HOW TO PREPARE THE WITNESSES AND DOCUMENTS FOR THE DOMESTIC ENQUIRY

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

1. Is the accused employee alive now to face the enquiry. If he is dead, don’t issue charge sheet.
2. Is the employee mentally fit to face the enquiry. If he is mentally ill, you cannot hold the enquiry unless and until, he gets fully cured of mental illness.
3. Is this case serious enough to warrant charge sheet and enquiry needing attention and resources of the company? For example small allegations committed for the first time may be closed in simple ways like, issuing show cause notice, cautioning or coaching.
4. If the accused employee is not charge sheeted for the alleged misconduct, is it likely to breed more indiscipline among other employees? For example certain employees are alleged to be manipulating their attendance records, so as to come late or not to come to work at all.  If so why not charge sheet.    
5. Whether the employees are likely to call for agitation/ strike to exert pressure on the management to withdraw the case, if this employee is charge sheeted. If so is it worth facing such a situation and what is the way out? For example a trade union leader has slapped the manager. Management must be firm, to take bold decision in such serious cases.
6. If the accused employee is not charge sheeted for the alleged misconduct, whether the victims in this case are likely to approach government department or court of law for justice by filing case against the company.  If so is it worth facing such a situation and what is the way out?
7. What are the evidences and proofs needed to prove the allegations and do we have them? For example the witness must have resigned from the company or the proof may have been destroyed.
8. If not who else have them and is it legally possible to get them. For example the documentary proof may be obtained from a government department like police station, if the employee is alleged to have committed a crime punishable under law. In some cases the opposite party may be having the relevant documents and it can be obtained by making the written request to EO during the course of domestic enquiry.
9. Are there any alternative ways to prove the allegations in the absence of relevant documents or eye witnesses? For example if attendance register is misplaced or destroyed in a case of unauthorised absence, it can be proved by producing  the salary register in which wages were deducted for the days of absence.  If there are no eye witnesses, the officer who has investigated the case may depose before the enquiry.
10. Is it a deliberate act or unintended act of misconduct? Deliberate acts are committed with ulterior motives knowingly well the consequences. Is it a major or minor misconduct? Major misconduct will have serious ramifications.  Cases involving deliberate major misconduct should be taken up on priority basis, followed by unintended major misconduct and intended minor misconduct. Cases of unintended minor misconduct may be closed by issuing show cause notice followed by caution letter. Is it a simple (not minor misconduct) or complex (complicated) misconduct? Simple misconduct is easy to understand and the needed evidence is easily available to prove the charges.  For example an employee slapping another employee in the presence of supervisor at workplace which is also recorded in CCTV footage. Complex misconduct may not have eye witnesses, the place, date and time of its actual happening as well as persons involved is difficult to determine. For example there is cash shortage of one million rupees in finance department. 

 
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.

1. Witness will have the right to give the chief examination orally or in writing. In either case he has to personally appear in the enquiry to do so.
2. It is advisable to give the chief examination in writing by preparing it outside and submitting it by appearing in the enquiry. This approach will have scope for cross checking the facts and making necessary corrections. To give oral chief examination the witness has to be really smart, because once he utters any words as part of his chief examination, he cannot alter or correct them later, since the opposite party is likely to oppose the alterations.  
3. He may have taken the assistance of others outside the enquiry room, to prepare his statement which he should not reveal in the enquiry. But he cannot take the assistance of any persons when he is in the enquiry room.
4. The language of chief examination has to be specific. For example a witness should not say that he may have said something to someone. Rather he should specifically state, what did he tell, to whom, why and when.
5. But during the cross examination, he need not have to be specific in answering. He may use the terms like “May be”  “I do not remember” etc., depending upon the nature of questions asked. 
6. If he has already submitted a written complaint or incident report, the contents of that incident report and the chief examination should have similarity.
7. Chief examination should have brief introduction of the witness like name, designation, place of work, nature of work etc; his awareness about the accused employee and the allegations; the facts and circumstances of the case that he is aware of; followed by signature of the witness and date.
8. Witness should be made aware that cross examination is conducted by the opposite party to disprove the contents of chief examination.
9. Hence the witness should be briefed to understand the cross examination questions correctly and then decide to answer cleverly.
10. Witness should be told that his single most goal should be to protect the interest of the party on whose behalf he has given the chief examination.  

Please remember not to issue the charge sheet before collecting substantial evidence to prove the allegations.