The disciplinary process

There could be situations at the workplace where an employee may have to be disciplined for violating the norms. In a work environment where employees interact with their colleagues, superiors or outsiders, they may act in a manner whereby the latter may feel so offended that they lodge a complaint to the management about their behaviour. Depending upon the gravity of the offence, it is for the management to decide as to what action is to be taken against the delinquent employee.

In some situations, the facts of an employee’s act or omission, which led to the filing of complaint, may not be clearly forthcoming and the management may decide to hold a preliminary investigation to find out the underlying cause of the behaviour reported against. Based on the finding, the employee may be let off with a verbal warning or disciplinary proceedings may be initiated.

The disciplinary process has been comprehensively prescribed under Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Following the 18th Amendment, this ordinance has been devolved into acts by all the provinces whereby the above provision on discipline handling has been adopted as such except in Sindh, which has made a few changes and additions in its text.

Standing Order 15 is based on the principle of progressive discipline, which is followed in spirit by enlightened companies. It starts with minor offences or misdemeanours such as disregard or disobedience of rules or orders, making false or misleading statements and careless or wasteful working etc, which become major offences called “misconduct” if repeated frequently. An employee guilty of a minor offence may be counselled or issued a written warning.

There are twelve types of acts and omissions which constitute misconduct under the law. The most prominent among these are: wilful insubordination or disobedience of a lawful order of the supervisor; theft, fraud or dishonesty; and habitual absence or absence without leave for more than ten days and acts subversive of discipline during working hours at the establishment. An employee accused of misconduct will have to be first asked in writing to explain his conduct through a show-cause notice. In case the employee’s explanation is not found satisfactory, he is asked by the management to appear in a domestic inquiry.

An inquiry officer is appointed to conduct the proceedings of the inquiry in which the accused employee has to be provided full opportunity to produce his defence and witnesses in his support. The onus to prove the charges levelled against the accused rests with the management, which will do so by examining its prosecution witnesses and documentary evidence, if any. All proceedings of the inquiry have to be held in the presence of the accused who is also provided the opportunity to cross examine the witnesses produced by management.

The inquiry officer has to write down the proceedings of the inquiry and every page has to be signed by the employee, inquiry officer, representative of management and the witness concerned. The employee is to be given fair opportunity to produce his own witnesses and adduce any other relevant evidence he may choose in support of his defence. No material should be relied upon against the employee without giving him opportunity to explain the same.

The inquiry officer has to give reasons for his conclusion if he finds the accused guilty of the allegation. In a recent judgment, the Supreme Court has said: “Question arose whether a second show cause notice and supply of the enquiry report to worker was a must before imposing any penalty upon him. The procedure prescribed under SO 15 (4) of Standing Orders Ordinance, 1968 applicable to inquiry proceedings – according to which neither giving a second show-cause notice nor the supply of the report of the inquiry officer is a requirement of the principles of natural justice”.

In another similar recent judgment, the Sindh Labour Appellate Tribunal has held that the “Supply of copies of statement(s) of witnesses to accused, [is] neither a requirement of law nor of natural justice”. Although the Supreme Court had given a similar ruling in 1981, still employees accused of misconduct and undergoing domestic enquiry at times come up with a strong demand to be provided copies of the proceedings.

After the inquiry officer has submitted his report inclusive of findings on the proceedings, the employer has to decide as to what punishment out of the four prescribed by the law is to be given to the employee guilty of misconduct. Besides dismissal from service, the other three punishments are: fine upto three paisa in the rupee of the employee’s monthly wages; withholding of increment or promotion for a specified period not exceeding one year and reduction to a lower post.

The punishment given should be commensurate with the magnitude of the offence committed and must be justifiable. It is, however, preferable to issue a written warning to the accused employee rather than awarding any of the punishments other than dismissal from service, as the same will be counterproductive. The fine is negligible, withholding of increment or promotion will squeeze his household expenses and demotion in rank will be humiliating.

The purpose of a disciplinary action should be to set an example for other employees within the organization so that misconduct by any one of them is prevented.

The writer is an industrial relationsprofessional.

Email: parvez.rahim@aku.edu