GUIDELINES The
rules of natural justice are the minimum standards of fair decision-making imposed on persons or bodies acting in a
judicial capacity.Where the relevant person
or body is required to determine questions of law or fact in circumstances where
its decisions will have a direct impact on the rights or legitimate expectations
of the individuals concerned, an implied obligation to observe the principles
of natural justice arises. However, in the Code of Conduct there is an express
requirement (in Section G 8) on the Adjudicator to conduct any hearing
inaccordance with the principles of natural justice. In the event of a hearing
taking place or a decision being reached which breaches the principles of
natural justice, the person charged may seek a review of the hearing and/or
decision in the courts. The following are guidelines of natural justice. If an
Adjudicator is in any doubt as to the procedure he is proposing to adopt he
should take legal advice.The rules of natural justice consist of the following
elements: 1.
The right to a fair hearing; and 2.
The rule against bias. 1. THE RIGHT TO A FAIR HEARING The
right to a fair hearing requires that an individual shall not be penalized by a
decision affecting his rights or legitimate expectations unless he has been
given prior notice of the case against him, a fair opportunity to answer it and
the opportunity to present his own case. Each individual must have the
opportunity to present his version of the facts and to make submissions on the
relevant principles of the Code of Conduct and the allegations against him. The
right to a fair hearing involves the following: a. Prior notice of the hearing Natural
justice generally requires that the person charged should be givenadequate
notice of the allegations against him and of the procedure for determining the
alleged breaches of the Rules of Conduct so that he may be in a position to
make representations on his own behalf, to appear at the hearing, to effectively prepare his own
case and to answer the case against him. The time and location of the hearing
must be notified to the person charged. In any event there is a requirement
under Section G2 to give details PRINCIPLES OF NATURAL JUSTICE of the
time and place of the hearing at the same time the particulars are given in
accordance with Section G1. In determining when the hearing should be the
Adjudicator should have in mind: 1. the requirement in Section G2
that it be held as soon as reasonably practicable and where the hearing falls
under the jurisdiction of the Referee, within 36 hours of notification under
Section E; and 2. the requirement in Section G5
that the person laying the charge, the person charged and the Adjudicator shall
give each other notification of the evidence they shall refer to at the hearing,
at least 2 hours before the hearing; 3. the seriousness of the alleged
breach; and 4. the likely amount of evidence and
ease, or otherwise, of obtaining such evidence. The detailed
provisions for notifying a person who has been reported as being in breach of
the Rules of Conduct appear in Section E. It would be prudent to ensure that
the persons who need to be notified in accordance with that procedure are
notified as soon as possible.In accordance with Section G1, the Adjudicator
should aim to provide the particulars of any alleged breach as soon as
possible. The 15 hour period has been provided to allow for breaches which may
have occurred off the field of play or outside the precincts of the ground,
where it may take more time to collect the necessary information to be able to
provide the particulars required in Section G1. If any person charged requests,
under Section G6, that any of the provisions of Section G are waived the
Adjudicator, in exercising his discretion whether or not to accept the request,
shall pay particular regard to the nature of the offence and whether the person
charged wishes to accept the charges against him. If the offence is not serious
(relative to the various breaches of the Rules of Conduct which may be alleged)
the Adjudicator ought to allow the request. If the person charged wishes to
accept the charges against him and the Adjudicator does not need to consider
detailed, or any, evidence to determine the appropriate sanction the request
should also be granted. Each request, however, should be considered on its own
merits. b. The opportunity to be heard The
person charged has a right to attend the hearing and be allowed to present his
case, as provided for in Sections G9 and G10. Where the person charged does not
attend at the time and place of which he was given notification in accordance
with Sections G1 - G3 the Adjudicator has a discretion whether or not to
proceed. This is confirmed in Section G10. In deciding whether to proceed in
the absence of the person charged, the Adjudicator
must consider whether he is satisfied the person charged was aware of the time
and place for the hearing, whether the time and place for the hearing was such
that the person charged could reasonably attend and whether there is any
indication the person charged was under any misapprehension as to the time and
place for the hearing. The Adjudicator should also have regard to whether or
not he was able to give details of the time and place of the hearing to the
person charged in accordance with Section G3, or whether such notice was given
only to the person to whom notification was given in accordance with Section E. c. The conduct of the hearing The
conduct of the hearing is a matter to be determined by the Adjudicator. This is
confirmed in Section G8. The overriding objective the Adjudicator should have
in mind when deciding how the hearing should be conducted is that the person
charged has a proper opportunity to consider, challenge or contradict any
evidence, is fully aware of the nature of the allegations against him and has a
proper opportunity to present his own case. Generally when an oral hearing is
conducted the parties must be allowed to call witnesses and cross examine the
witnesses called by others. This is confirmed in Section G16. Sections G14, G15
and G17 enable the Adjudicator to adjourn the hearing if, in his discretion, he
considers that it is appropriate to do so. In deciding whether to adjourn the
hearing, and if so for how long, the Adjudicator should, as an overriding
objective, have in mind the requirements that the person charged is fully aware
of the allegations and evidence against him and that he has a proper
opportunity to prepare and present his case. d. The right to legal representation The
Adjudicator has an absolute discretion, confirmed in Section G11, to allow a
person charged to be represented at the hearing by a legally qualified person. An
Adjudicator is entitled in the exercise of his discretion to refuse to allow the
person charged to be legally represented at the hearing if the alleged breach of the Rules of Conduct is
not serious (relative to the various nature of possible breaches) and where it
is unlikely that a severe sanction (relative to the various sanctions
available) will be imposed. If a person charged seeks and is allowed
to have legal representation, the Adjudicator is entitled to seek his own legal
advice. This would be by exercising the discretion in Section G17. If the
Adjudicator has obtained legal advice, whether before or during the hearing,
and the person charged asks that his legal representative be permitted to
attend the hearing and make representations on his behalf, the Adjudicator
should not, unless the legal advice he received is not relevant to any matter
in issue at the hearing (especially where the advice taken relates to a purely
procedural matter), refuse the request. e. The decision and the reasons for
it The details of how and when the
decision should be given are provided for in Section H. In particular the
Adjudicator should note that there is a requirement in Section H 3 that the
Adjudicator give reasons for both his decision and the sanction he is imposing
and that section H 2 requires that the decision be given as soon as possible
but, in any event, no later than 24 hours after the hearing finishes. 2. THE RULE AGAINST BIAS The
two main aspects of this rule are that a person adjudicating on a dispute must
have no pecuniary or proprietary interest in the outcome of the proceedings and
must not reasonably be suspected, or show a real likelihood, of bias. The
Adjudicator must be able to show that he has conducted a full enquiry into the
circumstances involved before making his decision as to whether a breach of the
Rules of Conduct has occurred and, if so, what sanction should be imposed. There
should be no suggestion in his conduct of the hearing that prior to its commencement
he has irrevocably decided the outcome. Punishment to
Employee Domestic
Enquiry Any punishment of suspension or dismissal can be
imposed after conducting a ‘Domestic Enquiry’. Principles of natural justice
have to be followed. Termination of an employee without following principles of
natural justice is violative of Article 21 of Constitution - D K Yadav
v. JMA Industries Ltd. 1993 For proper conduct of enquiry (1) Employee should be
informed of charges leveled against him (2) Witnesses should be ordinarily
examined before him. (3) The employee should be given fair opportunity to cross
examine the witnesses, including himself (4) The enquiry officer should record
his findings with reasons. – Sur Enamel v. Workmen (1964) * Calcutta Dock
Labour Board v. J Imam (1965) The workman is issued with a
‘Show Cause Notice’ giving details of charges of misconduct against him. He has
to give his reply. Then, enquiry into charges is conducted by an ‘Enquiry
Officer’ appointed by Management. Such ‘Enquiry Officer’ can be an employee of
the company or an outsider. The workman can defend himself before the Enquiry
Officer or he can be defended by his co-worker or a Union Representative. The workman
is not allowed to engage a lawyer to defend his case. After enquiry, the
‘Enquiry Officer’ has to give his findings and state whether he finds the
workman ‘guilty’ or ‘not guilty’. He should give reasons for his views.
However, the ‘Enquiry Officer’ should not give his opinion about the punishment
that should be imposed on the workman. Copy of the report of Enquiry Officer
has to be given to the workman. - UOI v. Mohd Ramzan Khan -
(1991). The workman has right to state his case on the basis of ‘Enquiry
Report’ e.g. the workman may agree that he is guilty but may plead for
leniency, or he may point out discrepancies in the report of ‘Enquiry Officer’.
After the reply of workman, the authorised Manager will go through enquiry
papers, report of Enquiry Officer and observations/reply of workman on the
report of Enquiry Officer. The Authorised Manager will then issue suitable
order. The ‘Disciplinary Authority’ should not be lower in rank or grade than
the ‘Appointing Authority’.
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