Drunken employee- can terminate?

Associate R (Querist) 05 March 2010 This query is : Resolved
One of my client who is an employee was working in 2nd shift from 3.00 pm. At 8.00 pm the employer found that alchohol smell is coming and took the blood and sent for test next day to Medical Officer, though there was Central Hospital, ESIS Hospital was available. No liquor bottle found in the company nor the employee went outside from the time of his duty. The security checked the employee before letting him inside the company for duty. How far the case of an employer is correct? When the worker was covered under ESIC, they took test from Medical Officer.
The employer conducted domestic enquiry and findings have been provided. The workman apprehend that they may terminate him on this ground.
My query is that can the employer do this by taking the shelter of report of Medical Officer when the Government/ESIS Hospital's reports were not taken?

Thanks in Advance
Annapurna

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Raj Kumar Makkad (Expert) 05 March 2010
Departmental/domestic enquiries by companies are taken/conducted as per their whims and wishes in practical. The employer is not bound to take such employee in ESTC rather he can take him in the hospital of his desire. If violation of any rule is made by your employer then you can go to appropriate forum of law but mere anticipation of adverse action do not give you a cause of action to file any suit.

B K Raghavendra Rao (Expert) 05 March 2010
The employee would have cross-examined the management witness, when the employee was sent for medical examination on the day next to the day of alleged drunken behaviour. It is not revealed whether the Medical Officer is the medical officer appointed in the company or a private practitioner. In any case, rather than source of medical exam, it is the fact that matters. Employee can challenge the delay in medical examination rather than the source.

Sarjooram Sharma (Expert) 06 March 2010
Drinking liquir on duty is a misconduct. If proved during the domestic enquiry, the emplyee may be punished. The general principle is that during the enquiry the principles of natural justice should be followed and the punishment should be proportionate to the misconducted committed and proved. But upto what extent the employer follows these principles, it depends on the employer only. However, after punishment order of the employer, redressal is available in the labour court under Industrial Diputes Act, 1947.

Kirti Kar Tripathi (Expert) 12 January 2011
I AGREE WITH MR. SHARMA. IT IS SERIOUS MISCONDUCT AND TERMINATION IS NOT DIS APPROPRIATE IF ENQUIRY IS LEGAL, THE COURT CAN NOT SIT AS COURT OF APPEAL OVER THE FINDINGS OF ENQUIRY OFFICER.