Certified standing orders
Navin Pandya
(Querist) 04 March 2014
This query is : Resolved
Dear Legal Experts,
Namaste!
I have the following query:
M&M Ltd's Certified Standing Orders provide for dismissal without Notice. How Labour Commissioner has certified and allowed such provision? Is it not violation of fundamental/human right?
"clause 23 (1) A workman guilty of misconduct may be-
(a) warned or censured, or (b) fined subject to and in accordance with the provisions of the Payment of Wages Act,1936, or (c) suspended by an order in writing signed by the Manager for a period not exceeding four days, or (d) dismissed without notice." The formality of charge-sheet and enquiry to be completed.
Can such provision be challenged under Writ
Petition?
Kindly advise.
Best regards,
Navin Pandya
Guest
(Expert) 04 March 2014
Any opinion/comment without examination of the full text of the dismissal related clause would be irrelevant.
So, better reproduce the relevant clause in full, if you want any opinion of experts.
Navin Pandya
(Querist) 04 March 2014
The clause added in the query.
Guest
(Expert) 04 March 2014
Is the statement, "The formality of charge-sheet and enquiry to be completed" also the part of the said clause, as added after, "(d) dismissed without notice"?
Rajendra K Goyal
(Expert) 04 March 2014
After reading full para the punishment step is to be taken after employee is found guilty of misconduct.(such finding can be after following of process.)
Navin Pandya
(Querist) 04 March 2014
Yes, Sir. Clause 23 (3) is about the enquiry and 24 (4) about charge-sheet and recording of evidences.
The point is, if the Enquiry Officer proposes or does not propose any action, can an employee be dismissed without informing him nature of proposed punishment & notice?
Even if action is proposed and employee dismissed without notice, will it not constitute violation of his fundamental rights?
Guest
(Expert) 04 March 2014
There is a marked difference in a court case and a departmental enquiry. In a departmental enquiry, the Enquiry Officer is not authorised to propose or recommend any action to the Disciplinary Authority. He is supposed merely to enquire in to the charge and can state whether the charge is proved or not proved on the basis of the evidence adduced during the enquiry proceedings.
It is up to the disciplinary authority to consider which penalty is justified to be imposed on the delinquent official, if the charge is proved during the enquiry proceedings. The penalty can be dismissal, if the charge is considered to be quite grave or pertains to moral turpitude. Rule 23 denotes that if after due conduct of enquiry proceedings, the charge of the workman is proved, he can be dismissed without any further notice. A copy of enquiry report, of course, is provided to the workman for his information.
However, the workman has the right to appeal against the orders of the disciplinary authority on dimissal.
So, you need to read the rules of CSO in totality, instead of reading individual rules to arrive at some distorted interpretation.
Navin Pandya
(Querist) 05 March 2014
Quote from Order in Appeal (Civil) No. 1508/2003 in Supreme Court.
"With reference to an incident which took place on 7.111991 wherein it is alleged that the respondent workman used abusive and filthy language against his supervisor, an inquiry was instituted against the said workman and the Inquiry Officer after considering the material produced in the proceedings before him found him guilty of misconduct and recommended his dismissal and based on such recommendation service of the respondent was terminated by the disciplinary authority on 5.3.1991."
Here the dismissal was recommended by Enquiry Officer as stated in the above quote.
Still my querry is, irrespective of everything, dismissal without Notice violate human rights. Can it be challenged by Writ Petition?
Guest
(Expert) 06 March 2014
You are quoting, what the petitioner said in its petition, but has not mentioned, what was held by the SC in its judgment? If the inquiry officer has made any recommendation that can just be termed as influencing the decision of the diciplinary authority, who is expected to apply his own mind by not getting influenced by the recommendation of someone else, even the inquiry officer.
About your query, "dismissal without Notice violate human rights" you want me to form my opinion by reading between the lines. If you believe without going through the whole process of inquiry and communication of decision, as prescribed in the standing officer, that dismissal without notice violated the human rights you can feel free to submit your petition even to the human rights commission, what to say of the competent court. But, for that you will first have to challenge the validity of the CSO to get that treated invalid by the court of law.
