CHAPTER-II

DOMESTIC ENQUIRY AND ITS

MODUS OPERANDI

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 27

CHAPTER-II

DOMESTIC ENQUIRY AND ITS MODUS OPERANDI

ORIGIN OF DOMESTIC ENQUIRY:

It is said that when the man and woman ate the fruit of knowledge
which was forbidden by God then even God did not pass sentence upon
Adam before he was called upon to defend himself. God said to Adam,
“ Where art thou? Has thou not eaten of the tree, whereof / commanded
thee that thou shouldst not cates?”] This shows that however confident an
employer may be regarding the guilt of his employees, the principles of
natural justice still require him to afford an opportunity to the person
concerned to give his explanation. The rule of ‘hire and fire’ no longer
holds the field. Just as the employer’s right to exercise his option in
terms of the contract has to be recognized, so is the employee’s right to
expect security of tenure to be taken into account. Howsoever
indiscipline, undesirable and unwanted an employee may be, he cannot be
thrown out of employment at the whim of the employer and even if the
standing orders permit the employer to dismiss the employee in case of
serious misconduct without notice that would not justify the dismissal
order without an enquiry. In other words, an employee or a workman
cannot be dismissed or discharged by way of punishment for any
misconduct unless he is afforded an opportunity to defend himself in an
enquiry to be held by the employer on the charges framed against him. In

H.L. Kumar, Labour Management misconducts charge-sheets and Enquiries, 3rd Edn., 1984,
Metropolitan Book Co. Pvt. Ltd., New Delhi.
 28

short, the core of the matter is that whenever an employee or a workman

is sought to be dismissed or punished, it is necessary for the purpose of
finding out whether the proposed action is warranted. In some cases, the
holding of such enquiries is made obligatory by a statute. This part
elucidates the principles and procedure followed in conducting domestic
enquiries. These principles and procedures are governed, to some extent,
by statutory rules or standing orders but largely, they are enunciation of
the principles of natural justice and their application to the circumstances
of the domestic enquiries, in private employment and of reasonable
opportunity as provided under Article 311 of the Constitution of India in
Government employment. The requirement of holding domestic
enquiries has also been laid down in some rules and regulations in public
sector having the force of law. In private sector the holding of a domestic
enquiry is laid down by standing orders framed under the Industrial
Employment (Standing Orders) Act, 19462. The procedure for holding
enquiries has also been laid down by awards or settlements under the
Industrial Disputes Act, 19473. Even where no procedure for enquiry has
been laid down by any statute, award or settlement, the employers are
required to follow a reasonable procedure for the simple reason that
otherwise their action is liable to be set aside by the industrial
adjudication. Such principles are commonly known as “principles of
natural justice”. The principles underlying the domestic enquiry are
essentially calculated to ensure the job security to an industrial employee
and so, the employer has to justify the disciplinary action which he
proposes to take against an employee by holding a domestic enquiry in a
fair and impartial manner.

2 ActNo.XX of 1946.
3 ActNo.XIVof 1947.
 29

WHAT IS “DOMESTIC ENQUIRY” ?

The Dictionary meaning of the term, “domestic” relates to the

house-holds or family, i.e. relating to one’s home or to home life, such as
domestic life, domestic duties and domestic cures. The word, ‘enquiry’
means, investigation into a mishap, seeking or searching truth,
information of knowledge, or examination into facts or principles. The
two terms, “domestic” and “enquiry” when joined together, have acquired
a definite meaning, in industrial law. The term, ‘domestic enquiry’ has
come to be restricted to an enquiry into the charges of indiscipline and
misconduct framed against an employee or a workman. It would, thus, be
seen that the term, “domestic enquiry” occupies an important position in
industrial law and is well known on account of the introduction into the
field of domestic enquiry, of well defined principles of natural justice and
fair play whose compliance during the course of the enquiry proceedings
is a must if the enquiry proceedings have to be held valid. It is called
“domestic enquiry” because it is considered purely an internal matter
between an employer and his employees. Care must always be taken to
see that the domestic enquiries are not reduced to empty formalities but
should be conducted with scrupulous regard to the requirements of
natural justice of which the purpose to safeguard the position of the
person is against whom a domestic enquiry is being conducted so that he
may be able to meet the charge leveled against him properly.

NECESSITY OF A “DOMESTIC ENQUIRY” :

With the growing industrialisation of the country, the disputes

between the employers and the workmen have also grown manifold.
Variety of disputes arise for which a knowledge of industrial law has
 30

become a necessity. In the administration of Industrial law, a large

volume of case law has grown up. In order to keep peace and harmony in
an industry, without stultifying the rights and obligations of both the
employers and the workmen, it is imperative that they should be educated
of their limitations, rights and obligations, laid down in the industrial law.
Maintenance of discipline in an organization is also of prime importance.
Sometimes even technical defects of not observing the prescribed
procedure entail prolonged litigation between the employers and their
employees, much to their annoyance, expense and waste of energy. In
almost all disciplinary cases, conducting of a domestic enquiry is,
therefore, a necessity.

DIFFERENCE BETWEEN “DOMESTIC ENQUIRY” AND

“PRELIMINARY ENQUIRY” :

A preliminary enquiry should not be confused with a domestic

enquiry. A preliminary enquiry, which is also known as a fact finding
enquiry, is not a formal enquiry, and in such an enquiry, if at all, it can be
called an enquiry, no rules are observed. Preliminary enquiry is made
solely with a view to decide whether there is adequate material for
initiating a domestic enquiry against a workman. In other words, the
preliminary enquiry is merely for the purposes of framing a charge and
for determining whether a prima facie case for a formal enquiry is made
out or not and its result cannot be deemed to be conclusive. It is
conducted merely for the satisfaction of the employer and it is only when
the employer decides to hold a regular domestic enquiry for the purpose
of inflicting punishment that the employee gets an opportunity of being
heard and defend himself. Such a preliminary enquiry is not only
 31

permissible, but is a very desirable step for finding out whether a prima
facie case exists for instituting a domestic enquiry. The reason is that
when a complaint is made to an employer alleging certain breaches of
employment propriety, misconduct or improper behaviour which is
subversive of employment discipline or contravening the service
conditions against an employee, it is open to make such preliminary
investigation into the truth or otherwise of the allegations as he thinks fit
and proper under the circumstances of the case, with a view to enable
himself to frame specific charges against the workman. Thus,
preliminary enquiry is merely conducted to enable the employer to
ascertain the true facts of the complaint and it is often conducted ex-parte,
and it comes to an end as soon as the charge-sheet is framed. The
domestic enquiry starts the moment the charge-sheet is issued to the
workman. So, there is a great difference between a preliminary enquiry
and a domestic enquiry, and the main points of difference to be borne in
mind are that, firstly after the complaint is received against an employee,
preliminary enquiry is the first step that is usually taken by the employer.
But the first step is by no means essential, while domestic enquiry is
essential for taking disciplinary action against an employee. While it is
usual to conduct a preliminary enquiry, it is not obligatory to do so.
Where, preliminary enquiry is conducted it is usually the fore-runner of a
domestic enquiry but not necessarily so. It may happen that as a result of
preliminary enquiry, charges may be dropped and in that case domestic
enquiry is not required to be conducted. Secondly, the object of the
domestic enquiry is to determine whether charges are established or not
while the object of the preliminary enquiry is very limited, that is to find
out whether a prima facie case has been made out against an employee or
 32

not. Thirdly, report of the preliminary enquiry often is the basis for
framing the charge, while the report of the domestic enquiry is the basis
for awarding punishment. Fourthly, while the preliminary enquiry is not
subject to any rules, domestic enquiry is subject to principles of natural
justice. Fifthly the results of the preliminary enquiry are not conclusive,
while the results of the domestic enquiry are very much conclusive
inasmuch as they decide the fate of an employee.4

GUIDELINES FOR HOLDING ENQUIRY :

A good number of domestic enquiries are sought to be quashed on

the ground of violation of certain recognized rules of proper procedure
and, therefore, the observance of the rules and correct procedure while
conducting the proceedings of domestic enquiries of immense
importance.
The attempt of the workman against whom the disciplinary action
is proposed to be taken is always to meticulously search for procedural
defects in the enquiry in order to show that the principles of natural
justice have been violated and also to attack the enquiry on the ground of
victimisation, want of good faith, malafide etc. The workman is forced to
this because the very jurisdiction of the industrial tribunals/labour courts
invoked by him depends upon the existence of the contravention of
principles of natural justice, victimisation, want of good faith, malafide
or the perversity of findings. Undue importance is therefore given to
procedural requirements and to allegations of victimisation and malafide
etc., the rule of natural justice, that an employee should be given a
hearing against his alleged misconduct before dismissal, has been applied

Champak Lai v. Union of India, 1964 (I) LLJ 752 (SC).

 33

by Supreme Court and other Courts in India. The employer always holds
a domestic enquiry into the alleged misconduct of the employee before
taking action against him for misconduct. It is this hearing which is the
soul of the domestic enquiry. In other words, if the procedure of the
enquiry is fair, and the decision of the employer is based on the evidence
on record, then such decision would be unimpeachable before a tribunal
or labour court. The procedure of domestic enquiry, which is generally
accepted, has been evolved and governed by three facts viz., the standing
orders, the method followed by court of law and the principles of natural
justice. Where the procedure for conducting domestic enquiry is given in
the standing order or the rules or regulations applicable to the workmen
of the establishments then that must be followed apart from the principles
of natural justice. The procedure of domestic enquiry has also been laid
down by awards and settlements under the Industrial Disputes Act, 1947
as also the Industrial Employment (Standing Orders) Act, 1946. Even
where no procedure for conducting a domestic enquiry has been laid
down by any statute, award or settlement, the employers are required to
follow a reasonable procedure, because otherwise their action is liable to
be set aside by Industrial adjudication.
Though the principles underlying the reasonable procedure for
conducting domestic enquiries are simple yet their application to varying
problems often gives rise to a number of complications and difficulties.
The object of the article is to describe in detail the principles in
accordance with which the domestic enquiries should be conducted and
how these principles should be applied in different circumstances by the
enquiry officers.
 34

The management can initiate disciplinary enquiry even when the missing
things are retrieved. Where the cash in the bank was missing, the cashier
could not explain the cause of the cash being missing, though missing
amount was reimbursed. Cashier was dismissed after enquiry on the
charge of mis-appropriation. It was held that the right of Bank to hold an
enquiry cannot be ousted by the fact of reimbursement of such missing
amount.5

PRINCIPLES OF NATURAL JUSTICE IN DOMESTIC ENQUIRY:

Articles, 14, 20, 32, 226 and 311 of the Constitution of India
protects the citizens of India and others domiciled in India from injuries
suffered by them by violations and transgression of the principles of
natural justice, good conscience and equity. The maxim that no man shall
be twice punished6, if it appears to the court that it is for and on the same
cause is embodied in Art. 20 of the Constitution of India. Does this
principle include the theory based on the principles of natural justice and
equity that a person enquired into and exonerated honourably on merits
should not be vexed for the same charge by another officer? The courts
in our country have rendered conflicting decision on this point. There are
several situations in a domestic enquiry.
1. Inquiry without criminal charges.
2. Inquiry during investigation.
3. Inquiry during pendency of criminal trial.
4. Inquiry after conviction.
5. Inquiry after acquittal on technical grounds.

5. Dattatray Trimbak Kulkarni v. State Bank ofIndia, Bombay, 1993 (66).

6 Principles of Natural Justice in Domestic fnquiry, A.Gandhiras, 1986, Indian Bar Review,
Vol. 13(2), April-June, p.217-220.
 35

6. Inquiry after honourable acquittal on merits (after taking

evidence and trial).
There is no dispute that a domestic enquiry can be conducted an
that the delinquent officer or public servant or employee punished in all
the above said category of cases except in category No.6 where the
charges are identical and same and the criminal court had acquitted the
delinquent of public servant or employee, honourably on merits after full
trial. The concerned authority or the management can conduct the
domestic inquiry and punish a delinquent public servant or an employee
before the conclusion of the criminal trial even though the charges are
identical but the propriety such domestic inquiries before the conclusion
of the criminal trial were questioned and censured as unfair because it
may result in conflict of judgments and findings. Therefore, the courts
have always held that it was desirable to hold inquiries after the
conclusion of the criminal trial if the delinquent public servant or
employee is convicted by competent court of law and a domestic inquiry
conducted on the basis of the conviction. There is no mandatory rule of
law that all delinquent public servants or employees should be dismissed
immediately after conviction and sentence. The authorities/management
or the concerned officers can consider the gravity and the nature of the
offence and deal with the delinquent public servant or employee either
with dismissal or with lesser punishments. The only obligation on the
employer or the authority concerned is to inform the delinquent official or
the employee about the grounds on which such punishments are inflicted
or imposed. But the position is totally different when a domestic enquiry
is sought to be conducted when the delinquent official or employees is
honourably acquitted on merits after full trial for the same or identical
 36

charges or offences. In Shaik Kasim v. Superintendent of Post Offices,

Chinglepet7 and S. Krishnamurthy v. Chief Engineer Southern Railways,8
it was repeatedly held by the High Court Of Madras that where the charge
relates to identical subject matter of the criminal trial and there has been
an acquittal on merits at the trial, it might not be proper for the
departmental authorities to arrive at some other findings inconsistent with
that of acquittal. Primarily the criminal courts are entrusted with inquiry
into offences, it is therefore, desirable that the findings and order of the
criminal courts should be treated as conclusive in proceedings before
quasi-judicial tribunals. In Shaik Kasim M. Anantanarayanar Offg. C.J.
went to the extent of saying that “I cannot see that it makes any difference
that the departmental authority acts before the criminal proceedings or
after it. This court in exercise of the jurisdiction under article 226 of the
Constitution would be justified in striking down the action based on such
findings as not in consonance with the principles of natural justice. ”9 As
per this view where the acquittal was substantially on merits on identical
facts and charges, it would not be proper for the disciplinary tribunal to
record a finding of guilt and punish the delinquent officer or employee
either before or after the criminal trial. The Supreme Court in
Corporation of the City of Nagpur, Civil Lines, Nagpur v. Ramachandra
G. Madack10, had held that “where the accused is acquitted honourably
and completely exonerated of the charges it would not be expedient to
continue a departmental inquiry on the very same charges or grounds or
evidence, but the fact remains, however, that merely because the accused
is acquitted, the power of authority concerned to continue the

A.I.R. 1965 Mad. 502.

A.I.R. 1967 Mad. 315.
Supra note 1 at 502.
10 A.I.R. 1984 S.C. 626.
 37

departmental inquiry is not taken away nor is the discretion in any way
fettered ...” Following this authority of the Supreme Court the Division
Bench of the Madras High Court held in MM. Rubber Company Ltd.,
Madras v. Presiding Officer (Addl.) Labour Court, Madras11 that its
earlier judgments in Shaik Kasim12 and S. Krishnamurthy were not good
law.
One has to bear in mind that the Supreme Court while granting the
power of discretion to the department in the above said case gave
direction to the said department that it should take into consideration the
factor whether it was worthwhile to continue the departmental inquiry in
the event of the acquittal of the respondents (accused persons). The
conscience of the Supreme Court was so touched and moved in favour of
the acquitted delinquent officer that it ordered the reinstatement of the
delinquent officer with full salary even though the authorities chose to
proceed with the inquiry even after acquittal of the delinquent officer.
This clearly shows that the Supreme Court was also conscious of the
undesirability of the departmental inquiry against delinquent public
servants or employees after honourable acquittal if the charges and
offences in the criminal trial and the domestic inquiry are identical or
same. It is pertinent to note that the Supreme Court did not invoke its
powers under Art. 32 of the Constitution to quash the departmental
inquiry on the ground that the same is in violation of the principles of
natural justice if not the same offends Art. 20 of the Constitution. The
Supreme Court was deliberately silent on the question whether, the High
Courts or the Supreme Court can or cannot strike down such inquiries as
violative of the principles of natural justice and left the question open.
]I
Supra note 1.
12
Supra note 2.
 38

The right of the department or the management to conduct the

inquiry, even after honourable acquittal of the delinquent officer or
employee cannot be denied. But if the circumstances of the case points
out that the acquittal of the delinquent officer or employee was so
honourable on merits and that if the High Court was satisfied that the
domestic gnquiry should be unjust and vindictive and that it should invoke
its power under Art. 226 of the Constitution, should the powers of the
High Court and Supreme Court conferred under the Constitution of India
be fettered, to tolerate a vindictive departmental inquiry because it did not
violate Art. 20 of the Constitution? When Art. 311 (2) provision (a) of
the Constitution confers on the Government the power to dismiss, remove
or reduce in rank its employee on the ground of conduct which had led to
his conviction on a criminal charge, without inquiry, will it not be
offending Art. 14 of the Constitution of India, if the honourable acquittal
of the criminal charges on merits, is not given the same consideration for
dropping departmental inquiry, accepting the findings of the criminal
court, if the offences or charges are identical in nature or consequential to
the main charge, applying the principles of natural justice, equity and
good conscience?
Since the Supreme Court did not negative or deny the power of the
High Courts under Article 226, and its own powers’ under Art. 32 of the
Constitution and left the question open, the High Courts and the Supreme
Court can exercise such powers to quash the departmental proceedings
that is conducted after honourable acquittal of the delinquent officer or
employee in a befitting case. To limit and qualify the powers of the High
Courts under Art. 226 and the Supreme Court under Art. 32 of the
Constitution to quash the departmental proceedings under the above said
 39

circumstances will be ultra virus and amount to giving a restricted

meaning to the principles of natural justice and equity in the matters of
such domestic enquiries which may ultimately end in injustice in certain
cases. Therefore, the Supreme Court judgment should be given a liberal
interpretation, so that the interpretation and meaning of the principles of
natural justice equity and good conscience is always dynamic and
exp^pding to suit the needs of the modem society and jurisprudence.

COMPLAINTS AND DECISION TO INITIATE “DOMESTIC

ENQUIRIES” :

In most of the cases the disciplinary enquiry starts with a written

complaint from somebody. This is not always necessary because some
times a fact may be brought to the notice of the punishing authority or
misconduct may be noticed by him personally and he may straightway
give the charge sheet without any complaint or preliminary investigation.
This may usually be the case when a particular establishment is very
small and is personally supervised by the employer. However, in a large
organization the usual method is for a complaint being made before start
of the disciplinary proceedings. This is analogous to the first information
report in a criminal case. In such circumstances it is always necessary
and desirable that such complaints must be reduced to writing. In the
absence of complaint^ management is not obliged to start enquiry. The
management must initiate proceedings and it should be concluded with
reasonable diligence and period.13
When a worker makes some allegations against his superior in
reply to the show-cause notice, it does not mean that the management

13 Bhakatram Purohit v. C.E. Electricity and Others (1996)2 ATT HC 58.

 40

should start investigation. The manager is not a police officer whose duty
is to start investigation suo moto without any complaint being lodged by
the person concerned. It is not necessary that the complaint should be
made by the worker himself. Even the Union can send the complaint on
behalf of the worker. If the complaint is oral and the charge sheet is
delayed then this may be a circumstance against the confines of the
management.
There are obligations which are applicable to an employee even
though he may be outside the factory premises and beyond working
hours. Such obligations are not to indulge in any act of insubordination
against his employer or his senior officers or not to associate himself with
competitive concerns etc., in order to find out whether an allegation
amounts to a change of misconduct or not it is also necessary to examine
the provisions of standing orders or service rules. In a large number of
cases the misconducts are defined in standing orders or service rules. In
some cases if the facts of the criminal proceedings and disciplinary
proceedings against the applicant are same the disciplinary proceedings is
to wait till disposal of the criminal proceeding.14 However, some general
considerations to be kept in mind in such cases are:
(a) Non-performance of duty - In case of non-performance of
duty, it is necessary to examine as to what post of particular
employee holds and whether the duties which he is expected
to perform appertain to the said post. The reason is that an
employee cannot either be called upon to perform any work
which is either superior or inferior in relation to the post he

Soubhagya Chandra Nanda vs. State of Orissa, 1997 (2) ATT (OAT) 483.
 41

holds.15 An employee is, however, liable to perform all jobs

which are either ancillary, incidental or connected with or
preliminary to his main duties,16 or which the workers have
been doing in the past.17
(b) Strike - In case a worker is guilty of going on strike, it is
necessary to scrutinize whether the said strike is misconduct
under the standing orders of service rules and, if so, in what
circumstances. If a strike without notice is misconduct, then
action can be taken only on that basis. Some standing orders
provide that an illegal strike is a misconduct and in such
cases action can be taken only when the workers go on
illegal strike and not when they go on legal strike.18
(c) In-subordination - In case an employee is guilty of using
improper language towards his superior then it should be
seen whether the language is abusive, impertinent,
defamatory or amounts to a threat ? If the language amounts
to a threat, then it should be seen what is the actual threat
given out to the superior officer.
(d) Aet subversive of discipline - In case riotous or disorderly
behaviour takes place at the work place then it is
undoubtedly misconduct. It is, however, necessary to
understand what is meant by the words “premises of an
establishment.”
(e) Absence - In case a worker is alleged to have remained
absent without taking leave, it is necessary to see whether he

Automobile Products (India) Ltd. v. S.V. Seshagiri, 1953 ICR 932 (Mad HC),
Express News Papers (P) Ltd. v. I.T. Madras, (1963)1 LLJ 492.
17
Ramsingh Bhagu v. Bihari Mills Co. Ltd. 1957 ICR 556 (IC).
Matchwell Electricals (India) Ltd. v. Chief Commissioner, (1962) 1 LLJ 545 (Punj HC).
 42

had sent any leave application and if so, whether the leave
application was received in time or subsequently and
whether there were any justified reasons for refusing leave.
(f) Disobedience - In case of complaint regarding
disobedience, it is always preferable to give the order in
writing and if the worker still disobeys then complaint may
be made. Supposing an officer has asked a fitter to repair
certain machine and if he has not done that job on a
particular day, it may be that he had got some more pressing
work to do and in such cases it is necessary to know the
underlying reason of the disobedience because unless we
know this thing, we cannot judge whether the said
disobedience is justified or not.
(g) Go- slow - There is no misconduct which presents such
difficulty and perplexity as the misconduct of adopting go-
slow tactics. Go-slow may be so mild at times as to be
invisible and even if go-slow is appreciable there may not be
any direct evidence since go-slow is generally disguised.
In the case S.Madhaban v. Management of Sundaram Motors, it is
held that dismissal from service of an office bearer of a Trade Union for
making derogatory remarks and inducing words against the management
while addressing the workers was held justified.19
The right of an employer to institute enquiry arises out of the
contract of employment and there can be no such right at a time when the
said contract has not come into existence. For contract it is necessary that
there should be two reciprocal promises and both should form

19
S. Madhaban v. Management of Suntaram Motors, Kernataka HC, 2006 [I LLJ 360.
consideration for each other.20 The acceptance of the offer should be
unconditional and the said acceptance must be duly communicated before
the contract comes into existence.21 In case the bank terminates the
services of a probationer for having failed to qualify the confirmation test
which is one of the requisites for confirmation of the probationer, she is
stopped from challenging the said stipulation.22
Some times a particular establishment is controlled by one
employer and thereafter it is transferred to the other. When the
establishment is so taken over, the new employer has power to penalize
the petitioner for misconduct committed before the date on which the
establishment was taken over.23 When all the assets and liabilities of the
appointment were taken over and the services of an employee continued
uninterrupted, then it cannot be said that the right to take action for a
prior misconduct lapsed.24 Earlier lapse of the delinquent can be
considered though not mentioned in charge.25 When an establishment is
transferred from one owner to the other on 1st May then even if an
employee was illegally terminated before that date he must be deemed to
be in service of the successor-in-title who is not only liable to pay wages
from 1st May but even before from the date of termination of service as
successor-in-title.26
The power to take disciplinary action exists so long as a person
remains in employment of the employer and once the employment comes
to an end for whatever reason, then the general rule is that the said power

20 Ramlal v. Kansiram, AIR 1936 Lah 649.

21 For full discussion please refer to the Author’s book ‘Misconduct in Employment’ Chapter I,
Paras 19 to 32.
22 Smt. Astanilci Das vs. Punjab National bank and others, Orissa HC DB 2006 II LLJ 32.
23 Prafulla Kumar Sen v. Calcutta State Transport Corpn,, AIR 1972 SC 2083.
24 Mazhar Hussain v. MP State Road Tspt. Corpn., (1968) 11 LLJ 287 (MP HC).
25 Government ofA.P. and Others v. Mohd. Taher Ali, 2008 IC 226 S.C.
26 Bihar State Road Transport Corporation v. State ofBihar, AIR 1970 SC 1217.
 44

does not survive. And employee who resigns pending determination of

charges for his removal may still be subject to dismissal if the resignation
is not accepted in which case lie is still in service.
Preliminary enquiry is not judicial in character. In the absence of
rules requiring that the proceedings of preliminary enquiry should be
conducted in the same way as judicial trial, it cannot be said that
preliminary enquiry is judicial in character and attracts the principles o
natural justice. A preliminary enquiry for the purpose of framing the
charges would not be bad for violation of the rules of natural justice
which require that a person should have a reasonable opportunity to meet
the charges against him.
A preliminary enquiry to frame the charges can be held exparte
The preliminary enquiry is made before the charge sheet is issued and
such an investigation need not be made in presence of the workman
concerned. If exparte enquiry is made then it cannot be said, relying
upon the procedure of formal enquiries, that the investigation is invalid30
In such enquiries the delinquent has no right to be questioned about any
material gathered at this stage. He has also no right to say that he is being
condemned behind his back because he is not being condemned at all; but
what is being done is that the superior authority is endeavouring it for its
own satisfaction whether there is justification for arranging him at
enquiry.31 The gathering of material behind the back of the accused
person is legal. 32

Abdul Salem v. State ofKerala, 1973 Lab IC 584 (Ker HC).

Nagendra Kumar v. Commissioner, Port of Calcutta, AIR 1955 Cal 56.
Nagendra Kumar Roy v. Commissionerfor the Port of Calcutta, AIR 1955 Cal 56.
Mahabir Prasad Didwania v. Manager, Kamla Mills, 1960 ICR 323 (1C).
Md. Shariff v. Onkarsingh, AIR 1957 All 217.
Nagendra v. Port Commissioner, AIR 1955 Cal 56.
 45

CHARGE SHEET AND ITS DRAFTING:

The concept of charge-sheet has been derived from the criminal

law. Under the Criminal Procedure Code the charges are framed by the
Magistrate. In case of the complaint by police where documents under
Section 173 of the Criminal Procedure Code are produced, the Magistrate
can discharge the accused person if, on consideration of the documents,
the charge is groundless, otherwise the Magistrate is required to frame the
charges. In case of private complaints, the complainant tenders prima
facie evidence and on consideration of evidence the Magistrate decides
whether the charge should be framed or the accused should be
discharged. Charge under the criminal law is a formal document stating
the offence with which the accused is charged. In disciplinary
proceedings in private employment or Government service such a charge
is framed by the disciplinary authority on consideration of a complaint or
after holding a preliminary enquiry if he thinks fit to do so. The concept
of the charge in disciplinary enquiries derives its sustenance from the
criminal law though the concept is not identical in both these types of
proceedings.
The framing of charge-sheet is provided for in various Act, Rules,
Regulations, Standing orders etc., relating to public and private sectors.
In so far as the provisions are made by rules in a particular case, they are
binding upon the disciplinary authorities.
One of the fundamental rules of natural justice is that the party
affected should have full and true disclosure of the facts sought to be used
against him. Charges not showing that pecuniary loss was caused order
of punishment cannot be justified. It is a right, if denied the

33
Gopi Chand Bishowi v. State ofU.P. and anothers, 2008 Lab IC 204 All. (DB)IC.
 46

administrative action would be void. Disciplinary Authority passed an

order to recover the loss caused by the applicant which was not an item in
the charge memo. The order is not sustainable in law.34 The party has a
right to defend through examination of witnesses, argument and proof.
Copies of statement of preliminary enquiry statement of witnesses
examined if not supplied even though asked for and copies of documents
indicated to be relied upon a chargesheet supplied and merely saying that
he would have inspected documents at any time is not enough effective
opportunity was not afforded to delinquent employee is serious flaw in
•7 c

the enquiry. In another case petitioner was not served with chargesheet
and was not given reasonable and their opportunity of defence. Order of
o/r
punishment was liable to be set aside. The right of hearing is a right, no
more and no less, to hearing which is adequate to safeguard the right for
which such protection is afforded. It must be a hearing in substance and
not form. If such hearing is denied, the administrative action is void.
Under the requirements of a full hearing a party has the right to defend
the right involved, by arguments, proof and examination of witnesses
where necessary. Then it can be said to be a meaningful hearing. Where
no show cause notice was served, the resultant dismissal order is
invalid.38 When the rules, either expressly or by implication, provide for
framing up of the charge then the non-framing up of the charge is an
irregularity of grave nature.39 The omission to frame a charge will be an
incurable irregularity amounting to illegality. The provisions of the
Criminal procedure Code would apply to cases of inadvertence to frame a

1998(2) ATT (OAT)226.

Haryana v. Jagdish Chandar, 1955 SO 984.
Sultan Khan v. Principal, B.N. College ofEngineering, 2008 Lab. IC & 392 (Bom.)
Gupta Tobacco Co. v. Union of India, AIR 1968 Delhi 64.
Paru Silk Mills Vikhorli v. Shamsuddin Abdulhuq and Another, 1954 ICR 1047 (IC Bom).
39
R.UJ. Parvati Kar v. Municipality, AIR 1961 Mys 181.
 47

charge, induced by the belief that the matter on record is sufficient to

warrant the conviction for a particular offence without express
specification and where the facts proved by the prosecution constitute a
separate and distinct offence but closely relevant to and springing out of
the same set of facts connected with the one charged. This will not
condone willful omission to frame a charge.40 Omission to frame a
charge is, in effect, similar to refusal to give the accused a hearing or a
refusal to allow him to defend himself. The accused is not asked to
defend himself in regard to an offence he is not charged with. The
omission should attract similar consequences. It is not per se fatal but it
would be sometimes a laring circumstance pointing to prejudice though
there may be cases in which there is no prejudice.41
We have discussed in the previous chapter that holding of
preliminary enquiry is discretionary. This shows that the charge-sheet
may be issued to an employee without giving any prior show-cause
notice. Though it may be desirable to call for an explanation before
serving a charge-sheet there is no principle which compels such a course.
The calling for an explanation can only be with a view to make an
enquiry unnecessary where the explanation is good but in many cases it
would be open to criticism that the defence of the workman was being
fished out. If after a preliminary enquiry there is prima facie reason to
think that the workman was at fault a charge-sheet setting out the details
and likely evidence may be issued without offending against any
principle of justice and fair-play.42

William Staney v. State of M.P., AIR 1956 SC 116.

State v. Durgeshwar Datta, AIR 1958 Ass 44.
Firestone Tyre & Rubber Co. Ltd. v. Workmen, AIR 1968 SC 236.
 48

The charge-sheet is to be given by an employer,43 and if an

employer is an individual person managing the affairs of the concern
himself then the position is very simple. But in a number of cases the
employee are employed by corporations in which the managerial
functions are performed by authorities or individual officers and it is very
necessary to decide as to which officer or authority is empowered to issue
a charge-sheet on behalf of the employer. Some of the relevant tests to
decide this are explained in the following paras.
It is well recognized that if an authority is biased it cannot hold the
enquiry. This, however, does not affect his power to issue the charge-
sheet.
When an employer proposes to dismiss a workman on a charge of
misconduct, not only the charge-sheet should be given to him in writing
but also the charge should not be vague. If this is not done then it can be
said that the rules of natural justice have not been followed. The charge-
sheet must be specific and must set out all the necessary particulars
irrespective of the fact whether in view of the previous preliminary
enquiry the delinquent knows all about the charges. Whether he knows it
or not he must be again told of the charges and it was not his duty to
connect the charge-sheet with previous proceedings.
If the charge is vague is no reasonable opportunity to show cause 44
The charges should contain full particular and should be a specific and
not vague otherwise it will vitiate the enquiry proceedings.45 A dismissal
would not be justified on charges which are vague even if the employee
remained ex parte and refused to cooperate. In that case the second

Malawanar Planatations Ltd. v. l.T. Calicut, 1968 Lab IC 56 (Ker HC)

Niranjan Singh v. State of U.P. AIR 543.
Palani K. v. Superintending Engineer, Vellor Electricity System, 1968 Lab IC 743 (Mad HC).
 49

show-cause notice was given with particulars but the court did not accept
this as sufficient.46
In one case the concept of vagueness was explained by the
Supreme Court in the following words:
“What is meant by vague? Vague can be
considered as the antonym of ‘definite.’ If the
ground is incapable of being understood or defined
with sufficient certainty it can be called vague. It
is not possible to state affirmatively more, on the
question of what is vague. It must very according
to the circumstances of each case. It is, however,
improper to contend that a ground is necessarily
vague if the only answer of the detained person
can be denying it. That is a matter of detail which
has to be examined in the light of the
circumstances of each case. If on reading the
ground furnished it is capable of being intelligently
understood and is sufficiently definite to furnish
materials to enable the detained person to make a
representation against the order of detention, it
cannot be called vague. The only argument which
could be urged is that the language used in
specifying the ground is so general that it does not
permit the detained persons to legitimately meet
the charge against him because the only answer
which he can make is to say that he did not act as
generally suggested. In certain cases that
argument may support the contention that having
regard to the general language used in the ground
he has not been given the earliest opportunity to
make a representation against the order of
detention. It cannot be disputed that the
representation mentioned in the second part of
Article 22(5) must be one which on being
considered may give relief to the detained
person. „47

N.R. Cooperative Societies v. Industrial Tribunal, AIR 1967 SC 1182.

47
State ofBombay v. Atmaram Sridhar Vaida, 1951 SCR 167: AIR 1951 SC.
 50

This shows that there is no hard and first rule to determine

“vagueness” and each case has to be decided on its own merits. It should
also not be forgotten that in case the grounds are not precise the detenu
can ask for particulars.48 The above argument applied to disciplinary
proceedings also because a delinquent employee can call for better
particulars. Vagueness is, therefore, a relative term. Its meaning must
vary with the facts and circumstances of each case. What may be said to
be vague in one case may not be so in another; and it could not be
asserted as a general rule that a ground is necessarily vague if the only
answer of the detained person can be to deny it. If the statement of facts
is capable of being clearly understood and is sufficiently definite to
enable the detune to make representation, it cannot be said to be vague.49
In the case of Ani Rajpal v. Delhi Dev. Authority it has been held that
issuing of chargesheet for a misconduct which was said to have been
committed 13 years back has to be held arbitrary, unless there is any
reasonable explanation. In the absence of any such explanation
proceedings cannot sustained.50 ^ h Lj
(a) It is necessary that the charge should contain all the facts
which combined together make a particular misconduct. For
this the standing orders as well as the service rules which
define various misconducts must be read carefully. If a
particular act such as absence without leave, late attendance
or negligence is misconduct only when it is habitual, then die
work “habitual” is an essential constituent of the charge and
must be mentioned in the charge-sheet. Similarly if a

Moolchand v. State, AIR 1958 Raj 58.

Naresh Chandra v. State of West Bengal, (1960) 1 SCR 411: AIR 1959 SC 1335.
2006 I LLJ643.
particular act, such as affixing posters, riotous on disorderly
behaviour or collecting subscription, etc., is misconduct if it
takes place on the premises or during duty hours, then these
are also essential elements of misconduct and must be
mentioned in the charge-sheet. If the standing orders provide
that damage to property or disobedience or insubordination
must be mentioned in the charge-sheet. If the standing
orders provide that damage to property or disobedience or
insubordination must be willful then the willfulness is an
essential part of the charge. I# theft or dishonesty is
misconduct in connection with the employer’s business or
property then this should be so mentioned. If gross
negligence is misconduct then the word “gross” is also an
essential part of the charge. If, according to the service
rules, it is the duty of an employee to endeavour to prevent
any member of the family from taking part in any activity
sub-service of the Government, then the mere fact that his
family member has taken part in such activity is not
sufficient and it must be expressly stated that he did not
endeavour to prevent such family member. Similar will be
the case when service rules provide that the employee will
not allow his son, daughter or dependent to accept
employment with firms with which he has official dealings.
This means that care should be taken to ensure that charge-
sheet mentions all the essential ingredients of a particular
misconduct.
 52

In one case the company referred to major misdemeanors

under the standing orders of the company. It was
subsequently found that the company’s standing orders were
not applicable and the employee was governed by the Model
Standing Orders. When the act for which the said charge-
sheet was given also constitutes misconduct under the Model
Standing Orders, then the charge-sheet is not defective for
that reason. Even if there is no standing order, the right of
the management to take action does not come to an end
because action can be taken on the basis of ordinary
conditions of service between the Master and the Servant.51
When the facts mentioned in the charge-sheet are clear and
unambiguous, then wrong mention of the provisions of
certified standing orders does not vitiate the charges. 52 In
one case notice called upon the workmen to show cause why
he should not be dismissed as per Clause 23(4) relating to
theft, fraud and dishonesty in connection with Company’s
property. The facts were that he connived in the issue of
some property, without gate pass belonging to contractor and
not of the proprietor and, therefore, it could be gross
negligence under Clause 23(4) of the Standing orders. It was
held that when clear case, which had to be answered, was
enunciated in the very first notice there is no prejudice by
mere mention of wrong clause in the show-cause notice.33

Phillips India Ltd. v. Workmen, (Cal Gaz., Part 1-C dt.9.5.1988, p.556 (IT).
Balihari Colliery Co. (P) Ltd. v. Workmen, (Gaz. Of India, dt.23.12.67, p.4767 (IT).
Gadde Lingainh v. Management of Pandanpur Sahakari Sakhae Karkhana, (Mys Gaz., Part
IV 2-c(ii) dt.29.4.65 (IT Mys).
 53

(b) Apart from the particulars of the charge, the charge-sheet

should usually contain the following:
(i) Reference to para or sub-para of service rules of
standing orders within which the particular
misconduct falls.
(ii) If previous record of the employee is relied upon to
show his habit or is an aggravating factor, then
sufficient particulars of the previous record.
(iii) Time within which the delinquent is required to reply
to the charge sheet.
(iv) Whether penalty should or should not be mentioned in
the charge-sheet will be discussed hereinafter.
(v) If the rules provide that statement of allegations must
accompany the charge-sheet, then the statement
should be enclosed.
(vi) If the rules further provide that the delinquent
employee should be given a chance to inspect the
records then the charge-sheet may provide period
during which and the place where record can be
inspected.
(vii) If the service rules provide that in case the employee
fails to reply within the time allowed for giving reply
to the charge-sheet, then certain presumption can be
drawn or action can be taken then his attention may be
drawn to such provisions.
 54

(viii) In addition to this other matters may be included in the

charge-sheet which are required by standing orders of
service rules.
(ix) The date and time of incident should be mentioned in
the charge-sheet. The basic requirement of framing a
charge is that it should give to the servant a fair idea
of the case which he is to face and validity of the
charge must, in each case, be determined by
application of this test. If the charge is too vague
regarding commission of the offence, then the
employee is deprived of the opportunity to make
defence of alibi.54 If the charge does not contain
particulars of time and place the charge-sheeted
person cannot put up proper defence and he is further
prejudiced in putting proper questions in cross-
cc
examination. The particulars regarding date and
time are, therefore, important requirements of a
properly framed charge-sheet.
When misconduct depends upon offending language
then actual words used should be specified in the
charge.
Dishonesty or bad motive should be mentioned with
ingredients of the charge:- There are a number of
misconducts such as theft, misappropriation, bribery,
forgery and cheating in which dishonest intention is
constituent of the charge. Where dishonesty is the
54
Chittaranjandas v. State, AIR 1963 SC 1996.
55
Palani v. Superintending Engineer, 33 FJR43 (Mad HC)
 55

ingredient of any offence, it should be mentioned in

the charge.56 The omission to mention dishonesty is
not material where no prejudice has been caused.5'
When the charge was that he had altered the entries
with ulterior motives, then he must be told what
precisely is the motive attributable to him, otherwise
CO

the charge would be vague.

(x) In case the misconduct is habitual then the word
“habitual” must be mentioned in the charge-sheet. In
case of certain irregularities one single act does not
constitute misconduct but if they are habitual then
they amount to misconduct. The common examples
are negligence or absence without taking leave.
Whenever the habit is a constituent part of the charge,
it must be specifically mentioned in the charge-sheet
otherwise the charge would be defective. When the
charge was an act of negligence in the repair of
Hindustan car, the worker cannot be dismissed either
for gross negligence or for habitual negligence.59 The
reason is that employer cannot justify his action on
any ground other than those contained in the charge-
sheet.60 When the enquiry wrongly assumed that the
charge against the workman was habitual negligence,
the enquiry was bad even when previous record of the

14 Suth Wr Cr 13.
(1873) 10 Bom HRC 373.
State of U.P. v. Saligram, AIR 1960 All 543.
Hendricks & Sons v. I.T. (1959)1 LLJ 235 (Mad HC)
60
Laxmidevi Sugar Mills v. Nand Kishore, (1956)11 LLJ 439 AIR 1957 SC 7.
 56

workman was bad and he had been warned several

times for committing mistakes.61 When the charge-
sheet does not contain the indication that negligence
was habitual the order of dismissal cannot be
supported.
In giving the charge-sheet care should be taken to see that the
charge-sheet is given in a language which the worker can easily
understand. It should be kept in mind that the charge-sheet is sometimes
given to such employees who may not have considerable educational
attainments and who may not have experience of dealing in such matters.
On many occasions the facility of being represented by an advocate,
union leader or outsider may not be available or, if available, it may not
be permitted by the enquiry officer or the employer, on some occasions
even the co-workers may not like to assist another worker. When in such
circumstances the worker is thrown entirely on his own resources, the
language of the charge-sheet assumes importance because if he is not in a
position to follow the charge-sheet it cannot be said that he had
reasonable opportunity to defend himself.
In drawing up the charge, the following should be kept in view:
(a) In a domestic enquiry all the details of the incident
need not be mentioned. If in the charge-sheet the
incident is mentioned in general terms this cannot
vitiate the enquiry.

(b) The charge should not contain unnecessary

matters.63 Unnecessary matter is, however, not
fatal to the charge. Allegations unnecessary for

Raza Textiles Ltd., Rcunput v. Workmen, (1961) 2 FLR.

Ghatge Patil Industries (P) Ltd., Kolhapur v. Anant Ganpat Fadhaw, (1966) 13 FLR
14 (IT).
Gokaran Nath Misra v. Ramnaresh Singh, AIR 1926 Oudh 225.
 the charge are merely surplus age and can be
disregarded.64

(c) The use of abbreviations such as “etc” or “any

other document” should be avoided. Instead of
this reference should be made to specific thing or
person.

(d) Exceptions need not be mentioned in the charge

itself. If on a charge of beating, an employee can
plead self-defence then it is for him to mention the
facts in his reply to the charge-sheet. It is not
necessary for the employer to mention that he did
not beat in self-defence. In a charge of
disobedience the employee can take up the defence
that the order was illegal even then it is not
necessary for the employer to mention
affirmatively in the charge itself that the order was
legal. If, however, the charge is of going on illegal
strike then illegality is a constituent part of the
charge itself and must be specifically mentioned in
the charge.

The charge should not refer to a large number of incidents without

mentioning the specific instances:- One of the usual defects in the charge
is to refer to a large number of incidents in a general without mentioning
the specific instances. Where the charge was that “during 25.2.56 to
26.57 you falsified the accounts and submitted bills for expenses which
A
were not incurred by you” the charge was vague.65 The charge of taking
bribe should be with reference to particular acts of misconduct and a
vague accusation that the petitioner was in the habit of doing certain acts
in the past is not sufficient. The strict proof of specific acts of bribery
could not be dispensed with by relying upon vague admissions of an

Satya Narain v. Emperor, AIR 1928 Cal 675.

B.I.C. Ltd. (Cooper Allen Branch), Kanpur v. Workmen, U.P. Lab. Decisions 1958, Vol.2.
 58

employee that he used to accept bribe. To permit this is opposed to

notions of fairplay and justice.66
There are some words which are mere inferences derived from
facts or judgments or opinion formed on the basis of certain facts, for
example, the “Insolence” or “Unsatisfactory work”. All such words are
generally incapable of giving any clear idea to the employee unless the
facts which are the basis of inference or judgment are also mentioned in
the charge. Some very important defects in the charge, in this respect, are
mentioned herein below:
(a) Insolence: - When the charge is that the worker behaved in an
insolent manner and persuaded other workers to stop the work, it is
vague since it is devoid of essential particulars.67 When the storage
is that “you are insolent and insubordinate towards your superior”
and the acts and omissions on which the charge is based were not
indicated then the charge is vague.68 In case of charge of arrogant
conduct towards his superior it was not stated in what manner and
on what occasions the applicant behaved arrogantly with his
superior officers or in what respect his work was unsatisfactory.
The charge was held to be vague.69 The charge of speaking
defiantly and talking all the time is a vague charge. 70 The
expression that he misbehaved with Secretary is vague, incivility to
public in using disgraceful language was held to be vague.71 The

Niranjan Pershad v. State, AIR 1960 All 323.

Thomas Stephon and Co. Ltd., Quilon v. Kunja Pillai (K), (1958) II LLJ 544 (IT Tri).
Management of Burmah Shell Oil Storage and Distributing Co. v. Workman (Delhi Govt.)
(Gaz. Dt. 29.4.1965, Part VI, p. 173 (Addl. IT).
Naidu (S. V) v. Blackwood India Ltd., (1957) II LLJ 340 (IC Nag).
American Arcot Industrial Institute v. Workmen, 1949 LLJ 460 (IT).
Delhi Consumers’ Cooperative Wholesale Stores Ltd. v. Shriram Sharma, (Delhi Gaz, Part
VI, dt.19.3.1970, p.183.
 59

charge of carrying vilifying propaganda is also a vague charge.72

The charge that the worker indulged in willful insubordination and
his conduct was subversive of discipline is vague if allegations on
which the charge is based are not mentioned.73
(b) Instigation: - The words ‘instigate’ and ‘incite’ mean something
more than mere asking a person to do a particular act. It should
amount to goading or urging further or to provoke or encourage
doing of an act.74 In view of this the stimulating words must come
from a person exercising some kind of influence.75 When the
particular of incitement were not given in the charge sheet, then
also the charge is vague.76
(c) Misbehaviour or indiscipline: - Where instead of stating that the
worker had been willfully insubordinate or had done an act
subversive of discipline in behaving rudely towards the Labour
Officer or had behaved in a disorderly manner outside the
Manager’s office, the order of suspension merely states ‘General
bad Behaviour’ there was no proper charge of any misconduct.7'
When the charge was that workman misused unauthorisedly and
forcibly took the property of the management in his occupation
then the charge is vague.78 The charge of breach of discipline in
the mill premises during working hours and rude behaviour
towards time-keeper is a vague charge.79 The charge that a
workman has been creating indiscipline among the workers and

72 Northern Railway Cooperative Credit Society v. I. T. Jaipur, 31 FJR 511: (1967) 15.
73 Jayeme Beechey and Co. Private Ltd. v. Workmen, (Mah Gaz., dt. 17.7.1969, p.3345).
74 State of Bihar v. Ranendra Nath, AIR 1958 Pat 259.
75 Adity Mills Ltd. Madanaganj v. Ram Dayal, 1972 RLW 478.
76 Rajasthan State Road Transport Corporation v. I.T., (1973) II LLN 469 (Raj HC).
77 M. T. Sawant v. Century Spg. & Mhg. Co. Ltd., 1950 ICR 894 (IC Bom.).
78 Management of Delhi Press v. Workmen, (Delhi Govt. Gaz, dt.28.5.1970, p.249).
79 Bhaiji Shankerji v. Shorrock Spg. & Mfg. Co., 1955 ICR 228 (IC).
 60

also bitter feelings against officers is wholly a vague charge.80

When the charge was that a workman created riotous and
disorderly behaviour during working hours and committed acts
subversive of discipline and prejudicial to the interest and
reputation of the management then the charge is vague.81 When an
officer was not charged of not discharging his duties impartially
then this cannot be taken into consideration.
(d) Association with subversive activities or undesirable persons
In a charge of association with subversive activities or a group of
persons indulging in subversive activities, full particulars must be
mentioned. Where the words “Other allegations”, “His associates
SO
etc” were used, the charge was bad.
(e) Slow down: - The charge that a workman was slow and
irresponsible in performing his work is vague. It is not sufficient
to tell an employee that he was willfully slowing down the
performance of his work. That may convey nothing at all to the
employee. It is incumbent upon the employer under the standing
orders to give him sufficient particulars which would enable him to
give a proper explanation and to defend himself properly. By this
charge sheet employee does not know on what days he slowed
down; what is the norm that the employer expects; how he has
fallen below that norm. There are absolutely no particulars

Management of Singrauli Colliery v. Workmen, (Gaz. Of India, dt. 12.7.1969, p.2830 (IT).
Management ofM/s Delhi Press v. Workmen, (Delhi Gaz, dt.28.5.1970, p.249).
Raghuhand Ahir v. State of Bihar, AIR 1957 Pat 100.
Management of Burmah Shell Oil Storage & Distributing Co. (Delhi Govt. Gaz, Part VI,
dt.29.4.1965, p. 176 (Add. IT).
 61

whatever which would enable the employee to defend himself

properly.84
The Charge-sheet need not contain the names of witnesses or a list
of documents on which the charge rests so that the employee may also
know the evidence as well as the witnesses in support of the charge.
Charge sheet is not a complaint within the meaning of Criminal
Procedure Code and it is not necessary to mention the names of
witnesses.85
When rule provide that a charge sheet along with the statement of
allegations should be given and reasonable opportunity should be
provided then termination of service without observing these facilities is
illegal.86 This is, however, not a part of the principles of natural justice.
The opportunity may not be reasonable if the person concerned is not
informed of the charge and the material which went to substantiate the
charge but it is not necessary that he should be given a charge sheet
0*7

accompanied by statement of allegation. In certain circumstances the

enquiry may be vitiated if the statement of allegations is not supplied.
The charge would not usually contain all details of the allegations is not
supplied. The charge would not usually contain all details of the
allegations on which it is founded and, therefore, provision has been
made that the person charged should be given a statement of the
allegation on which the charge is based and if there are other
circumstances which are proposed to be taken into consideration while
passing orders in the case they should also be communicated to that

Zeakh v. Forestone Tyre & Rubber Co. Ltd. (1954) I LLJ 281 (Bom HC).
Maharashtra State Road Tspt. Corpn. v. R.D. Tirhekar, (Mah Gaz., dt. 16.10.1966, p.4980
(LC).
A.K. Narayan Rao v. G.M.Southern Railway (1970)21 FLr 127.
Dehyalal Bapulal Rawat v. Putan Municipality, (1968)1 LLJ 160 (Guj JC).
 62

person so that he may not remain in darkness about any circumstance that
may be used against him. The failure on the part of the enquiring officer
to provide the person charged with a statement of allegations and the
circumstance referred to above may in particular cases be considered a
good ground for quashing the decision.88
On many occasions employer is doubtful regarding the nature of
the misconduct and the doubt is some times not resolved even after
holding preliminary investigation. It may be difficult to decide at the
preliminary stage whether the employee is guilty of dishonesty or
negligence. In case of accident he may be guilt of willful damage or
negligence. In case of taking out the goods without gate pass he may be
guilty of violation of rules or theft depending upon the fact whether he
had or had not any dishonest intention. In such case if a particular charge
is framed and later on that charge is not found established, then it might
lead to some complication.
The disciplinary authority can amend the charge:- An authority
who can issue charges is also competent to withdraw the charges or
amend them and issue new charges. There is no statutory rule or binding
precedent that a competent authority is precluded from issuing a new
charge. Under the Criminal Procedure Code the Criminal Court is
empowered to alter or add to the charges at any time before judgment is
announced. In disciplinary proceedings the charge is given by the
disciplinary authority and power to alter or amend the charge also vests in
such authority. In one case it was contended, relying upon the case on
State Bank of Bihar v. D.N. Ganguly,90 that on the analogy of a reference

Kanhyalal v. State AIR 1958 Raj I (DB): ILR 1957 Raj 823.
Vinod Chandra Majumdar v. Union ofIndia, AIR 1960 Punj 147.
1958 SCA 1082: AIR 1958 SC 1018.
 63

made to Industry Tribunal the disciplinary authority also cannot withdraw

or amend the charges. It was held that the scheme of Industrial Disputes
Act is different from that of Rule 15 of the Central Civil Services
(Classification, Control and Appeal) Rules and disciplinary authority can
amend or issue additional charges.91
When a charge sheet was given but it was found that there was
mistake regarding the date and time and, therefore the charge sheet was
cancelled and another charge sheet was given and the date of enquiry was
adjourned, then the procedure is not illegal.92 When a charge sheet was
given and further particulars were supplied in the subsequent charge sheet
then the enquiry cannot be vitiated on the ground that the original charge
sheet was vague or no opportunity was given to explain the subsequent
charge sheet. When the workman asked for copies of the reports made
against him and they were supplied and when on the advice of somebody
that the charge was vague and indefinite the management specified the
details, then it cannot be argued that this could not be done under the law.
Even if it is held that there were certain additions to the previous charge
sheet, the management can amend it before the initiation of enquiry and
there is no bar to that.94
When fresh charge sheet is given the effect is that the previous
charge sheet is superseded and a fresh enquiry is required to be made.95
Time for rendering explanation to the charge:- It is usual to give
sufficient time to the concerned employee for rendering explanation to

B.C. Mazumdar v. Union ofIndia, 1960 PLR 102: AIR 1960 Punj 147.
Mehmood Production (P) Ltd. v. Workman, (Mah Gaz, dt.6.5.1971. Part O-L, p.2465).
Secretary, Chittinad Textile Mill Workers' Union v. Management (Supp to Part II, S.I. of Fort
St George Gaz, dt.31.1.68 p.9).
Management of M/s Otis Elevator, Co (P) Ltd. v. Workmen, (Delhi Gaz., Part VI, dt. 17.5.73
p.364 (IT Delhi).
Vinod Chandra Majumdar v. Union ofIndia, AIR 1960 Punj 147.
 64

the charge. Such a time must be reasonable so that the employee may
have sufficient opportunity to explain the circumstances against him.96
Whether a particular time given to an employee is reasonable or not may,
in certain circumstances, depend upon the nature of the charge and other
attending circumstances.
It is inexpedient and unwise to ask for oral explanation to the
charges. Memories are defective and sometimes conveniently elusive.
The correct procedure would undeniably be that the notice called for an
explanation should stipulate a period generally not less than 24 hours
from the time service is effected within which the explanation should be
furnished in writing and, if possible, in the hand writing of the worker.
The omission to adopt the course is a fatal defect.97
In one case the copy of the charge handed over to the workman by
the opposite party was not signed. It was held that the irregularity was of
little consequence and the proceedings are not vitiated.98
When no show cause notice is given for a considerable period then
it gives rise to presumption of condonation. This shows that the charge
sheet should not be delayed. Mere delay is giving the charge sheet is,
however, not fatal unless the circumstances are such that presumption of
condonation can be drawn. When the charge sheet was given after ten
days because the worker was on leave then the delay is not material.99
The charge sheet may be delayed on account of ignorance of the facts.
The fraud or misappropriation may come to the notice of the employer
after a long period. It may also be delayed because the matter might be

Dahyalal Bapulal Rawl v. Patna Munisipality, (1963)1 LLJ 160 (Guj HC).
City Transport Ltd., Coimbatore v. Workmen, (1952)1 LLJ 457 (IT Coimbatore).
Radharaman Bajpai v. L.A.T. (1957)11 LLJ 15(A11 HC).
Workmen of Sri Rajinder Mills Ltd. v. Management (The Fort St George Gaz, Supp to Part II,
dt.3.1.1968, p.4).
 65

pending for preliminary investigation or it can be delayed due to

preoccupations of officers. It has to be seen on the facts of each case
whether an inference of condonation can be drawn.

CHARGE SHEET - SERVICE TO WORKMAN :

The service of charge sheet is a prerequisite to the validity of

domestic enquires. Departmental proceedings/Criminal proceedings is
said to be initiated only when a charge memo in disciplinary proceeding
or a chargesheet in a criminal prosecution issued to the employee. Sealed
cover procedure is to be resorted to only after charge memo/charge sheet
is issued.100 If it is not established that the charge sheet was served upon
an employee then subsequent proceedings in the course of domestic
enquires are absolutely invalid and ineffective. Departmental proceeding/
Criminal proceeding is said to be initiated only when a charge memo in a
disciplinary proceeding or charge sheet in criminal prosecution issued to
the employee. Sealed cover procedure is to be resorted to only after
charge memo/charge sheet is issued.101 For this very reason there is great
temptation to an employee to avoid service of the charge sheet. In some
cases, this gives rise to a tussle between the management which tries to
serve the charge sheet and the workman who tries to avoid the same. It is
therefore, of utmost importance to find out before initiating domestic
enquiry that there is sufficient material to show the service of the charge
sheet. Conduct of the appellant was detrimental to proper functioning of
organization of its internal discipline the employer is entitled to take
disciplinary action.102 When the party does not appear, the tribunal

100
P. K. Kar v. Board of Trustees, Paradeep Port Trust (1996) I ATT HC 461.
101
Ibid.
102
Deverdrappa v. The Karnataka State Small Industries (1988)2 ATT SC 411.
 66

cannot assume that the service had been effected properly without
applying its mind to the question as to whether the notice has been served
on the proper party.103 In another case also it is decided that Departmental
Proceedings against a retired employee based on alleged misconduct of
employee more than 4 years prior to initiation of proceeding the same
proceeding became stale and liable to quashed.104
The most common method of service the charge sheet is by
personal service i.e., either sending the charge sheet in duplicate and
getting the signature of the worker concerned on the office copy of the
charge-sheet or in the alternative getting his signature either on the peon
book or on some other paper. Getting the signature on the office copy of
the charge sheet is, preferable to sending the charge sheet through the
peon book. The signature of the worker concerned in the peon book
merely shows that he received a letter bearing a particular date. It does
not conclusively prove the identity of the communication and in case of a
dispute that has to be proved.105
When the intimation of date of enquiry was delivered by a peon to
a minor boy in the house of the delinquent, then it does not amount to
proper service.106 The service of charge-sheet cannot be disbelieved on
the ground that typist was sent in a car to deliver the notice to the
employee. Entrusting a typist to serve the notice is not a suspicious
circumstance. 107
•

Employer should keep addresses of workers as required by

Factories Act. In one case the management sent intimation at his old

Standard Jute Mills, Titagarh v. Workmen (1953) II LLJ 674(LAT).

AIR 1995 SC 1853 State of Bihar V.M.I. Ansari.
Moradabad Water Supply Co., (1951) II LLJ 296 (Con.Officer).
Girish Chandra Goswami v. A.K.Roy, (1970)1 LLJ 340: (A and No HC) (DB)
Goodyear (India) Ltd. v. L.T. (1969) I LLJ 153: 1969 Lab IC 1599 (Punj and Har HC).
 67

address given in the application form for employment while the workman
had shifted to some other place. According to the workman he had
intimated the change of address to the management when in one of the
applications he stated that he was wrongfully dismissed. Two notices
were sent by the management and not by the enquiring officer and they
were returned undelivered on account of the fact that they were sent at the
old address. Rule 80 of the Delhi Factories Rules provides that the
register of addresses of the workmen shall be written afresh each year.
Thus it is the duty of the management to keep fresh addresses of the
workers every year. This was not followed. No serious attempt was
made to serve the workman concerned.108
Refusal to accept charge-sheet is a misconduct. In one case the
orders were sent to workers in English and they refused to receive the
same. The Industrial Tribunal held that this amounts to insubordination
and gross misconduct. On appeal, the Labour Appellate Tribunal held
that the employees cannot be held guilty of refusal to accept the office
orders without knowing the contents thereof.109 The Supreme Court upset
the order and held that refusal to receive the office orders was deliberated
since the workers had been receiving charge-sheets, etc. in English in the
past and, therefore, it constitutes a misconduct.110 In one case the memo
was first tendered by office Superintendent which the worker refused and
later on it was sent through a peon and it was accepted by him. It is
hardly proper for a subordinate to refuse a memo that was tendered by
office Superintendent and insist on being sent through post. This is gross

Surender Products Co. v. Workmen (Delhi Gaz., Part VI dt. 11.3.1971, p.221 (LC).
Mohd. Sayeed v. Tractor (India) Ltd., XI FJR 547(LAT).
Tractor (India) Ltd. v. Mohd. Sayeed, 16 FJR 162: AIR 1959 SC 1196.
 68

indiscipline and calculated to interfere with the working of the office,111

The misconduct of refusing to accept a charge sheet is a distinct charge.
If the charge sheet, then it incumbent upon the management to serve the
charge sheet by registered post, adding if necessary, the additional charge
that they had refused to accept the charge sheets. The charge sheets
should also state the time and date on which the concerned workers
I i 'j

should appear before the person holding the enquiry.

Refusal to accept charge sheet is not the same thing as delay in
accepting the charge sheet. When a letter is posted and is not returned
unserved the presumption is that it reached the addressee. There is a
general presumption under Section 114 of the Evidence Act that natural
course of business has been followed. The post office belongs to the
Government and the acts performed by the postal authorities are the
official acts. It is, therefore, natural to presume that if a letter is proved to
have been posted then the natural course of business would have been
followed and in ordinary course the letter should be deemed to have been
delivered to the addressee.113
Posting of letter can be presumed from certificate of posting.
When a letter was sent under certificate of posting then it is natural to
presume that it must have reached its destination.114 When there is no
denial on oath as against the presumption of service arising out of
certificate of service then service cannot be disbelieved.115 It is, however,
observed by the industrial Tribunal, Delhi that mere production of postal
certificate does not amount to service of charge sheet. In doing, so, it has

Atherton West and Co. Ltd. v. Regional Conciliation Officer, AIR 1959 All 406.
City Transport Ltd., Coimbatore v. Workers (1952) I LLJ 457 (IT Coimbatore).
New Marine Coal Co., v. Union, AIR 1964 SC 152.
Sukumar Guha v. Naresh Chandra AIR 1968 Cal 49.
Shri Durgadatta Agarwalla (Cal Gaz., dt. 19.8.1965, Part IC, p.737 (IT).
 69

relied upon some observations in case of Bata Shoe Company Ltd., v.

Ganguly.1,6 Similar observations are made in some other cases in which
the letter was sent under certificate of posting.117 The reason is obvious
because certificate of posting can only show that the letter was posted and
apart from producing the certificate of posting evidence must be given
that the said letter was not received back undelivered otherwise there is
no conclusive presumption that the letter was served.118
If registered letter is refused by the addressee, it amounts to
service. If a registered letter is refused by the addressee then it amounts
to delivery of letter and it debars the addressee from pleading ignorance
of contents. The denial of the receipt of registered letter does not rebut
the normal presumption.119
Endorsement “refused” on envelope by postal authorities raises
presumption that it was refused by the addressee. In some cases postal
authorities return the registered cover with the endorsement “refused”.
The pertinent question is whether the said endorsement by itself is a
sufficient evidence of the refusal of the letter by the addressee or it is
necessary that the postal peon should be produced before the Industrial
Tribunal or Court when it is disputed that the registered letter is not
served. Though the endorsement by the postal authority is a mere
statement and it is generally held that mere statement is no evidence,
except in special circumstances mentioned in Section 32 of the Indian
Evidence Act, yet the endorsement by postal authorities is considered to
be a prima facie evidence for two reasons. The first reason is that under

(1961)1 LLJ 303; Bhadwar & Co. v. Workmen (Delhi Govt. Gaz. Dt.4.1.62, PaRT vi, p. 1 (it).
Phoenix Mills Ltd., Parel, Bombay v. Rashtriya Mill Mazdoor Sangh, (Appl. No.(IC) 241 of
1954 (Bom. Govt. Gaz. Part II, dt. 3.3.1955, P.698): 1 LLJ 418 (IC Bom).
Akal Trspt. Co. (P) Ltd. v. Workmen, (Punj Govt.Gaz., dt. 1.3.1968, p. 1226 (IC)..
Sarkar Estate (P) Ltd. v. Kusumika Iron Works, (P) Ltd. AIR 1961 Cal. 439.
 70

Section 27 of the General Clauses Act, 1897, such a presumption is

provided if in pursuance of any statute a registered notice is required to
be sent. The second reason is that in accordance with Section 114 of the
Indian Evidence Act there is a presumption that normal course of
business was followed in official proceedings. The cases on the point are,
however, not unanimous.
There is no presumption of due service when the endorsement is
that the worker was not found. On some occasions the postal authorities
returned the registered covers with the endorsement “not refused”, “not
known” or “left”. This shows that the postal authorities were unable to
contact the addressee and, therefore, it is plain that even if the
endorsement is believed there is no service of the notice on the person
concerned.120
Some times there is a controversy whether a particular
communication was sent or not. If the communication is sent personally
by the peon or watchman then his evidence is material otherwise adverse
191
inference can be drawn.
Some times the standing orders or service rules provide the manner
in which the charge-sheet should be served and in that case the general
provisions discussed above will not apply. In one case coming up before
the Supreme Court the service of charge-sheet by fixing a notice on the
notice board was provided. It was held that when such notices were put
up and there was evidence that they remained affixed for a period of
nearly Wz months and registered notices were returned unserved, then
this amounts to due service. The Supreme Court rejected the suggestion
that notices should have been sent to the union secretary for circulation
120
Kewal Kapoor & Co. v. Workmen (Cal Gaz., Part 1-C, dt. 13.6.1968, p.637 (IT).
121
Laxmi Oil Mill v. Workmen (Cal Gaz., Part 2-C, dt.26.8.1965 p.752 (IT).
on the plea that it is not a recognized mode of circulation. Publication in
newspapers in the circumstances was not necessary.122 This case was
referred to by the Supreme Court in the subsequent case of Bata Shoe Co.
v. Ganguly but was distinguished mainly on the ground that in the
latter case there was not standing orders. In that case it was held by the
Supreme Court that when registered notices were returned unserved, the
charge should have been published in some newspapers in the regional
language.
When charge-sheet is not served by post then in the absence of any
provision in the standing orders it should published in some newspapers.
The Supreme Court has held that when registered notices are returned
unserved and there is no provision in the standing orders as to how the
service is to be effected, then ordinarily such charge-sheet should be
published in some news paper in the regional language.124
If the charge-sheet is sent again then it requires do novo service
When the charge-sheets were sent earlier but they were not delivered and
thereafter some other charge-sheets were sent subsequently then prior
charge-sheet should be deemed to be cancelled so far as the dates of
enquiry were concerned. The Enquiry Officer is bound to ensure that
charge-sheets and intimations of the revised date of enquiry are validly
served.125

REPLY TO THE CHARGE-SHEET AND ITS CONSIDERATIONS :

The object of filing a reply to the charge-sheet is not only to find
out whether the charges framed are admitted or not but also to give to the
employee concerned an opportunity to state the line of this defence and to

G. Mackenzie & Co. v. Workmen, (1959) 1 LLJ 285: AIR 1959 SC 389.
(1961) 1 LLJ 303: AIR 1961 SC 1158.
124
Bata Shoe Co.(Pvt) Ltd. v. Dr. N.Ganguly, AIR 1961 SC 1158 (1961) 1 LLJ 303.
125
Khandu Pharmaceutical Works v. Workmen (Mali Gaz., dt. 14.7.1966 p.2217 (LQ.
 72

enable the authority concerned to see whether the accused officer can be
exonerated straight way on the basis of this explanation, if it was
satisfactory or if there was to be an enquiry to limit its scope to the
defence actually set up.126 If an incident happens in the presence of the
manager even then the charge-sheet is necessary because it becomes a
sort of the record of the incident and also because, however apparent the
employee’s fault may be, he can always render an explanation and
present an aspect of the case which, if it does not absolve him completely,
may at least mitigate his offence.127
The defence of a worker to a charge of misconduct generally falls
into two principal classes. The first is that the worker has not committed
the misconduct. The second is that even if the worker has committed the
act alleged against him the same was justified under the circumstances
and did not constitute misconduct. Both these defences are contradictory
to each other. A worker who denies the charge can hardly claim that his
act was justified and vice versa and, therefore, when a worker drafts a
reply to the charge-sheet he is at times put on the horns of dilemma. It is,
however, open to the workman to put him specific defence in reply to the
charge-sheet or not to put it as it may suit his convenience. If a criminal
case at the instance of the management is pending, then the workman is
justified in not putting his defence in reply to the charge-sheet for the
identical offence because he can give reply only at the risk of informing
the management of his defence in the criminal case which none, in
ordinary common sense, would do before the trial begins. The enquiry
officer is not justified to draw any adverse inference from omission to

State ofAndhra Pradesh v. S.Kameshwar Rao, AIR 1957 AP 794.

Matchwels Electricals (India) Ltd. v. Workmen, (Cal. Gaz., Part 1-C dt. 19.1.1967, p.37)
 73

state in his reply the plea that he put forward in the enquiry.128 There are,
however, certain defences which lose their efficacy if they are not taken
at the earliest stage. The defence of alibi must be set up at the earliest
opportunity. There is no impediment for the accused to have stated at the
earliest opportunity that he was not present at the place during the
relevant period or that he as present elsewhere at that time.129 Similarly,
if the charge is vague on account of which it is not possible for a
workman to give any effective reply then the point must be raised
specifically in reply to the charge-sheet and if he does not do so he runs
the risk of this part of the defence being not considered at all because if
this objection is not raised during enquiry then it cannot be considered.Ij0
Objection to jurisdiction should be taken after framing of the charge and
should not be deferred to a later stage.131 When the workers work in pool
and they are charged with go-slow tactics then some of the workers may
be helpless notwithstanding their willingness to work-hard. They should,
therefore, come forward to say that they were willing to work but they
were helpless due to non-cooperation from others. Such a defence should
be taken at the earliest stage and cannot be taken for the first time before
the Industrial Tribunal. The victimization should also be pleaded in
reply to the charge-sheet and if it is pleaded for the first time before the
court then it is liable to be treated as an after-thought. The defence is a
bias, malafides etc., stand on the same footing and if time is insufficient
for giving reply a written application should be given requesting for

I.T Ttobacco Co. Ltd., Belegharia v. Workmen, (cal. Gaz., Part I-C dt. 19.1.1967, p.37).
Syed Nazir Ali v. State ofHyderabad, AIR 1955 NUC Hyd 1808/09.
Laxmi Narain Cotton Mills Ltd. v. Workmen (Cal Gaz. Part I-C dt.l 1.2.1965, p. 121.
Bijayanand Patnayak v. Mrs. K.A. Brindan, AIR 1970 Cal 110.
Irestone Tyre & Rubber Co. of India Pvt. Ltd., v. John D’Souza (Mah Gaz. Dt.4.4.1968,
p. 1350 (IT).
133
Masosk Ali v. Great Eastern Hotel Ltd., 5 FJR 261 (LAT).
adjournment and showing the circumstances, on account of which it is not
possible to reply in time.
After reply to the charge-sheet is received it is necessary for the
disciplinary authorities to decide whether or not to institute a
departmental enquiry. The discretion of the disciplinary authority cannot
be questioned. There is no rule that the written statement of the
delinquent should be first sent to the punishing authority and if he is
satisfied that the employee is innocent then he must drop the proceedings
forthwith.134 It is not necessary that the disciplinary authority should pass
a formal order that his explanation is unsatisfactory and, therefore, an
enquiry was being conducted. There are no hard and fast rules or
procedure for conducting domestic enquiries and the mere fact that
enquiry was made by the management leads to a reasonable inference that
the explanation was not considered satisfactory.135 It cannot in the
circumstances be said that enquiry was made without considering the
explanation. On the other hand, if on the explanation to the charge-
sheet the endorsement is that the explanation was unsatisfactory then he
1 T7
can be said to have prejudged the explanation.
In a number of cases the charge-sheet call upon the delinquent
employees to give their explanation and also require them to appear for
enquiry on certain date. It is held by Industrial Tribunal, Calcutta that
when the management had combined the charge-sheet and the Notice of
enquiry into one, the procedure is not regular. The management cannot
straightway hold enquiry without obtaining the explanation an finding it

Bibhuti Bhusan Pal v. State of West Bengal (1969)1' LU 300 AIR 1967 Cal. 29.
135
Elgin Mills Co. Ltd., Kanpur v. Workmen (U.P.Labour Decision, 1958 Vol.2 p.715 (at 721)
136
Lord Krishna Sugar Mills v. Workmen, (1960)1 FLR 305 (U.P. Tribunal).
137
Workmen v.Management of Blackstone Retraders (Mys Gaz. Part IV, 2c (ii), dt.20.11.1965.
p.3509 (LC).
 75

unsatisfactory and not acceptable. The enquiry is, therefore, not in

order.138
Even if no reply to the charge is received it is incumbent for the
employer to hold enquiry. If a workman fails to reply to the charge-sheet
it does not lead to any presumption that he is guilt and therefore enquiry
is still necessary.139 Enquiry in such cases is necessary because the
purpose of enquiry is to satisfy the punishing authority that charge can be
substantiated by evidence.140 The employer cannot take advantage of
worker’s failure to submit the explanation and pass orders without
holding an enquiry.141
Natural justice does not require that before holding an enquiry the
enquiry officer must consider the explanation of the workman and pass a
detailed order giving reasons why the explanation is unsatisfactory and
why an enquiry is to be held. The enquiry officer generally comes into
the picture after the order is passed that an enquiry will be held.
Naturally he cannot consider the explanation before he is appointed the
enquiry officer.142 After the written statement has been filed the enquiry
officer must hold an enquiry. It is not for the enquiry officer to consider
whether the written statement is sufficient to disapprove the charges.
Even when the written statement is convincing, he is required to hold an
enquiry to consider the written statement in the presence of the prosecutor
and submit his report. The holding of enquiry in such cases does not
constitute malafides.143

Ali Hasan & Sons v. Workmen, (Cal Gaz., Part IC, dt.21.4.1966 P.285 (IT).
Ford Motor Co. of India Ltd. v. Anthony, 1953 ICR 423 (IT)
Hirabhai Sakharam v. New India Silk Mills, Bombay, 1950 ICR 746 (IC).
Jiwanlal (1929) Ltd. v. Workmen, 1956 ICR 626, 636 (IT).
Elgin Mills Co. Ltd. v. L.C. (1969)1 LLJ 805 (All HC).
Bibhuti Bhusan v. State of West Bengal, AIR 1967 Cal 29 (1969) I LLJ 300.
 76

Reasonable notice should be given for holding enquiry. In the

chapter regarding “Charge-sheet and its drafting” it is emphasized that the
charge-sheet should be duly communicated and the manner of
communication is discussed in the subsequent chapter regarding “Service
of Charge-sheet”. It is usual that enquiry is not fixed in the charge-sheet
itself and after receipt of the explanation of the delinquent employee a
further communication is sent intimating him of the appointment of
enquiry officer and directing him to appear before the enquiry officer on a
certain date. Such a communication is the foundation of the enquiry
proceedings and care should be observed that it is duly communicated
and all what we have mentioned in the chapter “service of charge-sheet”
is equally applicable to the communication of the letter intimating
holding of departmental enquiry. If any such letter is not duly
communicated and enquiry is held ex parte on account of non-appearance
of the delinquent worker, then it will be a very serious law in the enquiry
proceedings.
Apart from the above, the worker should be given a reasonable
time to prepare himself for an enquiry. If a worker is called for enquiry
he is required to decide tentatively as to what questions should be asked
in cross-examination from the management witnesses and also what
evidence should be produced in defence. He is also to arrange for a
representative to defend his case in case he wants any such assistance.
All this will naturally take sometime and, therefore, if reasonable time is
not given the worker is likely to be prejudiced.
The enquiry officer can frame a charge that the explanation given
by a workman is false.144 However, in such cases it is reasonable to

Natarajan (M) v. Madras State Electricity Board (1968) 16 FLR 136 (Mad HC).
 77

transfer the enquiry to some other person. If the explanation given by a

workman on charges is not only rejected but he was asked to explain why
he should not be punished for giving a false statement then it would give
reasonable apprehension in the mind of the petitioner that his case has
been prejudged.145 If in such circumstances the proceedings are continued
then they will not be in order. But the authorities will be at liberty to
frame fresh charges against the petitioner and proceed with the enquiry
and in the even of the charges being proved, to award any punishment
that is provided in law.146 It should not be understood that the answer to
the charge does not amount to complaint. If the enquiry officer did not
believe the defence, he was at liberty to reject it as false but he cannot
proceed against him for raising a false defence. An employee who is
charged with misconduct must be at liberty to reply to the charge
unreservedly, otherwise it would amount to denying him a right to state
his defence without fear.
(a) Confession or admission of a misconduct obviates holding of
enquiry. In case a workman admits the charge against him or
makes an unconditional and unqualified confession then there is
nothing more to be done by way of enquiry and it cannot be argued
that the procedure of departmental enquiry should have been
applied notwithstanding such admission or confession.147 When a
worker called for enquiry, admits his charge and at the request of
his union representative he is discharged instead of being dismissed
then he cannot later on complain to say that he was discharged

Natarajan (M) v. Madras State Electricity Board (1968) 16 FLR 136 (Mad HC).
Madras Electicity Board v. M. Natrajan, 31 FJR 509, 511 (IC HC).
J.N.Toppo v. Tata Locomotice andEngg. Co. Ltd., AIR 1963 Pat 177.
 78

without an enquiry.148 In such cases holding of enquiry is an empty

formality and can be dispensed with.149
(b) Confessional Statement should be scrutinized with caution. The
necessity of scrutinizing confessional statements has been
recognized by the Indian Evidence Act. Section 24 of the said Act
provided that if it appears to the Court that the confession has been
caused by any inducement, threat or promise, having reference to
the charge against the accused person proceeding from a person in
authority and sufficient to give reasonable grounds for supposing
that by making it he would gain any advantage or avoid any evil of
a temporal nature in reference to the proceedings against him then
such a confession is irrelevant. The law envisages the influence or
coercion and, therefore, it takes scrupulous care to sort out whether
a particular confession suffers from any such defect. Ignorance,
incomprehension, coercion, terror, inducement, or blatant threats
may vitiate a confession, various consequential rights are involved
in a waiver that takes places on a plea of guilty, first is privilege
against compulsory self incrimination, second is the right to trial
and third is right to confront ones accusers and all these waivers
cannot be presumed from silent record.150
(c) Confession should be in terms of the misconduct. When a
confession statement is made, it is necessary to scrutinize the same
to see that the employee admits the charge as it is and not with any
variation. A confession must either admit in terms the offence or,

Enao B.D.Souza v. Kohinoor Mills Co. Ltd., 1964 ICR 586 (IC)
Forestone Tyre and Rubber Co. of India Ltd. v. Workmen, (1967) II LLJ 714: AIR 1968 SC
236.
-150
Edward Bovkin v. State ofAlbama, AIR 1970 US(SC)10/
 79

at any rate, substantially all the facts which constitute the

offence.151
(d) In confession all the ingredients of the charge must be admitted. In
confession it is necessary to see that all the ingredients of the
charge are admitted otherwise this will not amount to a confession
at all and this will operate as a mere admission. There is distinction
between an admission of fact and admission of guilt. Where the
accused stated that he did not know whether the export or bullocks
out of Madhya Bharat was prohibited but admitted that he took out
bullock, it is an admission of fact and not the admission guilt. If
all the facts are admitted by an employee in his explanation, the
necessity of a regular enquiry may not arise.153
(e) Confession should be interpreted as a whole and on admission
along with explanation does not amount to confession. Sometimes
a person makes a statement, apart of which can be construed as a
confession of guilt but in other part that confession is qualified or
is explained. If that person is sought to be punished only on the
basis of confession than it is an established rule that the confession
has to be taken as a whole and one part of it cannot be relied upon
to the exclusion of the other part.154 The law does not permit an
admission to be truncated and taken piecemeal. A confession
cannot in part admit a crime and in other part exonerate the
accused.155

151 Narain Swami v. Emperor, AIR 1939 PC 47; 66 IA 66.

152 State v. Yassen Khan, AIR 1955 (NOC)MB 2108.
153 Shyam Sundr Mishra v. State of Orissa, (1958)1 LLJ 595 (Ori HC)
154 Naimat Singh v. K.E. AIR 1955 (NOC) All 386 (DB).
155 Hanumant Gobind v. State, AIR 1952 SC 343: 1952 SCJ 509 Mani v. State of Kerala, 1963
Ker LT 969; Mst. Jasoda Haldeo v. Salendernath, AIR 1957 Cal. 373; Mathai v. State of
Kerala, AIR 1964 Ker 223; 1963 Ker LT 450; C.R. Nerosimhan v. N.G.Notese Chettiar, AIR
1959 Mad 514. Mrs. Sushila Mehonder v. Mahendra Mahilala, AIR 1960 Bom 11.
 80

(f) Confession should not be secured by threat or coercion. The rule

with regard to admission or confession, whether it be regarded as
an exception to the general rule or not, is a rule of law which
cannot be qualified in any degree whatsoever. The rule is that a
confession can only be admitted if it is voluntary and, therefore,
one obtained by threats or promises held out by a person in
authority is not to be admitted.156
(g) Confession is also vitiated by inducement. Confessions are
frequently made in the presence of the persons in authority and it is
necessary for the Court to scrutinize the evidence and
circumstances carefully to see that the confession is voluntary but
from the mere fact that it was made before authorities it cannot be
said that it was not voluntary. If the circumstances show that the
person is authority used some words which might have induced the
accused to make confession then it is to be excluded. It is not
possible to lay down any hard and fast rule as to what would
constitute inducement. There must, however, be some basis for the
finding that the person in authority used inducement.157
(h) Precautions to be taken in case of confession. The rules of Andhra
Pradesh State Road Transport Corporation provide that when
delinquency was detected by Traveling Inspector then statements
of passengers and witnesses should be recorded in the presence of
the conductor and should be got countersigned by him. If the
passenger involved is illiterate or physically disabled from writing,
a literate person should be asked to record the statement of the
former and his thumb-impression should be taken. This should be
156
Kuruma Kanju v. Reginam, AIR 1955 (NOC) 1677 (PC)
157
Krishnanandan Prasad Verma v. State, AIR 1958 Pat 166.
 done even though the conductor admits his guilt.158 If a person
makes admission or confession then it is better for the authorities to
ask him to give the same in writing because this would prevent
retraction of the confession on second through.159
False confession does not amount to false evidence and no charge
of perjury can be laid against a person when his confession is found to be
false.160 The exact words of a confession need not be proved and it is
sufficient if only substance is proved because ordinarily laymen before
whom confessions are made do not note the exact words.161
Apology is also a form of confession and the principles regarding
confession are also applicable to apology. The apology differs from
confession in the fact that on some occasions there is no express
admission of incriminating facts and it has to be implied from the apology
offered by the employee.
Apology should be unconditional. One of the differences between
confession and apology is that when an employee expresses apology and
gives assurances of good conduct in future he hopes that thereby the
employer would either excuse the misconduct or in any case would take a
lenient view of the matter in view of the apology. In order that apology
should serve the purpose of mitigating the allegation against an
employee, the apology should be unconditional, unqualified and without
any reservation. This principle is also followed in criminal law. In
proceedings for contempt an apology can hardly be coupled with an
argument of innocence. An expression of an unqualified regret cannot be

K. Jadlaiah v. Depot Manager, A.P. State Road Transport Corporation (A.P.Gaz.

dt.5.101967, P.1675 (IT).
Ambalal v. Union ofIndia, AIR 1961 SC 264.
Public Prosecutor v. Kuralia Sanjeevamma, AIR 1959 AP 567 (DB)
Krishna Nandan Prasad v. State, AIR 1958 Pat 166.
coupled with an argument that the objected writing would be merely an
impropriety not amounting to contempt.162 If a person offers an apology
and at the same time tries to justify his act, then he takes the inconsistent
position which is untenable in law and, therefore, there cannot be both
justification and apology.163
There can be simple termination on receipt of reply to the charge-
sheet. It sometimes happens that after receipt of reply to the charge-sheet
the employer may not like to hold departmental enquiry but on the other
hand may like to terminate the services by a simple discharge order.
Such a discharge order will not be punitive merely because a charge-sheet
has been given. When an explanation to the charge-sheet was given and
thereafter a resolution was passed terminating the services of an
employee and in the charge-sheet it was mentioned why he would not be
discharged or dismissed, then the order is not punitive in character. The
idea in calling for his explanation was to decide whether or not to start a
full-fledged departmental enquiry. Even for the limited purpose of
terminating his services he can be given an opportunity to submit his
explanation.164 When a workman submitted an apology for the
misconduct which was not unconditional and there after his services were
terminated by a simple discharge order on the ground that his services
were no longer required and it was found that he remained absent without
getting his leave sanctioned and did not care for the rules and was
insolent in correspondence; then his services can be terminated by a
simple discharge order.165 In a case it is decided that the disciplinary
proceeding intended to visit the employee with punishment for

162 Advocate General of Madras v. S.G. Thonthi, AIR 1965 Mad 415.
163 M. Y. Sheriff v. Judges of Nagpur H.C., AIR 1955 SC 79.
164 Padmanav Sipka v. Chairman, Notified Area Council, 1973 SLJ 1026 (Ori HC).
165 Gujrat Mineral Development Corporation v. P.H.Brabmbhatt, (1974)3 SCC 601.
misconduct cannot be instituted or continued after the relationship of
employer employee has ceased to exists by retirement or otherwise.166
When the services of an employee were terminated after receipt of his
reply to the charge sheet, then this is also not a case of retrenchment.167

APPRAISAL :

This chapter starts with the origin of domestic enquiry. It tells that
an employer is bound to conduct a domestic enquiry however confident
he may be about the guilty of his employee. The principle of natural
justice requires him to afford an opportunity to the person concerned to
give his explanation. The rule of hire and fire no longer holds the field.
It also speaks about its concept and necessity. The difference between
domestic enquiry and preliminary enquiry has been discussed. The
guidelines for holding enquiry and the role of principle of natural justice
has been narrated.
It also deals with certain recognized rules of proper procedure for
conducting domestic enquiry. Written complaint is necessary to start the
disciplinary proceeding like the first information report in the criminal
proceedings. A worker is not expected to indulge in any act of
insubordination against his employer. An allegation whether amounts to
charge of misconduct or not it is necessary to examine the provision of
standing order has been discussed. Different types of misconduct in
which a worker is indulged have been analysed. These are (1) Non­
performance of duty, (2) Strike, (3) Insubordination, (4) Act subversive
of discipline (5) Absence, (6) Disobedience & Go slow.

P. V. Suthakaran v. Kerala State Financial Corporation, 1988 (57) F.L.R. 883 Kerla HC.
Padmanav Sipka v. Chairman, Notified Area Council, 1973 SLJ 1026 Ori HC).
 84

Similarly in the case of transfer of a particular organization to

another employer the new employer gets the right to penalize the
workmen for the past misconduct from which the new employer has
taken over the charge. Preliminary enquiry is conducted for framing
charges. This chapter explains how a charge sheet is framed and issued
by the employer and also speaks about the vague charges. Charge sheet
should contain the full particulars and it should be written in the language
which a worker can easily understand.
This chapter also deals with the service of charge sheet to the
workmen. It speaks about different methods of serving the charge-sheet
in duplicate and getting the signature of the workmen. It should be sent
in proper address of the workmen. The employer should be very much
sincere in serving the charge sheet and keeping a duplicate having
signature of the workmen. Refusal to accept the charge sheet amounts to
misconduct. When the charge sheet is not served on the workmen then in
the absence of any provision in the standing order it should be published
in the newspaper. This chapter also depicts reply to the charge sheet and
its consideration. It is issued to give the employee concerned an
opportunity to defend himself. In case of pendency of any criminal
proceeding he is not required to submit his reply. He has to reply the
charges of criminal proceedings only on the information to the employer.
After reply to the charge sheet is received it is necessary for the
disciplinary authority to decide whether or not to institute a departmental
enquiry. Enquiry Officer is appointed to conduct the inquiry. Notice
should be given for holding the enquiry mentioning reasonable time to
prepare himself for an enquiry. In case a workman admits the charge
against him or makes an unconditional and unqualified confession then
 85

there is nothing more to be done by way of enquiry. Apology is also a

form of confession and the principle regarding confession are also
applicable to apology. It should be unconditional. When a workman
submitted an apology for the misconduct which is not unconditional and
thereafter his services were terminated by a simple discharge order on the
ground that his services were no longer required.