Thursday 17 May 2012

CAN SERVICES OF AN EMPLOYEE BE TERMINATED WITHOUT CONDUCTING DOMESTIC ENQUIRY?

The right of hearing is a fundamental right. Under law, no person can be accused of anything without giving him proper opportunity of being heard. Principles of Natural Justice are part and parcel of civilised society. Therefore even law provides for conducting enquiries when employer observes that an employee has committed misconduct. Industrial Employment (Standing Orders) Act, 1946 provides for the procedure for conducting enquiries. The enquiry is conducted to ascertain whose contention, the management’s or the worker’s, is correct and what the worker has to say about his alleged misconduct. The Standing Orders provide for issuance of a Charge Sheet. On issuance of Charge Sheet the management has to prove its charges by leading evidence. The worker has the right to cross examine the management witnesses. The worker also has the right to lead evidence. The witnesses examined by the workers can be cross examined by the management. However, the law of evidence is not applicable to the enquiry. On this background whether management can terminate services of the employee without holding enquiry into the allegation of misconduct is examined – The employer per se cannot dispense with enquiry, however, in the rarest of rare cases if the employer is unable to conduct domestic enquiry or it is impossible for the management in the interest of the organisation to continue with the services of the employee, the employer can terminate the services without holding a domestic enquiry. However such termination has to be justified before the Court and the employer shall have to place or record reasons for not conducting the enquiry. The Courts in many matters have held that if there has been appropriate domestic enquiry or no enquiry at all before disciplinary action was taken, it is open to the employer to ask for the opportunity to lead evidence in case of inappropriate domestic enquiry or no enquiry, at the earliest stage of the proceedings. There has to be concise pleading to this effect in the Written Statement. In the absence of such concise pleadings and not availing the opportunity at the earliest, the Courts may not grant the employer to lead evidence. The law stands clear on the issue that if an employee is terminated without domestic enquiry it shall be open to the employer to explain such termination in the course of adjudication. An employer should be very careful about terminating the services of the employee without domestic enquiry. It should be a highly exceptional and not a standard practice. The Hon’ble Bombay High Court in Manohar P. Kharkar and another V/s Raghuraj and another (Writ Petition No. 658 of 1981, decided on: 18.09.1981) held that the decision for terminating an employee on the grounds of misconduct may be without domestic enquiry but the same may be challenged before the Labour court by the aggrieved employee in reference and the Management shall have to justify such termination before the Labour Court. The Labour Court or Industrial Court would then have to adjudge the truth or the misconduct on merits. Further, in Kamal Kishore Lakshman V/s Pan American World Airways (Civil Appeal No. 2568 of 1986, decided on 03.12.1986) the Hon’ble Supreme Court held that – “The legal position firmly established is that if there has been no appropriate domestic enquiry or no enquiry at all before disciplinary action is taken, it is open to the employer to ask for such opportunity in the course of adjudication.”