When disciplinary action is proposed to be taken by the management against an employee whether by way of dismissal or any other punishment as stated in the Industrial Employment Standing Order Act 1946 or the ertified Standing Order, a domestic enquiry is conducted for finding out whether the proposed action is warranted against the delinquent. A full fledged domestic enquiry establishes the bonafide intentions of the management.
Generally, where the misconducts are serious, the company appoints an outside enquiry officer, who has the experience of conducting domestic enquiries. This is to ensure that the enquiry is sound and the employee does not escape the punishment of dismissal on technical grounds or on the lapse on the part of the enquiry officer. Hence the Enquiry is always entrusted to a professional for serious misconducts, where the management is clear that it does not want to retain the employee who is chargesheeted. While the domestic enquiry may be conducted by an enquiry officer, who is generally a legal professional or a person who is experienced in conducting domestic enquiries, the chargesheeted worker has the right to bring a co-worker or a union office bearer to defend him in the enquiry. Apart from the chargesheeted worker, another co-worker or office bearer of a union defending him and the enquiry officer, one more person also attends the enquiry on behalf of the management. That person is called the management representative. The role of the Management Representative is very much similar to the public prosecutor and he has to lead the evidence and substantiate the charges that have been leveled against the chargesheeted workman. In the Domestic Enquiry, this person is called the Presenting Officer or Management Representative.
Where the enquiry returns the verdict of guilty and the employee is dismissed, the Departmental enquiry conducted against the employee is challenged or the punishment imposed is challenged as being disproportionate by the dismissed employee by raising an industrial dispute.
Under Section 11 A of the Industrial Disputes Act, Labour Courts have the power to scrutinize the action taken by the employer and evaluate
independently, whether the punishment of dismissal imposed was fair and proper.
The employee pleads before the Court that the enquiry conducted against him was farce, stage managed, not conducted in a fair and proper manner, the management has not followed the principles of natural justice while conducting the enquiry, no rules and regulations as prescribed in the standing orders were followed by the management. It is further contended by the employee that the Report and findings of the Enquiry officer are perverse and not based on the documents and evidence on record. Many a times it is noticed that Courts have held that the enquiry held against a delinquent employee is either not fair or proper and or the findings of the Enquiry Officer is perverse and not based on the documents and evidence recorded before the Enquiry Officer. In such a situation the employer as per the prevailing law, is given another opportunity once again to lead evidence both oral and documentary and prove the charges before the court. Such a situation could be averted if the Management Representative performs his job in a diligent manner in presenting his case before the Enquiry Officer. When the management initiates disciplinary proceedings against its employees by issuing a charge sheet, the role of the Management Representative/ Presenting officer is to investigate into the charges against the charge-sheeted employee and then present the case before the Enquiry officer the case in support of the charges leveled against the charge-sheeted employee.
As per the prevailing law and case laws, there is no requirement of a Management Representative (MR)/Presenting Officer (PO) in the enquiry. However, in the absence of a MR, the Enquiry Officer will have to lead many questions and with a view to avoid the charge that the enquiry officer has played the role of prosecutor as well as a judge, it has become a practice to have a person marshalling the case against the chargesheeted employee as a Management Representative or a Presenting Officer.
It must be noted that the burden of establishing the charges against the charge sheeted employee rests on the Management Representative/ Presenting officer. The Management Representative acts as an agent or nominee of the competent authority. His main function is to show why charges should be deemed to be established, if not beyond reasonable doubt at least on the basis of preponderance of probability, by leading oral and documentary evidence (direct and circumstantial ) and by drawing logical inferences there from. The Management representative must present the case of the management before the Enquiry officer in an effective, understandable and orderly manner with precision, clarity and logic with a view to proving the charges. In order to achieve the said objectives the Management Representative should familiarize himself with the case and he has to prepare himself thoroughly.
A few important requirements that the MR is supposed to understand and follow are outlined:
a.) Before accepting his appointment as MR, he should discuss with the management and sort out any doubts pertaining to the case and should have an understanding of what the facts are in the matter and what are the strong evidences that are readily available. He must also understand the weak links and chinks in the story that will be attacked and highlighted by the worker and his defense representative and see how well the facts can be marshaled with evidence to enable the enquiry officer to decide in the matter without any ambiguity. There are many factual and technical aspects of the case that he may be required to familiarize himself with. This is very much important for he is expected to prepare himself thoroughly and put up the case of the management before the Enquiry officer.
b.) The Management representative should call for the relevant documents based on which the charge sheet is issued. He should also get in touch with the witnesses through whom (author of the documents) documents based on which the charges are leveled against the charge sheeted employee are to be proved so as to enable him to prove the documents through the respective witnesses. His most crucial task is to present both oral and documentary evidences on behalf of the management in a proper sequence before the enquiry officer. In a case pertaining to a charge of False Reporting by a Medical Representative in a pharmaceutical company, the contractual requirement was that the Medical Representative had to visit 12 doctors every day and report in his daily call report (DCR). The Medical representative had written that he had met a Doctor, who had actually died and the medical representative was not aware of this when he wrote the report. The false reporting of the Medical Representative came to light when the Area Business Manager (ABM) made a visit to the area without the knowledge of the Medical Representative .The Area Business Manager immediately informed that Zonal Manager about the incidence of false reporting. The Zonal Manager with a view to catch the Medical Representative red handed asked the ABM to arrange for a joint visit with the Medical Representative. The Medical Representative along with the Zonal manager called on the doctors. The Medical Representative took the Zonal manager to the Clinic of the doctor who had expired long back. When asked by the Zonal Manager about the false reporting of the doctor , the Medical representative explained that he was visiting the clinic regularly and mentioning in the Daily call report (DCR) as Doctor dead and that he has not falsely reported in the DCR. This was not a convincing reply as the so called visit to the Doctor’s clinic who had expired long back was not an effective call except for the first visit when he came to know about the death of the Doctor. This is a clear cut case of false reporting. Since the Medical Representative has to complete his daily quota of doctor calls, he went on mentioning having visited a doctor who was dead.
c.) As regards standard of proof, it has been held in various judicial pronouncements that strict rules of evidence are inapplicable and strict mode of proof prescribed by the Evidence act as applicable in Criminal proceedings cannot be invoked in disciplinary proceedings. A departmental enquiry is not a criminal case and the standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. The probative value could be gauged from facts and circumstances in a given case. It is, therefore, necessary for the MR to place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue.
d.) The Management Representative should meet the witnesses well in advance before their evidence and discuss with them the strategy that he would like to adopt during the enquiry. Also before cross examination of the witnesses, it is necessary to refresh the memory of the witnesses by referring to their statements recorded at the time of their examination in chief. In the above case the Management Representative should meet the Area Business manager and the Zonal Manager and discuss the matter of false reporting by the Medical Representative thoroughly.
e.) Where there are more than one witnesses, the Management Representative should make it sure that the evidence given by the witnesses corroborate with each other. In the above case the Area Business manager should in his evidence say that when he checked the daily call report of the Medical Representative, he found that the Medical Representative has falsely included the name of the Doctor who has expired and after keeping a watch for a month he made a surprise visit and found that the doctor had expired long back which fact was not brought to the notice of the management by the Medical representative. He should further say that he immediately informed his superior i.e. the Zonal Manager. The Zonal Manager directed the ABM to arrange for his joint visit with the Medical Representative which was accordingly done and the false reporting of the Medical Representative was exposed. Before the evidence of the Zonal Manager as the second witness is recorded, the Management Representative must educate the Zonal Manager and ensure that his statement corroborates with the statement made by the Area Business Manager, otherwise the entire exercise would be futile. The Management Representative may also show the witness the statement recorded by the earlier witness to refresh his memory. It is to be noted that all this has to be done much earlier before the date of enquiry when the evidence of the second /subsequent witness is to be recorded.
f.) The Management representative should remain alert during the enquiry and make sure that the enquiry proceeds on the right lines. Should the defense make an attempt to deviate from the main issue or bring in irrelevant issues, he should promptly intervene and record his note of dissent and object to recording such irrelevant issue.
As the enquiry proceeds, the Management Representative should take down notes so that no points are left out during cross examination /re examination.
g.) The Management representative should demolish the case of the Defense side by bringing out the material contradiction in the documents produced by the defense side and the oral testimony of the defense.
h.) The Management Representative should completely destroy the testimony of the defense by cross examining on each and every disputed averments made by the defense.
i.) If the defense is denying the case put up by the management, it is the role of the Management Representative to put questions to the defense which would make him give answers in favour of the management.
j.) The Management representative should also put up suggestions during the
course of cross examination of the defense with regard to the stand of the management. For example in the above cited example of the false reporting a question by way of suggestion could be “I put it to you that you falsely included the name of the Doctor who had expired long back in your Daily call report ( DCR ) just to complete to daily quota of Doctor visits.
k.) The Management Representative through out the conduct of the enquiry should conduct himself in such a manner that the defense will have no reason to feel that the Management Representative has undue influence over the Enquiry Authority In short, the MR should make bold assertions of his rights in conformity with law and at the same time be polite during the enquiry
l) In the absence of proper preparation or homework by the Presenting Officer and the leading of evidence, it is possible that the witnesses may make statements that are contradictory and the evidentiary value of such witnesses gets reduced. Once they are discredited in the cross examination of having made false or wrong statement, their testimony cannot be the basis for a conviction of guilt. The enquiry can be easily destabilized if the evidence is not substantial and reliable.
m) The enquiry officer may be an impartial person but as a person appointed by the management, he is quite well versed with how workers defend themselves and how the defense will rubbish the testimony. His insights can help the witnesses in the way in which they will testify. Evidences of dubious value or those which cannot be clinching may be dropped as otherwise; it would enable the defense to blow holes in the management submission. Keeping the testimony to the bare facts and giving answers to the point during cross-examination and not general or roundabout replies will help to nail the culprit. The witness may also refuse to answer questions if they are not relevant and state that in his opinion the question was not relevant to the charges. The management representative should walk through the deposition with the witnesses along with the enquiry officer, before it is actually presented.
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