DOMESTIC ENQUIRY

IN THE CONTEXT OF BANGLADESH LABOUR CODE- 2006

M. SHABBIR ALI

LEARNING OBJECTIVES
Concept of Domestic Enquiry Objective of Domestic Enquiry Domestic Enquiry Vs Trial In A Court Domestic Enquiry and Departmental Enquiry Principles of Domestic Enquiry Enquiry Against Whom and Why Who is a worker? Steps in Disciplinary Action Preliminary Enquiry Charge-Sheet and its Contents Suspension Pending Enquiry Consideration of Reply to Charge-Sheet

Selection of Enquiry Officer

Appointing Lawyer/ Outsider as Enquiry Officer
M. Shabbir Ali

LEARNING OBJECTIVES..CONTD.
A-Z: Functions of Enquiry Officer/ Process Five Question by the Enquiry Officer How Enquiry Can be Vitiated? Disciplinary Action Process Model Punishment for Conviction & Misconduct Settlement of Final Payments Grievance Procedure Q&A

Reference/ Sample: Charge-Sheet/ Model-Enquiry Notice/ Suspension order/ Model-Enquiry Proceedings/ Dismissal Letter/ Removal/ Termination Letter/ Letter of Demotion/ Letter of Warning/ Letter of Suspension as punishment/ Show-Cause notice in case of conviction by a court:
Sashtimulak Babostha -by Advocate SA Huq

M. Shabbir Ali

CONCEPT OF DOMESTIC ENQUIRY

Introduction: If organization is to be competitive and economically sustainable in the long run, it is not just enough for them for simply employing and paying the people. For smooth running of an organization employees are considered for: Their Attitude

Their Conduct &

Their Behaviour or Performance In the positive sense all these above three contributors create Industrial Peace, which is the very foundation of Industrial Democracy. Without Industrial Democracy no enterprise would prosper. Organizational disharmony results in conflicts and frustrations. So, any allegations for employees conduct, behaviour or performance needs authentic verification, usually dealt through a process of natural justice called Domestic Enquiry

M. Shabbir Ali

CONCEPT OF DOMESTIC ENQUIRY

What is it in brief:

CONTD.

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

Rather than view the domestic inquiry as burden on the management, and an unnecessary waste of time, resources and expense, the employer, should view the process of the inquiry as a means to show that every possible means was made available to avail the employee of meeting the charges against him and, if possible, clearing himself.

M. Shabbir Ali

OBJECTIVE OF DOMESTIC ENQUIRY

The objective of holding a domestic inquiry is twofold:
Firstly, to give the opportunity to the employer to prove the charges of misconduct against a delinquent employee before punishment is meted out and Secondly to give the employee sufficient opportunity to defend himself/herself.

M. Shabbir Ali

TRIAL IN A COURT OF LAW VS DOMESTIC ENQUIRY

While a trial in a court is for crimes done against society, the domestic enquiry is conducted for offences committed against the establishment for misconduct, punishable under the standing orders/rules and regulations of the organization. While a trail in a court is in accordance with the criminal procedure code, civil procedure code, evidence act etc., 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.

M. Shabbir Ali

DOMESTIC ENQUIRY AND DEPARTMENTAL ENQUIRY

The term Domestic Enquiry is commonly used in connection with an enquiry against industrial or commercial workers. [Private Sector]

On the other hand, the enquiry against Government Servant is called as a Departmental Enquiry. [Public Sector]

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.

M. Shabbir Ali

PRINCIPLES OF DOMESTIC ENQUIRY

1.

Rule of Natural Justice must be observed. The delinquent is entitled to a just hearing. He can call for his own evidence. Cross-examine any witness called by the prosecution. Where rules are laid down, the procedure of such rules must be followed. Disclose to the employee concerned, the documents of records and offer him an opportunity to deal with it. Do not examine any witness in the absence of the employee. The enquiry officer is at liberty to disallow any evidence after recording the reasons in writing.

2. 3. 4. 5. 6. 7. 8.

M. Shabbir Ali

ENQUIRY AGAINST WHOM AND WHY?

There is a proverb No man can be punished without giving him or her a fair opportunity of self defence. So it recommended that the principles of domestic enquiry should be followed equally in dealing the misconducts of : Senior Managers, Managers or, Supervisors or, Workers Union Leaders/ EC Members: Domestic Enquiry can also be initiated against a Union Leader or EC Member-[Without any malafide intention].
M. Shabbir Ali

WHO IS A WORKER?
a. A person does not ceased to be worker only because he is employed in a supervisory capacity. To be able to say that he is not a worker, it has to be established further that he exercises functions mainly of a managerial or administrative nature. b. What is important in determining whether a person is a worker or not is to see the main nature of the job done by him and not so much his designation ...Ref. 31 DLR, P-301

Mere designation is not sufficient to indicate whether a person is a worker or an employer, but it is the nature of the work showing the extent of his authority which determines whether he is a worker or employer ...Ref. 40 DLR (AD), P-45

M. Shabbir Ali

STEPS IN DISCIPLINARY ACTION

Prior to issuance of any order of punishment the employer has to comply with certain steps and those are:

1.
2. 3.

Preliminary enquiry, if required

Framing of Charge-Sheet Delivery of Charge-Sheet

4.
5. 6.

Consideration of explanation
Selection of Enquiry Officer Issuing Enquiry Notice

7.
8. 9.

Proper Domestic Enquiry

Report of the Enquiry Officer Consideration of Enquiry Report by the Authority

10. Awarding of Punishment 11. Delivery of Punishment Letter

M. Shabbir Ali

PRELIMINARY ENQUIRY
It is not mandatory, but it helps to record or protect any important evidence, statement or witness of an incident immediate after its occurrence, which ultimately helps the management in proving the misconduct. This also helps the management whether it is necessary to initiate a Disciplinary Action against the employee concerned or not. Such an enquiry may be termed as Fact-Finding

Enquiry
The management may conduct this at its own discretion The preliminary Enquiry is done prior to issuance of charge sheet There is no hard and fast rule followed in conducting Preliminary Enquiry, it can either be done in presence or in absence of the employee

M. Shabbir Ali

CHARGE SHEET
The concept of charge sheet has been derived from criminal law

A Charge Sheet is a document Which sets out the allegations of misconduct, misbehaviour, indiscipline, lack of interest, negligence, theft, fraud etc. on the part of the employee which he should not have committed in contravention of existing rules of the organization. Which should form the basis for the subsequent enquiry proceedings.

M. Shabbir Ali

CONTENTS OF A CHARGE SHEET

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 order/ Rules/ Regulations
Calling for an explanation within a stipulated time frame If the charge rest on written report, a copy of that report to be enclosed If an employee has used abusive language to his superior officer, a reference to the particular provisions of standing orders will not be enough, the actual words alleged to have been used by the employee must be quoted in the charge sheet, along with the circumstances under which this was used by the employee

M. Shabbir Ali

PURPOSE, LANGUAGE, TIMING OF CHARGE SHEET

Purpose: It should be specific and clear and never vague. Irrelevant matters not connected with the charge should be omitted from the charge sheet

Language:

There is no hard and fast rule, but it is suggested that it should be written in the language of the alleged employee, or provide a translated copy of the same for employees clear understanding
There is no specific mention in the BLC. The sooner is the best principle should be followed

Timing:

M. Shabbir Ali

CHARGE SHEET- POINTS TO REMEMBER

Time to be given for reply: Within 7 days (As per BLC)

Time for submission may be extended for 1/ 2 times. There is no harm on allowing such time

Who can issue Charge-Sheet:

There is no mention in the law, usually the employing authority can sign the charge sheet or,
By delegation of disciplinary power, any responsible officer may issue charge sheet.

Amendment of Charge Sheet: It can be amended even after issuance

An additional charge sheet may be issued as well.

M. Shabbir Ali

CHARGE SHEET- POINTS TO REMEMBER

Delivery of copy of charge- sheet to union/ Inspector of Labour Directorate: There is no such provision However, if there is a mention in the agreement , copy of charge sheet to be provided ( it is recommended that do not keep such provision)

Drafting of Charge-Sheet: It is nothing but an Art

eg. While mentioning any time please write about 3:30 pm

Practice and learn this Art.

M. Shabbir Ali

DELIVERY OF CHARGE-SHEET
If possible deliver the charge-sheet to the employee in presence of a witness and keeping a signature of acknowledgement on the office copy. If the employee refuses to receive the Charge-Sheet do not impose pressure on him. Arrange to send the Charge Sheet under Registered Post (01 copy each in Present and Permanent address) and preserve the registration slips in the file with care. Also arrange to hang a copy of the same in the notice board of the organization. Any undelivered Registered letter should be kept intact in the file for future reference. It is recommended that do not deliver the Charge-Sheet through Peon Book or Dispatch Register.

M. Shabbir Ali

SUSPENSION PENDING ENQUIRY

Considering the severity or need such an order can be served prior to issuance of charge-sheet even or, along with the chargesheet or, on receipt of a reply of charge-sheet. The management may consider issuing such an order immediate after a misconduct (e. theft, financial fraud, forgery, Violent attitude and fighting in the workplace, or any misconduct grave in nature). The management may consider issuing such an order when the employees presence may create obstacle of conducting enquiry. As per BLC-Section 24-2, such suspension is valid up to 60 days only, but in the event of continuation of any case in the court suspension will continue till issuance of verdict.

As per BLC-Section 24-2, the suspended employee will receive half of average pay & allowances as subsistence allowance during the suspension period.
Recording attendance of the employee during suspension is illegal

M. Shabbir Ali

CONSIDERATION OF EXPLANATION IN REPLY TO CHARGE SHEET

It is always recommended that the explanation of chargesheet to be sent to the issuing authority The alleged employee may or may not confess the charges in his reply or may not send any reply at all. Once received, the employer is bound to scrutinize reply to the charge-sheet and then decide accordingly If the employee confesses the charge/ charges, the management may proceed for awarding punishment without further formalities. But any punishment of termination or dismissal should be initiated after proper and complete enquiry. While the explanation of the alleged employee is not found satisfactory, the management consider to proceed for further enquiry in to the case through engaging an Enquiry Officer/ or An Enquiry Committee comprising 2/ 3 people.

M. Shabbir Ali

SELECTION OF ENQUIRY OFFICER

The management may engage one or more enquiry officer for conducting enquiry in to the charge brought against any alleged employee. The basic criteria for selecting the panel members for Domestic Enquiry are: Officers who are not involved directly investigation and circumstances of the case. with the

Officers should normally be of a rank or status above the employee facing the disciplinary charges.

Officers who are not witness of the incident.

Officers who are not having any friendly relation or enmity with the employee facing the charges

M. Shabbir Ali

APPOINTING A LAWYER OR AN OUTSIDER AS ENQUIRY OFFICER [BOTH CONSIDERED AS BEST OPTIONS]

Lawyer/ Advocate as Enquiry Officer
The management may engage employers Lawyer (who is engaged either full time or part time) or an external Advocate for holding an enquiry by payment. And the workers are not entitled to complain because a lawyer is engaged to hold the enquiry.

Outsider as Enquiry Officer

It is now well established that the enquiry can be entrusted to an outsider and by payment of remuneration it cannot disqualify him on the ground of bias.

M. Shabbir Ali

ISSUING ENQUIRY NOTICE

The notice of enquiry may be served by the employing authority or authorized officer who signed the chargesheet. The enquiry officer may also serve the notice of enquiry. The notice of enquiry may be served directly to the employee in presence of a witness by keeping an acknowledgement signature on the office copy Or, arrange to send the Charge Sheet under Registered Post.

The employee should receive the notice at least 3 or 4 days before the enquiry, so that he gets an opportunity to contact his witness for preparation.

M. Shabbir Ali

A-Z 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: (a) 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

(b) Following are the persons allowed in an enquiry proceeding:

i. Delinquent employee ii. Presenting Officer iii. Defence Representative if any iv. Only one witness, at a time who is being examined (c) Ensure that the employee is present during all sittings of the enquiry. Without his presence, enquiry should not be conducted.
M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(d) At the enquiry, ensure identity of the employee and ascertain basic details about him, such as name, age, etc. (e) Ask the employee whether he has received the charge sheet quoting the charge sheet number and date. (f) 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. (g) Allow Representation of Management at the time of enquiry (i) Allow the Defence Representative to conduct examination of defence witness

(j) Raise objection during enquiry (as needed)

M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(k) Conducting Joint Enquiry (if needed) (l) Summoning of Witness (Limitation)

(m) Burden of proof is the responsibility of the complainant or the representative of the management.
(n) Control the procedure for examination of witness

(o) Guide the method of taking down evidence of witness (not through Q&A rather in the own language of witness)
(p) Record authentication of evidence ( recording, correcting and then obtaining signature of witness in the required pages, but if refused to sign, that act must be recorded in the proceedings) (q) Standard of proof (Reasonably proved is enough for Domestic Enquiry, but not like Beyond reasonable doubt as needed in court
M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(r) Indexing the Exhibits (both received from management and the employee) (s) Production of complainant as a witness (t) Solitary witness (u) Conducting Ex-Parte Enquiry. (v) Initiation and closing of Enquiry.

(w) Adjournment of Enquiry (should not allow more than 1 or 2 times)

(x) Writing the enquiry proceedings (enquiry proceedings and the statement of witnesses should be recorded by the Enquiry Officer and obtaining all parties signature on each pages of the proceeding) (y) Preparation of Enquiry Report (z) Submission of Enquiry Findings attaching the Enquiry Proceedings and relevant attachments.

M. Shabbir Ali

FIVE QUESTIONS (TO BE ASKED) BY THE ENQUIRY OFFICER

Have you got the opportunity of self defence in the enquiry? Have you got the scope of giving the statement freely without any interference? Have the prosecution witnesses given their statement before you? Have you got the opportunity to cross examine the witnesses? Do you want to say anything more?

M. Shabbir Ali

HOW AN ENQUIRY CAN BE VITIATED

Non observance of the principles of Natural Justice Denial of Personal Hearing Insufficient Personal Hearing Any biasness by the Enquiry Officer Not allowing sufficient time to the accused to adduce evidence Any Perverse Findings of Enquiry Officer

M. Shabbir Ali

DISCIPLINARY ACTION PROCESS MODEL

EXTERNAL ENVIRONMENT INTERNAL ENVIRONMENT Set Organizational Goals Establish Rules

Communicate Rules to Employees

Observe Performance/ Behavior Compare Performance/ Behavior with Rules Take Appropriate Disciplinary Action

M. Shabbir Ali

PROGRESSIVE DISCIPLINARY APPROACH

Improper Behavior/ Act
Yes

Does this violation warrant disciplinary actions?

Yes

No

No Disciplinary Action/ Counseling Oral Warning

Does this violation warrant more than an oral warning?

Yes

No

Does this violation warrant more than a written warning?

Yes

No

Written Warning

Does this violation warrant more than a suspension?

Yes

No

Suspension

Termination/ Dismissal
M. Shabbir Ali

PUNISHMENT FOR CONVICTION AND MISCONDUCT BLC (SEC 23)

Clause 1. A worker may be dismissed without notice or pay in lieu of, if a. b. Found convicted for any criminal offense, or Found guilty of misconduct under Section 24

Clause 2. May be under extenuating circumstances, given any one of the following punishments:

a.
b. c.

Termination
Demotion to lower post, grade or pay-scale >01 Year Holding up for promotion for 01 Year

d.
e. f. g.

Holding up of Increment of wages for 01 Year

Fine Suspension for not more than 01 week without wages or without subsistence allowance Censure or warning

M. Shabbir Ali

PUNISHMENT FOR MISCONDUCTCOMPENSATION BLC (SEC 23)

Sub Section-3:

When Dismissed under Sec-23/ sub section 1 or

Terminated under Sec-23/ sub section 2(a)If the length of continuous service is minimum 01 year- will be eligible for compensation @ of 14 days wages or gratuity, whichever is higher for every completed year of service

When Dismissed under Sec-24/ sub section 4(b) for misconduct shall not be entitled to any compensation

M. Shabbir Ali

MISCONDUCT AS PER BLC-2006 (SEC 23)

Clause 4 : The following act shall be treated as misconduct: a) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful or reasonable order of the superior b) Theft fraud or dishonesty in connection with employers business or property

c) Taking or giving bribes in connection with his or any other worker's employment under the employer
d) Habitual absence without leave or absence without leave for 10 days e) Habitual late attendance Contd

M. Shabbir Ali

MISCONDUCT

AS PER BLC-2006 CONTD.

f) Habitual breach of any law or rule or regulation applicable to the establishment

g) Riotous or disorderly behaviour in the establishment or any act subversive of discipline

h) Habitual negligence of work

i) Habitual breach of any rule regarding service, discipline or conduct approved by the Chief Inspector
j) Altering, forging illegally, tempering, damaging or causing loss to official records of the employer

M. Shabbir Ali

STEPS IN DISCIPLINARY ACTION

BLC (SEC-24)

Sub-section 1: No order of punishment can be given against a worker unlessa. The allegation against him is brought in writing; b. He is given a copy thereof and not less than 07 days time to explain; c. He is given an opportunity of being heard; d. He is decided to be guilty after enquiry; e. The employer or the manager approves of the order of punishment

Contd..

M. Shabbir Ali

SETTLEMENT OF FINAL PAYMENTS OF THE WORKER

The employer has to pay all the dues payable to a worker within 30 (thirty) working days from the date of cessation of service due to retirement, discharge, retrenchment, dismissal and conclusion of service.

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GRIEVANCE PROCEDURE

Grievances = Complaints against the employer

Unfair treatment by managers Unfair pay Unfair Termination/ Dismissal

M. Shabbir Ali

GRIEVANCE PROCEDURE
1.

BLC (SEC 33)

An worker who has grievance (with regard to discharge, dismissal, termination, or any other means of employment) may submit grievance in writing to the employer within 30 days fro the date of being informed of the cause The employer shall enquire into the grievance and by giving the worker concerned a chance of being heard, inform of its decision about the matter within 15 days from the date of the receipt of the grievance If the employer fails to give a decision or if the worker is dissatisfied with such decision, may lodge a complaint with the labour Court within 30 days from the date of the expiry of the time allowed or date of the employers decision The Labour Court, after receiving the grievance, by serving notice upon both the parties shall hear about the grievances and give appropriate decision at its discretion. Any worker aggrieved by the order of the court may prefer an appeal before the tribunal within 30 days from the date of the order and the decision given on the appeal shall be final. No Court-Fee is payable for lodging any complaint or appreal under this section. Any complaint under this section shall not be treated as a criminal prosecution under this Act.

2.

3.

4.

5.

6. 7.

8.

No complaint can be lodged against the order of termination given under Section 26 (Termination Simpliciter)

M. Shabbir Ali

Q & A ??

M. Shabbir Ali