LLA: Assignment 1

Q 33) Discuss the implications relating to (a) Probation vs. Retrenchment, (b) Probation vs.
Discharge simpliciter, (c) Probation vs. Dismissal, and (d) Probationer in a promoted Grade, whose
performance was found unsatisfactory while on probation.

A 33) Probationer is a workmen who has been provisionally employed to fill a permanent position &
is yet to complete the period of probation, & it includes a permanent workmen employed as a
probationer to the higher post.

a)

b) In Discharge simpliciter, the services of a temporary employee can be terminated without giving a
notice or any compensation thereof. Since, in probation, the post is permanent but the incumbent is
temporary till the time he proves himself till the end of probation period, he can be discharged of his
services without giving any notice or compensation or giving the reasons for his termination.

c) If the employee if satisfactorily found to have committed misconduct while on probation, he can
be dismissed without giving notice or compensation.

d) The service of probationer in a promoted grade cannot be terminated whose performance was
found unsatisfactory. He can only be reverted to his permanent post.

Q 36) Discuss (a) the ideal profiles & the roles of Enquiry Officer, Presenting Officer & Defence
Counsel; (b) Examination-in-chief and X-Examination; (c) Leading Question; (d) Who can pose a
leading question and who cannot? (e) general principles governing the conduct of domestic
enquiry; (f) actions to be avoided while conducting the domestic Enquiry; (g) Principles of Natural
Justice & their nature and implication for a domestic enquiry; (h) Final decision and action (as, for
instance, dismissal) – procedure and implication – case law reference.

A 36) [A] Enquiry officer is appointed by Disciplinary authority to uncover truth regarding
misconduct of an employee. It is expected of him to conduct the authority in an impartial and
unbiased manner. Enquiry officer should be Senior in rank to the charge-sheeted employee. EO
should not be a complainant or a witness in the proceedings. Since Advocates are known as the
officers of court, they can be appointed as Enquiry Officer.

EO should elicit information on all points pertinent to the proceedings.

Presenting Officer: Role of presenting officer is to present the case of management in front of
Enquiry officer, by doing fact finding regarding evidence against the charge-sheeted employee. PO
must know the process & requirements of Domestic Enquiry. He must also be well acquainted with
‘Quasi-Judicial Approach’ to be adopted in departmental enquiry. Generally, an Executive of an
organisation becomes the PO.

[B]

Examination-in-chief: Examination of a witness by the party who calls him is called his examination-
in-chief. In this, witness is encouraged to tell their part of the story.
Cross-Examination: Examination of a witness by the adverse party is called X-examination. In this,
the adverse party make their point and examine the witness by asking follow-up questions related to
that point only.

[C]

In simple language, a question which prompts a person to answer in ‘Yes’ or ‘No’ by directly injecting
the evidence in the question. It suggests a particular answer. Depending on the circumstances, the
leading question can be objectionable. However, they are effective in limiting the ability of examiner
to manipulate the witness.

[D]

Examination-in-chief is forbidden from posing a leading question to the witness as it reduces the
impact of witness’s evidence, which is contrary to the motives of examination-in-chief.

Thus, leading questions are allowed in cross examination by the adverse party.

[E]

The four governing principles of natural justice are:

1) No one can be condemned unheard

2) No one can be a judge in his own case
3) Justice should not only be done but should manifestly appear to have been done
4) Final order must be speaking order

[G]These principles are followed in the following manner:

• The CHARGE-SHEETED-EMPLOYEE (CSE) has been informed clearly of the charges levelled
against her

• The witnesses are examined – ordinarily in the presence of CSE

• The CSE is given a fair opportunity to cross examine the witnesses.

• The CSE is given a fair opportunity to examine her witness including himself in his defence

• The EO records her findings with reasons for the same in his report.

• The EO presents these findings to the Disciplinary authority, which are communicated to the
Charge-sheeted employee.