Understand Domestic Enquiry due process in India to reduce Litigation Risks and be fair.
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| Domestic Enquiry |
A company investigation to identify facts and data about a situation in which an employer has accused an employee of misconduct. Typically, a domestic investigation follows a 'show cause' letter, which is sent to the worker asking for an explanation for the alleged misconduct. The employer will move to a more formal domestic inquiry if the reply is not satisfactory.
We understand that the
term domestic enquiry is mainly used to refer to an enquiry into an employee’s
charges of indiscipline and misconduct, based on the above description of
domestic enquiry. Domestic enquiry means departmental inquiry or domestic
tribunal in common parlance. The matter is decided by administrative officers
in such investigations and not by the courts of law. It is common for
disciplinary authorities in a department or in industry to appoint an officer
or officers in cases of alleged indiscipline to investigate the allegations
against an employee. These inquiries are generally referred to as 'Domestic
Enquiries'. At times it is in the best interest to engage an outside firm to
ensure no biasness and adoption of the full procedure.
Domestic inquiries should be conducted as quickly as
possible following allegations of wrongdoing, and all activities should be
formalized and fully documented. Legally, it is important that the
investigation be carried out objectively. For example, the investigating
officers should be unrelated to the incident, and the employee should be given
full opportunity to present their own case and present evidence in their favour.
Mostly during the process, representatives of the Union or co-workers should be
allowed to sit in if the employer requests their presence, although the
employee cannot insist on access to a lawyer.
Notice that the
domestic inquiry is simply an exercise in obtaining facts, i.e., the jury
charged with collecting the evidence does not make conclusions about guilt or
punishment. The final report is sent to the parties involved, mostly senior
officials, who then decide on the required course of action.
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.
A disciplinary
hearing held by an employer to decide if an employee is guilty of wrongdoing is
a domestic investigation. A domestic inquiry is meant to uncover the facts of
the accusations made against the worker.
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.
In taking
administrative action against an employee, this element of "procedural
fairness" can also be a key consideration in determining if the Court
would enforce the dismissal.
Accordingly, it
is important to understand that upholding a dismissal in the Industrial Court
requires meeting two criteria:
(a) That there were fair reasons for the firing of the worker;
(b) That the process used to fire the employee was fair.
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