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Sunday, 28 February 2016

Pointers While Conducting Domestic Enquiries Against Chargesheeted Employees


1) Check up your Order of Appointment as Enquiry Officer.

2) Check up that the following documents have been received along with your Order of Appointment:-

a) A Copy of the Articles of Charge and the Statement of imputations of misconduct or misbehaviour.

b) A Copy of the written statement of defence, if any, submitted by Charged Official.

c) A list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained.

d) Copies of the statement of witnesses, (if any) recorded in the course of preliminary enquiry / investigation.

e) Evidence proving the service of the charge sheet on the Charged Official.

f) A copy of the order appointing the Presenting Officer.

3) Send Notices of Preliminary hearing in the prescribed form.

4) See that the notices are served in person on the Charged Official or communicated to him and duly acknowledged.

5) At the preliminary hearing, apprise the Charged Official and the Presenting Officer of the procedure of Enquiry.

6) Find out if the Charged Official wishes to admit any of the charges in the Preliminary hearing.

7) Ask the CO whether he requires any Defence Assistant to be nominated.

8) Ask the CO to inspect the listed documents and accept the documents for genuineness.

9) Decide relevance of defence documents and witnesses quickly.

10) Record reasons in the Daily order Sheet for disallowing the defence documents / witnesses.

11) Send requisition for the additional documents to the authority to whom the documents belong.

12) If necessary, have a second preliminary hearing for the purpose of reducing the number of witnesses and documents in consultation with the Presenting Officer and the CO. This could cut out a lot of delay at a later stage.

13) Open a Daily Order Sheet and record the daily transaction of business therein.

14) Send notices to witnesses in the prescribed form. In the case of witnesses who are public servants, requests should be sent to the Head of the Department / Office to ensure the attendance of the witnesses concerned.

15) Notice to private witnesses may be sent direct or through the Presenting Officer / Charged Official.

16) Hold regular hearing on day-to-day basis without avoidable loss of time.

17) Send intimation to the controlling authority in the prescribed form about the officer selected by the Charged Official as his Assisting Officer.

18) Obtain Certificate from the defence assistant that he is not having more than two cases on one hand in which he is rendering defence assistance.

19) Reject all requests for adjournments etc. which appear to be meant to obstruct or delay the proceedings, but always record reasons for such rejections, in the Daily Order Sheet.

20) Before the regular hearing commences, obtain Certificate of Inspection of documents from the Charged Official.

21) Record the questions disallowed by you during the Cross-Examination.

22) Depositions of the Witness(es) should be recorded during the Enquiry and the signatures obtained thereon.

23) After the case of the disciplinary authority is closed, you should require the Charged Official to state his defence orally or in writing, as he may prefer. If the defence is made orally, record it and ask the charged official to sign the record. Give a copy of the statement of defence to the Presenting Officer.

24) IF the Charged Official has not offered himself as a witness, you must question him generally on the circumstances appearing against him at the end of the prosecution case.

25) The deposition of each witness should be recorded on a separate sheet under your dictation and you should record a certificate at the end of each deposition as follows:-

"Read over to the Witness in presence of the Charged Official and admitted correct / objection of witness recorded".

26) Reject any request for permission to introduce new evidence or recall any witness merely to fill up any gap in the evidence.

27) Allow copy of the written brief of the Presenting Officer to the charged employee within 07 days.

28) Submit you report of Enquiry to the Disciplinary Authority along with all original records within 6 months from the date of Appointment of Enquiry Officer / Presenting Officer.


1) Proceed with the enquiry if you have any personal interest whatsoever in it. If you yourself feel that you have a bias either way, return the enquiry to the Disciplinary Authority explaining your position.

2) Summon witnesses merely to prove formal documents whose genuineness and authenticity are admitted by the Charged Official.

3) Give publicity since Departmental Proceedings are in the nature of a domestic enquiry.

4) Continue with the proceedings if a representation of the Charged Official alleging bias against the Enquiry Officer is pending consideration.

5) Postpone preliminary hearing simply because the Charged Official could not arrange defence assistance.

6) Call for the documents or examine a witness to decide the question of their relevance.

7) Requisition the additional documents from the Disciplinary Authority. You have to write direct to the authority in whose custody or possession these documents lie.

8) Throw the responsibility of calling defence witnesses on the Charged Official.

9) Allow any request from the Charged Official for supply of copies of voluminous documents (he is, however, free to take extracts).

10) Summon the following documents:-

a) Report of preliminary enquiry / investigation.

b) File dealing with the disciplinary case against the Charged Official.

11) Consult others behind the back of the Charged Official.

12) Look into unspecified record.

13) Allow the Presenting Officer to insist that the witnesses should be examined in the same order in which they have been listed in the charge sheet.

14) Allow leading questions, except in cross-examination. Put leading questions to the witnesses, your self.

15) Allow adjournments on flimsy grounds.

16) Allow "New Evidence" to fill up gaps. It should be allowed if there is an inherent lacuna in the evidence already recorded.

17) Allow the Presenting Officer to introduce any new point during the examination of a witness unless he has convinced you of its necessity and taken prior permission.

18) Put any question yourself to a witness or the Charged Official from your personal knowledge.

19) Allow the conduct of the witness to be the subject matter of examination or cross-examination.

20) Admit evidence recorded in an earlier enquiry in the subsequent enquiry (in exceptional cases, however, for reasons to be recorded, the evidence tendered in earlier proceedings may be taken on record).

21) Allow defence assistance when the charged employee is appearing as a defence witness or when he is answering the mandatory questions, towards the close of enquiry.

22) Examine a co-accused in a common proceedings as a witness against the other co-accused, unless he opts to examine himself.

23) Allow cross-examination of a defence witness by the other charged officials in a joint trial. Only presenting officer can cross-examine a defence witness.

24) Go in for local inspection of the site of the incident except when accompanied by the charged officials and the presenting officer.

25) Supply copy of the written brief of the Charged Official to the Presenting Officer.

26) Be bound by the rigid limitations regarding the admissibility of evidence and the degree of proof applicable to criminal proceedings.

27) Import anything extraneous into your report but confine yourself to the facts in issue, as brought out in evidence.

28) Recommend the penalty to be imposed in your Enquiry Report.

Thursday, 18 February 2016

The Newer, Revised EPF Scheme

The Central Government has issued several notifications that are reflected in the EPF Scheme. A summarised version of the notifications are:

1. Amendment To Para 26A Etc: Most of the amendment is concerned with Withdrawal. While a member was earlier allowed withdrawal of  upto 90 percent of total accumulations one year before superannuation or 54 years, the age is now relaxed to 57 years.
The insertion of a new paragraph 68NNNN states that if an employee ceases working, he can withdraw 90 percent of his or her contribution with interest, provided he or she is not employed for 2 continuous months. However, this 2 month period is not extended to women who cease employment for marriage, pregnancy or childbirth.
Paragraph 69 mentions that the full amount can be withdrawn from the member's account on retirement, on reaching 55 years of age. This figure has now been replaced by 58 years of age. The change in age criteria is significant since no member would withdraw for fear of losing out on the Employer's contribution.

2. Applying To Banks:  This notification applies to banks that employ 20 or more, if they were not already covered under Contributory Provident Fund or a similar scheme

3. Introducing Incentive Refund Scheme: This Modified Scheme Encourages Employers To Comply With Seeding All Details Of Employees By Providing Form 11, Aadhar, Bank Details, UAN Activation Etc. This Scheme, Introduced For The Calendar Year 2016, Refunds 10% Or 5% Of Admn. Charges If The Employer Attains, At The End Of Every Quarter, A Certain % Of Seeding All Details Of Employees Is Maintained.

4. ICICI Policy In Lieu Of EDLI: The ICICI Pru-Group Term Plus Policy Has Been Approved By The PF As A Policy If EDLI Exemption Is Sought. This Is In Addition To Other Insurance Policies Issued By LIC, Kotak Etc

Thursday, 11 February 2016

Modelling Business Trends For the Future

In a move that looks to revolutionise not just the experience of shopping but the climate of retail in the country, the labour ministry is all set to roll out the new Model Shops and Establishment Act across all states and Union Territories. Citing an array of reasons that range from inconsistency in the maintenance and management of records, registration and inspection, to the inadequacy of equal employment opportunity for women, the labour ministry is taking trade unions head-on. Anticipating that the Act will make it to Cabinet in a little over a week, sources in the Labour Ministry further added that the liberty of deciding whether or not to apply the Act is left entirely to the discretion of the state.
Enabling commercial establishments to stay open for business round the clock and on all days through the year, the move has actually widened the scope of business for everyone. With the preference for online shopping showing a steady increase, malls and retail outlets now have the opportunity of being available to customers more readily.
The move is clearly a well planned and structured one. Targeted at improving prospects at various levels, the new Act has several initiatives in place. To begin with, registration has been simplified greatly with a unified online process. Prerequisites for companies that meet eligibility are clearly defined, as are the various norms that are required to be adhered to. The primary intent of the Act is to facilitate the creation of more jobs, and to make transacting business easier and more transparent.
The Act, however, currently stands as a proposal that awaits approval of the Cabinet. It is only pursuant to this that it may be circulated among the State Governments for amendment and modification to the existing Shops and Establishments Act. The proposals covered under the Model Shops and Establishments Act are as follows:
1. A Model Shops and Establishment Act to be formulated by the Union Government, on the pattern of which states will modify their individual Act.
2. Covers only establishments employing ten or more workers except manufacturing units
3. Freedom to operate 365 days in a year.
4. Freedom for opening/closing time of establishment
5. Women to be permitted during night shift.
6. No discrimination against women in the matter of recruitment, training, transfer or promotions
7. Online one common Registration through a simplified procedure.
8. Power of Government to make rules regarding adequate measures to be taken by the employer for the safety and health of workers
9. Clean and safe drinking water
10. Lavatory, Creche, First Aid and Canteen by group of establishments, in case, it is not possible due to constraint in space or otherwise by individual establishment
11.Twelve days casual cum sick leave.
12. One day earned leave for every twenty days of work performed (can be accommodated upto 45 days)
13.Five paid holidays for festivals in addition to three national holidays.
14. Exemption of highly skilled workers (for example workers employed in I.T., Bio-Technology and R&D division) from daily working hours of 9 hrs and weekly working hrs of 48 hrs subject to maximum 125 over-time hrs in a quarter.
15. Facilitators may be appointed by the Government with the following duties –
(i) Supply information and advice to employers and workers concerning complying with the provisions of the Act.
(ii) inspect the establishment based on inspection scheme framed by the Government
16. Offences
1. Opportunity for compliance of irregularities
2. Graded punishment
3. lrregularities other than safety related are compoundable

For the general public what this means is that there are more reasons than just the late night show at the cinema or drinks at the pub to enjoy the nocturnal life. The good life looks to get only better.

‘Factoring’ New Changes – Maharashtra Amendments to the Factories Act

The most recent changes brought to the Factories Act by the Maharashtra Government have been instrumental in allowing an improved platform for workers, and also promoting a better work culture in existing establishments.

The Amendments serve as a great tool in being able to offer equal opportunities for male and female employees alike, and also in extending to them greater benefits at work.

The following points summarize the amendments made to the Principal Act by the Maharashtra Government:

·         The amendment relaxes the duration of overtime work permitted for an adult male employee within a quarter from 75 to 115 hours.
·         Woman now have the opportunity to work during the shift between 7pm and 6am, provided adequate safety and security measures are extended to them.
·         While an employee needed to have completed working for 240 days to meet the eligibility of availing leave with wages in the subsequent year, the Amendment now allows access for the same to be extended to any employee who has completed 90 days.
·         An additional Section appends section 92 – which covers penalties for offenses. Section 92A now includes the compounding of offenses. The section also has an accompanying Schedule (The Fourth Schedule) which is given below.

(See section 92A)
List of Compoundable Offences
Section and rules framed
thereunder and orders issued
Nature of offence
Section 11 - Cleanliness.
Not maintaining cleanliness as per the provisions.
Section 18 - Drinking water.
Not providing and maintaining arrangements for drinking water as per the provisions.
Section 19 - Latrines and urinals.
Not providing latrine and urinal accommodation    as per the provisions.
Section 20 - Spittoons.
(a) Not providing the spittoons as per the provisions.
(b) Spitting in contravention of sub-section (3) of section 20.
Section 42 - Washing facilities.
Not providing and maintaining washing facilities as per the provisions.
Section 43 – Facilities for storing and drying of wet clothing.
Not providing facilities as per the provisions
Section 44 - Facilities for sitting.
Not providing facilities as per the provisions.
Sub-sections (1), (2) and (3) section 45 - First-aid appliances.
Not providing and maintaining first-aid of appliances as per the provisions.
Section 46 - Canteens.
Not providing and maintaining canteen as per the provisions.
Section 47 - Shelters, rest rooms and lunch rooms
Not providing and maintaining shelters, rooms and lunch rooms as per the provisions.
Section 48 - Creches
Not providing and maintaining creches as per the provisions.
Section 50 - Power to make rules to supplement Chapter V.
Not complying with the rules framed under section 50.
Sub-section (2) of section. 53-Compensatory Holidays.
Not displaying the notice and not maintaining the register for compensatory holiday
Sub-section (5) of section 59 - Extra wages for overtime.
Not maintaining the prescribed registers.
Section 60 - Restriction on double employment.
Allowing a worker a double employment on any day.
Section 61 - Notice of periods of work for adults
Not complying with the provisions.
Section 62 - Register of adult workers.
Not maintaining register as per the provisions.
Section 63 - Hours of work to correspond with notice under section 61.
Not complying with the provisions.
Section 64 - Power to make exempting rules.
Not complying with the rules framed under section 64.
Section 65 - Power to make exempting orders.
Not complying with the orders issued under section 65.
Section 79 - Annual leave with wages.
Not complying with the provisions.
Section 80 - Wages during leave period.
Not complying with the provisions.
Section 81 - Payment in advance in certain cases.
Not complying with the provisions.
Section 82 - Mode of recovery of unpaid wages.
Not complying with the provisions.
Section 83 - Power to make rules.
Not maintaining registers as per rules and not complying with the provisions.
Section 84 - Power to exempt factories.
Not complying with the conditions specified in the exempting order.
. Section 93 - Liability of owner of premises in certain circumstances.
Not complying with the provisions contained in sub-section (1) and clauses  (i) and (vi) of sub-section (3).
Section 97 - Offences by workers.
Not complying with the provisions.
Section 108-Display of notices.
Not complying with the provisions.
Section 110-Returns.
Not complying with the provisions.
Section 111 - Obligation of workers.
Not complying with the provisions.
Section 111A - Right of workers, etc.
Denial of rights of workers
Section 114 - No charge for facilities and conveniences.
Demanding charge from worker for providing any facility under the Act.”.