Post 4 : Domestic Inquiry Record, Proceedings, Roles of witness, Prosecuting Officer

Domestic Inquiry – Record of Proceedings.  

The Industrial Court in making its comments on the records of proceeding made reference to Malhotra’s “Law of Industrial Disputes” Second Edition, Volume II, para 2 stating the following: 

“The whole object of holding a Domestic Inquiry against a delinquent workman is to enable the Inquiry Officer to decide upon the merits of the dispute before him and such Inquiries must conform to the basic requirements of natural justice and one of the essential requisites of a proceeding of this character is that when the inquiry is over the officer must consider the evidence and record his conclusions and reasons therefore.

A mere form of inquiry would not satisfy the requirements of industrial law and protect the disciplinary action taken by the employer from challenge. It would therefore, be wholly misconceived to think that once evidence is recorded, all that the employer is expected to do is to pass an order for dismissal which impliedly indicates that the employer accepted the view that the charges framed against the employee have been proved.”

 In the words of Gajendragadkar J., “if industrial adjudication attaches importance to the domestic inquiries and the conclusion reached at the end of such inquiries that necessarily postulates that the inquiry would be followed by a statement contain in the conclusion of the Inquiry Officer…..” On page 674 of the same book, 3rd line from the top reads ……. “The failure of the Inquiry Officer to record his findings and conclusions at the end of the inquiry would, therefore, constitute a serious infirmity in the inquiry itself which would render the inquiry invalid and the Tribunal would be justified to ignore the inquiry.” REF; AWARD NO 19/77 9FRASER & NEAVE (M) SDN. BHD. VS NATIONAL UNION OF DRINK MANUFACTURING INDUSTRIAL WORKERS).

 The Panel of Inquiry is therefore expected to deliberate on the facts and evidence adduced during the inquiry in order to submit a concise report to the appropriate authority in the Company to facilitate decision making. As a guide for the panel in preparing the report of inquiry the following factors should be observed: 

1. The report should be based on the documentary and oral evidence produced before the panel.
2. There should not be any assumption on any issues which are not presented during the inquiry.
3. Any points of agreements and disagreements among the panel members should be recorded and the reasons for such agreements or disagreement assigned.
4. The report should be clear and precise.

The report of the domestic inquiry consists of the following: 

1. The Charge (es).
2. The facts of the case.
3. The concise summary of the company’s case.
4. The concise summary of the employee’s case.
5. Points for determination in the inquiry. This must be clear and specific.
6. Mitigating factors, if any.
7. The findings by the panel.
8. Recommendation of the panel.

Domestic Inquiry Proceedings.  

1. Panel sits at the appointed time and venue to commence the inquiry.
2. The Chairman introduces the panel members to the defendant. Challenges or objections if any to be recorded.
3. Confirmation of the witnesses by parties, choice of common language as well as the representation for the defendant.
4. The Chairman reads and explains the charges to the defendant.
5. Records the plea of the defendant.
6. If the defendant pleads guilty, the Chairman will repeat the charges and explain the consequences of the offence and confirm the plea again. Both parties will be required to submit their cases to reinforce or to mitigate.
7. If the defendant pleads not guilty, the process continues.
8. Prosecuting Officer presents his case and witnesses. Witnesses will be asked to relate their knowledge of the  case to the panel through questioning process by Prosecuting Officer. The panel members may intervene to clarify.
9. Upon completion of the questioning, the defendant is given the opportunity to cross-examine the witness.
10. The Prosecuting Officer will then be given the opportunity to re-examine his witness.
11. This process is repeated for every witness that is brought in front of the panel.
12. The witnesses of the defendant will go through the same process where the Defendant will conduct his questioning first, followed by the Prosecuting Officer in his cross-examination.
13. After all the witnesses and evidence has been put forward to the panel, both parties will be asked to make their submission of the case. All the facts and evidence of the case will be summarised at this step.
14. The Chairman will then close the inquiry and release the parties.
15. The panel will deliberate on the case and prepare its findings and recommendations for submission to the appropriate authority as required by the notice of the inquiry.
16. The appropriate authority will make the final decision based on the findings and recommendations of the panel. The defendant will then be informed of the decision in writing.

Domestic Inquiry – The Role of the Witnesses.  The role for both the employer and the alleged employee would testify during the inquiry by answering the questions as directed to them. They should state what they personally saw, or know about the case. They should not fabricate evidence for whatever reason. Their role is to tell the truth. 

Domestic Inquiry – The Role of the Alleged Employee  

• To be present in front of the Panel of Inquiry to defend himself.
• If he is represented by his union official, to allow him to question the witnesses.
• If he is not represented, to question the prosecution witnesses during cross-examination.
• To produce his witnesses in front of the Panel of Inquiry to defend himself.
• To make his submission at the close of the inquiry as his final defence.

It is to be noted that, should the alleged employee be absent or fail to attend the domestic Inquiry after being duly informed, without any reasonable excuse, the inquiry may proceed without him. Such an inquiry is allowable and referred to as ex-parte inquiry.

Domestic Inquiry – The Role of the Prosecuting Officer  

• To submit his case to the Chairman.
• To produce his witnesses in front of the panel and submit evidence therefrom.
• To summit exhibits for the case.
• To allow his witnesses to be cross-examined by the alleged employee or his union official.
• To cross-examine witnesses produced by the alleged employee.
• To make his submission at the close of the inquiry as allowed by the Chairman.

 The union official representing the alleged employee will assume the role similar to that of the Prosecuting Officer, except that his role is to represent the alleged employee in making his defence.

Ref:

http://majorteoh.wordpress.com/category/domestic-inquiry-roles/