DOMESTIC ENQUIRY IN THE CONTEXT OF BANGLADESH LABOUR CODE- 2006

M. SHABBIR ALI

LEARNING OBJECTIVES

Concept of Domestic Enquiry

Objective of Domestic Enquiry

Domestic Enquiry Vs Trial In A Court

Domestic Enquiry and Departmental Enquiry

Principles of Domestic Enquiry

Enquiry Against Whom and Why

Who is a worker?

Steps in Disciplinary Action

Preliminary Enquiry

Charge-Sheet and it’s Contents

Suspension Pending Enquiry

Consideration of Reply to Charge-Sheet

Selection of Enquiry Officer

Appointing Lawyer/ Outsider as Enquiry Officer

M. Shabbir Ali

LEARNING OBJECTIVES..CONTD.

A-Z: Functions of Enquiry Officer/ Process

Five Question by the Enquiry Officer

How Enquiry Can be Vitiated?

Disciplinary Action Process Model

Punishment for Conviction & Misconduct

Settlement of Final Payments

Grievance Procedure

Q&A

Reference/ Sample: Charge-Sheet/ Model-Enquiry Notice/ Suspension order/ Model-Enquiry Proceedings/ Dismissal Letter/ Removal/ Termination Letter/ Letter of Demotion/ Letter of Warning/ Letter of Suspension as punishment/ Show-Cause notice in case of conviction by a court:

“Sashtimulak Babostha” -by Advocate SA Huq

M. Shabbir Ali

CONCEPT OF DOMESTIC ENQUIRY

Introduction:

If organization is to be competitive and economically sustainable in the long run, it is not just enough for them for simply employing and paying the people. For smooth running of an organization employees are considered for:

Their Attitude

Their Conduct &

Their Behaviour or Performance

In the positive sense all these above three contributors create Industrial Peace, which is the very foundation of Industrial Democracy. Without Industrial Democracy no enterprise would prosper. Organizational disharmony results in conflicts and frustrations.

So, any allegations for employees’ conduct, behaviour or performance needs authentic verification, usually dealt through a process of natural justice called “Domestic Enquiry”

M. Shabbir Ali

CONCEPT OF DOMESTIC ENQUIRY CONTD.

What is it in brief:

A domestic inquiry is an internal hearing held by an employer

to ascertain whether an employee is guilty of misconduct.

The purpose of a domestic inquiry is to find out the truth of

the allegations made against the workman

Rather than view the domestic inquiry as burden on the

management, and an unnecessary waste of time, resources

and expense, the employer, should view the process of the

inquiry as a means to show that every possible means was

made available to avail the employee of meeting the charges

against him and, if possible, clearing himself.

M. Shabbir Ali

OBJECTIVE OF DOMESTIC ENQUIRY

The objective of holding a domestic inquiry is

twofold:

- Firstly, to give the opportunity to the

employer to prove the charges of

misconduct against a delinquent employee

before punishment is meted out and

- Secondly to give the employee sufficient

opportunity to defend himself/herself.

M. Shabbir Ali

TRIAL IN A COURT OF LAW VS DOMESTIC

ENQUIRY

While a trial in a court is for crimes done against society,

the domestic enquiry is conducted for offences committed

against the establishment for misconduct, punishable under

the standing orders/rules and regulations of the

organization.

While a trail in a court is in accordance with the criminal

procedure code, civil procedure code, evidence act etc., the

domestic enquiry is conducted in terms of what is known as

‘Natural Justice’. Also, the enquiry officer while examining

the evidence and pronouncing on the guilt is not authorized

to penalize the employee. It is only the employer or the

appointing authority also known as notified disciplinary

authority who can pronounce the penalty.

M. Shabbir Ali

DOMESTIC ENQUIRY AND

DEPARTMENTAL ENQUIRY

The term ‘Domestic Enquiry’ is commonly used in

connection with an enquiry against industrial or commercial

workers. [Private Sector]

On the other hand, the enquiry against Government Servant

is called as a ‘Departmental Enquiry’. [Public Sector]

But there is no hard and fast rule for use of these terms. Still

there are essential differences between the enquiries into

the charges against the industrial workers and Govt.

Servants.

M. Shabbir Ali

PRINCIPLES OF DOMESTIC ENQUIRY

1. Rule of Natural Justice must be observed.

2. The delinquent is entitled to a just hearing.

3. He can call for his own evidence.

4. Cross-examine any witness called by the prosecution.

5. Where rules are laid down, the procedure of such rules

must be followed.

6. Disclose to the employee concerned, the documents of

records and offer him an opportunity to deal with it.

7. Do not examine any witness in the absence of the

employee.

8. The enquiry officer is at liberty to disallow any evidence

after recording the reasons in writing.

M. Shabbir Ali

ENQUIRY AGAINST WHOM AND WHY?

There is a proverb “No man can be punished

without giving him or her a fair opportunity of self

defence”.

So it recommended that the principles of domestic

enquiry should be followed equally in dealing the

misconducts of :

Senior Managers, Managers or,

Supervisors or,

Workers

Union Leaders/ EC Members: Domestic Enquiry

can also be initiated against a Union Leader or

EC Member-[Without any malafide intention].

M. Shabbir Ali

WHO IS A WORKER?

a. A person does not ceased to be worker only because he is

employed in a supervisory capacity. To be able to say that he

is not a worker, it has to be established further that he

exercises functions mainly of a managerial or administrative

nature.

b. What is important in determining whether a person is a

worker or not is to see the main nature of the job done by

him and not so much his designation

...Ref. 31 DLR, P-301

Mere designation is not sufficient to indicate whether a

person is a worker or an employer, but it is the nature of the

work showing the extent of his authority which determines

whether he is a worker or employer ...Ref. 40 DLR (AD), P-45

M. Shabbir Ali

STEPS IN DISCIPLINARY ACTION

Prior to issuance of any order of punishment the employer has to comply with certain steps and those are:

1. Preliminary enquiry, if required

2. Framing of Charge-Sheet

3. Delivery of Charge-Sheet

4. Consideration of explanation

5. Selection of Enquiry Officer

6. Issuing Enquiry Notice

7. Proper Domestic Enquiry

8. Report of the Enquiry Officer

9. Consideration of Enquiry Report by the Authority

10. Awarding of Punishment

11. Delivery of Punishment Letter

M. Shabbir Ali

PRELIMINARY ENQUIRY

It is not mandatory, but it helps to record or protect any

important evidence, statement or witness of an incident

immediate after it’s occurrence, which ultimately helps the

management in proving the misconduct. This also helps the

management whether it is necessary to initiate a

Disciplinary Action against the employee concerned or not.

Such an enquiry may be termed as Fact-Finding

Enquiry

The management may conduct this at it’s own discretion

The preliminary Enquiry is done prior to issuance of

charge sheet

There is no hard and fast rule followed in conducting

Preliminary Enquiry, it can either be done in presence or

in absence of the employee

M. Shabbir Ali

CHARGE SHEET

The concept of charge sheet has been derived from criminal

law

A Charge Sheet is a document-

Which sets out the allegations of misconduct,

misbehaviour, indiscipline, lack of interest, negligence,

theft, fraud etc. on the part of the employee which he

should not have committed in contravention of existing

rules of the organization.

Which should form the basis for the subsequent enquiry

proceedings.

M. Shabbir Ali

CONTENTS OF A CHARGE SHEET

It is important that the charge sheet contains the following details:

- Name of the person charged

- Employee number

- Address

- Date, Time & Place of Occurrence

- Narration of the misconduct alleged

- Relevant clause and specific act of misconduct under the standing order/ Rules/ Regulations

- Calling for an explanation within a stipulated time frame

- If the charge rest on written report, a copy of that report to be enclosed

- If an employee has used abusive language to his superior officer, a reference to the particular provisions of standing orders will not be enough, the actual words alleged to have been used by the employee must be quoted in the charge sheet, along with the circumstances under which this was used by the employee

M. Shabbir Ali

PURPOSE, LANGUAGE, TIMING OF

CHARGE SHEET

Purpose: It should be specific and clear and never vague. Irrelevant matters not connected with the charge should be omitted from the charge sheet

Language: There is no hard and fast rule, but it is suggested that it should be written in the language of the alleged employee, or provide a translated copy of the same for employee’s clear understanding

Timing: There is no specific mention in the BLC. The sooner is the best principle should be followed

M. Shabbir Ali

CHARGE SHEET- POINTS TO REMEMBER

Time to be given for reply:

- Within 7 days (As per BLC)

- Time for submission may be extended for 1/ 2 times.

There is no harm on allowing such time

Who can issue Charge-Sheet:

- There is no mention in the law, usually the employing

authority can sign the charge sheet or,

- By delegation of disciplinary power, any responsible

officer may issue charge sheet.

Amendment of Charge Sheet:

- It can be amended even after issuance

- An additional charge sheet may be issued as well.

M. Shabbir Ali

CHARGE SHEET- POINTS TO REMEMBER

Delivery of copy of charge- sheet to union/ Inspector of Labour Directorate:

- There is no such provision

- However, if there is a mention in the agreement , copy of charge sheet to be provided ( it is recommended that do not keep such provision)

Drafting of Charge-Sheet:

- It is nothing but an Art

- eg. While mentioning any time please write “about 3:30 pm

- Practice and learn this Art.

M. Shabbir Ali

DELIVERY OF CHARGE-SHEET

If possible deliver the charge-sheet to the employee in

presence of a witness and keeping a signature of

acknowledgement on the office copy.

If the employee refuses to receive the Charge-Sheet do not

impose pressure on him. Arrange to send the Charge

Sheet under Registered Post (01 copy each in Present and

Permanent address) and preserve the registration slips in

the file with care. Also arrange to hang a copy of the same

in the notice board of the organization. Any undelivered

Registered letter should be kept intact in the file for future

reference.

It is recommended that do not deliver the Charge-Sheet

through Peon Book or Dispatch Register.

M. Shabbir Ali

SUSPENSION PENDING ENQUIRY

Considering the severity or need such an order can be served prior to issuance of charge-sheet even or, along with the charge-sheet or, on receipt of a reply of charge-sheet.

The management may consider issuing such an order immediate after a misconduct (e. theft, financial fraud, forgery, Violent attitude and fighting in the workplace, or any misconduct grave in nature).

The management may consider issuing such an order when the employees presence may create obstacle of conducting enquiry.

As per BLC-Section 24-2, such suspension is valid up to 60 days only, but in the event of continuation of any case in the court suspension will continue till issuance of verdict.

As per BLC-Section 24-2, the suspended employee will receive half of average pay & allowances as subsistence allowance during the suspension period.

Recording attendance of the employee during suspension is illegal

M. Shabbir Ali

CONSIDERATION OF EXPLANATION IN

REPLY TO CHARGE SHEET

It is always recommended that the explanation of charge- sheet to be sent to the issuing authority

The alleged employee may or may not confess the charges in his reply or may not send any reply at all.

Once received, the employer is bound to scrutinize reply to the charge-sheet and then decide accordingly

If the employee confesses the charge/ charges, the management may proceed for awarding punishment without further formalities. But any punishment of termination or dismissal should be initiated after proper and complete enquiry.

While the explanation of the alleged employee is not found satisfactory, the management consider to proceed for further enquiry in to the case through engaging an Enquiry Officer/ or An Enquiry Committee comprising 2/ 3 people.

M. Shabbir Ali

SELECTION OF ENQUIRY OFFICER

The management may engage one or more enquiry officer for

conducting enquiry in to the charge brought against any

alleged employee.

The basic criteria for selecting the panel members for

Domestic Enquiry are:

Officers who are not involved directly with the

investigation and circumstances of the case.

Officers should normally be of a rank or status above the

employee facing the disciplinary charges.

Officers who are not witness of the incident.

Officers who are not having any friendly relation or enmity

with the employee facing the charges

M. Shabbir Ali

APPOINTING A LAWYER OR AN OUTSIDER AS

ENQUIRY OFFICER [BOTH CONSIDERED AS

BEST OPTIONS]

Lawyer/ Advocate as Enquiry Officer

The management may engage employer’s Lawyer (who is

engaged either full time or part time) or an external Advocate

for holding an enquiry by payment. And the workers are not

entitled to complain because a lawyer is engaged to hold the

enquiry.

Outsider as Enquiry Officer

It is now well established that the enquiry can be entrusted to

an outsider and by payment of remuneration it cannot

disqualify him on the ground of bias.

M. Shabbir Ali

ISSUING ENQUIRY NOTICE

The notice of enquiry may be served by the employing

authority or authorized officer who signed the charge-

sheet.

The enquiry officer may also serve the notice of enquiry.

The notice of enquiry may be served directly to the

employee in presence of a witness by keeping an

acknowledgement signature on the office copy

Or, arrange to send the Charge Sheet under Registered

Post.

The employee should receive the notice at least 3 or 4

days before the enquiry, so that he gets an opportunity to

contact his witness for preparation.

M. Shabbir Ali

A-Z FUNCTIONS OF ENQUIRY OFFICER

An Enquiry Officer should complete the enquiry and submit his

findings to the Disciplinary Authority as expeditiously as possible.

To this end he should:

(a) Advise the date of the first hearing to the employee. He may

also advise about the list of documents and witnesses to be

relied upon by the prosecution

(b) Following are the persons allowed in an enquiry proceeding:

i. Delinquent employee

ii. Presenting Officer

iii. Defence Representative if any

iv. Only one witness, at a time who is being examined

(c) Ensure that the employee is present during all sittings of the

enquiry. Without his presence, enquiry should not be conducted.

M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(d) At the enquiry, ensure identity of the employee and ascertain basic details about him, such as name, age, etc.

(e) Ask the employee whether he has received the charge sheet quoting the charge sheet number and date.

(f) Read out the charges one by one and ask him whether he admits the charge. If the employee pleads guilty for a charge proceed to the next charge. If he does not plead guilty to the charges, ask him if he is going to be represented by any defence representative. If so, obtain letter from the employee appointing defence representative.

(g) Allow Representation of Management at the time of enquiry

(i) Allow the Defence Representative to conduct examination of defence witness

(j) Raise objection during enquiry (as needed)

M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(k) Conducting Joint Enquiry (if needed)

(l) Summoning of Witness (Limitation)

(m) Burden of proof – is the responsibility of the complainant

or the representative of the management.

(n) Control the procedure for examination of witness

(o) Guide the method of taking down evidence of witness

(not through Q&A rather in the own language of witness)

(p) Record authentication of evidence ( recording, correcting

and then obtaining signature of witness in the required

pages, but if refused to sign, that act must be recorded in

the proceedings)

(q) Standard of proof (“Reasonably proved” is enough for

Domestic Enquiry, but not like “Beyond reasonable

doubt” as needed in court

M. Shabbir Ali

FUNCTIONS OF ENQUIRY OFFICER-CONTD.

(r) Indexing the Exhibits (both received from management and the employee)

(s) Production of complainant as a witness

(t) Solitary witness

(u) Conducting Ex-Parte Enquiry.

(v) Initiation and closing of Enquiry.

(w) Adjournment of Enquiry (should not allow more than 1 or 2 times)

(x) Writing the enquiry proceedings (enquiry proceedings and the statement of witnesses should be recorded by the Enquiry Officer and obtaining all parties signature on each pages of the proceeding)

(y) Preparation of Enquiry Report

(z) Submission of Enquiry Findings attaching the Enquiry Proceedings and relevant attachments.

M. Shabbir Ali

FIVE QUESTIONS (TO BE ASKED) BY THE

ENQUIRY OFFICER

Have you got the opportunity of self defence in

the enquiry?

Have you got the scope of giving the statement

freely without any interference?

Have the prosecution witnesses given their

statement before you?

Have you got the opportunity to cross examine

the witnesses?

Do you want to say anything more?

M. Shabbir Ali

HOW AN ENQUIRY CAN BE VITIATED

Non observance of the principles of Natural

Justice

Denial of Personal Hearing

Insufficient Personal Hearing

Any biasness by the Enquiry Officer

Not allowing sufficient time to the accused

to adduce evidence

Any Perverse Findings of Enquiry Officer

M. Shabbir Ali

DISCIPLINARY ACTION PROCESS MODEL

Set Organizational Goals

Establish Rules

Communicate Rules to Employees

Take Appropriate Disciplinary Action

Observe Performance/ Behavior

Compare Performance/ Behavior with Rules

EXTERNAL ENVIRONMENT

INTERNAL ENVIRONMENT

M. Shabbir Ali

PROGRESSIVE DISCIPLINARY APPROACH

Improper Behavior/ Act

Does this violation warrant disciplinary

actions?

Does this violation warrant more than

an oral warning?

Does this violation warrant more than a

written warning?

Does this violation warrant more than a

suspension?

Termination/ Dismissal

Yes

Yes

Yes

Yes

Yes

No Disciplinary Action/

Counseling

Oral Warning

Written Warning

Suspension

No

No

No

No

M. Shabbir Ali

PUNISHMENT FOR CONVICTION AND

MISCONDUCT BLC (SEC 23)

Clause 1. A worker may be dismissed without notice or pay in lieu of, if

a. Found convicted for any criminal offense, or

b. Found guilty of misconduct under Section 24

Clause 2. May be under extenuating circumstances, given any one of the following punishments:

a. Termination

b. Demotion to lower post, grade or pay-scale >01 Year

c. Holding up for promotion for 01 Year

d. Holding up of Increment of wages for 01 Year

e. Fine

f. Suspension for not more than 01 week without wages or without subsistence allowance

g. Censure or warning

M. Shabbir Ali

PUNISHMENT FOR MISCONDUCT-

COMPENSATION BLC (SEC 23)

Sub Section-3:

When Dismissed under Sec-23/ sub section 1 or

Terminated under Sec-23/ sub section 2(a)-

If the length of continuous service is minimum 01 year- will

be eligible for compensation @ of 14 days wages or gratuity,

whichever is higher for every completed year of service

When Dismissed under Sec-24/ sub section 4(b) for

misconduct shall not be entitled to any compensation

M. Shabbir Ali

MISCONDUCT AS PER BLC-2006 (SEC 23)

Clause 4 : The following act shall be treated as misconduct:

a) Wilful insubordination or disobedience, whether alone or

in combination with others, to any lawful or reasonable

order of the superior

b) Theft fraud or dishonesty in connection with employer’s

business or property

c) Taking or giving bribes in connection with his or any

other worker's employment under the employer

d) Habitual absence without leave or absence without leave

for 10 days

e) Habitual late attendance

Contd…

M. Shabbir Ali

MISCONDUCT AS PER BLC-2006 CONTD.

f) Habitual breach of any law or rule or regulation applicable

to the establishment

g) Riotous or disorderly behaviour in the establishment or

any act subversive of discipline

h) Habitual negligence of work

i) Habitual breach of any rule regarding service, discipline or

conduct approved by the Chief Inspector

j) Altering, forging illegally, tempering, damaging or causing

loss to official records of the employer

M. Shabbir Ali

STEPS IN DISCIPLINARY ACTION BLC (SEC-24)

Sub-section 1: No order of punishment can be given against a

worker unless-

a. The allegation against him is brought in writing;

b. He is given a copy thereof and not less than 07 days time to

explain;

c. He is given an opportunity of being heard;

d. He is decided to be guilty after enquiry;

e. The employer or the manager approves of the order of

punishment

Contd..

M. Shabbir Ali

SETTLEMENT OF FINAL PAYMENTS OF

THE WORKER

The employer has to pay all the dues

payable to a worker within 30 (thirty)

working days from the date of cessation of

service due to retirement, discharge,

retrenchment, dismissal and conclusion of

service.

M. Shabbir Ali

GRIEVANCE PROCEDURE

Grievances = Complaints against the employer

•Unfair treatment by managers

•Unfair pay

•Unfair Termination/ Dismissal

M. Shabbir Ali

GRIEVANCE PROCEDURE BLC (SEC 33)

1. An worker who has grievance (with regard to discharge, dismissal, termination, or

any other means of employment) may submit grievance in writing to the employer

within 30 days fro the date of being informed of the cause

2. The employer shall enquire into the grievance and by giving the worker concerned

a chance of being heard, inform of it’s decision about the matter within 15 days

from the date of the receipt of the grievance

3. If the employer fails to give a decision or if the worker is dissatisfied with such

decision, may lodge a complaint with the labour Court within 30 days from the

date of the expiry of the time allowed or date of the employer’s decision

4. The Labour Court, after receiving the grievance, by serving notice upon both the

parties shall hear about the grievances and give appropriate decision at it’s

discretion.

5. Any worker aggrieved by the order of the court may prefer an appeal before the

tribunal within 30 days from the date of the order and the decision given on the

appeal shall be final.

6. No Court-Fee is payable for lodging any complaint or appreal under this section.

7. Any complaint under this section shall not be treated as a criminal prosecution

under this Act.

8. No complaint can be lodged against the order of termination given under Section

26 (Termination Simpliciter)

M. Shabbir Ali

Q & A ??

M. Shabbir Ali