What is the necessity of charge-sheet and when it is termed as vague?
The object of a charge-sheet is that the employee must know what are the charges against him and he gets the opportunity to reply and to defend himself by giving a proper explanation. A charge-sheet becomes vague when the time date and place of commission of misconduct are not specifically mentioned thus making unable to understand the true and correct nature of charges against the employee. Karnataka High Court in the case of Sri Venketesh Gururao Kuratti vs. Syndicate Bank 2004 LLR 697 has held that the test to determine the vagueness of charge-sheet is as to whether it does convey the exact nature of alleged misconduct. General insuniations against the employee can also make the charge-sheet vague. A.P. HC in the case of S. Srinivasa Reddy 2013 LLR 433 has held that having not all foul language in charge-sheet will not make it vague. The word unsatisfactory and negligence without any specific incident in the charge-sheet should be avoided.
What are the tests to determine, who is workman under Industrial Disputes Act because sometime it is very confusing to understand the real character of a person who raises the dispute?
Supreme Court in the case of Anand Regional Co-op. Oil Seedgrowers Union Ltd. vs. Shailesh Kumar 2006 LLR 1052; 2006 (111) FLR 581 has clarified that undue importance cannot be given for designation of workman. In order to decide as to whether an employee, even though designated as an officer is a workman or not, the primary or substantial duties as performed by him are relevant. If the main work of the employee is not manual or clerical or if little manual or clerical work which he does, forms only a part of his duties, then such an employee cannot be deemed to be a workman as defined in section 2(s) of the Industrial Disputes Act. The monthly ceiling of Rs. 10,000/- per month as given in the definition of workman in I.D. Act is linked with the condition that such person should also be discharging the functions of supervisory or managerial nature. The Supreme Court in the case of Arakal Govind Raj Rao v. Ciba Geigy of India Ltd., 1986 (52) FLR 19 (SC); 1985 (2) LLJ 401 has held that the test is the nature of main duties of the employer. Where the employee has multifarious duties, then while deciding as to whether he is a workman or not, the dominant purpose of his employment must be first taken into consideration and the gloss of some additional duties must be rejected while deciding his status and character. In another case Supreme Court in the matter of Western India Match Co. Ltd. vs. Their Workmen, 1963 (7) FLR 256 (SC); 1963 (2) LLJ 459 has clarified that if the main duty is of a manual, clerical or technical nature but other is merely incidental to the duty, the situation would be different and the employee concerned would fall within the ambit of definition of workman. The Bombay High Court in the case of Union Carbide India Ltd. vs. D. Samuel 1998 (80) FLR 684 and other high courts in other cases have laid down the following tests. 1. It is the dominant purpose of the employment that is relevant and not some additional duties which may be performed by the employee. 2. It is not the designation of the post held by the employee which is relevant, but what is relevant is the nature of duties performed by the employee. 3. The Court has to find out whether the employee can bind the company in the matter of some decision taken on behalf of the company. 4. What is the nature of the supervisory duties performed by the employee? Do they include directing the subordinates to do their work and/or to oversee their performance? 5. Does the employee have power either to recommend or sanction leave of the workman working under him? 6. Does he have the power to take any disciplinary action against the workmen working under him? 7. Does he have the power to assign duties and distribute the work? 8. Does the employee have the authority to indent material and to distribute the same amongst the workmen? 9. Does the employee have power to supervise the work of men or does he supervise only machines and not the work of men? 10. Does the employee have any workmen working under him and does he write their confidential report? 11. Whether employee can examine quality of work and whether it is performed satisfactorily? 12. Whether he marks attendance of other workmen? 13. Whether the employee is in command of a territory or department over which he exercises his managerial function? 14. What is his designation in official record and in attendance register?
We have terminated the foreman directly because at that time he was performing the duties of supervisor as supervisor was absent. In such situation can he raise the industrial dispute?
Yes! He can as he is basically a foreman and not a supervisor. Normally foreman acts as supervisor in his absence and in his presence he reports to him. It appears that you have a category of employees where someone is senior to workers but junior to supervisor and his functions are different. Actually your foreman is not a permanently appointed supervisor. He is a supervisor by delegation of a charge. The dominant nature of work performed by the foreman is of workman category and have been covered under 2(s) of ID Act. He is functioning as a workman answerable to supervisor in the performance of regular work. If his services were terminated while he was functioning as a supervisor it does not preclude him from raising an industrial dispute. The question whether he is a workman or otherwise is to be determined by the adjudicating authority. As the main work carried on by the foreman is not that of a supervisory or managerial nature in all probability he will be treated as a workman and so, He has right to raise an industrial dispute. Cal. HC in the case of Manoranjan Chakraborty vs. State of West Bengal 2002 1 CLR 1029 has held that even if the management has terminated the services of a supervisor after conducting domestic enquiry as per certified standing orders applicable to workmen, employer is stopped from talking the plea that the employee was supervisor and not a workman.
We are conducting domestic enquiry against a fork lift driver on the charges of accepting bribe from a truck driver who brought raw material in the company from vendor. The bribe was taken for consideration of unloading the truck out of turn, so that he is not kept waiting for long. Now the employee in the enquiry is not participating regularly. On each date he sends some letter of excuse, some time asks for some document and prays for adjournment. On each date he has some plea for non participation in the enquiry. In such situation can we declare the enquiry ex-parte and proceed further?
Declaring ex-parte in the enquiry against employee is highly factual and circumstantial. It would not be good and proper to provide straight jacket formula for declaring ex-parte enquiry. It is for the enquiry officer to use his unbiased mind and discretion and assess the real intent of the employee. If the employee really has the mala fide intention to prolong the enquiry by creating impediments, he can very well declare ex-parte. Principles of natural justice are to be followed but not to the extent where they become unworkable. No enquiry should be prolonged to an indefinite period for waiting employee to participate. The circumstances which you have narrated indicate that employee has no bona fide intention to participate in the enquiry. Enquiry officer after recording sound reasons may proceed further by declaring ex-parte enquiry. Supreme Court in the case of SBI vs. Hemant Kumar, 2011 LLR 449 has also held that where the employee did not appear on first hearing without any intimation, also absented again on second opportunity and requested for adjournment, enquiry was again adjourned to next date but employee absented again, such enquiry held ex-parte by the enquiry officer will not be defective as violative of principles of natural justice. Court held that the principles of natural justice cannot be stretched to the point where they would render the In-house proceedings unworkable.
What is the necessity of charge-sheet and when it is termed as vague?
The object of a charge-sheet is that the employee must know what are the charges against him and he gets the opportunity to reply and to defend himself by giving a proper explanation. A charge-sheet becomes vague when the time date and place of commission of misconduct are not specifically mentioned thus making unable to understand the true and correct nature of charges against the employee. Karnataka High Court in the case of Sri Venketesh Gururao Kuratti vs. Syndicate Bank 2004 LLR 697 has held that the test to determine the vagueness of charge-sheet is as to whether it does convey the exact nature of alleged misconduct. General insuniations against the employee can also make the charge-sheet vague. A.P. HC in the case of S. Srinivasa Reddy 2013 LLR 433 has held that having not all foul language in charge-sheet will not make it vague. The word unsatisfactory and negligence without any specific incident in the charge-sheet should be avoided.
What are the tests to determine, who is workman under Industrial Disputes Act because sometime it is very confusing to understand the real character of a person who raises the dispute?
Supreme Court in the case of Anand Regional Co-op. Oil Seedgrowers Union Ltd. vs. Shailesh Kumar 2006 LLR 1052; 2006 (111) FLR 581 has clarified that undue importance cannot be given for designation of workman. In order to decide as to whether an employee, even though designated as an officer is a workman or not, the primary or substantial duties as performed by him are relevant. If the main work of the employee is not manual or clerical or if little manual or clerical work which he does, forms only a part of his duties, then such an employee cannot be deemed to be a workman as defined in section 2(s) of the Industrial Disputes Act. The monthly ceiling of Rs. 10,000/- per month as given in the definition of workman in I.D. Act is linked with the condition that such person should also be discharging the functions of supervisory or managerial nature. The Supreme Court in the case of Arakal Govind Raj Rao v. Ciba Geigy of India Ltd., 1986 (52) FLR 19 (SC); 1985 (2) LLJ 401 has held that the test is the nature of main duties of the employer. Where the employee has multifarious duties, then while deciding as to whether he is a workman or not, the dominant purpose of his employment must be first taken into consideration and the gloss of some additional duties must be rejected while deciding his status and character. In another case Supreme Court in the matter of Western India Match Co. Ltd. vs. Their Workmen, 1963 (7) FLR 256 (SC); 1963 (2) LLJ 459 has clarified that if the main duty is of a manual, clerical or technical nature but other is merely incidental to the duty, the situation would be different and the employee concerned would fall within the ambit of definition of workman. The Bombay High Court in the case of Union Carbide India Ltd. vs. D. Samuel 1998 (80) FLR 684 and other high courts in other cases have laid down the following tests. 1. It is the dominant purpose of the employment that is relevant and not some additional duties which may be performed by the employee. 2. It is not the designation of the post held by the employee which is relevant, but what is relevant is the nature of duties performed by the employee. 3. The Court has to find out whether the employee can bind the company in the matter of some decision taken on behalf of the company. 4. What is the nature of the supervisory duties performed by the employee? Do they include directing the subordinates to do their work and/or to oversee their performance? 5. Does the employee have power either to recommend or sanction leave of the workman working under him? 6. Does he have the power to take any disciplinary action against the workmen working under him? 7. Does he have the power to assign duties and distribute the work? 8. Does the employee have the authority to indent material and to distribute the same amongst the workmen? 9. Does the employee have power to supervise the work of men or does he supervise only machines and not the work of men? 10. Does the employee have any workmen working under him and does he write their confidential report? 11. Whether employee can examine quality of work and whether it is performed satisfactorily? 12. Whether he marks attendance of other workmen? 13. Whether the employee is in command of a territory or department over which he exercises his managerial function? 14. What is his designation in official record and in attendance register?
We have terminated the foreman directly because at that time he was performing the duties of supervisor as supervisor was absent. In such situation can he raise the industrial dispute?
Yes! He can as he is basically a foreman and not a supervisor. Normally foreman acts as supervisor in his absence and in his presence he reports to him. It appears that you have a category of employees where someone is senior to workers but junior to supervisor and his functions are different. Actually your foreman is not a permanently appointed supervisor. He is a supervisor by delegation of a charge. The dominant nature of work performed by the foreman is of workman category and have been covered under 2(s) of ID Act. He is functioning as a workman answerable to supervisor in the performance of regular work. If his services were terminated while he was functioning as a supervisor it does not preclude him from raising an industrial dispute. The question whether he is a workman or otherwise is to be determined by the adjudicating authority. As the main work carried on by the foreman is not that of a supervisory or managerial nature in all probability he will be treated as a workman and so, He has right to raise an industrial dispute. Cal. HC in the case of Manoranjan Chakraborty vs. State of West Bengal 2002 1 CLR 1029 has held that even if the management has terminated the services of a supervisor after conducting domestic enquiry as per certified standing orders applicable to workmen, employer is stopped from talking the plea that the employee was supervisor and not a workman.
We are conducting domestic enquiry against a fork lift driver on the charges of accepting bribe from a truck driver who brought raw material in the company from vendor. The bribe was taken for consideration of unloading the truck out of turn, so that he is not kept waiting for long. Now the employee in the enquiry is not participating regularly. On each date he sends some letter of excuse, some time asks for some document and prays for adjournment. On each date he has some plea for non participation in the enquiry. In such situation can we declare the enquiry ex-parte and proceed further?
Declaring ex-parte in the enquiry against employee is highly factual and circumstantial. It would not be good and proper to provide straight jacket formula for declaring ex-parte enquiry. It is for the enquiry officer to use his unbiased mind and discretion and assess the real intent of the employee. If the employee really has the mala fide intention to prolong the enquiry by creating impediments, he can very well declare ex-parte. Principles of natural justice are to be followed but not to the extent where they become unworkable. No enquiry should be prolonged to an indefinite period for waiting employee to participate. The circumstances which you have narrated indicate that employee has no bona fide intention to participate in the enquiry. Enquiry officer after recording sound reasons may proceed further by declaring ex-parte enquiry. Supreme Court in the case of SBI vs. Hemant Kumar, 2011 LLR 449 has also held that where the employee did not appear on first hearing without any intimation, also absented again on second opportunity and requested for adjournment, enquiry was again adjourned to next date but employee absented again, such enquiry held ex-parte by the enquiry officer will not be defective as violative of principles of natural justice. Court held that the principles of natural justice cannot be stretched to the point where they would render the In-house proceedings unworkable.