DHIREN BHANKHARIA

CHARGE-SHEET/SHOW CAUSE NOTICE

A charge-sheet is a document which sets out the allegations of misconduct, misbehavior, indiscipline, lack of interest, negligence etc. on the part of the employee which he should not have committed in contravention of existing rules of the organization. It is a document which should form the basis for subsequent enquiry proceedings.

The concept of charge-sheet has been derived from the criminal law. Charge sheet under criminal law is a formal document stating the offense with which the accused is charged. The concept of charge in disciplinary enquiries derives its substance from the criminal law though the concept is not identical in both these types of proceedings.

The vagueness of a charge-sheet is clear denial of the Principles of natural justice. If the charges are imprecise and indefinite, the person charged may not be able to understand them and defend himself effectively.

Steps in disciplinary action:

· Preliminary enquiry, if required.

· Charge-sheet/ Show cause notice.

· Delivery of charge-sheet.

· Consideration of explanation.

· Selection of Enquiry Officer.

· Issuing Enquiry Notice.

· Proper Domestic Enquiry.

· Report of the Enquiry Officer.

· Consideration of Enquiry Report by the authority.

· Awarding of punishment.

· Delivery of punishment letter.

Employer is bound to scrutinize the reply to charge-sheet.

BASIC PRINCIPLES OF ENQUIRY

The basic principles of enquiry lie in the Principles of natural justice and the Principles of reasonable opportunity. The concept of reasonable opportunity extends throughout the proceedings from the time of framing the charge till the final order of punishment is imposed on the delinquent. Any violation of this principle at both the stages of the proceedings i.e. at the enquiry stage and at the second stage before imposition of punishment vitiates entire proceedings which are treated as one and indivisible so far the charge-sheeted employee is concerned. The reasonable opportunity afforded at one stage cannot absolve the authorities from giving it at another stage.

The principles of natural justice implies that the delinquent employee has a right to receive the charge-sheet against him, to submit a written reply to the same within a reasonable period, to have the prosecution witness examined in his presence and to cross examine them, to adduce his own evidence in support of his defence, to inspect documents proposed to be used to get a neutral Enquiry Officer or Committee.

It is a fundamental principal of justice that the Enquiry Officer/Enquiry Committee should have an open mind and should not have bias or prejudice against the employee concerned. If this principle is not followed while making the appointment of Enquiry Officer/Enquiry Committee then the enquiry by such person/such committee would be a farce.

Where the management is being represented by the legally trained person as presenting officer and the employee requested in that enquiry that he also be permitted to represent by lawyer because the presenting officer is a legally trained person, the refusal of such demands amounts to denial of reasonable opportunity.

It is the burden of the enquiry officer to prove that the employee is guilty of misconduct and it needs to be reasonably proved.

The statements of witnesses whether prosecution or defence including that of accused shall be recorded by the Enquiry Committee itself.

Point deserves to be mentioned that an enquiry officer cannot recommend any punishment. He is only authorized to submit his finding, based on the evidences & witnesses, to the effect that whether the employee is guilty of misconduct or not.

It is a must for the Enquiry Officer to put his signature on every page of the enquiry proceedings. The employee is also required to put his signature on each page of the same. The fact of his denial to put his signature is required to be written by the Enquiry Officer on those pages where the employee denies so doing.

Misconduct means

The intentional doing of something which doer knows to be wrong or which he does recklessly, not caring what the result may be.

Dismissal can be granted on following grounds:

· Such conduct on the part of the employee as may be deemed to be inconsistent or incompatible with the faithful discharge of his duties or

· Such incapacity as prevents him from fulfilling his contract of service with the employer or

· Such immorality on his part as may bring the employer in disrepute.

DEPARTMENTAL ENQUIRY

If Enquiring Officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on that report is liable to be quashed.

Departmental Enquiry involves two stages:

Firstly it is decision regarding truth of allegations and secondly it involves taking of action. Judicial approach is essential in both.

No order can be passed on mere suspicion.

Enquiry Officer is under obligation to give findings on each article of charge and the reasons therefore.

In the case of major penalty a regular departmental enquiry after the affording reasonable opportunity by adducing evidence, rebuttal, examination and cross-examination and to examine defence of evidence is necessary. Mere issuing of show-cause notice and consideration of explanation is not a sufficient compliance.

A second show cause notice is, in fact, the accused employee’s last opportunity to place his side of the case before the appointing authority who is about to take the last decision against the accused employee armed with the report of the Enquiry Officer. If he doesn’t get a copy of the report he has no means of knowing what findings of the Enquiry Officer have gone against him and what have weighed with the appointing authority in coming to a decision as to the punishment proposed to be inflicted upon him. So whether or not rules or regulations provide for a copy of the report to be given to the accused employee, the rules of natural justice require that along with the show cause accused employee should be furnished with the same. The second show cause notice no doubt requires him only to show cause why the proposed punishment shall not be inflicted upon him. But upon perusal of his reply, the appointing authority may still take a view of his guilt. DLR 41, 1989 Page 142

An employer while finding any employee guilty of misconduct is obliged to consider the gravity of such misconduct and while awarding punishment like dismissal, the employer is also obliged to consider any extenuating circumstances like the period of service, previous record etc. This obligation is though of a directory nature, no employer is absolved from its obligation to consider the implication of such previous record while awarding punishment.

THIS ARTICLE WROTE BY MR NAHID ON LAWERCLUBINDIA ON 14.06.2012.

Rebuttable presumption in Cheque-Bouncing cases: Supreme Court: "Holding that the presumption under Section 139 of the Negotiable Instruments Act is one of rebuttable in nature, it is open to the accused in a cheque-bounce case to lead in evidence to rebut the presumption. Section 139 prescribes that "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability." Thus once a holder of cheque lodges a complaint, it is presumed that the cheque was issued for discharging a liability, which unless rebutted leads to a conclusion that offence has indeed been concluded. However this presumption can be rebutted and the Bench specified the manner in which such...

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