Dr. G.P. Naik
Principal Consultant at Talent Avenues
Domestic enquiry (DE) is a process by which an employee of the organization accused of committing misconduct is subjected to trial within the organization by appointing an enquiry officer (EO), to ascertain the veracity of allegations, so that charge sheeted employee (CSE) can, be punished if proved guilty or be acquitted if not proved guilty. Punishing an employee without conducting the enquiry is illegal, except in case the accused employee unconditionally accepts the alleged misconduct.
If there is not sufficient evidence, better avoid issuing the charge sheet. Having said so, in most of the cases, the organization is fully aware that a particular employee has committed the misconduct, but it does not know how to gather valid evidence to prove the misconduct. Hence this article will guide the organizational managers to learn, how to build a strong case to prove the misconduct of the accused employee in DE.
Initiating the enquiry by issuing the charge sheet is easier. But preparing a strong case by gathering valid documentary proof or by way of producing authentic witnesses is challenging. If organization fails to prove the allegations against CSE, the other employees are likely to lose faith in enquiry policy and feel that management is harassing employees on flimsy grounds. Hence the management should think before issuing the charge sheet, whether it has proper evidence to prove the misconduct against CSE.
HOW TO DETERMINE IF THE ALLEGATIONS ARE FIT ENOUGH FOR ISSUING CHARGE SHEET
HOW TO GATHER THE INFORMATION BEFORE ISSUING CHARGE SHEET
When allegations of misconduct are reported against an employee, the management in some cases will have (a) sufficient and (b) valid evidence, to prove the allegations of misconduct. But in most of the cases the management will not be having sufficient valid evidence to go ahead with the enquiry. Hence the following measures may be taken by the management to gather the required evidence to substantiate its case.
1) PROTECT THE WITNESS AND PRESERVE THE DOCUMENTS: When the allegation of misconduct is reported, please take quick action to protect the witnesses. If you think that, the accused employee is likely to threaten or influence the persons, who are likely to depose as management witnesses, he may be placed under suspension pending enquiry or be transferred to another factory or branch of the company. Identify the relevant documents and material objects which the management is likely to produce in the enquiry to prove the allegations and keep them in safe custody. If there is CCTV footage of the incident, it has to be retrieved, failing which it may get deleted after a couple of days.
2) RECORDING THE EVIDENCE OF EYE WITNESSES: The persons who have seen or heard the incident of allegation will remember it properly, if they are asked to write it down and submit it to the company immediately. Such incident reports if collected and preserved can be submitted by the management in support of its case. Witnesses should be informed to mention the date, time, place, person, and the alleged incident correctly. If necessary ask them to re-write the incident report to connect the missing links.
3) INVESTIGATE THE MATTER: If the alleged misconduct is vague or there are missing links in the case, appoint an expert (generally an officer of the company) to investigate the matter and submit the report. For example, the Cash Verification Officer of the bank has found that one million rupees is missing from the cash vault. The Investigating Officer (IO) may speak to the concerned persons, collect the relevant documents and objects and may also give his views about, what would have really happened in the given circumstances of the alleged case.
4) ISSUE SHOW CAUSE NOTICE TO THE ACCUSED EMPLOYEE: Issuing show cause notice to the accused employee calling for his explanation about the allegation, may provide some information about the case. For example the accused employee may admit the allegations unconditionally so that domestic enquiry may not be conducted; or he may say that, he was on leave or admitted to a hospital for treatment on the day of alleged misconduct; or someone has impersonated him, all of which can be cross checked to find the truth.
5) ARRANGE LABORATORY TEST OR SEEK EXPERT OPINION: If the available evidence requires a laboratory test, please have it conducted from the government approved laboratory. If authenticity of a signature finger print has to be ascertained, please get it done from the government approved forensic laboratory. If a documentary evidence requires translation, get it done from the directorate of translation.
6) COLLECTING THIRD PARTY INFORMATION THROUGH RTI OR OTHER SOURCES: Sometimes there is third party information which is relevant in a given case. For example the accused employee submits a medical certificate from government hospital to justify his absence from duty. Please write to the concerned hospital under Right to Information Act (RTI) seeking the copy of Patient Treatment Register maintained in the hospital to find out if the accused employee had really gone to the hospital for treatment. In criminal cases, write to the Police Station, seeking copy of complaints or confessions in respect of the accused employee.
BUILDING STRONG CASE AGAINST HABITUAL OFFENDERS OF MINOR MISCONDUCT
Some employees have habituated to commit misconduct of minor nature quite often. It looks impractical to conduct domestic enquiry on such issues, every time the allegation is reported. When such minor misconduct is frequently committed, it becomes an issue. For example the employee comes to work late by three to five minutes at least three days a week or the employee teases his junior employees or refuses to wash his food plate like other employees at the factory canteen. In such cases, the supervisor in consultation with the human resource department should build proper records for every minor misconduct. Many such minor misconduct can be clubbed together to develop a strong case in due course if records are built as under.
1) Issue a show cause notice every time a minor misconduct is reported and keep the acknowledgement copy and reply to show cause notice in personnel file.
4) Issue a warming or caution letter or impose any small punishment every time the employee admits his misconduct, and keep the acknowledgement copy in personnel file.
5) Conduct counselling sessions to the accused employee to change his behaviour and keep the record of counselling, in his personnel file.
PREPARING THE WITNESSES FOR DOMESTIC ENQUIRY
Witness is a person who is presumed to know any information about the reported allegation of misconduct, which he is expected to reveal in the presence of opposite party by personally appearing on behalf of any one party in the domestic enquiry. He is also expected to answer the questions asked by the opposite party. The statement given by the witness is called Chief Examination and the questions asked to him by the opposite party is called Cross Examination.
Generally it is believed that no preparation is needed for a witness since he is going to tell only the truth. But most of the witnesses do not know how to add substance to their witness statement by accurate facts and figures like, date, time, place, context, incident and the persons involved. Hence the Management Representative (MR) in case of management side witnesses and Co-Employee (CE) in case of employee side witnesses should guide their respective witnesses to give accurate statement as under.
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