Under Industrial law, there
is no form prescribed for a charge-sheet hence it becomes more important to
draft it more carefully with precision and clarify. There are large number of
cases wherein the departmental/domestic enquires have been vitiated for want of
valid charge-sheet since it forms the basis of the disciplinary proceedings.
The framing of a charge sheet being the first necessity for disciplinary
action. It must be precise, specific and must set out all the necessary
particulars. No labour enactment provides the formats or even essential
ingredients of a charge-sheet. Ordinarily, a charge sheet would indicate the
proposed punishment but there is not hard and fast rule about it.
What
is Charge-Sheet?
A charge-sheet is a written
statement of specific allegations addressed to tell the delinquent what he is
supposed or alleged to have done which is not acceptable as per the code of
conduct. The object being to give the employee the exact idea of the misconduct
committed by him so that he may submit his explanation in his defence.
In addition to the above,
the charge-sheet should also take care to mention the particulars of time,
place of occurrence and the manner in which the incident alleged to have taken
place so as to remove vagueness and make the charge definite by mentioning
these essential factors.
Note:- One
of the fundamental rules of natural justice is that the person affected should
have full and true disclosure of the facts sought to be used against him. He
must know the nature of the misconduct alleged against him and must be
acquainted with it in the first instance, it means that the charge-sheet is the
sine qua non of the domestic enquiry.
The heart of the matter is
that no disciplinary action can be initiated against the employee or a workman
unless he is first served with a charge sheet containing all the charges and
their essential particulars.
The basic requirement of
drafting a charge sheet is that it should give to the employee a fair idea of
the which he is to face. If a particular act is misconduct when committed on
the premises of the establishment, then the place is a part of the charge
itself. So while drafting a charge-sheet, the attempt should be to ensure that
the charge mentioned in the charge-sheet is specific as well as complete in all
essential constituents.
The principles of natural
justice require that the person charged should know precisely the nature of the
offence so that he may be able to explain what he has to say about it and prove
innocence in the matter. Vague allegations should be avoided while drafting a
charge-sheet.
Four
Important Essential Ingredients of a Charge-Sheet
A charge-sheet being root of
the disciplinary action, when vague, will vitiate the whole proceedings hence
the penalty imposed on delinquent will be quashed.
A delinquent employee must
be provided with the copies of the documents as relied upon by the Displinary
Authority and the burden, to show that non-supply of documents required by the
delinquent did not cause any prejudice to him, lies upon the Disciplinary
Authority.
The object of a
charge-sheet is that the delinquent must
know what he is charged with and have the adequate opportunity to meet the
charges and to defend himself by giving a proper explanation.
Failure to enclose the list
of witnesses along with the charge memo will violate the Conduct Regulations,
hence the entire disciplinary proceedings will be vitiated when it is so
stipulated.
Thirty
One Things to Remember While Drafting a Charge-Sheet
- The
charge-sheet must be specific and must set-out all the necessary
particulars. It will serve no purpose at all to presume that the employee
is fully informed of the charges because of any previous proceedings
against him.
- It
is imperative to hold a regular enquiry before terminating the services of
a workman. The enquiry itself must be preceded by serving on the workman
concerned, a regular charge-sheet devoid of any vagueness. Any warnings
that might have been given to a workman previously or form time to time or
that his attention had been drawn to any fault, lapses on his part
previously can , by no means, take the place of a regular enquiry.
- Vague
accusation, which the workman could not possibly follow, should not be
made in the charge-sheet.
- The
charge-sheet must accurately and precisely state whether the act of
commission or omission constituting misconduct is in violation of any
standing order or not. The test is whether the charge conveys to the
employee concerned, the exact nature of misconduct in a way that would
enable him to mete the charge.
- Where,
for instance, the charge is for unauthorized collection of subscription on
the work premises, the purpose for which such a subscription was collected
need not be stated. But the time, date and place i.e. when and where the
collection was made must be clearly mentioned.
- When under the standing orders or service
rules, an act such as absence without leave, late attendance, negligence
or disobedience is misconduct, when it is committed habitually then in
such a case the word, habitual forms an essential constituent of the
charge and must be expressly mentioned in the charge-sheet.
- Similarly,
if the standing orders or service rules provide that damage to property or
disobedience or insubordination must be willful then the willfulness is an
essential part of the charge and must be stated in the charge-sheet.
- If
theft or dishonesty is a misconduct only if it is committed in connection
with the employer’s business or property, then this must be so stated in
the charge-sheet in all its details.
- If
the charge-sheet is for arrogant conduct towards a superior, then it must
be so stated in the charge-sheet giving the occasion on which the
misconduct was committed and in respect of which particulars of the
superior.
- When
an employee is charged for habitually disobeying the instructions,
then each set of disobedience on his part must be separately mentioned in
details in the charge-sheet.
- The
time and date of the incident should be mentioned in the charge-sheet in
order to avoid vagueness and to enable the employee to make defence of
alibi.
- When
an employee is charged for using objectionable and offending language,
then the actual words used must be stated in the charge-sheet. In one case
the facts were that the dismissal of the workman, a car driver, was set
aside and reinstatement was awarded. The Industrial Tribunal observed the
exact words or at best a substantial reproduction of the same must be held
material in order to come to a conclusion as to whether the words used are
insulting or abusive or not, particularly in view of the fact that a much
greater laxity of language is permitted now a days.
- While
verbiage is to be avoided, use of any abbreviations such as etc. must be
equally shunned. Phrases such as an other document is vague and
ineffective and so, only reference should be made to a specific thing or a
particular person.
- It
is important to remember that the language of a charge-sheet , while being
precise, must not give the impression that the employer has taken the
question of the employee’s guilt as a foregone conclusion.
- The
delinquent employee be furnished with the documents and reports as
referred to in the charge-sheet otherwise his termination will be quashed.
- As
far as practicable, the language of a charge-sheet must be simple and be
one that is commonly understood or in common usage.
- When
the previous record of the employee is relied upon, then sufficient
particulars of the previous bad record should be specified in the charge-sheet.
- When
the charge to be leveled is that an employee altered the relevant entries
in the record with some ulterior motive then, in such a case, the workman
should be informed as to what precisely was the motive being attributed to
him for so doing because unless this is done, the charge-sheet would
suffer from the disqualification of vagueness.
- Mere
cataloguing for recital of charges without the requisite details, a
charge-sheet is open to question of its validly and is an exercise in
futility.
- Make
use of the term ‘about’ in relation to the date and time of a particular
incident of misconduct.
- A
valid charge-sheet must be in precise terms as there is no room for using
loose or vague term which fails to convey, in the correct sense, a charge
brought against an employee.
- In
the case of a theft, it is most necessary to mention full particulars of
the goods or articles stolen.
- Full
particulars, with regard to the date and time of the incident including
the place of occurrence , must be indicated.
- The
charge-sheet should also not be issued with a bias and closed mind as may
show drawing up of a positive conclusion against delinquent and requiring
him to dispel the same.
- Workman
charged for having instigated strike, subsequently executing document of
good behaviour, cannot be punished in absence of any evidence of his going
back on such assurance.
- Another
yet equally important point to be noted, while drawing up a charge-sheet
is that a workman charged for tampering and falsification of weighment
sheets cannot be punished for having found guilty of carelessness and
negligence.
- If
particulars of misconduct are not incorporated in the charge-sheet, then
it will not be considered charge-sheet and the entire enquiry will become
farce in which the principles of natural justice were not complied with. In
such case the dismissal order is liable to be quashed.
- It
is the duty of the employer to indicate to a delinquent employee served
with the charge-sheet not only the precise nature of charges, but also the
documents, if any, upon which the charges are based.
- In
the absence of Regulations, an employee cannot be charge-sheeted under
that.
- The
charge-sheet must be signed by the competent authority.
- A
charge-sheet , issued after long delay of misconduct , will vitiate the
enquiry.
General
Charge-Sheet
To…………
It is reported against you
that on …….(Date) at ……….(time) you…………..(mention clearly the act or acts misconduct alleged).
The acts, as alleged above
to have been committed by you, amount to misconduct, which, if proved, would
warrant serious disciplinary action against you.
Accordingly , you are hereby
required to show cause with in ……….days of the receipt hereof as to why you
should not be dismissed or otherwise punished.
If you fail to submit you
explanation as required, it will be presumed that you admit the charges and
have no explanantion to offer and the matter will be disposed of without any
further reference to you.
Since the charges, leveled against
you, are of grave and serious nature, you are hereby suspended pending further
proceedings and final orders in the matter.
The receipt of this letter
should be acknowledged.
Authorised
Signatory
Regards
Deepak Miglani Advocate
President Legal Point Foundation
Phone No:-
09958086337(Delhi);09215514435(Haryana)
For query:- legalbuddy@gmail.com
Our main aim is to remove legal ignorance from
our country.
