Industrial Discipline

May 2012

Contents :
The Industrial Employment (Standing Orders) Act, 1946 Steps leading to Disciplinary Action Domestic Enquiry Absenteeism Violence at workplace Theft Negligence Go-slow Efficiency

Industrial Discipline...
Introduction Roots : Contract of employment Model / Certified Standing Orders Settlement between the Company and the employees Work culture, practices, rules & regulations Employee representatives and pressure groups

The Industrial Employment (Standing Orders) Act, 1946

An act to require employers in industrial establishments formally define the conditions of employment under them

The Industrial Employment (Standing Orders) Act, 1946

Matters to be provided in the Standing Orders

Classification of workmen Manner of intimating workmen periods & hours of work, holidays, pay-days, wage rates Shift working Attendance and late coming Leave & holidays : application, authority Requirement to enter premises by certain gates & liability to search

The Industrial Employment (Standing Orders) Act, 1946 Closing & opening of sections of the esta., temporary stoppage of work : Rights & liabilities of the employer & employees Termination of employment : notice to be given by the employer & employee Acts or omissions which constitute misconduct Means of redress for workmen against unfair treatment or wrongful executions by the employer, his agents or servants

Steps leading to Disciplinary Action

Complaint Investigation Weighing pros and cons Compromise Framing of Show Cause Notice / Charge sheet Delivery of SCN / Charge sheet Response from the delinquent worker Milder action / Suspension Pending enquiry Enquiry

SCN & disciplinary actions

Charge Sheet / Show-cause notice Reply by the employee Action : Warning, suspension etc.

Charge-sheet / Show Cause Notice

A memorandum of charges i.e. acts or omissions alleged to have been committed by the employee Objective : to tell the accused what he supposed or alleged to have done. To give the employee a reasonable opportunity to defence A precise and definite catalogue of charges so that the employee may understand and effectively meet. Charges must be specific in all possible details besides being accurate.Should contain all relevant facts. The facts in the charge-sheet must disclose the misconducts with which the employee is charged-time, venue, manner in which incidence happened, witnesses, documents, records

Charge-sheet / Show Cause Notice

Ensure that language used in it does not show that the employee is guilty. Time - qualify - about It has been reported against you - implications.. Use the words that are mentioned in the Standing Orders The charge-sheet must be signed by the competent authority

Reply to the Charge-sheet / Show Cause Notice

Contingencies : Admission of charges Request for extension of time for submission of explanation Refusal of charges No submission of explanation

Reply to the Charge-sheet / Show Cause Notice

Essential ingredients of the reply :
Admission of guilt Unconditional apology Assurance of not repeating such acts in future

Role of HR Dept.
Investigation into facts, evidence, witnesses Arrive at conclusion Weigh pros and cons Consider other deciding factors - nature & gravity of the misconduct, past history of the employee, impact on work-culture, pressure groups

Decision on the basis of the reply

Factors to be considered : Gravity of the misconduct Reply submitted by the employee Past record of the employee Misconduct : by intention or a mistake Policy issues e.g. smoking

Suspension pending enquiry

Circumstances justifying exercise of right to suspend : where the continuance of the employee may endanger industrial peace or security where the continuance of the employee at workplace may prejudice investigation, trial or enquiry e.g. apprehended tampering with witnesses or documents where the preliminary enquiry into the allegations made has revealed a prima facie case justifying criminal or dep. proceedings which are likely to lead to his conviction and / or dismissal or removal from services

Suspension pending enquiry

where the employee is alleged to have committed following misconducts : an offence of conduct involving moral turpitude corruption, theft, misappropriation of companys money serious negligence refusal or deliberate failure to carry out written orders of supervisory staff

Domestic Enquiry

Objectives...
To find out the truth of allegations against an employee / workman. To provide a fair opportunity to the delinquent workman to defend

Principles of Natural Justice

Nemo judex in causa sua : No one should be judge in his own cause Audi Altrem Paltrem : No one should be condemned unheard One who hears must decide A person cannot be expected to take an objective decision in which he has an interest

Audi Altrem Paltrem

Notice Right to present his case Right to rebut adverse evidence Right to be presented No evidence should be taken at the back of the party

Domestic Enquiry proceedings Appointment of presenting officer Briefing of the witnesses Information about the enquiry proceedings Enquiry proceedings Report of the enquiry officer Official record to be sent to the disciplinary authority Decision to be made by the disciplinary authority Second Show Cause Notice Appeal Punishments

Who should be...

the Disciplinary Authority
the Enquiry Officer

The Enquiry Officer

An impartial person with an open mind and without prejudice against the delinquent employee Should act impartially, objectively and fairly Should possess necessary knowledge Information to the delinquent about the charges Examination of the witnesses in the presence of the workman & cross-examination by the workman Should not use reports made behind the back of the workman.

The Enquiry Officer

Report :
A brief summary of the documentary and oral evidence as well as the arguments advanced by both the parties. Conclusions and reasons thereof EO not be travel beyond the limit of the charges EO not to recommend a punishment.

ABSENTEEISM
(A) LEAVE 1. FACTORIES ACT, 1948 2. SHOPS & ESTABLISHMENTS ACT 3. STANDING ORDERS ACT LEAVE OF ABSENCE DICTIONARY MEANING - LEAVE = PERMISSION UNLESS SUCH PERMISSION IS GIVEN OR LEAVE SOUGHT IS GRANTED IT WILL BE UNAUTHORISED LEAVE ABSENCE FOR SHORT PERIODS ABSENCE FOR LONG PERIODS

(B)

(C)

ABSENTEEISM
(D) (E) (F) REFUSAL OF LEAVE BY MANAGEMENT HABITUAL ABSENCE WITHOUT LEAVE EVIDENCE : (1) RECORDS - ATTENDANCE REGISTER, LEAVE CARD, ATTENDANCE CARD (2) MENTION - DATES AND NO. OF DAYS IN EACH MONTH (3) BRING EVIDENCE TO SHOW IT AFFECTS PRODUCTION AND EFFICIENT WORKING

ABSENTEEISM
(G) EXTENSION OF LEAVE (1) WORKMEN SHOULD SEND APPLICATION FOR EXTENSION IN ADVANCE (2) MANAGEMENT TO COMMUNICATE REFUSAL TO EXTEND LEAVE (3) IF NO REFUSAL SENT,THERE IS AN IMPLIED PRESUMPTION OF GRANT OF LEAVE (H) PROOF OF RECEIPT REGISTERED A/D LETTER UNDER CERTIFICATE OF POSTING (I) OVERSTAY OF LEAVE REMAINS ON SANCTIONED LEAVE FOR A PERIOD AND THEN ABSENTS (J) VOLUNTARY ABANDONMENT OF SERVICE

VIOLENCE AT THE WORK PLACE

Section 141 of the ipc defines unlawful assembly : as an assembly of five or
more persons, if the common object of thepersons composing that assembly is First : to overawe by criminal force, or show of criminal force...... Or Second : to resist the execution of any law, or any legal process; or Third : to commit any mischief of criminal trespass, or other offence; or Fourth : by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of enjoyment , or to enforce any right or supposed right; or Fifth : by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do

VIOLENCE AT THE WORK PLACE

Section 146 : rioting Whenever force or violence is used by unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Section 339 : wrongful restraint Whoever voluntarily obstructs any person so as to prevent the person from proceeding in any direction in which that person has a right to proceed, is said to wrongfully restrain that person. Section 340 : wrongful confinement Whoever wrongfully restrains any person in such a manner to prevent that person from proceeding beyond certain circumscribing limits, is said wrongfully to confine that person. Defences in case of assaults General circumstances to be kept in view when workers are involved in riotous behaviour.. Evidence in case of rioting and assault.

SECTION 378 - THEFT

(A) THEFT IS DISHONESTLY TAKING AWAY MOVEABLE PROPERTY OUT OF THE POSSESSION OF ANY PERSON WITHOUT THAT PERSONS CONSENT - DISHONEST INTENTION IS ALSO PRESENT. (B) POSSESSION BY SERVANT IS POSSESSION OF MASTER. (C) IMPLIES REMOVAL OF GOODS FROM POSSESSION OF ONE PERSON TO THE OTHER. (D) SHOULD BE PROPERTY OF SOME VALUE. (E) REMOVAL SHOULD BE DISHONESTY - WRONGFUL LOSS TO THE EMPLOYER OR - WRONGFUL GAIN TO HIMSELF - MENS REA (F) REMOVAL MUST BE WITHOUT CONSENT PUNISHMENT DISMISSAL WOULD BE THE END RESULT. HOWEVER, CIRCUMSTANCES AND VALUE OF ARTICLE STOLEN ARE BEING TAKEN INTO ACCOUNT.

NEGLIGENCE
Derived from the word neglect which means not to care or not to pay attention to the work of leave something undone or omit to do. It means want of proper care, or attention or carelessness. An inadvertent imperfection by a responsible human agent in the discharge of a duty as produces in an ordinary and natural sequence a damage to another. Unintended damage/consequence.

NEGLIGENCE
Concept of negligence is negative in character. When an employee is accused of negligence, he is not accused of doing something but on the other hand he is accused of not doing something or failure to exercise sufficient skill or diligence. e.g. Forgetfulness, delay, e.g.Doctor, signalman, mechanic - aeroplane Punishment : depending on charge, previous record and circumstances.

Go Slow

Definition...
The tactics of the workmen, when individually or collectively, they intentionally reduce the speed of their work or adopt dilatory tactics to reduce the production or or efficiency while pretending to be engaged on their respective jobs.

background...
Union : weapon in their armoury, an alternative to strike, legitimate weapon to pressurise the Management The Supreme Court and High Courts : a serious misconduct, much more harmful than the total cessation of work i.e. strike

Provisions...
Unfair Labour Practice under Item 5 of Schedule III of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. Model Standing Orders : wilful slowing down in performing of work, or abetment or instigation thereof. Contract of employment. Settlement

Landmark Judgements...
Zakih v/s Firestone Rubber Company, 1954, I LLJ, 281, Bombay HC. Bharat Sugar Mills v/s Jai Singh, 1961, II LLJ, 644, SC. Bank of India v/s T S Kelawala, 1990, II LLJ, 39, SC. P G Gangadhanan v/s Presiding Officer, 1996, II LLJ, 1234, Madras HC. Krishkumar v/s Nicholas Laboratories, 1997, II CLR, 324, Bombay HC. Carona Sahu Ltd. v/s Mansoor Ahmed, 1997, I CLR, 769, Bombay HC.

Go Slow must be wilful ...

wilful Deliberation & calculation, intention on the part of the employee to prejudice the interest of the employer. Rules out any possibility of the slowing down being accidental or unintentional.

 Investigation : nature of production, stages of production, their relative importance, role of worker at each stage, pre-production activities, facilities for production, effect on production. Chargesheet : sufficient particulars about the go-slow indulged in by him, days on which he slowed down, norms that the employer expects / are fixed, how he has fallen below the norms.

Disciplinary action...

Disciplinary action...
Reply to the Chargesheet by the employee Departmental Enquiry Report of the department enquiry Second showcasuse notice Reply to the S.S.N Punishment

Punishments :
Censure / warning Deduction in wages Dismissal

Measures...
Establish by documentation production norms expected from workmen over a normal shift..quantification of output. If there is any change in the procedures, process improvement, introduction of new machinery, refix the norms. Understand a workmans viewpoint while finalising the norms. Norms should not be negotiable after finalisation.

Measures...
Norms should be communicated to all workmen..wherever possible..include it in the Settlement Wherever the shotfall in production is noticed, record the same with details of the date, shift, names of the workers, technical reasons for failure, time etc. Wherever the shotfall is attributable to the workman, discuss with him first. Put up periodic notices, in case of a collective go-slow.