Disciplinary Disciplinary ProcedureProcedure

Complied ByComplied ByPravat Ghose, HR ManagerPravat Ghose, HR Manager

ACI LimitedACI Limited

Ref: Labour Act 2006 & Ref: Labour Act 2006 & Disciplinary Action in Non-Government Organization by Adv. S. Disciplinary Action in Non-Government Organization by Adv. S.

A. Huq A. Huq

NO CELL PHONESNO CELL PHONES Participation and sharing of Participation and sharing of

Knowledge is CompulsoryKnowledge is Compulsory Speak One-at-a-timeSpeak One-at-a-time When facilitator speaks, no one When facilitator speaks, no one

else does else does Be candid and honestBe candid and honest Strive for consensus decisionStrive for consensus decision LISTENLISTEN Critique but NOT criticizeCritique but NOT criticize

Ground rules

Objectives of the presentationObjectives of the presentation

To understand the basic principle of To understand the basic principle of Disciplinary procedureDisciplinary procedure

To know about the steps of disciplinary To know about the steps of disciplinary procedureprocedure

To conduct a successful domestic To conduct a successful domestic enquiryenquiry

To prepare report on domestic enquiryTo prepare report on domestic enquiry

Upholding the value ‘Fairness’

PurposePurpose For Ensuring Principle of Natural JusticeFor Ensuring Principle of Natural Justice

What is Principle of Natural of Justice? What is Principle of Natural of Justice?

Reasonable Man’s TestReasonable Man’s Test Applying common consciousnessApplying common consciousness Role of a Judge Role of a Judge

EssentialsEssentials

Balance of ProofBalance of Proof Reasonably proved as it is civil in natureReasonably proved as it is civil in nature

Steps of Domestic EnquirySteps of Domestic Enquiry

1.1. Preliminary Enquiry, if requiredPreliminary Enquiry, if required2. Charge-Sheet3.3. Delivery of Charge-SheetDelivery of Charge-Sheet4.4. Consideration of ExplanationConsideration of Explanation5.5. Selection of Enquiry OfficerSelection of Enquiry Officer6. Issuing Enquiry Notice7.7. Proper Domestic EnquiryProper Domestic Enquiry8.8. Report of Enquiry OfficerReport of Enquiry Officer9.9. Consideration of Enquiry Report by the Consideration of Enquiry Report by the

authorityauthority10.10. Awarding PunishmentAwarding Punishment11.11. Delivery of Punishment LetterDelivery of Punishment Letter

1. Preliminary Enquiry1. Preliminary Enquiry

Not required by LawNot required by Law Where documentary evidence is not Where documentary evidence is not

availableavailable To find out real accusedTo find out real accused

2. Charge-sheet & Drafting of 2. Charge-sheet & Drafting of Charge-sheetCharge-sheet

To inform the charge elaborately to the accused.To inform the charge elaborately to the accused. Should be circulated in the known language of the Should be circulated in the known language of the

accused (Though there is no hard and fast rule).accused (Though there is no hard and fast rule). There is no specific limitation for serving charge-sheet There is no specific limitation for serving charge-sheet

or show-cause but it is better to serve as soon as or show-cause but it is better to serve as soon as possible.possible.

An official with the definition of employer or with a An official with the definition of employer or with a delegated authority can serve the charge-sheet. (It is delegated authority can serve the charge-sheet. (It is derived from common law).derived from common law).

Management can reissue a corrected charge-sheet, if Management can reissue a corrected charge-sheet, if necessary. Charge-sheet must be clear and specific.necessary. Charge-sheet must be clear and specific.

Charge-sheet must have Charge-sheet must have Nature of misconductNature of misconduct, , Place of occurrencePlace of occurrence, , Time and DateTime and Date and and Role of Role of accusedaccused..

In case of charge of theft it is necessary to mentioned In case of charge of theft it is necessary to mentioned the names of items which have been misplaced.the names of items which have been misplaced.

3. Delivery of Charge-sheet3. Delivery of Charge-sheet

Through hand to hand, is possible. Employer Through hand to hand, is possible. Employer should have a received copy.should have a received copy.

Through registered mail. Registry slip should Through registered mail. Registry slip should be kept with care.be kept with care.

In present law, accused will have seven days In present law, accused will have seven days from the date of receiving the letter.from the date of receiving the letter.

Extension of time can be considered if Extension of time can be considered if accused apply.accused apply.

Question: How long should we wait for reply (in case sending through registered mail)?

Answer: A reasonable period. Fourteen days. (7 for mail delivery+4 days for legal requirement)

4. Consideration of Explanation4. Consideration of Explanation

It must be received by the authority.It must be received by the authority. It should be considered judiciously.It should be considered judiciously. If someone commits the crime, it is If someone commits the crime, it is

not necessary for conducting not necessary for conducting enquiry. In that case lenient enquiry. In that case lenient punishment can be given following punishment can be given following 17(2) of BLA 2006 considering his 17(2) of BLA 2006 considering his past records. past records.

5. Selection of Enquiry Officer5. Selection of Enquiry Officer Only one person is enough. Nomination of more Only one person is enough. Nomination of more

than enough is also acceptablethan enough is also acceptableNote: Number of enquiry officer is not a factor. Note: Number of enquiry officer is not a factor.

The method of enquiry is important.The method of enquiry is important. All staff, holding upper position to accused, can All staff, holding upper position to accused, can

conduct the enquiry except,conduct the enquiry except,i. Those who are witnessi. Those who are witnessii. Those who are involve in preliminary enquiry or ii. Those who are involve in preliminary enquiry or those who are well-aware of the incidentthose who are well-aware of the incidentiii. Those who have animosity or good tie with iii. Those who have animosity or good tie with accusedaccusediv. Management can appoint an external person iv. Management can appoint an external person as an enquiry officeras an enquiry officer

6. Issuing Enquiry Notice

Notice of Enquiry can be served by Notice of Enquiry can be served by the person who issued the charge-the person who issued the charge-sheet or by the enquiry officer.sheet or by the enquiry officer.

Note: It is necessary give 3 or 4 days time Note: It is necessary give 3 or 4 days time to accused after receiving the notice of to accused after receiving the notice of enquiry.enquiry.

Sec. 18 of S.O. Act, 1965, Subsection (b)Sec. 18 of S.O. Act, 1965, Subsection (b)

7. Proper Domestic Enquiry This is the most important part in disciplinary process.This is the most important part in disciplinary process.Note: In a case where there is no rules and regulations for conducting Note: In a case where there is no rules and regulations for conducting

enquiries, the principal of natural justice is to be followed. enquiries, the principal of natural justice is to be followed. - DLR 90, Page 60; Ahsanul Hoque Vs Agrani Bank- DLR 90, Page 60; Ahsanul Hoque Vs Agrani Bank

Enquiry has to be conducted infront of the accusedEnquiry has to be conducted infront of the accused Enquiry will be opened through petitioner’s statement and witnesses’ Enquiry will be opened through petitioner’s statement and witnesses’

statement on his favour.statement on his favour. The statement of accused cannot be taken in opening.The statement of accused cannot be taken in opening. The accused must be given enough chance to cross-examine the The accused must be given enough chance to cross-examine the

petitioner and his witness (S. 24, Sub S. 5). If he is not willing to petitioner and his witness (S. 24, Sub S. 5). If he is not willing to question, it must be noted in proceedings.question, it must be noted in proceedings.

After that accused will be invited to produce his witness. If he is willing After that accused will be invited to produce his witness. If he is willing to produce witness, it must be noted down in the proceedings.to produce witness, it must be noted down in the proceedings.

After the recording the statement of accused witness, Enquiry Officer After the recording the statement of accused witness, Enquiry Officer will cross-examine the witness.will cross-examine the witness.

All participants of the enquiry must sign in the proceedings of the All participants of the enquiry must sign in the proceedings of the enquiryenquiry

The petitioner must be present and accused must be given chance to The petitioner must be present and accused must be given chance to cross-examine him/her.cross-examine him/her.

Role of an enquiry officerAs a JudgeAs a Judge The enquiry officer is engaged in a fact finding mission The enquiry officer is engaged in a fact finding mission

only. His report is not binding on the punishing authority. only. His report is not binding on the punishing authority. His main function is to help the punishing authority to His main function is to help the punishing authority to come to a definite conclusion regarding the guilt of the come to a definite conclusion regarding the guilt of the accused.accused.

During the course of the enquiry, the Enquiry Officer’s During the course of the enquiry, the Enquiry Officer’s conduct and manner of handling enquiry should be such conduct and manner of handling enquiry should be such as not to give any scope for any party to allege that he as not to give any scope for any party to allege that he was partial. He should treat both parties equally and was partial. He should treat both parties equally and courteously and come to a decision in an objective courteously and come to a decision in an objective manner supported by evidence on record.manner supported by evidence on record.

At the opening Enquiry Officer must read out the At the opening Enquiry Officer must read out the charges to Accused and ask him/her whether he/she charges to Accused and ask him/her whether he/she understand the charge.understand the charge.

Modern EnquiryRepresentative (S. 24, Sub-section 4, BLA 2006)Representative (S. 24, Sub-section 4, BLA 2006)Previously in Traditional Enquiry there was no provision of Previously in Traditional Enquiry there was no provision of Representative. That’s why, it becomes the responsibility of Enquiry Representative. That’s why, it becomes the responsibility of Enquiry Officer to call the witness and cross-examine the witness which Officer to call the witness and cross-examine the witness which vitiates the role of impartial judge.vitiates the role of impartial judge.

In Modern Enquiry, management can nominate a representative to In Modern Enquiry, management can nominate a representative to help the Enquiry Officer/Committee. Similarly, accused can bring his help the Enquiry Officer/Committee. Similarly, accused can bring his own representative. Representative must be an employee of the own representative. Representative must be an employee of the organization. No external person or advocate is allowed to be the organization. No external person or advocate is allowed to be the representative.representative.

Case Law:Case Law:Where the presenting officer in the enquiry is a legally trained Where the presenting officer in the enquiry is a legally trained person then because of him the charge-sheeted employee also person then because of him the charge-sheeted employee also demanded to be represented by an Advocate in the enquiry demanded to be represented by an Advocate in the enquiry amounts to denial of reasonable opportunity of hearing and it amounts to denial of reasonable opportunity of hearing and it violates the Principle of Natural Justice.violates the Principle of Natural Justice.

- (1987) 2 SLR 209 (Cat.) - (1987) 2 SLR 209 (Cat.)

Modern Enquiry

Witness:Witness:Accused may bring many witness in favour of him. Accused may bring many witness in favour of him. Enquiry Officer is free to declare that he is going to Enquiry Officer is free to declare that he is going to accept 3/4 person as witness; not more than that.accept 3/4 person as witness; not more than that.

Statement of the witness must be recorded one by Statement of the witness must be recorded one by one.one.

It is wise to collect the list of witness at the beginning It is wise to collect the list of witness at the beginning of enquiry. It makes the process faster. Enquiry of enquiry. It makes the process faster. Enquiry Officer will first record the statement of witness and Officer will first record the statement of witness and then go for question & answer method.then go for question & answer method.

Note: Evidence Act is not applicable in the process of Note: Evidence Act is not applicable in the process of Domestic Enquiry. So legal knowledge is not required Domestic Enquiry. So legal knowledge is not required for conducting enquiry. for conducting enquiry.

Modern Enquiry

Ex-parte :Ex-parte :If accused remains absent after receiving the notice of If accused remains absent after receiving the notice of enquiry on due time, then Enquiry Officer can conduct ex-enquiry on due time, then Enquiry Officer can conduct ex-parte enquiry.parte enquiry.

At time of conducting ex-parte enquiry, Enquiry Officer At time of conducting ex-parte enquiry, Enquiry Officer should be more cautious. should be more cautious.

It is better to start ex-parte enquiry after keeping it It is better to start ex-parte enquiry after keeping it postponed for an hour or two postponed for an hour or two keeping notekeeping note. Then he . Then he should start it again with a note: it is ___am/pm. “As should start it again with a note: it is ___am/pm. “As accused remains absent, I have to start ex-parte enquiry”.accused remains absent, I have to start ex-parte enquiry”.

It is essential for Enquiry Officer to cross examine the It is essential for Enquiry Officer to cross examine the witness of petitioner or management representative and witness of petitioner or management representative and witness which is not a compulsory matter in normal case.witness which is not a compulsory matter in normal case.

Modern EnquiryPostponed of EnquiryPostponed of Enquiry It can be postponed having request from the accused.It can be postponed having request from the accused. If enquiry cannot be finished within one day.If enquiry cannot be finished within one day. Enquiry Officer must keep a written note on proceeding Enquiry Officer must keep a written note on proceeding mentioning the time, date and place to resume the process in mentioning the time, date and place to resume the process in next time.next time.

Mandatory Questions to ask accused at the closingMandatory Questions to ask accused at the closingAll witness gave statement infront of you?All witness gave statement infront of you?Have your receive ample opportunity to cross-examine them?Have your receive ample opportunity to cross-examine them?Have your got opportunity to produce your witness?Have your got opportunity to produce your witness?Have you got chance of self-defense independently and without Have you got chance of self-defense independently and without fear?fear?Do you have any thing to say?Do you have any thing to say?

Note: It is advised not to make hurry at the time of conducting enquiry. Delayed procedure may also vitiate the process. Duration should be reasonable.

8. Report of Enquiry Officer8. Report of Enquiry Officer

Enquiry report should be concise.Enquiry report should be concise. Findings with reason.Findings with reason. Just carry the comment, not any Just carry the comment, not any

recommendation for punishmentrecommendation for punishment

10. Awarding Punishment10. Awarding Punishment

Sec 23, Sub Sec. 2 Sec 23, Sub Sec. 2 (Bangladesh Labour Act 2006)(Bangladesh Labour Act 2006) DismissalDismissal

In lieu of dismissalIn lieu of dismissal

1.1. Discharge or SuspendDischarge or Suspend

2.2. Demotion in lower grade or payscale upto one Demotion in lower grade or payscale upto one yearyear

3.3. Ceasing increment and promotion upto one yearCeasing increment and promotion upto one year

4.4. FineFine

5.5. Engage in work without pay upto 7 days or Engage in work without pay upto 7 days or suspension for week without paysuspension for week without pay

6.6. Warning, Rebuking Warning, Rebuking

11. Delivery of Punishment Order 11. Delivery of Punishment Order

Sec 24, Sub Sec. 9 Sec 24, Sub Sec. 9 (Bangladesh Labour Act 2006)(Bangladesh Labour Act 2006) A copy to awarding punishment must be A copy to awarding punishment must be

given to the accused.given to the accused. If he refuses to receive, it must be send If he refuses to receive, it must be send

through registered mail to addresses found through registered mail to addresses found in personal record.in personal record.

Hanging in Notice Board.Hanging in Notice Board.

Question and AnswerQuestion and Answer

Thank YouThank You