Constitutional aspects relevant for understanding disciplinary proceedings and the procedure to be followed in disciplinary proceedings.ppt

Law relate into disciplinary proceedings

1. DISCIPLINARY PROCEEDINGSDISCIPLINARY PROCEEDINGS
LAWLAW
AND AND
PROCEDUREPROCEDURE

2. NECESSITY TO CONDUCT NECESSITY TO CONDUCT
DISCIPLINARY PROCEEDINGSDISCIPLINARY PROCEEDINGS
TELENGANA SHOPS AND ESTABLISHMENTS TELENGANA SHOPS AND ESTABLISHMENTS
ACT, 1988ACT, 1988
TELENGANA SHOPS AND ESTABLISHMENTS TELENGANA SHOPS AND ESTABLISHMENTS
RULES, 1990RULES, 1990
READ WITH SOME OF THE PROVISIONS OF READ WITH SOME OF THE PROVISIONS OF
CONSTITUTION OF INDIA CONSTITUTION OF INDIA

3. PREAMBLEPREAMBLE
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGNinto a SOVEREIGN , , SOCIALIST, SECULARSOCIALIST, SECULAR DEMOCRATIC DEMOCRATIC REPUBLICREPUBLIC and and
to secure to all its citizens;to secure to all its citizens;
  
JJUSTICEUSTICE,, Social, Economic and Political Social, Economic and Political
LIBERTY of Thought, Expression, Belief, Faith and Worship.LIBERTY of Thought, Expression, Belief, Faith and Worship.
EQUALITYEQUALITY of status and of opportunity and to promote among them all of status and of opportunity and to promote among them all
FRATERNITY assuring the dignity of the individual and the ‘Unity and FRATERNITY assuring the dignity of the individual and the ‘Unity and
Integrity of the Nation’.Integrity of the Nation’.
  
IN OUR CONSTITUENT ASSEMBLY thisIN OUR CONSTITUENT ASSEMBLY this Twenty-Sixth day of November, Twenty-Sixth day of November,
19491949 do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.CONSTITUTION.

4. Features of RepublicFeatures of Republic
ELECTED HEAD
WRITTEN CONSTITUTION
RULE OF LAW
RULE OF LAW subject to SUPREMACY of
Constitution
POWER OF JUDICIAL REVIEW

5. ARTICLE –13LAWS INCONSISTENT WITH OR IN
DEROGATION OF THE FUNDAMENTAL RIGHTS.
(1)AlllawsinforceintheterritoryofIndiaimmediatelybefore
thecommencementofthisConstitution,insofarastheyare
inconsistentwiththeprovisionsofthisPart,shall,totheextentof
suchinconsistency,bevoid.
(2)TheStateshallnotmakeanylawwhichtakesawayorabridgesthe
rightsconferredbythisPartandanylawmadeincontraventionofthis
clause,shall,totheextentofcontravention,bevoid.
(3)
(a)“Law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usages having in the territory of India the force
of law ;

6. ARTICLE –12:
The State includes the
Government and Parliament of
India and the Government and
the Legislature of each of the
States and all localor other
authoritieswithin the territory of
India or under the control of the
Government of India.

7. ARTICLE21
ProtectionofLifeandPersonalLiberty:
NOPERSONSHALLBEDEPRIVEDOF
HISLIFEORPERSONAL LIBERTYEXCEPT
ACCORDING TOPROCEDURE ESTABLISHED
BYLAW.
RandhirVsUnionofIndia.AIR1982SC879
D.S.NakaraVsUnionofIndia.AIR1983SC130
MinervaMillsVsUnionofIndia.AIR1980SC1789
DharwadEmployeesVsStateofKarnataka(1990)2SCC396

8. ARTICLE 14

EqualitybeforeLaw:TheStateshallnotdenyto
anypersonequalitybeforethelawortheequal
protectionofthelawswithintheterritoryofIndia.
ArbitraryAction&Discretion
KraipakVsUnionofIndiaAIR1970SC150
E.P.RoyappaVsStateofTamilnaduAIR1974SC555
MenakaGandhiVsUnionofIndiaAIR1978SC597
CentralInlandWaterTransportCorporationVsBrojonath(1986)3SCC156
DTCVsMajdoorCongressAIR1991SC101

9. Article 14 - EQUALITY
DISCRIMINATION – and equality are antithesis to one
another. They cannot Co-exist.
ARBITRATION ACTION – presupposes discrimination
UNREASONABLE ACTION
Principles of Natural Justice if violated - UNREASONABLE
DOCTRINE OF REASONABLENESS
E. P. Royappa Vs State of Tamilnadu AIR 1974 SC 555

10. Article 141Article 141

Law declared by SC shall be binding on Law declared by SC shall be binding on
all courts within the territory of India. all courts within the territory of India.

11. PRINCIPLES OF NATURAL PRINCIPLES OF NATURAL
JUSTICEJUSTICE
1.1.NEMO DEBET ESSE JUDEX IN PROPRIA ( OR SUA ) NEMO DEBET ESSE JUDEX IN PROPRIA ( OR SUA )
CAUSA CAUSA
( NO PERSON CAN BE A JUDGE IN HIS OWN CAUSE )( NO PERSON CAN BE A JUDGE IN HIS OWN CAUSE )
------- DOCTRINE OF BIAS------- DOCTRINE OF BIAS
2. AUDI ALTEREM PARTEM 2. AUDI ALTEREM PARTEM
( HEAR THE ALTERNATIVE PARTY( HEAR THE ALTERNATIVE PARTY
OROR
NOBODY SHOULD BE CONDEMNED UNHEARED ) NOBODY SHOULD BE CONDEMNED UNHEARED )

12. D.K. YADAV Vs. JMA INDUSTRIES D.K. YADAV Vs. JMA INDUSTRIES
LTD.LTD.
(1993)3 SCC 259(1993)3 SCC 259

The order of termination of the service of an The order of termination of the service of an
employee or workman visits him with civil employee or workman visits him with civil
consequences of jeopardizing not only his consequences of jeopardizing not only his
livelihood but also career and livelihood of the livelihood but also career and livelihood of the
dependants. Therefore before taking any action dependants. Therefore before taking any action
putting an end to the tenure of an employee or putting an end to the tenure of an employee or
workman, fair play requires that a reasonable workman, fair play requires that a reasonable
opportunity to put forth his case is given and opportunity to put forth his case is given and
domestic enquiry conducted complying with domestic enquiry conducted complying with
the principles of Natural Justice.the principles of Natural Justice.

13. FLEXIBILITY IN PRINCIPLES FLEXIBILITY IN PRINCIPLES
OF NATURAL JUSTICEOF NATURAL JUSTICE
MANEKA GANDHI MANEKA GANDHI
VS VS
UNION OF INDIAUNION OF INDIA
AIR 1978 SC 597 AIR 1978 SC 597
( 7 JUDGES )( 7 JUDGES )

14. MANEKA GANDHI Vs. U.O.I.MANEKA GANDHI Vs. U.O.I.
AIR 1978 SC 597 at pg. 630AIR 1978 SC 597 at pg. 630

What opportunity may be regarded as What opportunity may be regarded as
reasonable would necessarily depend on the reasonable would necessarily depend on the
practical necessities of the situation. It may be practical necessities of the situation. It may be
a sophisticated full-fledged hearing or it may a sophisticated full-fledged hearing or it may
be hearing which is very brief and minimal; it be hearing which is very brief and minimal; it
may be hearing prior to the decision and it may be hearing prior to the decision and it
may even be post-decisional remedial may even be post-decisional remedial
hearing. The hearing. The “Audi Alteram Partem”“Audi Alteram Partem” rule is rule is
sufficiently flexible to permit modifications sufficiently flexible to permit modifications
and variations to suit the exigencies of myriad and variations to suit the exigencies of myriad
kinds of situations which may arise.kinds of situations which may arise.

15. A.R. ANTULAY Vs. R.S. NAYAK A.R. ANTULAY Vs. R.S. NAYAK
AIR 1988 SC 1531AIR 1988 SC 1531

The degree of compliance with the rule The degree of compliance with the rule
of of Audi Alteram PartemAudi Alteram Partem and the extent and the extent
of consequences flowing from failure to of consequences flowing from failure to
do so will vary from case to case.do so will vary from case to case.

16. VARIOUS STAGES VARIOUS STAGES
IN IN
CONDUCTING DISCIPLINARY CONDUCTING DISCIPLINARY
PROCEEDINGS PROCEEDINGS
( COMMON FOR ENQUIRY ( COMMON FOR ENQUIRY
AGAINST WORKMEN & AGAINST WORKMEN &
EXECUTIVES )EXECUTIVES )

17. 1.MISCONDUCT –- INFORMATION TO THE
MANAGEMENT THROUGH COMPLAINT OR SOME
OTHER SOURCE.
2.PRELIMINARY ENQUIRY ( IF NECESSARY ).
3.SUSPENSION OF THE EMPLOYEE ( IF
NECESSARY )PENDING ISSUANCE OF CHARGE
SHEET.
4. CHARGE SHEET TO THE PERSON ALLEGED TO
HAVE COMMITED THE MISCONDUCT ( CHARGE-
SHEETED EMPLOYEE OR C.S.E ).
5.EXPLANATION BY C.S.E.
6.CONSIDERATION OF EXPLANATION BY THE
DISCIPLINARY AUTHORITY( D.A. ).
7.DECISION EITHER TO DROP CHARGES OR FOR
APPOINTMENT OF THE ENQUIRY OFFICER( E.O. ).

18. If charges are admitted no enquiry is
necessary. If not, an Enquiring Authority
shall be appointed (unless Disciplinary
Authority himself enquiries).
Presenting Officer may be appointed.

19. Defence assistance to CSE should be allowed - No legal
practitioner should be allowed (except in certain
circumstances).
If during the enquiry the employee pleads guilty
unconditionally the Enquiring authority should record
the finding of guilt and close the enquiry.
If pleaded not quilt CSE should be given time for
preparing his defence. He should be allowed to inspect
the documents listed with charge sheet submit the list of
documents and witnesses he wants to examine. He
should be supplied with copies of statement of
witnesses, if any, listed in the charge sheet. Documents
and witnesses can be summoned by the Enquiry
Authority if he is satisfied about their relevance to the
charges.

20. Disciplinary Authority Disciplinary Authority
Enquiry Authority (EO)Enquiry Authority (EO)
Presenting Officer (PO/MR)
Charge Sheeted Employee (CSE)
Defence Assistant (DA) rep. CSE
Documents: ME 1, ME2, ME3..
Witnesses: MW1, MW2…..
Documents: DE 1, DE 2, DE 3..
Witnesses: DW1, DW2…..

21. Privilege can be claimed by management in respect of
production of documents on the ground that it will be
against public interest or the interest of the company.
Chief examination, cross-examination and re-
examination of the witnesses on behalf of
management.
Defence Statement should be recorded –
Defence evidence should be recorded – chief, cross
and re-examination of witnesses on behalf of defence.
Enquiry authority may generally question CSE if he
does not examine himself as one of the witnesses.

22. Written arguments can be filed by the Presenting
Officer as well as CSE on completion of evidence.
Ex-parte enquiry can be conducted if CSE does
not attend the enquiry at any stage.
One Enquiry officer can succeed another Enquiry
officer and the record maintained by previous
Enquiry officer should be continued by the later
unless rules permit denovo enquiry.
Report should be drawn by the Enquiry officer
with his findings and submitted to the
Disciplinary Authority.

23. If, after the perusal of the enquiry report, the
Disciplinary Authority has not decided to
absolve CSE, a copy of the enquiry report
should be given to the employee.
Employee can submit representation against
the adverse findings in the enquiry report
within the reasonable time allowed by the
Disciplinary Authority.
 Final decision of the Disciplinary Authority.
 Appeal as provided for under relevant rules.
END

24. Consideration by Disciplinary AuthorityConsideration by Disciplinary Authority
Sl. No.Enquiry Officer (EO)Disciplinary
Authority (DA)
Remarks/Action
1. NOT GUILTY Report Agrees Exonerate/Drop
2. GUITY Report Disagrees Exonerate or Order Re-
enquiry
3. GUITY Report Does not disagreeSupply Copy of the EO
Report to CSE and Seek
Representation
4. NOT GUILTY Report Disagrees Tentative Reasons
should be recorded by
DA and the same should
be sent to CSE along
with copy of EO Report
and seek
representation.

25. JURISDICTION OF JURISDICTION OF
COURTS / TRIBUNALSCOURTS / TRIBUNALS
CIVIL COURT DOES NOT HAVE JURISDICTION – SEC. CIVIL COURT DOES NOT HAVE JURISDICTION – SEC.
14 OF THE SPECIFIC RELIEF ACT.(EXCEPT FOR 14 OF THE SPECIFIC RELIEF ACT.(EXCEPT FOR
GRANTING DAMAGES)GRANTING DAMAGES)
LABOUR COURT / INDUSTRIAL TRIBUNAL CAN LABOUR COURT / INDUSTRIAL TRIBUNAL CAN
EXERCISE JURISDICTION UNDER SEC. 11A OF THE EXERCISE JURISDICTION UNDER SEC. 11A OF THE
I.D. ACT.I.D. ACT.
WRIT JURISDICTION OF THE HIGH COURT UNDER WRIT JURISDICTION OF THE HIGH COURT UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA.ARTICLE 226 OF THE CONSTITUTION OF INDIA.
SUPREME COURT CAN GRANT SPECIAL LEAVE FOR SUPREME COURT CAN GRANT SPECIAL LEAVE FOR
APPEAL OR CAN EXERCISE JURISDICTION UNDER APPEAL OR CAN EXERCISE JURISDICTION UNDER
ARTICLE 32 OF THE CONSTITUTION. ARTICLE 32 OF THE CONSTITUTION.

26. ENQUIRY REPORTENQUIRY REPORT

IntroductionIntroduction

Brief factsBrief facts

Proceedings held Proceedings held

Evidence adduced by the parties – oral Evidence adduced by the parties – oral
and documentaryand documentary

Analysis of evidenceAnalysis of evidence

Findings or Conclusion Findings or Conclusion