The witness should also sign before he leaves the room.

11. After all the witnesses of the prosecution and defence have been examined on the last day
of the sitting; the Presenting Officer may be advised to present his summing up followed by
the Defence Representative. If they so desire, they may be allowed to submit written brief. In
that case, advise Presenting Officer to submit one copy of his brief to the defence
Representative.

12. Advise the Defence Representative that on receipt of Presenting Officer’s brief, he should
submit his brief.

13. On receipt of Defence Representative’s brief, prepare the findings and submit it to the
Disciplinary Authority.

Enquiry Findings

The Enquiry Officer should narrate briefly the statement made and the evidence laid before
him both in support of and against the charge. He should analyse each charge as to whether it
is proved or not. The findings should not suggest any punishment. They should be supported
by cogent reasons to be set out clearly in the report. The Charge Sheet, Explanation, and
Record of Enquiry and the findings of the Enquiry Officer will have to be submitted to the
Disciplinary Authority, for decision.

The decision and punishment, if any, shall be communicated in writing to the employee
concerned as early as possible. The Enquiry Officer should also note

A. To conduct the enquiry on an on-going basis and not postpone it on flimsy grounds.

B. To fix the date of the next hearing at the time of postponement and advise all concerned,
in case postponement is granted under compelling circumstances.

C. To ensure that, if postponements are granted the next sitting commences at the earliest.

D. To route all communications addressed to employees / officials, calling them to attend the
enquiry as Witness / Defence Representative / Presenting Officer etc., through the Branch
Managers / Department Heads only.

E. To advise the Branch Manager / Departmental Heads at the end of each sitting, by means
of a letter mentioning the dates on which the enquiry was conducted to enable them to grant
onduty leave etc., to the concerned employees / officials. This letter should be handed over to
each of the employees / officials, who had attended the proceedings as Defence
Representative
/ Presenting Officer / Witness etc., with instructions to deliver it to their Branch Managers /
Dept. Heads concerned.
Where the delinquent employee does not have a Defence Representative and would still like
himself and his witness examined, the Enquiry Officer should formulate the questions in the
Examination in-Chief and re-examination on behalf of the employee, the cross examination
being conducted by the Presenting Officer.

OTHER SALIENT POINTS

Ex-Parte:

While reasonable opportunity should be provided to the employee to defend himself, willful
delay of the proceedings on his part on flimsy grounds such as the non-availability of
Defence Representative etc., should not be allowed. Where the enquiry is conducted ex-parte,
the Presenting Officer will present his case by introducing the witnesses and documents in the
usual manner. There will, however, be no cross-examination, since the defence is not present.
The Enquiry Officer should also record all such proceedings as detailed above and proceed
on merits of the case.

Examination-In-Chief:

An examination-in-chief is one in which the prosecution / defence asks questions of his own
witness to bring out the facts of the case from that witness, which will help him prove his
case. In the examination-in-chief, the party introducing the witness i.e., prosecution or the
defence should ascertain identity of the witness by asking a few questions relating thereto.
The witness need not answer under oath. The prosecution / defence then proceeds to get
answers by asking questions to establish the points, as may be required by it, through that
witness.

Cross-Examination:

After the examination-in-chief of each witness by prosecution / defence is over, the other side
is permitted to cross examine the witness to bring out any hollowness in his statements in the
examination-in-chief. Questions to re-establish the averment of the witness and / or leading
questions can, therefore, be asked during the cross-examination. This does not mean that
questions which are offensive or irrelevant can be permitted.
Re-Examination:

For the purposes of obtaining clarification on some of the points which emerged during cross-
examination, the side which introduced the witness is allowed to re-examine the witness after
the cross-examination is over.

Defence Representative And His Role:

The charge sheeted employee has a right to have him defended by a representative of a
registered trade union of Bank Employees. He can also be represented by a Lawyer with the
prior approval of the Disciplinary Authority.

The Enquiry Officer should note that he has no powers to permit the delinquent employee to
be represented by a Lawyer. If a request therefore is received, it should be referred to the
Disciplinary Authority for his approval. It should also be noted that there can be only one
representative for each employee.

The role of the Defence Representative is to disprove the charges leveled against the
delinquent employee in the charge sheet. To this end, he will also produce documents and
witnesses well in advance and cross-examine prosecution witnesses. He will also submit a
brief to the Enquiry Officer, after going through the prosecution brief.

Awarding of Punishment by Disciplinary Authority:

On receipt of the proceedings and findings of the Enquiry Officer, the Disciplinary Authority
should forward a copy of the findings of the Enquiry Officer to the delinquent employee and
advise him to submit his comments on the findings of the Enquiry Officer within a specific
period of time.

On receipt delinquent employee’s comments or after expiry of specific period of time given
to delinquent employee to submit his comments, the Disciplinary Authority should come to
his own conclusion by going through all the papers and applying his mind dispassionately.
He should also record his views on the Enquiry Officer’s findings in respect of each charge
separately.

Show Cause Notice:

After deciding the punishment for the misconduct proved against the employee the
Disciplinary Authority should issue a show cause notice furnishing his order and proposing
the punishment
and advising the employee to show cause why such a punishment should not be awarded to
him. Consideration of the Past Record: The Disciplinary Authority should also go into the
past record of the employee while awarding the punishment. When it is favourable to the
employee and the misconduct committed by and approved against him is of a minor nature,
the Disciplinary Authority may take a lenient view.

In case of adverse past record, it should be disclosed to him (employee) in the show cause
notice and he should be given an opportunity to explain the same. The past record is relevant
only for the purpose of awarding punishment and not for finding whether the employee is
guilty or not of the charge.

After considering all the above factors, and after affording a personal hearing to the
employee, the Disciplinary Authority will issue the final order reducing or confirming the
punishment already proposed or exonerating the employee, as he may deem fit.

Appeal:

An employee can appeal to the Appellate Authority against the decision of the Disciplinary
Authority. But it should be done within a specified time limit from the date of communication
of the final order of punishment by the Disciplinary Authority.

The Appellate Authority should also give a personal hearing to the employee if so required
by him in case of dismissal. He may also be permitted to be represented by a Defence
Representative. At the stage of appeal, the punishment awarded by the Disciplinary Authority
can only be retained or reduced but not enhanced by the Appellate Authority. The appellate
authority should dispose of the appeal within a stipulated time

Impact of section 11-A of the Act The significance of domestic enquiries has reduced due
to the introduction of section 11-A in the Act and the finding of the SC in The Workmen of
Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management,4 wherein it was
held that even if no enquiry or defective enquiry had been conducted by the management of
the industrial establishment, the parties can adduce evidence before the Industrial Tribunal
(“Tribunal”) to prove their stand. Thus, before section 11-A was introduced and a valid
enquiry was conducted, the Tribunal could only interfere with the decision of the
management on the following four

4
AIR 1973 SC 1227.
CASE ANALYSIS

1) The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. vs. The
Management and Ors. 1973 AIR 1227, 1973 SCR (3) 587

Constitutional and Statutory Provisions Discussed

1. Amendment of Industrial Tribunal Act in 1971

2. Section 11A of the Tribunal Act
Facts:

The Workmen of Firestone Tyre and Rubber Co. of India had a Dispute with its employer
regarding the termination of its workmen on a Domestic Enquiry finding. During the
pendency of the Dispute, the Industrial Tribunal Act had been Amended in 1971, and Section
11A conferring the powers of Appellate Authority to the Industrial Tribunal over the
Domestic Enquiry decision had been inserted.

The Tribunal decided the case in favor of the Employer, refusing to have a Retrospective
effect of Section 11A.

Issues

1. What is the proper interpretation of section 11A of the Industrial Disputes Act and
whether it has a retrospective application (whether it applies to industrial disputes
pending as on 15-12-1971)

Argument by counsel for petitioners

 It is now obligatory on an employer to hold a proper domestic inquiry in which all

material evidence will have to be adduced. When a dispute is referred for adjudication
and it is found that the domestic inquiry conducted by the management is defective or
if it is found that no domestic inquiry at all had been conducted, the order of
discharge or termination passed by the employer becomes unjustified and the Labour
Tribunals have no option but to direct the reinstatement of the workmen concerned.
 Even in cases where a domestic inquiry has been held and finding of misconduct
recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the
evidence and to satisfy themselves whether the evidence justifies the finding of
misconduct and if the inquiry proceedings are held to be proper and the finding of
misconduct is also accepted, the Tribunal has no power to consider whether the
punishment of dismissal or discharge was necessary and the Tribunal can give any
other relief to the workman.
  In cases where an employer had not conducted any inquiry or when the inquiry
conducted by him is held to be defective, the employer will not be given an
opportunity to adduce evidence before the Labour Tribunal for justifying his
action.
 If an employer does not conform to the provisions of the Standing Orders, he commits
illegality and order passed, which is illegal, has only to be straightway set aside by the
Tribunal.
 Only such evidence, which could and should have been produced by the parties in the
domestic inquiry, is not allowed to be adduced before the Tribunal
 According to the learned Counsel, Section 11A applies not only to references, which
are made on or after 15-12-1971 but also to all references already made and which
were pending adjudication on that date. It is pointed out that Section 11A has been
incorporated in Chapter IV of the Act dealing with procedure, powering, and duties of
authorities. Accordingly, Section 11A deals with matters of procedure. Applying the
well-known canon of interpretation, procedural laws apply to pending proceedings
also.
 No right, much less any vested right, of the employers have been taken away or
affected by Section 11A. Considerable stress has been laid on the use of the
expressions ‘has been referred’ occurring in Section 11A, as conclusively indicating
the applicability of the section even to disputes already referred.
 Assuming that an employer has a right to adduce evidence for the first time before the
Tribunal that right ensures to him only after the Tribunal had adjudicated upon the
validity of the domestic inquiry. It cannot be characterized even as a right, much less
a vested right, because it is contingent or dependent upon the Tribunal’s adjudication
on the domestic inquiry. The Tribunal, when it adjudicates a dispute on or after 15-12-
1971, has to exercise the powers conferred on it by Section 11A, even though the
dispute may have been referred before that date. Hence it is clear that the section
applies even to all proceedings pending adjudication on 15-12-1971.
Arguments for respondents:

 The counsel took the support of the common-law relationship of master and
servant5 and stated that the right of an employer to manage his affairs in his own way
provided he does not act arbitrarily is kept intact by this amendment.
 An employer is expected to hold a domestic inquiry before an order of dismissal or
termination is passed. He is also bound to follow, in such cases, the principles of
natural justice and the procedure laid down by the relevant Standing Orders.
 The Tribunal will not interfere with the finding recorded by an employer in a
proper inquiry merely on the ground that it would have come to a different
conclusion. The punishment to be noted out was entirely within the powers and
jurisdiction of an employer and it was no part of the jurisdiction of a Tribunal to
decide whether the said punishment was justified except in very rare cases where
the punishment

5
Indian Iron and Steel Co. Ltd. and Anr. v. Their workmen (1958) SCR. 667
 imposed is grossly out of proportion, so as to suggest victimization or unfair labor
practices.
 But Under Section 11A, after the Tribunal holds that the inquiry has been conducted
properly by an employer and that the finding of misconduct is correct, it has
jurisdiction to consider whether the punishment requires modification. If it holds that
the punishment has to be modified, it has the power to do so and award a lesser
punishment. Section 11A comes into effect only at the time when the Tribunal
considers the punishment to be imposed.
 While previously the Tribunal had no power to interfere with the punishment, it is
now clothed with such a power. This is the only modification regarding the powers
of the management that has been introduced by Section 11A.
 With reference to section 33 of the Act, the proper way of interpreting Section 11A
would be to hold that it comes into play after a Tribunal bar held the inquiry
proceedings conducted by the management to be proper and the finding of guilt
justified. It is then that the Tribunal can consider whether the punishment imposed is
justified. If it is of the opinion that the punishment is not justified, it can alter the
same.
 The retrospective operation should not be given unless it appears very clearly by the
terms of the section or arise by necessary and distinct interpretation. The employers
would have molded their behavior according to the principles laid down by a series of
decisions and if the rights recognized in an employer are to be taken away, that can be
done so only by a clear expression to that effect; or such intention to take away or
interfere with those rights must appear by necessary intendment.
 The words of the section clearly show that it applies only to disputes in respect of
which a reference is made after the section has come into force I.e. 15-12-1971. The
expressions ‘have been referred’ in the section only signify that on the happening of a
particular event, namely, a reference made in the future, the powers are given to the
Tribunal, whatever they may be, can be exercised.
Judgment:

Ratio Decidendi:

 The Court observed that the right to take disciplinary action and to decide upon the
degree of punishment is only a part of the managerial functions. However, if a dispute
is referred to the Tribunal, the tribunal is equipped with the power to see if the
employer’s action is justified. According to Indian iron and steel Co. Ltd. case, the
court can interfere in the dispute (i) when there is want of good faith; (ii) when there
is victimization or unfair Labour practice, (iii) when the management has been guilty
of an error or a violation of the principles of natural justice or (iv) when findings are
completely baseless and perverse as per the materials
 When a proper inquiry has been held by an employer, and the finding of misconduct
is deemed to be a possibility the Tribunal, as an appellate body has no jurisdiction to
oversee a judgment and go beyond the decision of the employer. The interference
 with the decision of the employer will be justified and imposed only when the
findings arrived at the inquiry shows that management is guilty of exploitation, unfair
labor practice, or malicious intentions. In the case of Madras v. workers of
Buckingham and Carnatic company Ltd.,6 it was held that decision of the
Management in relation to the charges against the employee will not prevail-if (a)
there is want of bona fide, or (b) it is a case of victimization or unfair labor practice
or violation of the principles of natural justice, or (c) there is a basic error of facts or,
(d) there has been a perverse finding on the materials.
 In cases when no inquiry has been held by an employer/if the inquiry held is
defective, the Tribunal can satisfy itself about the legality of the order only when it
gives an opportunity to the employer and employee to present evidence before it. It
is up to the employer to adduce/present evidence for the first time justifying his
action and to the employee to adduce evidence contra.
 The Court also opined that the effect of an employer not holding in inquiry is that the
Tribunal would not have to consider only whether there was a prima facie case. The
Court will the opine on the issue about the merits of the impugned order of dismissal
and on the evidence adduced before it which will decide for itself whether the
misconduct alleged is proved or not.
 Under section 11A by the Tribunal is reached only when it has to consider the
punishment after having accepted the finding of guilt recorded by an employer. It has
to be remembered that a Tribunal may hold that the punishment is not justified
because the misconduct alleged and found proved is such that it does not warrant
dismissal or discharge.

 The Tribunal can also hold that the order of discharge or dismissal is not justified
because the misconduct is not established by the evidence. To come to a conclusion
the Tribunal is equipped to consider and judge the evidence for itself and it may hold
that the misconduct is not proved or that the misconduct proved does not entail the
punishment of dismissal. This is why Section 11A now gives full power to the The
principle is well established that a retrospective operation is not to be given to a
statute so as to impair an existing right. This is the general rule. But the legislature is
competent to pass a statute so as to have retrospective operation, either by clearly
expressing such intention or by necessary and distinct intendment.7
 That procedural law has always been held to operate even retrospectively, as no party
has a vested right in the procedure.8
 Tribunal to go into the evidence and satisfy itself on both these points.

6
Madras v. workers of Buckingham and Carnatic company Ltd., AIR 1960 Mad 106; (1959) IILLJ 781 Mad.
7
Garikapatti Verraya v. N. Subbiah Choudhury MANU/SC/0008/1957: (1957) 1 SCR 488.
8
In re Atlumhney v. Ex-parte Wilson (1808) 2 Q.B. 547.
2) Central Inland Water Transport Corporation Limited and Ors. vs. Brojo Nath
Ganguly and Ors.

Facts: The majority of the shares of the Appellant, the Central Inland Water Transport
Corporation Limited were held by the Union of India which is the Second Respondent, and
the remaining shares were and are held by the State of West Bengal and the State of Assam.

Legal provisions involved:

Article 39 (a) directs the State to make its policies in a way whereby both the men and
women have equal right to adequate livelihood.

Article 41 lays down that the State should make provisions with regards to securing the right
to work, education and public assistance.

Article 14 states that the State cannot deny any person equality before the law or the equal
protection of the laws.

Issues:

Whether a rule made by a government company authorising it to terminate the employment

of a permanent employee by giving him three months' notice and without giving him chance
to be heard is violative of Arts. 39(a) and 41 and ultra vires Art. 14?

Judgment:

Held, that adequate means of livelihood cannot be secured to the citizens by taking away
without any reason the means of their livelihood. The company cannot secure the right to
work by giving employment to a person and then without any reason throwing him out of
employment.
3) Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Ors. 1991 AIR 101

Facts: Respondents were regular employees of Delhi Transport Corporation. Their

employment was terminated by the Appellants by giving 1 month notice under a Company
Regulation on the ground that their performance was not satisfactory and that were causing
other employees problems in their work.

Issues:

1) The question arose on the constitutional validity of the right of the employer to terminate
the services of permanent employees without holding any inquiry in certain circumstances by
reasonable notice or pay in lieu of notice?

Judgment:

Held, that the regulation of the Corporation to terminate permanent employee by giving them
1 month notice without assigning a reason or giving an opportunity to be heard was against
the Principles of Natural Justice and violative of Article 14 for being arbitrary

4) THE MANAGEMENT OF BOSCH V. MR VIJAYA BHASKARA 20169

FACTS:

The petitioner has raised a dispute with regard to his dismissal which is being considered in
ID No.38/2012 before the II Addl. Labour Court, Bangalore. In the said proceedings, the
issue relating to the validity of the domestic inquiry was considered as a preliminary issue.
By the order impugned dated 07.02.2015, the domestic enquiry is held as not fair and proper.
The said order is assailed and while doing so, the petitioners have also assailed the
subsequent order dated 01.10.2015 by which the Labour Court had rejected the application
where under the petitioner management had sought to recall the order dated 07.02.2015. The
petitioner also raised the issue that the order from the enquiry should be held invalid as there
was no opportunity for cross-examination. The documents relating to the domestic enquiry
were also not marked.

ISSUES:

1. Whether the order of the domestic enquiry should be set aside by the court due to faulty
cross-examine procedure.

9
WRIT PETITION No.53815/2015
2. Whether the faulty procedure for marking the documents of the domestic enquiry will
render the enquiry as invalid.

REASONING:

The court submits that the first party has no objection to marking the documents produced by
the second party with regard to the domestic enquiry. By the said fact, the documents relating
to the domestic enquiry would stand marked and the documents would be available for the
purpose of being looked into by the Presiding Officer before coming to a conclusion on the
validity of the domestic enquiry.

If this aspect of the matter is kept in view and order dated 07.02.2015 on domestic enquiry
i.e., issue No.1 is taken into consideration, it is seen that the learned Presiding Officer of the
Labour Court has set aside the domestic enquiry due to the reason that MW.1 has not been
cross- examined and also WW.1 had not been cross-examined.

Therefore, in a circumstance, where procedural irregularity committed by the Labour Court is

taken note of which would affect the right of the party and in that circumstance when the
order is set aside and liberty is to be granted to the petitioner to put forth their contention with
reference to the documents that were marked to establish the validity of the enquiry.

JUDGEMENT:

The order of the domestic enquiry was set aside due to faulty procedure and lack of proper
cross-examination.

5. UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION VS

RAJENDRA SINGH AND ANOTHER 201610

FACTS:

The petition arises out of an award of the labour court in the favour of the respondent
workman who had been served two charge-sheets in a domestic enquiry and two separate
orders were passed on 21st April 2001 terminating his services. The first charge sheet was in
relation to misbehaviour. The workman was found to be absent from work habitually and also
known to use un-parliamentary language in the workplace. He used such language to force
his superiors to add his name in the attendance register due to his absence. The respondent
contended that

10
Civil Misc. (WP) No.38571 2016
the enquiry officer only took “material on record” as evidence and did not allow a chance for
the respondent to bring his own evidence.

ISSUES:

1. Whether if the domestic enquiry is held invalid by the court then the respondent workman
can bring his own new evidence for the domestic enquiry.

2. Whether the domestic enquiry has been done in a fair manner or not.

REASONING:

The court was of the opinion that the domestic enquiry was not done in a fair manner as the
respondent workman should have gotten the chance to present his own evidence. It violates
the principles of natural justice.

JUDGEMENT:

The labour court was ordered to conduct the domestic enquiry again as expeditiously as
possible.

6. G N ASHWATHNARAYANA VS THE DIVISIONAL CONTROLLER11

FACTS:

The petitioner was working as a driver when the bus he was driving was met with an accident
and he had to amputate his leg due to the accident. He was removed from the position of the
driver and kept as an office-bearer.

The employee was alleged to cause the misconduct due to negligence and action was taken
upon the corporation against him. The punishment ordered reduced his wage to a minimum
of that cadre. Since the order was preceded after a domestic enquiry, the validity of the
domestic enquiry was challenged. The order was challenged and the labour court set aside the
order of the domestic enquiry.

The law is well established that when a report of the domestic enquiry has been challenged
due to the punishment’s validity, then if the order has been set aside the punishment should
also be re-established by the management by tendering fresh evidence before the labour
court.

11
Civil Appeal No. 8042 SLP (C)
The corporation, which was well aware of the law did not follow the procedure and the same
punishment was followed.

ISSUES:

Whether the punishment can be held as valid even after setting aside of the order of the
domestic enquiry.

REASONING:

In such a situation, when the entire negligence cannot be attributed to the petitioner even on
the basis of the available materials, imposition of such harsh punishments of reducing his
wage to the lowest of the pay scale would seriously affect his services and the terminal
benefits. An appropriate punishment requires to be imposed and in the [resent facts ends of
justice should have been met.

JUDGEMENT:

The punishment order is modified withholding the two increments. And the pay scale os
adjusted according to the facts of the case.

7. MR T SOLAIAPPAN VS THE PRESIDING OFFICER ON 6TH OCTOBER 201512

FACTS:

The employee namely T.S.Sundara Pandian has filed a memo stating that he was terminated
from services by the management on 19.08.2009 after a sham enquiry. The said enquiry was
not conducted in a full and proper manner. The enquiry was not conducted in accordance
with the principles of natural justice. The petitioner has challenged the validity of the
domestic enquiry held by the management on various grounds in his claim statement.
Therefore, it is just and necessary that validity of the domestic enquiry has to be decided as a
preliminary issue, unless a preliminary issue with regards to the validity of the domestic
enquiry is framed and decide on the petitioner will be exposed to severe hardship. Hence, the
employee prayed before the trial Court to frame a preliminary issue with regard to the
validity of the domestic enquiry and decide the same in the first instance.

ISSUES:

12
(MAD) W.P.No.29964 2016
Whether the domestic enquiry was held in accordance to principles of natural justice.
REASONING:

The court observed that the management had not conducted an enquiry in a proper manner
without giving opportunities to the employees and dismissed them from service in an
arbitrary manner, as such the principle of natural justice has been violated.

About 900 employees working with the management under various categories, out of them
1/3 of the employees are made permanent while the rest of them are kept temporarily on long
periods. The office bearers of the employees union have filed cases before this Court and
Labour Court for the welfare of the employees and protection of their rights. The
management also reduced the employees as lay-off and also asked the employees to go on
voluntary retirement. Under these circumstances, the management had issued charge sheet
and show cause notice against false allegations stating that the employees had committed
misconduct and dismissed from service without any procedural enquiry.

Further, the management had not provided any opportunities to participate in the domestic
enquiry in person, therefore, the dismissal order arrived as exparte, hence a fresh domestic
comprehensive enquired is most essential.

Therefore, the employees have filed a memo before the Labour Court and requested the trial
Court to direct the management to conduct a fair and impartial enquiry in accordance with the
principles of natural justice. This is the main / preliminary issue, the management also
exposed that they have no objection to frame a preliminary issue with regard to the validity of
the domestic enquiry but the trial Court has given an alternative view for which the same has
not been prayed for by the parties.

JUDGEMENT:

The order of domestic enquiry was set aside and the court ordered for another domestic
enquiry by the management

8. RAVINDRA SINGH BANATAR VS MANAGING DIRECTOR AND ORS on 24

July, 201713

FACTS:

13
WP No.1965 2004
The petitioner was conductor in the M.P.S.R.T.C.. His services were terminated on 16- 5-
1994 finding him guilty under Section 12(1)(b)(d) of the M.P. Industrial Relations Act, 1960
which lead to moving an application by the petitioner under Section 31 (3) of the said Act
questioning the domestic enquiry and termination. The Labour Court held that domestic
enquiry is vitiated for non- compliance of the principles of natural justice, however, permitted
the employer to lead evidence to prove misconduct and in turn, the employer led evidence to
prove misconduct which was accepted by the Labour Court and the application was
dismissed which has been upheld by the Industrial Court leading to filing of this writ petition
before this Court challenging the orders passed by the two courts below.

ISSUES:

Whether domestic enquiry holds a significance in the decision making process. REASONING:

Before imposing the punishment, an employer is expected to conduct a proper enquiry in

accordance with the provisions of the Standing Orders, if applicable, and principles of natural
justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been
held by an employer, and the finding of misconduct is plausible conclusion flowing from the
evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over
the decision of the employer as an appellate body.

The interference with the decision of the employer will be justified only when the findings
arrived at in the enquiry are perverse or the management is guilty of victimization, unfair
labour practice or Even if no enquiry has been held by an employer or if the enquiry held by
him is found to be defective, the Tribunal in order to satisfy itself about the legality and
validity of the order, had to give an opportunity to the employer and employee to adduce
evidence before it. It is open to the employer to adduce evidence for the first time justifying
his action, and it is open to the employee to adduce evidence contra mala fide.

JUDGEMENT:

The domestic enquiry was held to be legal and the decision was based according to the
evidence.
9. STEEL AUTHORITY OF INDIA VS STATE INDSTRIAL COURT AND ORS on 1
February, 201614

FACTS:

Steel Authority of India/petitioner herein after holding domestic inquiry against respondent
No.2/workman herein dismissed him from service. He filed an application under Section
31(3) read with Section 61 of the Chhattisgarh Industrial Relations Act, in the Labour Court
for declaring his termination void and illegal.

The petitioner/management in its written statement justified the domestic enquiry conducted
against respondent No.2 and accordingly, sought adjudication on validity of domestic enquiry
as preliminary issue. It was also stated in the written statement that if the preliminary issue is
decided against the management holding the domestic enquiry illegal, an opportunity may be
given to the petitioner/management to adduce evidence to support the charges levelled
against respondent No.2/workman.

Accordingly, preliminary issue was framed as to whether the domestic enquiry is valid or not
and by order dated 27.9.2010, preliminary issue was decided against the peti-
tioner/management and in favour of respondent No.2/ workman by holding that domestic
enquiry conducted against the workman to be illegal & void and after holding so, the Labour
Court noted that since the management has already taken a plea in its written statement to
adduce fresh evidence to justify the charge against workman leading to his dismissal, the
management was granted opportunity to adduce evidence to justify the dismissal of
workman/respondent No.2 along with all other issues. Against that order, respondent
No.2/workman filed an application before the Labour Court for not granting opportunity to
the petitioner/management to adduce evidence on alleged misconduct of the workman, that
application was rejected by the Labour Court by order dated 29.1.2011.

Feeling aggrieved against the order dated 29.1.2011, respondent No.2/workman preferred an
application under Section 67 read with Section 64A of the CGIR Act before the Industrial
Court. The Industrial Court relying upon the Division Bench decision of High Court of
Madhya Pradesh in the matter of R.K.Nair v. General Manager, Bhilai Steel Plant, Hindustan
Steel Ltd., Bhilai & another 1 by its impugned order held that since the Labour Court found
the inquiry to be illegal on the ground that enquiry report was not proved, it could have
examined evidence

14
WPL No. 30 Of 2012
of the enquiry to find out whether the charges were proved or not. Industrial Court has
committed grave legal error in setting aside the order passed by the Labour Court.

ISSUES:

Whether the Labour Court should hold a fresh enquiry on the charges of misconduct or
whether it should give its findings on the charges on the basis of the enquiry conducted by the
management when there is no defect in the enquiry.

REASONING:

The Industrial Court without holding the domestic enquiry to be valid and proper, interfered
with the finding of the Labour Court, depriving an opportunity to the petitioner/management
to lead evidence to prove the charges of misconduct against respondent No.2/workman. The
Industrial Court committed legal error in applying the law laid down by the Division Bench
of High Court of Madhya Pradesh in the matter of R.K.Nair (supra), which is inapplicable to
the facts of the present case.

JUDGEMENT:

Order passed by the Industrial Court interfering with order of the Labour Court is bad and
unsustainable in law and order dated 28.4.2011 and consequential order dated 22.12.2011
passed by the Industrial Court are hereby set aside and order dated 27.9.2010 and 29.1.2011
passed by the Labour Court are hereby restored.

10. M.L. SINGHLA VS PUNJAB NATIONAL BANK AND ANR 201915

FACTS:

The appellant, at the relevant time, was working as Cashier in the PNB, Branch Office at Jind
(Punjab).

On 21.03.1984, the appellant while on duty was found consuming liquor in the Branch. On
the same day, respondent No.1 Bank also found shortage of Rs.35,000/in daily cash balance
on verification of the daily accounts. Respondent No.1 Bank, therefore, decided to hold a
departmental inquiry to probe the aforementioned two charges against the appellant as per the
service rules.

15
Civil Appeal No.1841 of 2010
A chargesheet was accordingly served on the appellant on 11.10.1985. Besides this at closing
of the day, you received Rs.95,448.35 on account of the balance of receipt made by the
Assistant Cashier. Thus, including the cash in the cash safe total receipt made by Asstt.
Cashier during the day of the closing balance should have been Rs.4,58,219.39 with you
whereas the actual balance was only Rs.423,219.39 with you showing a shortage of
Rs.35,000/and thus you acted in a manner which is prejudicial to the interest of the Bank or
gross negligence involving the Bank in serious loss. Further, on your request you were
advance Rs.35,000/from the suspense account to meet the shortage of Rs.35,000/- occurred
on that day due to your gross negligence."

Respondent No.1Bank on 06.12.1985 appointed an Enquiry Officer and the Presenting

Officer. The appellant on being served with the chargesheet submitted his reply on
29.10.1985.

Respondent No.1Bank and the appellant then participated in the enquiry and adduced
evidence in support of their respective stands. On 12.02.1987, the Enquiry Officer submitted
his Enquiry Report. He held that both the charges are proved against the delinquent
employee. Respondent No.1 then sent a show cause notice along with the Enquiry Report on
25.07.1987 to the appellant proposing therein to inflict the punishment of dismissal from
service. The appellant filed his reply. On 29.08.1987, the Competent Authority, on perusal of
the Enquiry Report and the reply, concurred with the findings of the Enquiry Officer and
accordingly passed a dismissal order dated 29.08.1987.

The appellant, felt aggrieved by his dismissal order, filed appeal before the Appellate
Authority as provided in service rules. The Appellate Authority, by order dated 26.02.1988,
dismissed the appeal finding no merit therein.

The appellant then approached the State Government praying for making an Industrial
Reference to the Labour Court to decide the legality and correctness of his dismissal order
under the Industrial Dispute Act, 1947 (hereinafter referred to as "the ID Act". The State
Government acceded to the request of the appellant and accordingly made the following
Reference on 16.08.1989 to the Labour Court under Section 10 of the ID Act: "Whether the
action of the management of Punjab National Bank in dismissing from service Shri M.L.
Singla is justified? If not, to what relief is the workman entitled?"
The Labour Court, on receipt of the Reference, issued notices to the parties. The parties filed
their statements. The Labour Court then asked both the parties to adduce their evidence. Both
the parties accordingly adduced their evidence.

By award dated 30.05.2006, the Labour Court answered the Reference in appellant's favour.
It was held that the finding of the Enquiry Officer on Chargel I and II is perverse and,
therefore, it was set aside. It was further held that since no evidence was adduced by
respondent No.1Bank to prove that the appellant (employee) was gainfully employed
elsewhere after his dismissal, he was entitled to claim 50% back wages along with the relief
of reinstatement. With these findings, the Labour Court set aside the dismissal order dated
29.08.1987 and answered the Reference in appellant's favour. The Labour Court, however,
did not decide the question as to whether the domestic enquiry is legal and proper.
Respondent No.1Bank felt aggrieved and filed writ petition in the High Court. The High
Court, by impugned order, allowed the writ petition and set aside the award of the Labour
Court. As a consequence thereof, the dismissal order dated 29.08.1987 was held legal and
proper and was accordingly upheld.

It is against this order, the employee has felt aggrieved and filed the present appeal by way of
special leave in this Court. It is necessary to examine the legality and correctness of the
award of the Labour Court in the first instance and then the impugned order.

ISSUES:

Whether labour court can examine the chrages without pronouncing domestic enquiry as
illegal.

REASONING:

It was obligatory upon the Labour Court to first frame the preliminary issue on the question
of legality and validity of the domestic enquiry and confined its discussion only for
examining the legality and propriety of the enquiry proceedings. Depending upon the finding
on the preliminary issue on the legality of the enquiry proceedings, the Labour Court should
have proceeded to decide the next questions. The Labour Court while deciding the
preliminary issue could only rely upon the evidence, which was relevant for deciding the
issue of legality of enquiry proceedings but not beyond it. In other words, the Labour Court
failed to see that it would have assumed the jurisdiction to examine the charges on the merits
only after the domestic enquiry had been held illegal and secondly, the employer had sought
permission to
adduce evidence on merits to prove the charges and on permission being granted he had led
the evidence.

JUDGEMET:

Dissmissal of the order an the decision of the high court were upheld.

11. Delhi Cloth & General Mills Co vs Ludh Budh Singh on 11 January, 197216

FACTS

An inquiry was held into certain allegations of misconduct against the respondent, who
was an employee of the appellant, and the Enquiry Officer made a report holding that the
allegations had been proved. The appellant accepted the report and decided to dismiss him.
Since an industrial dispute between the appellant and its workmen was pending before the
Industrial Tribunal, an application was made tinder S. 33 of the Industrial Disputes Act, 1947,
to the Tribunal for permission to dismiss the respondent. Before the Tribunal neither party
examined witnesses and the appellant relied only on the enquiry proceedings. After
arguments, the Tribunal reserved judgment. The appellant, then filed ,in application praying
that if the enquiry proceedings were found to be defective the appellant should be given an
opportunity to adduce evidence to justify the action proposed to be taken. The Tribunal did
not deal with the application but held that the enquiry proceedings had not been properly
conducted and the findings of the Enquiry Officer were not in accordance with the
evidence before him, and refused permission for dismissing the respondent.

ISSUES

Whether the Domestic Enquiry found defective?

REASONING

The application filed by the management for permission to adduce evidence was highly
belated. We have already emphasised that the enquiry proceeding before the Tribunal is a
composite one, though the jurisdiction of the Tribunal to consider the validity of the domestic
enquiry and the evidence adduced by the management before it, are to be considered in two
stages. It is no doubt true that the management has got a right to adduce evidence before the
Tribunal in case the domestic enquiry is held to be vitiated. The Tribunal derives jurisdiction
to deal with the

16
1972 AIR 1031
merits of the dispute only if it has held that the domestic enquiry has not been held properly.
But the two stages in which the Tribunal has to conduct the enquiry are in the same
proceeding which relates to the consideration of the dispute regarding the validity of the
action taken by the management. Therefore, if the management wants to avail itself of the
right, that it has in law, of adducing additional evidence, it has either to adduce evidence
simultaneously with its reliance on the domestic enquiry or should ask the Tribunal to
consider the validity of the domestic enquiry as a preliminary issue with a request to grant
permission to adduce evidence, if the decision of preliminary issue is against the
management. An enquiry into the preliminary issue is in the course of the proceedings and
the opportunity given to the management, after a decision on the preliminary issue, is really a
continuation of the same proceedings before the Tribunal. In the case before us, it is seen
from the order sheet that Item No. 5 relates to the entry of March 21, 1967 regarding the
appellant having filed the enquiry proceedings and to the Tribunal having heard the
arguments of both sides on the basis of the enquiry proceedings. There is also the further
entry that judgment has been reserved by the Tribunal. That shows that the enquiry
proceedings have closed by then and what was left was only the delivery of judgment by the
Tribunal.

JUDGEMENT

In the result, the order of the Special Industrial Tribunal is confirmed and this appeal
dismissed with costs.

12. Shantanu Borthakur and Another Versus Management of Gauhati Stock Exchange
Ltd. and Another 17

FACTS:

The appellants herein were working as workmen under the respondent No. 1, namely,
Gauhati Stock Exchange, as employer, a domestic enquiry was held by the management
against the appellants on a charge of misconduct and, on the basis of the report of the
domestic enquiry, so held, both the workmen were dismissed from service. Since, however,
an industrial dispute, arising out of a charter of demands of the employees of Gauhati Stock
Exchange, was pending before the Industrial Tribunal, Guwahati, the management filed an
application, under Section 33 (2) (b) of the said Act, seeking the Tribunal's approval of the
orders of dismissal passed by them. Before the learned Tribunal, the management took the
plea that the domestic enquiry

17
[2008] III LLJ 429
was held in accordance with law and that the findings recorded by the Enquiry Officer were
based on a correct appraisal of the materials, which were produced in the domestic enquiry,
and, hence, the findings of the domestic enquiry as well as the action of the management in
dismissing the said workmen be sustained. The management also took the plea that in the
event the learned Tribunal found that the proceedings of the domestic enquiry were not legal,
valid and/or fair, the management may be allowed to adduce further evidence to justify the
dismissal of the workmen. The learned Tribunal did not record any finding with regard to the
validity of the domestic enquiry, but it did grant leave to the management to adduce further
evidence. The management accordingly adduced evidence. On completion of the enquiry, the
learned Tribunal passed an order, on 14. 02. 2001, declining to approve the order of
dismissal, which had been passed by the management against the workmen.

ISSUE:

Whether the domestic enquiry, in question, was legally sustainable?

REASONING

It has been pointed out by Mr. Dasgupta, at the time of hearing of the present appeal, that in
the present case, it was the General Manager of Gauhati Stock Exchange, who was alleged to
have been threatened by the present appellants as workmen, it was the General Manager, who
had issued the charge-sheet, the General Manager was one of the witnesses of the
management in the domestic enquiry and it was the General Manager, who had passed the
order (s) of dismissal against the workmen. In such circumstances, contends Mr. Dasgupta,
the order of dismissal is completely illegal. In this context, we may hasten to point out that
the General Manager, being the appropriate disciplinary authority, was the person competent
to issue the charge-sheet and to convene the domestic enquiry. The domestic enquiry was,
however, conducted by a person other than the General Manager. As the General Manager
was a witness to the alleged incident, it was but natural that he had to be examined, in the
domestic enquiry, as a witness to sustain the charge. The finding of the domestic enquiry was,
in fact, placed before the Committee of Management, Gauhati Stock Exchange, and it is the
said Committee, which agreed with the findings of the enquiry officer and dismissed the
workmen. As a functionary of the management, it is just a coincidence that the General
Manager had to issue the order of dismissal. In such circumstances, the contention of Mr.
Dasgupta that unfairness, in conducting the domestic enquiry, is writ at large cannot be
sustained.
JUDGEMENT

Because of what have been discussed and pointed out above, we find absolutely no merit in
this appeal. This appeal, therefore, is not admitted and the same shall accordingly stand
dismissed.

13. IDMC LIMITED VERSUS MISTRI MOHAMAD CHHOTABHAI LNIND 18

FACTS

It has emerged that before dispute arose, the respondent (hereinafter referred to as
'the claimant') was serving with the petitioner company as Senior Technician, Grade•III.
3.1 Somewhere in 2006, the claimant raised industrial dispute with the allegation
that the opponent company (present petitioner) illegally terminated his service by
oral direction on 30.8.2005. With the said allegation, the claimant demanded that he should
be reinstated in service. 3.2 Appropriate government referred the dispute for adjudication
to the learned Labour Court at Anand. The learned Labour Court registered the dispute.
By order dated 19.8.2004, his service was transferred to Baroda Dairy and that in compliance
of the said order, he had reported for duty at the place of transfer. The claimant
also alleged that in August 2005 while he was on duty certain incidents occurred
on 27.8.2005 and 28.8.2005. The claimant also alleged that after the said incidents
from 27.8.2005 and 28.8.2005, his service came to be terminated on 30.8.2005 by
oral direction. The claimant also specifically and expressly alleged that his service
was terminated without any notice, any charge•sheet and without informing any
reason or without granting opportunity of hearing and without following procedure
prescribed by law.

ISSUE:

Whether the enquiry is defective and illegal?

REASONING

In present case the said course is more appropriate because the petitioner company
itself has vide above mentioned applications/pursis already submitted before learned
Labour Court that it intends to lead evidence and establish the charge of misconduct.

18
2018 GUJ 1468
On this count and with reference to above quoted observations it is relevant to
mention that in present case the petitioner has done what Hon'ble Court deprecated
inasmuch as the reference proceedings have been stalled. The interlocutory order
passed by the learned Tribunal in July 2013 came to be challenged in 2016 (after
3 years) and thereafter further 2 years have passed. During this period the case before
the learned Tribunal has not progressed.

JUDGEMENT

The decisions and pendency of the proceedings before the trial Court and the
applications submitted by the company after the Court passed impugned interlocutory
order, it would be, in the interest of justice and fitness of things and it would be proper and
just to clarify that it is open and permissible to the company to agitate said issue viz.
learned Labour Court's decision that the domestic inquiry is defective and therefore,
illegal, after final decision in the reference is rendered. With aforesaid clarification, petition is
not accepted. Petition accordingly stands disposed of. Orders accordingly.

14. Delhi Transport Corporation vs N.L. Kakkar Presiding Officer, on 17 March, 200419

FACTS

On 4th May, 1972, two Assistant Traffic Inspectors Om Prakash and H.C. Dutta checked a
DTC bus for ticketless travellers. Three ladies in a group, alighting from the bus after
completing their journey from East Park Road to Fatehpuri, were found to be without tickets.
On being asked, they stated that they had given a one-rupee note to the conductor
(Respondent/workman herein) who returned 40 paise to them, but did not issue any ticket. On
being confronted, the conductor stated that the tickets were lying on the foot-board of the bus.
These ladies were immediately taken to a Special Metropolitan Magistrate/Mobile Court for
being challaned for ticketless travel. What seems to have transpired is that the fare payable by
each lady was 25 paise and when the conductor saw the checking staff, he issued them tickets
of 20 paise each. Two other passengers in the bus stated that the conductor threw these tickets
on the floor of the bus. These tickets were seized by the checking staff and were found to be
of inadequate denomination and not punched at the proper place. Since the fare was 25 paise
each, the checking staff asked the ladies to give another 15 paise to the conductor who then
issued three more tickets of 5 paise each. A challan was then issued to the conductor and the
checking

19
2004 (73) DRJ 568
staff prepared their report accordingly. On these broad facts, the conductor was issued a
charge sheet on 4th September, 1972.

ISSUE:

whether hearsay evidence can be accepted in a domestic inquiry?

REASONING

The facts of the present case show that there was some evidence before the Inquiry Officer, in
the form of the statements of Om Prakash and H.C. Dutta and the report prepared by them.
More importantly, the conclusion arrived at by the Special Metropolitan Magistrate/Mobile
Court should have really concluded the issue against the conductor. Unfortunately, the
learned Tribunal did not approach the issues before it in the right perspective and on the basis
of the law laid down, and that is why it fell into error. It was certainly not a case of no
evidence. It was also not a case of perversity, because there was some legal evidence before
the Inquiry Officer, evidence that had high probative value and that had nexus with the events
that were being enquired into. Once this is established, and I think it has been established in
this case, the question of upsetting the conclusions of fact arrived at by the Inquiry Officer
does not arise, as held in Rattan Singh and consistently followed by this Court.

JUDGEMET

Under the circumstances, the learned Tribunal erred in holding that the domestic inquiry was
vitiated. It must be held that the guilt of the conductor was correctly established by the
inquiry officer. The first impugned order must, therefore, be set aside and the order of
removal from service passed against the Respondent conductor on 14th August, 1974 is
restored. Consequently, it is held there was no occasion for DTC to lead evidence before the
learned Tribunal to establish the guilt of the conductor. The second impugned order is
required to be quashed for this reason alone. The writ petition is allowed. The order dated
25th April, 1977 passed by the learned Additional Industrial Tribunal in O.P. No. 85 of 1974
is quashed. No costs.
15. Standard Pottery Works, Alwaye Versus Standard Pottery Works Employees’
Union and another20

FACTS

This case decided on 10th February, 1981 without hearing the learned Counsel for the first
respondent as he was absent and since no representation on his behalf was made by any one,
has been reopened and reheard pursuant to the order allowing praying that the case may be
reheard and decided afresh, As per Ext. P3 order the second respondent, the Labour Court,
Ernakulam, took the view that the domestic enquiry held into the charge of misconduct
alleged and levelled against one Sri P.S. Velappan, whose cause was espoused by the first
respondent- union before the second respondent, was not proper. So holding, the second
respondent posted the case for fresh evidence before that Court.

ISSUES:

whether the domestic enquiry was proper or not?

REASONING

The doctrine that the parties be given adequate notice and opportunity to be heard (audi
alteram partam) requires that (1) the accusation is made known to the accused; (2) he is given
an opportunity of defence by stating his case; and (3) that the Tribunal acts in good faith.
Where there are no rules governing the procedure to be followed in a domestic enquiry
enabling the accused to be represented by another at such enquiry or prohibiting him to be
represented by another, the question of his representation is a matter of discretion of the
Tribunal holding the domestic enquiry. The accused cannot as of right claim that he be
represented by another at such enquiry. The Tribunal should consider his request to be
represented at such an enquiry with reference to the facts and circumstances of the case, the
nature of the enquiry, the subject
- matter under enquiry, the person who is going to be engaged as his representative, a legal
practitioner or not and the person who is holding the enquiry and so forth. In such cases when
the complaint before a competent Tribunal or Court is that the domestic-enquiry-tribunal
denied the accused representation through another, it is a wrong approach to examine such
complaint on the ass motion that the accused was as of right entitled to be represented at the
domestic enquiry through another. The superior Tribunal or Court in deciding such a
complaint

20
(1981) 2 LLJ 280
shall itself take into account all the facts and circumstances of the case, and with reference to
those facts and circumstances decide as to whether in denying representation the domestic
enquiry-tribunal exercised its discretion improperly.

JUDGEMENT:

The decision of the second respondent-Tribunal, a copy whereof is marked herein as Ext. P3,
cannot be sustained, in so far as the same is rested on a statement of law which is
unsustainable and on a conclusion which is not supported by the facts relied on in that behalf
by the second respondent. Tribunal. In that view the order has to be quashed and the matter
has to be directed to considered afresh by the second respondent-Tribunal. That Tribunal
would be free to be decided the issue referred to that Tribunal including the preliminary issue
in the light of what is stated herein before and in accordance with the principles of law
governing the same. This writ petition is allowed to the above extent. There will be no order
as regards costs.