Employee Disciplinary Procedure - When can court to interfere in the order of suspension of an employee?
Employee Disciplinary Procedure - When can court to interfere in the order of suspension of an employee?
Disciplinary procedures are a critical tool for management to succeed. Many people associate disciplinary procedures with negative feedback. If implemented properly, these procedures will positively affect the relationship between a manager and their employees. Employees embrace accountability and it actually improves employee job satisfaction. Correcting employee performance issues is a procedure. Effective interpersonal communication , written communication, and your management skills list must be utilized to assist your employees. Poorly implemented procedures may negatively impact workplace performance. DISCIPLINARY PROCEDUREBefore starting the process of discipline, it is essential to hold a preliminary inquiry to know if a prima facie case of indiscipline and misconduct exist. After this, the following steps should be followed:1. Issue of charge sheet:
Once the prima facie case of misconduct is established, the management should proceed to issue a charge sheet to the employee. Charge sheet is merely a notice of the charge and provides the employee an opportunity to explain his conduct. Therefore, charge sheet is generally known as a slow cause notice. In the charge sheet, each charge should be clearly specified. There should be a separate charge for each allegation and charge should not relate to any matter, which has already been decided upon. I would suggest each one of you to talk to find out how is a charge sheet prepared. We will discuss that in the next class.
2. Consideration of Explanation.
On getting the answer for the charge sheet served, the explanation furnished should be considered and if it is satisfactory, no disciplinary action needs to be taken. On the contrary when the management is not satisfied with the employee’s explanation, it can proceed with full-fledged enquiry. (However, if the worker admits the charge, the employer can warn him or award him punishment without further enquiry.)
3. Suspension pending Enquiry.
Passing of suspension order is of an administrative nature and suspension is not a punishment. Its purpose is to only forbid the delinquent to work in the office and it is in the exclusive domain of the employer to revoke the suspension order.
In case the charge is grave that is serious, a suspension order may be served on the employee along with the charge sheet. According to the Industrial Employment (Standing Order) Act, 1946, the suspended worker is to be paid a subsistence allowance equal to one-half of his wages for the first ninety days of suspension and three-fourths of wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings is not due to the worker’s conduct.
What is grave will depend on the discretion of the management. It has to be decided in accordance with the Code Of Discipline.
During suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in strict legal sense.
Issuing notice, conducting enquiry is mandatory before passing removal order on employee: High Court of Telangana
K.S. Narayana, S/o Late Rama Rao Vs The Andhra Pradesh State Road Transport Corporation
Facts of the case
This writ petition is filed challenging the proceedings by respondent for removing the petitioner from service.
Learned counsel for the petitioner submits that the impugned (removal) proceedings are issued without considering the explanation submitted by the petitioner in pursuance to the show cause notice. Learned counsel for the petitioner also tried to argue the matter on merits. He states that some of the documents sought by the petitioner under RTI Act were supplied to the petitioner after passing of the removal order which is in violation of principles of natural justice, as such the writ petition is maintainable.
Court held that
In this case, it is to be seen that after issuing notice, conducting enquiry and basing on the enquiry report, impugned order is passed. In view of the same, this Court is not inclined to entertain the writ petition only on the ground that the petitioner has alternative remedy.
State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC2296,
Court observed as under:–
“...... the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority.Appointing authority or disciplinary authority should consider ..... and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf......In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. It would be another thing if the action is actuated by mala fide,arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent’s continuation in office while facing departmental inquiry or a trial of a criminal charge.”
Employee suspension order can be passed considering the gravity of the alleged misconduct, if proved, imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.: Supreme Court of India
CIVIL APPEAL NO. 9454 OF 2013
Union of India & Anr Vs Ashok Kumar Aggarwal
Court held that
The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved,would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.
In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee’s continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.
Long period of suspension does not make the order of suspension invalid. However, in State of H.P. v. B.C. Thakur,(1994) SCC (L&S) 835, this Court held that where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension.
When can court to interfere in the order of suspension of an employee?
The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC108;
P.V. Srinivasa Sastry v.Comptroller & Auditor General of India, (1993) 1 SCC 419;
Director General, ESI & Anr. v. T.Abdul Razak, AIR 1996 SC 2292;
Kusheshwar Dubeyv. M/s Bharat Cooking Coal Ltd. & Ors., AIR 1988 SC 2118;
Delhi ClothGeneral Mills vs. Kushan Bhan, AIR 1960 SC 806;
U.P. RajyaKrishi Utpadan Mandi Parishad& Ors.v. Sanjeev Rajan, (1993)Supp. (3) SCC 483;
State of Rajasthan v. B.K. Meena & Ors.,(1996) 6 SCC 417;
Secretary to Govt., Prohibition and Excise Departmentv. L. Srinivasan, (1996) 3 SCC 157;
and Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1.
wherein it has been observed that even if a criminal trial or enquiry takes a longtime, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may,in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with them is conduct in question.
4. Holding of Enquiry. An enquiry officer should be appointed to hold the enquiry and a notice to this effect should be given to the concerned worker. Principle of natural justice must be followed. The worker should not be denied the chance of explaining himself. The enquiry officer should give sufficient notice to the worker so that he may prepare to represent his case and make submission in his defense. The enquiry officer should proceed in a proper manner and examine witnesses. Fair opportunity should be given to the worker to cross-examine the management witnesses.
The principles of natural justice can be summarised as follows:
Principle of Natural Justice
Tell the person what he has done
Give Him a Chance to defend himself
On the conclusion of the enquiry, the enquiry officer should record his findings and the reasons thereof. He should refrain from recommending punishment and leave it to the decision of the appropriate authority. After all he is just an enquiry officer!!
5. Order of Punishment. Disciplinary action can be taken when the misconduct of the employee is proved. While deciding the nature of disciplinary action, the employee’s previous record, precedents, effects of the action on other employees, etc, have to be considered.
When the employee feels that the enquiry conducted was not proper and the action taken unjustified, he must be given a chance to make appeal.
Section 17B in The Industrial Disputes Act, 1947
Payment of full wages to workman pending proceedings in higher courts.-
Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.]