Defence Representative in a Departmental Inquiry

Defence Representative in a Departmental Inquiry

A defence representative (DR) has a pivotal role in a departmental inquiry. The DR is tasked with supporting, guiding, and advocating for the Charged Employee (CE) throughout the departmental inquiry process.

In the departmental inquiry, the CE is entitled to a fair hearing, unbiased judgment, and the opportunity to defend themselves. For this, they can seek assistance from another officer or employee for their defence, as outlined in relevant rules and regulations.

Selecting a defence representative is a critical decision for a CE. A DR in the banking industry should have a comprehensive understanding of banking business, including rules, regulations, practices, and procedures.

The DR should carefully study the charges, consider factual and technical defence points, and adeptly utilize evidence to present a robust defence.

Throughout the inquiry process, the DR plays a crucial role in upholding the principles of natural justice. They ensure that the burden of proof lies with the Presenting Officer (PO), challenge charges through evidence and cross-examination, and advocate for the rights of the CE. The DR's commitment to fairness and due process is essential for maintaining the integrity of the departmental inquiry.

In short, the DR serves as a guardian of fairness in a departmental inquiry.

With best wishes, 

Keshav Ram Singhal

Abbreviations

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority 
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority 

Article-Extract - Erroneous Memos And Charge Sheets And The Onus Of Proving

 

Article-Extract

From the Desk of Editor, Domestic Enquiry, October-December 2021

‘’’’’’’’’’’’

Erroneous Memos And Charge Sheets And The Onus Of Proving

-          Soumya Datta

‘’’’’’’’’’’’’

Instances of memos and charge sheets issued to officers are increasing exponentially. Most often seen that the allegations and charges are levelled indiscriminately or as a matter of routine without substantiating or providing the relevant instructions of the Bank which have been breached. This attitude appears to be “let the alleged officer defend”. This is nothing but a “hit-run” or “defend if you can” approach.

 

Charge-sheets / memos should be specific, pointing and clearly say what is omission / commission. For that it is necessary to quote the “related instructions” which have been violated along with allegations. Without instruction(s) of the Bank being quoted, Bank cannot allege a breach of it. If the allegations are not indicated detailing the instructions violated, it necessarily means that there is no such instruction at all.

 

Officers who are handling disciplinary proceedings, and more especially the defence counsel / representatives need to pay specific attention and insist for related circular instructions. This is the first and best step of defence.

 

The Presenting Officer has to produce positive evidence to prove the charge. Unfortunately, the Presenting Officers / Enquiry Officers and even the learned Disciplinary Authorities tend to ignore this basic approach of domestic enquiries.

 

The delinquent employee must know what the charges against him are and the nature of misconduct alleged against him and he must get ample opportunity to meet such charges and to defend him by giving proper explanation.

 

If the charges are not precise and definite, the delinquent employee would not be able to understand those charges and defend himself effectively and in such a case, it cannot be said to be a fair and just enquiry.

 

Note – This is an article-extract. For full article, please refer to the courtesy publication.  

 

Courtesy – Domestic Enquiry (October – December 2021) published by All India State Bank Officers’ Federation (AISBOF), Bangalore – 560001.

बैंकों का विलय और अनुशासनात्मक मामलों का निपटान

*बैंकों का विलय और अनुशासनात्मक मामलों का निपटान*

बैंकों के विलय के कारण जो चुनौतियाँ सामने आती हैं, उनमें से एक मानवीय संबंधों के मुद्दों में विशेष रूप से स्थानान्तरण के मामलें होते हैं और दूसरा अनुशासनात्मक मामलों का निपटान होता है। हालांकि सभी सार्वजनिक क्षेत्र के बैंकों में अनुशासनात्मक नियम कमोबेश सामान्य हैं, फिर भी घरेलू जाँच का क्षेत्र काफी हद तक प्रत्येक बैंक में उसकी कार्य-संस्कृति, सांस्कृतिक नैतिकता, ऐतिहासिक पृष्ठभूमि आदि से प्रभावित होता है। विभिन्न बैंकों में की गई अनुशासनात्मक कार्यवाही में अलग-अलग प्रथाएं होती हैं। यह इसलिए होता है क्योंकि - (i) हर बैंक का अनुभव आधार भिन्न होता है, (ii) अनुशासनात्मक मामलों के निष्पक्ष और न्यायसंगत संचालन को सुनिश्चित करने में प्रबंधन द्वारा प्रदान किया गया समर्थन भी हर बैंक में अलग-अलग होता है, (iii) हर बैंक में कामगार यूनियनों / अधिकारी संघों की आंतरिक शक्ति भी भिन्न होती है, जो अच्छी तरह से प्रशिक्षित रक्षा प्रतिनिधियों का सहयोग आरोपित कर्मचारी या आरोपित अधिकारी को उपलब्ध कराते हैं। पिछले कई वर्षों से चार्ज-शीटों की संख्या में बढ़ोतरी हो रही है और कामगार यूनियनों / अधिकारी संघों के सामने यह चुनौती है कि अनुशासनात्मक कार्रवाई के लिए वे अच्छी संख्या में 'रक्षा प्रतिनिधि' उपलब्ध कराएँ। जब भी बैंकों का विलय होता है मानव संसाधन प्रबंधन को लेकर कुछ चुनौतियाँ सामने आती हैं, जिसमें विशेष रूप से यह सुनिश्चित करना होता है कि एक नई इकाई में कर्मचारियों का सुचारुरूप और सामंजस्यपूर्ण एकीकरण हो जाए। जब भी बैंकों का विलय होता है, तो कार्य-नीतियों में छोटे बैंक की तुलना में बड़े बैंक का अधिक प्रभाव होता है।

संक्रमण अवधि (transition period) में बैंकों की प्रमुख चिंता अनुशासनात्मक कार्यवाही से निपटना है। ऐसी जानकारी मिल रही है कि संक्रमण अवधि में चार्जशीट की सँख्या वृद्धि पर हैं क्योंकि बैंक यह चाहते हैं कि लंबित मामले जल्दी से समाप्त हो जाएँ। यदि संक्रमण अवधि में अनुशासनात्मक कार्यवाही के मामले नहीं निपट पाते हैं तो दिक्कत होने की संभावना है, क्योंकि हर बैंक की कार्य संस्कृति में अंतर होता है। फिर एक और चुनौती अनुशासनात्मक मामलों को संभालने की प्रक्रिया है, क्योंकि अनुशासनात्मक कार्यवाही का प्रबंधन हर बैंक में भिन्न होता है। कमोबेश अनुशासनात्मक कार्यवाही संबंधित बैंकों के वरिष्ठ अधिकारियों के रवैये से काफी प्रभावित होती है। इसी तरह, जब भी कोई मामला जहाँ आरोप साबित हो जाते हैं, अनुशासनात्मक प्राधिकारी द्वारा निपटाया जाता है, तो सजा देने में बैंकों के बीच अंतर होता है। विलय के मामले में, बड़े बैंकों का बड़ा भाई रवैया हमेशा कर्मचारियों के दिमाग में मनोवैज्ञानिक तरीके से काम करता है। विलय के पश्चात बैंक में अधिकारियों और साथ ही अवार्ड स्टाफ का एकीकरण उस सीमा तक प्रभावित होता है और इसके परिणामस्वरूप बैंकों में बहुत से अधिकारी और अवार्ड स्टाफ स्वैच्छिक सेवानिवृत्ति लेना चुनते हैं, क्योंकि विलय के बाद बैंक में अनुशासन के नाम पर उन्हें हमले की आशंका होती है और अनजाना डर सताता है।

बैंकों को विलय किए जाने पर प्रत्येक बैंक में अनुशासनात्मक मामलों के प्रबंधन पर विशेष ध्यान देने की आवश्यकता है। इसके लिए बैंकों के विलय के बाद अनुशासनात्मक मामलों को संभालने से पहले अनुशासनात्मक प्राधिकारी को विलय हुए बैंक में प्रचलित अनुशासन, कार्य पद्धति, मानव संसाधन प्रथाओं आदि से सम्बंधित धारणाओं की स्पष्ट समझ होनी चाहिए। यह समझना बहुत जरूरी है कि विलय होने पर बैंक में अनुशासनात्मक कार्यवाही का क्षेत्र बहुत संवेदनशील विषय है। ताकि विलय पश्चात छोटे बैंक के कर्मचारियों और अधिकारियों को यह महसूस नहीं हो कि वे बड़े बैंक प्रबंधन द्वारा उत्पीड़न के अधीन हैं। एक तरफ बैंक प्रबंधन को इस ओर विशेष ध्यान देने की जरुरत है कि त्वरित रूप से अनुशासनात्मक मामले निपटाएं जाएं और साथ ही अधिकारी संघों और अवार्ड स्टाफ यूनियनों को यह देखने के लिए विशेष रुचि लेनी चाहिए कि विलय के समय कार्मिक विभागों में लंबित मुद्दों और मामलों पर प्रबंधन द्वारा ठीक तरह से ध्यान दिया जा रहा है। अधिकारी संघों और अवार्ड स्टाफ यूनियनों को यह ध्यान भी रखना चाहिए कि जो अधिकारी या कर्मचारी अनुशासनात्मक कार्यवाही की जद में आ गए हैं, उन्हें उचित बचाव प्रदान करें ताकि निर्दोष कर्मचारियों और अधिकारियों का उत्पीड़न न हो, क्योंकि शीर्ष स्तर पर अधिकारियों के मन में संभावित पूर्वाग्रह व्याप्त हो सकता है।

- केशव राम सिंघल

FREQUENTLY ASKED QUESTION - 27

FREQUENTLY ASKED QUESTION - 27

Can the Disciplinary Authority (DA) appoint, by an order, one of his superiors as Presenting Officer (PO) and/or Inquiry Officer (IO)?

The procedure to be followed in disciplinary proceedings is generally laid down in Service Rules and Standing Orders made there under.

Yes, in my opinion, DA may appoint, by an order, one of his superiors as PO and/or IO, provided Service Rules and/or Service Rules do not restrict such appointment. While appointing a senior officer to such assignments, the DA should seek a consent from such senior officer.

Readers may differ with my opinion, however, in such a case they may seek legal opinion.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 26

FREQUENTLY ASKED QUESTION - 26

Can a Zonal Manager be presented as a witness?

Yes, a Zonal Manager may be presented as a witness in a departmental inquiry, if he not a disciplinary authority (DA) or appellate authority (AA) in the departmental inquiry.

The departmental inquiry proceedings have a dual purpose. They are intended (i) to help the Disciplinary Authority (DA) to assess the guilt of the CE with a view to decide further course of action, if any, and (ii) to provide the CE a chance to meet the charges levelled against him and to prove his innocence. Departmental Inquiry proceedings are quasi-judicial, in nature. A judicial approach is necessary while dealing with such cases. The procedure adopted must not only be fair and reasonable but should also bear a convincing appearance that justice has been done.

You must remember that no person shall be a judge in his own case, applies to DA also.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 25

FREQUENTLY ASKED QUESTION - 25

Can PO present himself as a witness in the departmental inquiry?

In a departmental inquiry, the presenting officer (PO) is appointed by the management and the PO has the right to present its case against the charged employee / charged officer. PO is required to examine the witness in the inquiry. PO's job is to adduce evidence in support of the charge. Generally PO is not a witness in a departmental inquiry. Examining self as a witness by the PO in the inquiry is somewhat difficult. It is suggested that management should appoint a PO, who is not a witness in the inquiry.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 24

What should be done if there are allegations against the Disciplinary Authority?

Allegations against the Disciplinary Authority

The aggrieved party should brought the matter to the notice of the Appellate Authority with full facts of the allegations.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 23

Can an officer, who has submitted a report and if the inquiry is initiated on such report of the officer, be appointed as inquiry officer?

If an officer has submitted a report and if the inquiry is initiated on such report of the officer, then in all fairness, the officer should not be appointed as inquiry officer. If somehow the officer is inadvertently appointed as inquiry officer, steps should be taken to ensure that the task of holding the inquiry is assigned to some other officer.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 22

Can an officer, who has witnessed the incident, being the subject matter of an inquiry, be appointed as inquiry officer?

If an officer is a witness to any of the incidents, which is the subject matter of the inquiry, then in all fairness, the officer should not be appointed as inquiry officer. If the above facts become known after the appointment of the enquiry officer, during the inquiry, steps should be taken to ensure that the task of holding the inquiry is assigned to some other officer.

With best wishes,

Keshav Ram Singhal

Power Under Section 11-A of the Industrial Disputes Act

Power Under Section 11-A of the Industrial Disputes Act

Section 11-A of the Industrial Disputes Act confers powers on the Labour Courts, Tribunals and National Tribunals to give proper relief in case of discharge or dismisal of workman and to decide the justification of the decision of the employers. When it is found that the departmental inquiry is not held properly, the Labour Court / Tribunal / National Tribunal would set aside the order of punishment by giving appropriate relief to the concerned workman. Appropriate relief to the concerned workman may include lesser punishment or even no punishment resulting in reinstatement of the concerned workman.

With best wishes,

Keshav Ram Singhal

FREQUENTLY ASKED QUESTION - 21

Is it necessary to hold full fledged departmental inquiry for imposing a minor penalty?


An employee should be given an opportunity to defend himself when a charge sheet is issued for imposing a minor penalty. A full fledged inquiry may not be necessary for imposing a minor penalty.

With best wishes,

Keshav Ram Singhal

News - Reimbursement of TA/DA to serving/retired employees attending disciplinary/criminal proceedings as charged officer, Prosecution/Defence witnesses etc. in Public Sector Banks

News -

Reimbursement of TA/DA to serving/retired employees attending disciplinary/criminal proceedings as charged officer, Prosecution/Defence witnesses etc. in Public Sector Banks

The Central Vigilance Commission (CVC) noticed that as per the instructions issued by the Indian Bank's Association (IBA) dated 25.04.2011, TA/DA was not permissible to the retired officer / employees for attending the departmental inquiry as Defence Assistants or Defence witnesses of the Public Sector Banks. As the IBA's guidelines were in violation of Ministry of Finance, GOI instructions and Commission's guidelines, the Commission vide letter dated 27.02.2015 advised Department of Financial Services (DFS) to examine the issues and to take corrective steps to remove anomalies and to ensure that IBA circular is in line with the Government of India and Commission's guidelines.

2. DFS has reported that the IBA, vide letter dated 19.11.2015 has since reviewed and revised the scheme and issued comprehensive instructions regarding reimbursement of TA/DA to serving/retired employees attending departmental/criminal proceedings as Charged Officer, prosecution/Defence witness etc. As per the revised circular, now payment of TA/DA to Defence Assistants /Defence Witnesses (both serving and retired) attending departmental inquiry and criminal proceedings before Court would be allowed.

- From the Coordination (Policy) Wing, Central Vigilance Commission (CVC)

Courtesy Source - VIGEYE VANI - Quarterly Newsletter Central Vigilance Commission - April-June 2016

Training Handbook on 'Departmental Inquiry Awareness'

Dear friends,

Greetings!

People generally are afraid of departmental inquiry. People find difficulty in participating in departmental inquiry.

I have been associated with departmental inquiry and thus I have the opportunity to read books, generally voluminous books, related to departmental inquiry. During my service as an officer of a bank and also as an elected representative of the officers' association, I had opportunities to participate in departmental inquiries, sometimes as Presenting Officer on behalf of the management or sometimes as defence representative assisting the charged officer. Thus, I could gain experience to learn the insight of the departmental inquiry. With a view to share my knowledge and tips related to departmental inquiry, I have designed and developed a training handbook on 'Departmental Inquiry Awareness'. This is a small effort to create awareness on departmental inquiry.

No one should be punished without giving him an opportunity to defend himself and a judicial approach is necessary in the procedures of departmental inquiry. The procedure adopted must not only be fair and reasonable but should also bear a convincing appearance that justice has been done.

Contents of the Training handbook include the following:

# 01 - Preface

# 02 - An introduction on 'Departmental Inquiry Awareness' training

# 03 - General tips

# 04 - Tips for the inquiry officer

# 05 - Summarized procedure for inquiry proceedings (useful for DA and IO)

# 06 - Tips for the presenting officer

# 07 - Tips for the charged employee and the defence representative

# 08 - Legal practitioner as a DR

# 09 - Investigation

# 10 - Short notes and FAQs - The inquiry report, Natural justice in departmental inquiry, Bias in departmental inquiry, When a high court quashed the inquiry report, Useful quarterly magazine, Venue of the inquiry, What action when an employee gets employment by misrepresentation, Can DA differ with the IO findings, Unbecoming conduct, Inquiry conducted by a subordinate to the complainant, Agreeing or disagreeing of DA by the findings of the IO, Mass casual leave by employees, Assistance of an advocate, Perusal of documents/records on receipt of memo/show cause notice, Suspension, Representation by lawyers, Oath in departmental inquiry, Principle of natural justice, Who is competent to hold a departmental inquiry, Personnel officer as presenting officer, Ingredients of a charge sheet, Abusing b an employee, Departmental inquiry against an employee acquitted by a court of law, Labour court power under section 11A, Proposed punishment mentioned in charge sheet, Non-supply of list of witnesses along with charge sheet, Allegations against a superior, Can outsider be IO, Examining the management witness, Plea of victimisation, IO Report, When the CE admits the guilt, Confidence loss upon an employee, Adjournment of an inquiry, Who may be present at the inquiry, Ex-parte inquiry

# 11 - Specimen of documents and records - Inquiry officer communication, Disciplinary proceedings, IO's letter to custodian of documents

# 12 - Post-training test details

Thanking you,

Keshav Ram Singhal

Note - The handbook is unavailable for distribution. Readers are requested to search the relevant topic in the blog. Thanks.

INVESTIGATION

INTRODUCTION

An investigation is an action or process of investigating something or someone (may be crime, misconduct, problem, statement, etc.) especially to discover the related facts and the truth. It is a formal or systematic examination, study or research of the case.

Before initiating a departmental inquiry against an employee, management (generally the DA) wishes to confirm the misconduct, its gravity and persons involved, for which an investigation is conducted. Failure to properly investigate any incident in the organization's workplace can be costly. It may be important to investigate a matter to know:
- Who were involved?
- What were the facts? What happened?
- Where happened?
- When happened or committed?
- Why committed or why happened? (System deficiencies may be noticed)
- How committed?

To know the basis facts, it is usually better to investigate.

Step-by-Step Process

Following step-by-step process may be useful:

Step 1 - Determine whether an investigation is necessary. Appropriate authority should decide.

Step 2 - Determine an investigating officer - The person selected as an investigating officer should not be involved in the case. He should be independent. Appropriate authority should issue relevant orders.

Step 3 - Collecting relevant information - The investigating officer should collect relevant documents and information related to the case.

Step 4 - Determine date, time and place of investigation - The investigating officer should take appropriate decision with regard to date, time and place of investigation and inform to concerned persons.

Step 5 - Conduct investigation - Interview individuals with knowledge of facts. Written statements may be asked. A good approach is to ask open-ended questions that invite a person to provide information. Listen carefully to responses, and follow-up with narrower questions. Also ask each person to provide any related documents, if any, they have. Avoid close-ended questions. A better approach to use 5W1H (What, Where, Why, When, Who and How)questions.

Step 6 - Prepare investigation report - The investigating officer should prepare an investigating report containing facts gathered during interviews and written statements and by looking to the relevant documents. Analyze inconsistent or conflicting information and conclude your report with the investigation outcome.

Step 7 - Submit report - The investigating officer should submit the investigation report along with relevant documents to the authority.

With best wishes,

Keshav Ram Singhal

For Training Handbook on Departmental Inquiry Awareness, Please Click Here

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 20

What will be the effect if the proposed punishment is mentioned in the charge-sheet as issued to an employee?

Mere mentioning of the proposed punishment in the charge-sheet will not cause any prejudice against an employer. On the contrary, a CE under the given circumstances will know the gravity of the misconduct alleged against him.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 19

Under what circumstances a labour court can alter the punishment awareded to an employee by his employer?

Under section 11-A of the Industrial Disputes Act,1947,a labour court (and also tribunal and national tribunal) has the power to alter punishment in those cases where the punishment is so harsh as to suggest victimization.

Section 11A in The Industrial Disputes Act, 1947 is as under:
"11A. 4 Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]"

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 18

Is there any bar on initiating disciplinary proceedings (departmental inquiry) against an employee who is acquitted by a criminal court?

No. Acquittal of the accused employee in a criminal case is no bar for departmental inquiry or disciplinary proceedings. The degree or standard of proof required for conviction in a criminal prosecution should be such as to put beyond the pale of doubt the guilt of the accused..

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 17

Is it essential that a charge-sheet should contain the actual words spoken by an employee for abusing his superior?

No doubt a charge-sheet should be specific and not vague. Where in a charge-sheet it has been stated that the employee has misbehaved and abused his superior in a filthy language, though the exact words of abuses were not extracted, the nature of the word has been indicated by the word 'filthy', it can not be said that the charge is completely unspecific as to the mode, manner and contents of the misconduct.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 16

What are the essential ingredients of a charge-sheet?

The framing of charge-sheet being the first necessity for departmental inquiry/disciplinary action. A charge-sheet must be precise, specific and must set out all the necessary particulars. There is no prescribed form for a charge-sheet. The object of charge-sheet is to give the employee the exact data of the misconduct committed by him so that he may submit his explanation in his defence. Ordinarily, a charge-sheet would indicate the proposed punishment but there is no hard and fast rule about it. The only requirement of a charge-sheet is that it must be drawn in clear and unambiguous language indicating charges levelled against the employee concerned and all other necessary particulars specifically and precisely.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

LEGAL PRACTITIONER AS A DR

LEGAL PRACTITIONER AS A DR

A departmental inquiry is mostly carried out on the basis of the rules laid down by the management of organizations. The first and the foremost guideline to hold a departmental inquiry is to abide by the principles of 'natural justice'. It is mandatory for the IO to play fair. The IO should always keep in mind that the proceedings should be carried out properly without any arbitrariness. Fair opportunity should be given to both the parties involved in the departmental inquiry. Can an employee demand a representation by a legal practitioner as a matter of right in the departmental inquiry? On a number pf occasions courts persisted that representation is not a matter of right to the employee, however they opined that one must not forget that departmental inquiries which are undertaken are not inquiries in the court of law, and in such inquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by an employee or not is to be considered.



The right to be represented through a legal practitioner can be restricted by statutes, rules, regulations or standing orders in this regard. A reasonable extent of help and guidance must be meted out to the employee when a situation like a departmental inquiry comes up. This is because the employee is (or may be) at a disadvantageous and unequal position in industrial relations. Most often we see entire trade union system is crippled through inter-union rivalries and most employees are not aware of the legal technicalities in such inquiry proceedings. Wherein an inquiry, the charged employee is pitted against a legally trained mind, the refusal to grant him permission to appear through a legal practitioner would amount to denial of a reasonable request and violation of essential principles of natural justice.



There are certain circumstances which may warrant representation by a legal practitioner and if the opportunity is not given to the employee, this would amount to unfair labour practices and violation of natural justice. The circumstances are as follows:
(i) Where the PO is a legally trained personnel
(ii) Where the service rules confer discretion in the IO or DA to permit the charged employee to be represented by a legal practitioner
(iii) Where the facts of the inquiry case are complicated and the gravity of charges are high and the employee is not educated or skilled enough to handle such situation then a legal practitioner may be allowed to defend him.

The right of representation of a charged employee by a legal practitioner is only a small step in ensuing justice and fairness in departmental inquires.

With best wishes,

Keshav Ram Singhal

For Training Handbook on Departmental Inquiry Awareness, please Click Here

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority