FREQUENTLY ASKED QUESTION – 10

What should be guidelines for suspension?

It is not necessary that a delinquent employee be suspended after being served with a charge sheet. Where charges are of serious nature, the employee may resort to suspension pending inquiry. There is no hard and fast rule that service of charge-sheet must precede the suspension order. If the misconduct alleged is of very grave nature and the employee is apprehended at the spot of the commission of the offence, the employer in such circumstances may forthwith suspend the employee and then serve the charge-sheet.

In exercising the power of suspension, it has to be exercised with circumspection, care and after application of mind. The DA must make a fair and proper assessment of the matter in the given circumstances and ascertain that prima facie there exist grave and compelling circumstances which in the light of the material available and collected during the primary investigation point to the likelihood of removal or dismissal of the employee from the service. A proper judgement exercised would prevent unnecessary harassment and humiliation of suspension.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 9

Whether an employee, upon receipt of memo or show cause notice, can demand perusal of documents and records related to the allegations stated in the memo/show cause notice?

Yes, an employee, upon receipt of memo or show cause notice, can request to the management to allow him/her to peruse documents and records related to the allegations stated in the memo/show cause notice. Even in case of the employee posted at different place, he can request to visit the office where the alleged irregularities against the employee have been stated in the memo/show cause notice. So that the employee can go through the relevant documents and records and collect copies of the same from the custodian of documents. This right is provided to enable the employee concerned to recollect the circumstances related to the allegations, so that he/she may be able to provide relevant facts in his reply to the management.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 8

Whether CE can take assistance of an advocate as DR in the departmental inquiry?

The term ‘departmental inquiry’ indicates that it is an internal matter of the organization. The constituents are expected to discharge their duties and responsibilities through inquiry proceedings as per service rules or standing orders that always laid down the norms and procedure to be adopted for conducting departmental inquiry proceedings. The CE has a right to take assistance of a DR, which is normally a colleague of the CE or representative of the union/association to which CE is a member, as sought by the CE. There are certain service rules for taking assistance of a DR in departmental inquiry within the organization.

As regards taking assistance of an outsider or an advocate is concerned, there is generally no provision to take assistance of such outsider in normal circumstances. However, in case the management or the DA appoints an advocate to present the case on behalf of the management, the CE has a right to have the assistance of an advocate on the principle of equity and fair play. Even where the PO is a law graduate, the CE can demand permission for availing the services of an advocate as DR. However, in other circumstances management may deny availing of services of an advocate as DR.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

Short Note - Bias in Departmental Inquiry

Any favour to decide any dispute, controversy or inquiry without proper consideration of the merit of the case may be termed as ‘bias’. In respect of departmental inquiry the word ‘bias’ has importance and this is used in a wider sense for natural justice. Fairness and working judiciously are important factors for departmental inquiry. Any decisions or findings in a departmental inquiry should be according to the law, without fear or favour and without bias.

The principle of natural justice is an important tool of departmental inquiry and it directs that any action, decision or finding in the departmental inquiry must be free from bias. There must be transparency in the departmental inquiry proceedings. The departmental inquiry must be therefore free from any types of bias namely, personal bias, pecuniary bias, official bias or mala fides.

Bias is often alleged during departmental inquiry. To remain free form biasness, following points will help a departmental inquiry to a great extent:
- IO must not be personally interested in the case of the departmental inquiry.
- IO must be a person with open mind.
- IO must not have prejudged the issue for which he has been directed to inquire.
- IO must not act as a witness in the case.
- IO must not be biased in any manner.
- IO must think dispassionately.
- IO must ignore private feelings on every aspect of the case.

The doctrine to remain free from bias should be followed and applied in all cases of departmental inquiry proceedings with an independent mind to arrive at a fair decision.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 7

Sometime, employees take mass casual leave in order to cause harassment to the employer. What action can be taken?

There is no doubt that an employee has a right to avail of the casual leave in accordance with the rules of the establishment concerned and normally the employer will not refuse casual leave to the employee, unless there are compelling circumstances to the contrary. But mass casual leave by the employees as a demonstration of their grievances and as a means of a collective bargaining stands on different footing and it may be taken as a refusal to work and another mode of ‘strike’ though in a milder way then what the term ‘strike’ actually connotes. Accordingly, mass casual leave by employees will be illegal and may call for disciplinary action.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 6

An IO exonerated a CE and found the charge not proved in the inquiry. The DA however while disagreeing by the findings of the IO and held that charge is proved. The DA did not afford any opportunity to the CE by communicating to the CE the copy of inquiry report, along with reasons of disagreement. As the DA held that charge is proved, the DA punished the CE. What are your views in the instance case?

It is not necessary for the DA to always agree with the findings of the IO, however it is required that the DA, which is to finally record an adverse findings, should provide a hearing to the CE. The principle of natural justice would demand that the authority which proposes to decide against the CE must provide him a hearing. In the present case example, the inquiry report is in favour of the CE, but the DA proposes to differ with such conclusions then authority which is deciding against the CE must provide him an opportunity of being heard for otherwise he would be condemned unheard. In departmental inquiry what is of ultimate importance is the findings of the DA. Whenever the DA disagrees with the IO on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and provide to the CE an opportunity to represent before it records its findings.

If the finding of the DA without providing an opportunity to the CE is challenged before the AA or court of law, it is likely that the AA/court will quash the finding of the DA and provide some relief to the CE.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 5

Should departmental inquiry be conducted by an IO, who is subordinate to the complainant?

A case where inquiry conducted by a subordinate on a complaint made by superior and superior appears as a witness in the inquiry, principle of natural justice appears to be violated. CE has right to have a fair trial. Accordingly, a departmental inquiry should not be conducted by an IO, who is subordinate to the complainant, especially when superior officer is also a witness in the case.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority