How to conduct Preliminary hearing (PH) in Domestic Enquiry
1) Preliminary hearing (PH) is the first sitting or first day of domestic enquiry (DE). (This need not have to be confused with preliminary enquiry).
2) It is initiated, moderated and concluded by the Enquiry Officer (EO).
3) It will be held only after the charge sheet and notice of enquiry is issued by disciplinary authority (DA) to the charge sheeted employee (CSE).
4) It is meant to introduce and familiarise all the parties in the enquiry.
5) Parties shall submit their authorisation letters to represent in the domestic enquiry (DE).
6) It is meant to find out by the EO if due process has been followed by DA in issuing the charge sheet, issuing the notice of enquiry, granting permission to CSE and CE to attend the enquiry or in paying the allowances if any.
7) It is meant to educate all the parties about their rights and obligations in the enquiry.
8) Parties have the right to seek necessary assistance and permission during PH.
9) It is meant to develop a plan of action for the smooth conduct of domestic enquiry, in the presence of all the parties.
10) Parties may submit their list of witnesses and copies of documents/ exhibits in support of their case during PH
11) Examination or cross examination will not generally take place on the day of PH.
12) On the day of preliminary hearing the Enquiry officer will ask the charge sheeted employee (a) whether and when he has received the charge sheet (b) whether he understood the contents/charges mentioned therein and (c) whether he accepts the allegations and charges.
13) In case the charge sheet is in English and the employee requests for a copy of translation in the language known to him it must have to be provided.
14) The list of the documents and the list of witnesses to be examined in the enquiry to prove or disprove the charges by either party should be shared with the opposite party.
15) Enquiry officer will take on record the order copy of appointment of presenting officer (also called as MR) and the authorization letter of the charge sheeted employee for the appointment of defence representative (also called as CE).
16) The Enquiry Officer will then read out the charges against the employee.
17) The Enquiry officer will ask the employee whether he admits the charges levelled in the charge sheet. If the employee admits all the charges unconditionally and pleads guilty, the enquiry officer must record the same and give his report of findings accordingly.
18) In case the employee does not admit all the charges leveled against him or does not plead guilty to the charges, or does not attend the enquiry or he says that he has a defense to make, the same must be recorded and the process of leading evidences should be initiated.
19) Where the employee pleads guilty of certain charges and denies other charges the examination of witnesses or leading of evidences is to be done only in respect of those charges which the employee has denied.
20) Whatever evidences / documents admitted unconditionally by the employee should be taken on record which do not require examination/cross examination in the regular hearing.
21) The enquiry officer should finalize the plan of enquiry in consultation with the charge-sheeted employee and the presenting officer about the evidences and witnesses to be examined on either side, issuance of notices to the witnesses to appear in the enquiry and the probable dates on which hearing should be held.
22) The enquiry officer at this stage will ask the presenting officer and the charge sheeted employee to submit their list of witnesses/documents to be examined in the regular hearing.
23) Even if one party (generally the CSE) absents from the enquiry or he is prevented from enquiry by the order of EO due to misbehaviour/ violence, the enquiry will not come to an end, rather the other party which is attending and cooperating in the enquiry will be allowed to do its examination, cross examination and submissions. Then only the enquiry will come to an end.
24) Preliminary hearing will generally be held only once before the commencement of regular hearing.
Proceeding of a preliminary hearing given below will help you understand it better
Proceedings of the domestic enquiry against Mr. Raja Mohan, employee No.1114, workman employed with Ponim India Priviate Limited at its factory located in No.4009, Peenya second stage, Bangalore in the matter of charge sheet cum show cause notice dated 10th September 2017
Session No.1
Date: 15th October 2017
Time: 10 am
Venue: Meeting Hall of the factory
Parties present
Dr. G P Naik - Enquiry officer (EO)
Mr. Munish Kumar- Management representative (MR)
Ms. Ramani Devi- Charge sheeted employee (CSE)
Mr. Johnson David- Co- employee (CE)
1) EO introduced himself to all the parties present in the enquiry and requested others to introduce themselves. Then MR introduced himself to all the parties in the enquiry, followed by CSE and CE.
2) EO asked MR and CE to submit the letter of authorisation (in three sets) by which they are empowered to represent the parties in the enquiry.
3) Accordingly MR submitted the letter of appointment issued to him by the DA. One copy was given back as an acknowledgement for the receipt of the same, with signature of the EO, second copy was given to the opposite party and third copy was taken on record of the enquiry and kept in the EO file.
4) CE submitted the letter of appointment issued to him by the CSE. One copy was given back as an acknowledgement for the receipt of the same, with signature of the EO, second copy was given to the opposite party and third copy was taken on record of the enquiry and kept in the EO file.
5) EO asked the CSE the following questions and CSE answered as under:
Q. (1) Did you receive the charge sheet dated 10th September 2017?
A (1) Yes.
Q (2) Did you read it and understood the content?
A (2) Yes.
Q (3) Do you admit the allegations and charges made against you in this charge sheet?
A (3) No. They are false.
6) Since CSE denied the allegations and charges against her, EO asked MR to produce, if he has any evidence or witnesses to prove the allegations and charges.
7) MR submitted the documents to EO in three sets to substantiate the allegations and charges.
8) MR also submitted a list of witnesses he intends to examine in the enquiry to prove the allegations and charges.
9) EO taken them on record after giving one set to the CSE. Third set was returned back to MR for his record with the signature of EO.
10) CSE said she will submit her documents and list of witnesses in due course.
11) EO explained the rights and obligations of the parties and the procedure of enquiry to all those present, as under.
a) CSE has the right to bring any employee of her choice to the enquiry, for her assistance in accordance with the standing order/ service rules of the company. In this case CSE has already brought Mr.Johnson David as CE.
b) Proceedings will be held during the working hours of CSE and CE.
c) If the enquiry is held outside the workplace of CSE and CE, they are entitled to be paid travelling allowance by the employer.
d) The proceedings will be held in the same venue from 10 am to 5 pm every Monday and Thursday of the week. EO has the right to change the date, time or venue of the enquiry for the reasons to be recorded in writing and such changes if any will be communicated to all the parties, sufficiently in advance.
e) Both the parties have the right to produce evidences and witnesses in support of their case.
f) Both the parties have the right to get copies of the evidences submitted by the opposite party.
g) Both the parties have the right to examine witnesses in support of their case, in the enquiry, in the presence of opposite party.
h) Both the parties have the right to cross examine the witnesses produced by the opposite party in the enquiry.
i) The enquiry will be conducted in accordance with principles of natural justice and as per standing orders/ service rules of the company.
j) Parties must attend the enquiry as per the date, time, and venue determined by the EO from time to time.
k) If any party absents from enquiry without prior permission of the EO, it will be presumed that they are not interested and the enquiry will be held ex-parte.
l) Both the parties have right to make final submission the examination and cross examination of witnesses from both the side is completed.
m) The evidences and witnesses from management side will be examined first as per the principles of natural justice followed by evidences and witnesses from CSE side.
n) Proceedings of the enquiry will be recorded in writing, printed and signed by all the parties present and copies will be given to all of them.
o) Proceedings will be conducted in the language understood by the CSE.
p) Parties may seek necessary guidance and reasonable assistance from the EO during the course of the enquiry.
The next hearing will be held on 20th October 2017 at 10.45 am at the same venue. All the parties are advised to come fully prepared. If any party fails to attend the enquiry, it will be presumed that they are not interested in participation and the enquiry will be ex-parte.
Signed Signed Signed Signed
G P Naik (EO) Munish Kumar (MR) Ramani Devi (CSE) Johnson David (CE)
24) In all the cases of preliminary hearing, the activities may not happen exactly the way it is recorded in the above proceeding. Rather it depends upon the behaviour of parties. Given below are a set of possibilities in PH and the action needed to be taken.
1
CSE has not received the charge sheet
Give a copy of charge sheet or ask MR to give a copy.
2
CSE has not understood the charge sheet
Explain the contents of the charge sheet
3
Charge sheet is in English and CSE wants a copy in the language understood by him.
As MR to provide a translated version in the next hearing unless the MR proves that CSE knows / understands English
4
CE has not come or not identified by CSE
Inform CSE that it is his/ her right to have a CE.
5
CSE or CE is physically handicapped/ sick and the Venue of the enquiry does not have elevator for the people to reach.
Ask the MR to inform the DA for changing the venue.
6
Enquiry is conducted outside the workplace of CSE and company is not paying the travelling allowance to CSE and CE.
Ask the MR to pay reasonable travelling allowance to CSE and CE.
7
Enquiry is conducted after the working hours and CSE and CE refuses to attend.
Fix the enquiry during working hours, or order for payment of overtime allowance.
8
CSE admits all the allegations and charges.
Record the same in the proceedings of preliminary hearing, close the enquiry and submit the report of findings by stating that CSE has unconditionally admitted all the allegations and charges.
9
CSE admits some charges and allegations and denies the rest.
Ask the MR to produce evidence / documents only in respect of the denied allegations / charges.
10
CSE or CE absents
Adjourn, and issue the notice for next hearing. If absenteeism continues consecutively for more than three times, hold it ex-parte.
11
CSE is violent/ abuses during the hearing
Adjourn, and issue the notice for next hearing with a warning. If violent behaviour/ abusive language continue again, consider holding it ex-parte by recording the reasons. Consider video recording of the proceedings. Consider deploying a couple of security guards.
12
MR or CE fails to submit authorization letters
Ask them to submit them in the next hearing failing which they will not be allowed to participate.
13
CSE or CE refuses to sign the proceedings
Mentioned at the their signature place in the proceedings “refused to sign”
14
CSE or CE makes additions/ modifications in the printed/ written proceedings of the enquiry by writing certain things.
Delete them or refuse to sign such proceedings.
15
Computer/ type writer not working
Hand written proceeding is acceptable.
16
Typist has not come
Hand written proceeding is acceptable.
17
CSE / CE brings their dependents, friends, or pets to the enquiry.
Don’t allow the dependents, friends, or pets to the enquiry room.
18
Any party plays music in the enquiry.
Ask them not to do or debar them if they do not agree.
19
Any party smokes or drinks liquor in the enquiry.
Ask them not to do or debar them if they do not agree.
20
CSE wants to be represented by an advocate.
Allow if management does not object and management side is represented by a person of law background.
21
Any party wants change in date, place, and time of the hearing.
Allow if possible and if not objected by other parties.
22
List of witnesses and documents are not ready.
Ask them to submit in the next hearing, failing which another opportunity will not be given.
23
Any party or witness cannot speak
He may be allowed to give the statements/ answers in writing.
24
Any party or witness cannot write
He may be allowed to give the statements/ answers orally.
25
Witness cannot be present in the enquiry physically.
Consider video calling, if that is not possible debar such a witness.
26
A criminal case is already pending in the court of law on the same matter and CSE wants the enquiry to be differed till the court case gets over. For example: Stealing of cash from the company.
Even though the subject matter is one and the same, court case and domestic enquiry can go on simultaneously unless there is stay against the domestic enquiry by any court of law.
Dr G P Naik is a domestic enquiry expert based out of Bengaluru. Phone 9243470110 Email [email protected]