Principal Consultant at TalentAvenues
Preliminary hearing (PH) is generally, the first sitting or first day of domestic enquiry (DE). PH need not have to be confused with preliminary enquiry or investigation. To conduct it during the first sitting itself, two conditions should have been fulfilled namely; (a) both the parties namely Management Representative (MR) and Charge Sheeted Employee (CSE) should be present and (b) Charge sheet and notice of enquiry must have been sent to CSE by the management by then. If these conditions are not fulfilled then; PH has to be held during second or subsequent sitting when the conditions are met. PH is meant to plan for the regular hearing and not to conduct chief examination or cross examination.
PH is part of domestic enquiry and is compulsory, before starting the regular hearing. It will be held only after the charge sheet and notice of enquiry is issued by disciplinary authority (DA) to the charge sheeted employee (CSE). It is initiated, moderated and concluded by the Enquiry Officer (EO). Hence, EO after receiving from DA, his order of appointment as enquiry officer, will send the notice of PH in writing to (a) MR and (CSE).
If CSE fails to appear for PH by remaining incommunicado (without sending any oral or written communication), on two or three dates, the EO may instruct the MR to publish a notice of enquiry in local newspaper. If CSE remains absent even thereafter, the EO shall continue (not conclude) the enquiry ex-parte (continuation in the absence of other party).
Objectives of PH
Activities during the PH
1) Both the parties (MR and CSE) and EO along with a typist will arrive for PH at the predetermined place as per the notified date and time.
2) They will sit in the enquiry room around a square table or round table, in such a way that they can see each other.
3) Typist will set up/ start his laptop / desktop to type the proceedings instantly.
4) EO will introduce himself to all the parties present and state that he was appointed as EO by DA’s order dated... .
5) CSE and MR also introduce themselves.
6) MR submits a copy of his appointment/ authorization letter issued by DA to represent the case on behalf of the management.
7) CSE submits a copy of his authorisation letter, authorising his co-employee (CE) (say Mr. A) to assist him in the enquiry.
8) MR may oppose the proposed CE if it is in violation of standing order or service rules.
9) EO will reject or uphold such opposition in accordance with norms based on merits.
10) EO will ask the CSE (a) whether and when he has received the charge sheet (b) whether he understood the contents/charges mentioned therein and (c) whether he accepts the allegations and charges.
11) CSE will say (a) not received or (b) received but did not understand its content or (c) received and understood its content. CSE may (a) reject all the allegations and charges as false or (b) may accept some of them and reject the rest or (c) accept all of them.
11) If CSE has not received the charge sheet a copy can be provided instantly, if he has not understood it, EO can explain it, if he admits the allegations and charges unconditionally, the enquiry can be concluded by mentioning at the end of the proceedings of PH that “The enquiry is concluded, since CSE has unconditionally admitted all the allegations and charges” (In such a case the enquiry gets over here and the matter goes back to DA for proposing and imposing the punishment to CSE. Otherwise regular hearing will start for chief examination, cross examination and final submission by the parties as under. Conditional admission is not to be accepted. If CSE has accepted few allegations and charges, then leading the evidence and documents should be limited only to the allegations and charges not accepted).
12) EO will explain the procedure of enquiry to both the parties as under.
12) EO will first ask the MR (management side) to produce the witnesses and documents to prove the allegations and charges against CSE. (As per enquiry norms only thereafter the CSE shall lead evidence to defend himself).
13) MR will produce immediately or agree to do so in the next hearing.
14) EO asks MR to give copies of submitted documents or material objects to CSE. (Copies of documents or material objects submitted by one party has to be given to other party).
15) EO will hear the grievances, requests or complaints if any of the parties and pass necessary orders.
16) EO may discuss the suitable date, time, or place for regular hearing. For example certain dates may not be convenient to some witnesses, CSE is physically handicapped and the venue of the enquiry which is in third floor does not have elevator, one of the key witness is bedridden for medical reasons and cannot travel to the venue of the enquiry.
Challenges and solutions in PH
PH need not be a smooth affair in every case. It can pose several challenges, some of which are described below along with possible solution.
(Proceeding of a preliminary hearing given below will help you understand it better)
PROCEEDINGS OF THE DOMESTIC ENQUIRY AGAINST MR. RAMAN DEV, EMPLOYEE NO.1114, WORKMAN EMPLOYED WITH PONIM INDIA PRIVIATE LIMITED AT ITS FACTORY LOCATED IN NO.4009, PEENYA SECOND STAGE, BANGALORE IN THE MATTER OF CHARGE SHEET CUM SHOW CAUSE NOTICE DATED 10TH SEPTEMBER 2017
Date: 15th May 2018
Time: Started at 10 am and concluded at 1 pm
Venue: Meeting Hall of the factory
Dr. G P Naik - Enquiry officer (EO)
Mr. Munish Kumar- Management representative (MR)
Mr. Raman Dev- Charge sheeted employee (CSE)
Mr. Johnson David- Co- employee (CE)
The next hearing will be held on 20th June 2018 at 10.45 am at the same venue. All the parties are advised to come fully prepared. If any party fails to attend the enquiry, it will be presumed that they are not interested in participation and the enquiry will be ex-parte.
G P Naik (EO) Munish Kumar (MR)
Ramani Devi (CSE) Johnson David (CE)