Domestic inquiry
anil mishra
(Querist) 18 October 2011
This query is : Resolved
Dear Sir,
I am working as sales promotion employee in a LTD Pharma co.I hv not joined at the transferred place & had applied for PL due to sickness of my wife which has not been approved.Company has setup domestic inquiry which I am attending with my Defence Rep.
1-Co. did not suspend me.I hv demanded subsistence allowance.Is it legal?
2-No preliminary inquiry was conducted & no show cause notice was sent to me.
3-Both EO & MR are advocates & not the employee of company.Can MR be outsider?
4- Mgmt did not give any list of witness & list of documentary evidence as demanded by my DR.
5- Can I go to Labour court for subsistence allowance,certified standing order & unfair inquiry?
Please guide.
Advocate Rajkumarlaxman
(Expert) 19 October 2011
I do not think that you can go in Labour Court But you can file a summary suit for the same. As sales persons are not included in labour you cannot move to labour. but what exactly was your appointment was in Sales ?
Guest
(Expert) 19 October 2011
Dear Anil,
Replies to your queries are as under:
1) Subsistence allowance is permissible only when the employee is suspended. If on joining you have absented that event would have been treated as unauthorised absence.
2) About preliminary inquiry or show cause notice, if not done you can take advantage of shortcomings adopted by the company in disciplinary proceedings.
3) That depends upon the the provisions made in the MAA of the company. You may go through that.
4) You can go to labour court for unfair inquiry, but I am doubtful whether labour court would accept your claim for subsistence allowance without being suspended. Certified Standing Order of the company may provide you more guidance in that respect.
Biswanath Roy
(Expert) 19 October 2011
You are entitled to all allowances during domestic enquirey period. MR is the appointed person of the management he cannot be said as outsider. Labour court has no jurisdiction to take up your case better you can file a summery suit in the civil court.
anil mishra
(Querist) 19 October 2011
I thank all the expert members for their advise.As per my knowledge Medical Representatives are covered as Labour in SPE act.
Dhingra Sir, I had not joined at transferred place & applied for PL due to sickness of my wife. That leave has not been approved by company & they are treating it as unauthorized absence.They did not suspend me only charge sheeted me & setup the enquiry.
Guest
(Expert) 19 October 2011
Dear Anil,
From the additional information provided by you, since clear evidence is there about your non joining the new post on transfer and having proceeded on leave without getting prior approval of the competent authority, it can be said that the company would not have thought any need to make any peliminary inquiry.
So, in the charge sheet issued to you probably the company would have leveled charge against you for remaining on unauthorised absence, if not about non-compliance of the order of transfer.
Better, first of all defend your case effectively with the help of an expert in service natters in the domestic inquiry along with a clear medical proof of your wife's illness.
You can also try to take help of the labour court for challenging unfair inquiry on the ground of wife's illness.
Dr Anil Kumar Singh
(Expert) 19 October 2011
Dear one ,
I agree with all experts. However you should defend your internal inquiry effectively with your DA as one of the service experts. The option of going to court is open to you every time but since you have intentionally or unintentionally defaulted in joining your service at posting place it is right of the company under permitted rules to serve charge sheet and conduct inquiry. If you are on right non can make unjust order against you.
anil mishra
(Querist) 19 October 2011
Thanks to all the experts.
H. S. Thukral
(Expert) 19 October 2011
First of all you are a workman as per SPE Act has been uniformly extended to medical representatives.
since you are not suspended you can claim full salary. File an application under section 33(c) 2 of the ID Act before a labour court
If no charge sheet was issued to you the inquiry has no foundation and it will be invalid.
In this case you can also take help of an advocate in your defence.
List of witnesses is not important but the documents relied upon are to be produced on record.
At this stage you can not challenge the unfairness of proceedings of the inquiry. If any action is taken on the basis of inquiry you can challenge the same. You can ask for the copy of standing order of the company from the IO and refusal shall be in your benefit.
malipeddi jaggarao
(Expert) 21 October 2011
The Domestic enquiry procedures applicable to Public Sector Undertakings/Government Employees are in applicable to the employees of private sector mutatis-mutandis. Every company has its own laid down procedure and this procedure should be in consonance with the principles of natural justice. You have go through your company's document to ascertain the procedures.
