Beruflich Dokumente
Kultur Dokumente
procedure
(Field study, interviews with HR/IR Managers/trade Union Leaders)
H15150
H15151
H15152
H15155
H15160
H15164
H15172
Acknowledgement
This project could not have been completed without the support and guidance of some people,
whom we would like acknowledge before moving further.
First of all, Prof. K R Shyam Sundar, for providing us with this opportunity in the first place,
and then being the first and foremost source of our knowledge and encouragement about the
field of Employment Relations Law, which we have been exposed to very recently.
Secondly, we express our gratitude to Mr Pramod Kumar, AGM (IR & GL), Tata Motors and
then the General Secretary of Telco Workers Union, who gave their valuable time for
answering our questionnaires despite their busy schedules and provided us with information
which forms the backbone of our study.
Last, but not the least, we thank all our friends, and well-wishers who helped us contact the
industry professionals, and to fetch information from them.
Thank you all!
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Contents
Acknowledgement .................................................................................................................................. 1
Introduction ............................................................................................................................................ 3
LAWS CONCERNING DISCIPLINARY PROCEDURES .................................................................................. 4
DISCIPLINARY LAWS UNDER INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 ............... 4
LAWS AND PROCEDURES: SEXUAL HARASSMENT IN THE WORKPLACE ............................................. 4
DISCIPLINARY LAWS, TRADE UNION ACT,1947 ................................................................................... 5
DISCIPLINARY LAWS, FACTORIES ACT, 1948 ....................................................................................... 5
DISCIPLINARY LAWS UNDER ID ACT,1947: .......................................................................................... 5
CASE LAWS CONCERNING DISCIPLINARY PROCEDURES ......................................................................... 6
1.
S. Venkatesan vs. Union of India, 1999(2) SLJ CAT MAD 492 ..................................................... 6
2.
Bhagwan Singh vs. Deputy Commissioner Sitapur, AIR 1962 All 232: 1962 (1) CrLJ 554 ........... 7
3.
A.K. Kraipak & Ors. Etc vs Union Of India on 29 April, 1969 2 SCC 262; AIR 1970 SC 150 .......... 8
4.
5.
Anil Kumar & Ors vs M.K Aiyappa & Anr on 1 October, 2013................................................... 11
6.
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Introduction
Disciplinary procedures play a very important part in the management of events that take place in an
industry, organization or the country in general. In this project of ours we have tried to focus our
attention on the basis of these disciplinary actions from a legal point of view vis--vis focussing on their
application by courts and tribunals. We have also tried to cite various case laws in order to develop a
better understanding of these laws.
With the proliferation of labour laws in our country, it is very important to have a clear understand of
these laws in order to take action within the realms of principle of natural justice. Thus, it is very
important to correctly interpret these laws or have a good knowledge of how the courts interpret the law
before any action is taken. If a clear enunciation of the laws isnt present then there are bound to be
serious consequences making it all the more important to have a clear understanding of these laws. We
have tried to offer the pertinent and case laws in a way that it offers a proper understanding and a very
objective view on the subject.
In order to further enhance our understanding of the practical understanding of the laws, we have also
garnered and furnished information regarding the existence, application and evolution of disciplinary
procedures in organizations. For this purpose we have chosen TATA MOTORS MANUFACTURING
DIVISION, JAMSHEDPUR as our model organization. We interacted with different officials there who
handle such issues and gained a fair idea of how they handle disciplinary cases in their organization.
Not only that, we also gained a fair amount of knowledge of how they evolve their disciplinary
procedures in accordance to the changes that occur in their standing orders. A fair amount of practical
examples were also cited in order to gain a better understanding.
The importance of keeping disciplinary procedures in accordance with the laws is of primary
importance. The employees also have a right to be informed of the procedures and it must be ensured
that processes are followed properly in every case. Disciplinary actions should go hand in hand with
labour laws and thus, it is important that various facets of these laws are taken into account which we
aim to do in our project.
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2. Bhagwan Singh vs. Deputy Commissioner Sitapur, AIR 1962 All 232: 1962 (1) CrLJ
554
Disciplinary Proceedings versus Criminal Prosecution
Case Details: Bhagwan Singh was working as a clerk in the Collectorate, Sitapur. He was
suspected of gross negligence and delinquency of his duty. His management initiated a
departmental enquiry and proceedings against him. A criminal prosecution was also launched
against him against him in the Court of law along with the departmental proceedings under
Section 409 of the Indian Penal Code. It was questioned by the Learned Counsel for the
applicant that some of the acts, which were the subject matter in the departmental enquiry, were
also taken into consideration in the criminal case as well. Therefore, the petitioner filed a writ
petition for the issue of a writ of mandamus asking the departmental proceedings in-charge and
the Court of law to not:
1)
2)
3)
To give any statement in the Departmental enquiry until the criminal case
against him terminated.
Verdict: There is no provision in the law that empowers the Court of law to stay departmental
proceedings just because the criminal prosecution of the same individual is going on in the
Court of law. The court also stated that the object of the two proceedings is also completely
different. The object of Departmental proceedings is to find out if the person should remain in
their employment or not. And the object of the criminal prosecution was to ascertain if any of
his actions were defined as offence as per the India Penal Code or not. The court also made it
clear that Article 20 (3) of the Indian constitution also did not apply to the departmental
enquiries because in the departmental proceedings a person is not tried for a criminal offense.
It is possible that he will be found of negligence and misconduct, which are not criminal offense
as such. In addition, during the departmental proceedings, there was no evidence that any steps
have been where the petitioner was asked to be witness against himself and to product any such
documents under his custody.
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3. A.K. Kraipak & Ors. Etc vs Union Of India on 29 April, 1969 2 SCC 262; AIR 1970
SC 150
Natural Justice in Disciplinary Proceedings
Case Details: The petitioner A.K. Kraipak and Ors. Etc were gazetted officers serving in the
forest department of the State of Jammu and Kashmir. They were serving in variety of positions
such as Conservators of Forest, Divisional Forest Officers, and Assistant Conservators of
Forests. All the petitioners were aggrieved by the criteria, which was used for selection of the
officers serving in the Forest Department of the State of Jammu and Kashmir to the Indian
Forest Service, a service that came into existence in 1966 under Section 3(1) of the All India
Services Act, 1951 and rules framed under the Act. They moved their petition in the court to
ask for repeal of the notification No. 3/24/66-A-15(IV) issued by the Government of India on
the grounds that the selection in the notification discussed was in violation of the Article 14
and Article 16 of the Constitution and that selections were in violation of the principles of the
natural justice. They also challenged the power of the Section 3 of All India Services Act, Rule
4 that was framed as per the Act and Regulation 5 of Indian Forest Service Regulation for the
purpose of initial recruitment, which was framed under the Rule 4. Section 3 provides that after
consulting the Government of the States including Government of Jammu and Kashmir the
Central Government will make rules for the regulation of recruitment and services condition
of the persons who are appointed in All India Services. Constitution of Special Selection Board
was provided by Regulation 3 of Indian Forest Service (Initial Recruitment) Regulations, 1956
framed under Rule 4(1) of the Indian Forest Service (Recruitment) Rules, 1966. The Regulation
5 governed preparation of the list of potential candidates. The head of the selection board was
Chief Conservator of the Forest of the State and final selection was to be done by the U.P.S.C.
The petitioners contended that one of the candidate, Naquishbunds was appointed as Chief
Conservator of Forest with no regards to seniority in the department. The petitioners filed
petitions to the higher authorities against their supersession. While their petition were still in
process, the same candidate was appointed as ex-officio Chairman of the selection board
constituted to recommend list of candidates for the selection in the All India Forest Service.
The names of the petitioner were not there in the list of potential candidates whereas
Naquishbunds name was there at the top of the list. Naquishbund was involved in the selection
board at the time when the case of petitioners was being evaluated for selection in the list of
potential candidates and when the order was preference was decided by the selection board.
Aggrieved The Gazetted Officers Association and the interested parties therefore moved a
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petition against the selection notified as violative of the Article 14 and Article 16 of Indian
Constitution and the selection were also against the principle of Natural Justice that before
taking any decision the other side must be heard and that No man shall be a judge in his own
cause.
Verdict: The five-judge bench of the Supreme Court held that selection based on the
recommended list by the selection board was in violation of the natural justice. Even though
the selection board was conferred with only administrative powers and not quasi-judicial but
there is still an common element between the two- which is the duty to act fairly and to make
secure justice and prevent miscarriage of justice. The court also observed that Naquishbund
has personal interest in keeping the petitioners (his rivals) out of the recommended list and that
he was not impartial, fair and just .The court also held that both principles of natural justice
was flouted. Based on this rationale the court struck down the selections made from the list
recommended by the selection board.
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5. Anil Kumar & Ors vs M.K Aiyappa & Anr on 1 October, 2013
The Case is about whether a Special Judge/Magistrate is justified in referring a private
complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of
Police Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C.
without the production of a valid sanction order under Section 19 of the Prevention of
Corruption Act, 1988.
The Appellants herein filed a private complaint under Section 200 of Cr.P.C. before the
Additional City Civil and Special Judge for Prevention of Corruption on 9.10.2012. The
complaint of the Appellants was that the first respondent with mala fide intention passed an
order dated 30.6.2012 in connivance with other officers and restored valuable land in favor of
a private person. On a complaint being raised, the first respondent vide order dated 6.10.2012
recalled the earlier order. Alleging that the offence which led to issuance of the order dated
30.6.2012 constituted ingredients contained under Section 406, 409, 420, 426, 463, 465, 468,
471, 474 read with Section 120-B IPC and Section 149 IPC and Section 8, 13(1)(c), 13(1)(d),
13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, a private complaint
was preferred under Section 200 Cr.P.C. On receipt of the complaint, the Special Judge passed
an order on 20.10.2012 which reads as follows:On going through the complaint, documents and hearing the complainant, I am of the sincere
view that the matter requires to be referred for investigation by the Deputy Superintendent of
Police, Karnataka Lokayukta, Bangalore Urban, under Section 156(3) of Cr.P.C. Accordingly,
I answer point No.1 in the affirmative.
Point No.2: In view of my finding on point No.1 and for the foregoing reasons, I proceed to
pass the following:
ORDER The complaint is referred to Deputy Superintendent of Police 3 Karnataka
Lokayukta, Bangalore Urban under Section 156(3) of Cr.PC for investigation and to report.
Brief Details: Aggrieved by the said order, the first respondent herein approached the High
Court of Karnataka by filing Writ Petition Nos.13779-13780 of 2013. It was contended before
the High Court that since the appellant is a public servant, a complaint brought against him
without being accompanied by a valid sanction order could not have been entertained by the
Special Court on the allegations of offences punishable under the Prevention of Corruption
Act. It was submitted that even though the power to order investigation under Section 156(3)
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can be exercised by a Magistrate or the Special Judge at pre- cognizance stage, yet, the
governmental sanction cannot be dispensed with. It was also contended that the requirement of
a sanction is the pre-requisite even to present a private complaint in respect of a public servant
concerning the alleged offence said to have been committed in discharge of his public duty.
and
Lal Dhingra who on relief reverts to Class III T appointment." Against this order the appellant
moved the High Court under Art. 226 of the Constitution. The single judge who heard the
matter held that the order was invalid as the provisions of Art. 311(2) of the Constitution had
not admittedly been complied with. The Division Bench on appeal, however, set aside the order
of the Single judge and dismissed the appellants writ application. The question for decision
was whether the order of the General Manager amounted to a reduction in rank within the
meaning of Art. 311(2) of the Constitution and the appellant was entitled to a reasonable
opportunity of showing cause against the order.
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enquiry may not remain domestic after all. It depends on the ethics counsellor to refer the enquiry to
the TATA Group Ethics committee. If such be the case, the local administration has minimum effect in
the procedures but still the worker is given ample opportunity to represent himself. We want to ensure
that matters are domestically settled and for that we also organize ethics camps and disciplinary sessions
for the awareness of workers regularly.
Q. Any other relevant point that you may like to mention?
A. The work culture has eventually changed over years. The worker these days is far more informed
and accountable. The number of cases of disciplinary dismissals, if not anything, have gone down in
numbers. Our workers today are responsible and educated, even the blue collared employee will have
a son who is doing engineering or MBA and he would know things. Thus we make sure we dont slam
arbitrary charges and that no one takes the workers for a ride. We follow the principles of natural justice
in our dealings keeping the TATA CODE in our mind at all times and this ensures that the Union also
supports us in our endeavours.
Q. Thank you for you valuable time sir.
A. Thank you, Best of luck for your Project
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union finds it unequitable or unjustified, we certainly will take up the case with the IR department. We
have regular meetings with the managers in IR and Personnel departments where issues are discussed
and mitigated.
Q. Do you make sure that union activities do not involve any misconduct on the part of workers?
A. We have a union office and we usually carry out our activities post work so as to not disturb the
workers on the shop floor. The management is notified and kept in loop of any meetings/deliberations
that take place. We make sure that union follows the Code of discipline to the best of our capability.
However, individual instances become hard to control at times. Especially when handling union
members who are young and full of vigour. But we make sure, that everything is done under supervision
of committee members who are accountable for their departments.
Q. How do you manage Union activities during work hours?
A. The general secretary, President (if not honorary) and treasurer are exempted from normal working
hours to carry out union work. Union meetings happen on holidays and after-work hours. We make sure
that our work does not come in between productivity, which is our prime focus in the plant premises.
Even the management is supportive in-case of impromptu meetings where union needs to involve a
particular worker in specific cases on contingency basis.
Q. Do you have a role to play in formulating guidelines for workers?
A. The management and union discussion at TATA MOTORS is ongoing. There are certain aspects
where the Unions involvement is imperative. E.g. those related to new safety guidelines, shift
rationalizations and non-compliance. However, the guidelines prescribed by the TATA CODE of
Conduct or the Ethics committee is non-negotiable and universal where management has the final say.
Q. What are the primary issues /cases of disciplinary actions faced by the workers?
A. The number of cases of disciplinary charges have reduced gradually over years. Gone are the days
when an over enthusiastic worker or union member would disrupt the work for petty reasons. We have
to remain competitive globally and the workers here understand it. Previously, there have been cases
related to workers not adhering to safety guidelines/ misrepresentation of age / or personal vendetta
escalating to scuffles. These have been dwindling in numbers over years. Even the union reprimands
its members against any such doing.
Q. Would you like to mention any other relevant information?
A. We are new to the office as you know. The previous union was ousted as a result of their incapacity
in handling the demands of workers. We have vowed to bring in Parivartan, a permanent change in
the ways we handle the matters related to workers. Ensuring compliance and making sure that the rights
of workers are represented regularly and addressed promptly is our prime aim. We would also make
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sure that this leadership is tolerant and workers on sensitization of workers about the right and the
wrongs thus ensuring industrial peace.
Q. Thank You and congratulations on your victory.
A. Thank you. Best wishes.
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References:
1)
2)
3)
http://www.referencer.in/CS_Regulations/DisciplinaryProceedings/CaseLaws.aspx
4)
http://indiankanoon.org/doc/720171/
5)
http://kannanpersonal.com/projects/prosecution/index.html
6)
http://indiankanoon.org/doc/639803/
7)
http://www.legalservicesindia.com/article/article/a-k-kraipak-v-union-of-india1162-1.html
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