HOW TO PROVE OR DISPROVE THE ALLEGATIONS OF MISCONDUCT IN DOMESTIC ENQUIRY

Dr. G.P. Naik
Director, Talent Avenues

When an employee (or worker) of an organization (or company) is alleged to have committed a misconduct (or mistake) the employer (or manager) has to hold an enquiry, in accordance with the principles of natural justice and as per the provisions of the standing orders (or service rules) to find out if the allegations are true and to determine; what punishment will meet the ends of justice, if the allegations are fully or partially proved in the enquiry.  

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The allegations of misconduct are generally proved in three ways namely (a) voluntary admission, (b) production of documents or material objects, and (c) examination and cross examination of witnesses.  While voluntary admission is the sole prerogative of the charge sheeted employee (CSE), the right for production of documents or material objects, and the right for examination and cross examination of witnesses is available to both (management and the worker) the parties. 

VOLUNTARY ADMISSION OF MISCONDUCT.
Sometimes the charge sheeted employee (CSE), while responding to a show cause notice or charge sheet or during the course of the enquiry, may admit all the allegations made against him. The basic rules for voluntary admission are as under.

RULES FOR VOLUNTARY ADMISSION.

1. As for as possible such admission should be in writing.  
2. Such admission should be unconditional. For example CSE cannot say “I admit all the mistakes if employer agrees to forgive me” 
3. If CSE partially admits the allegations, the enquiry has to be held to prove or disprove the remaining allegations. 
4. If the allegations are serious in nature warranting dismissal or termination from service, the employer is duty bound to prove the allegations by conducting the domestic enquiry, even if CSE unconditionally admits his misconduct.  

 
PRODUCTION OF DOCUMENTS OR MATERIAL OBJECTS.
The allegations of misconduct are proved or disproved based on the production of relevant documents (like letters, vouchers, emails etc), and material objects (like video of the incident, or the cash or material stolen or any other objects like a bag, or a knife or a key used in committing the alleged misconduct). Both the parties can submit the documents or material objects.  

Example: In a case of Unauthorised Absence of an employee from service, the management may produce the attendance register to prove that the employee was unauthorizedly absenting from duty. Employee may produce his salary slips to prove that he was on sanctioned leave and not on unauthorised absence and hence has received full salary for the impugned period.

RULES FOR PRODUCTION OF MATERIAL OBJECTS OR DOCUMENTS.

1. Retain the original with yourself and produce the photocopy of the documents.
2. Photo copies of the documents have to be attested (signed) by the party submitting them.
3. They have to be produced in three sets- one for the enquiry officer (EO), second copy is for the opposite party and the third copy is for the submitting party for his record on which the EO will acknowledge with his signature and date having received it. 
4. Originals have to be produced for inspection if the opposite party insists or suspects the authenticity of the photo copies. Originals can be returned back after the inspection.
5. If a particular document is with a statutory authority (say a Court of Law or Police Station) and it cannot be produced in the domestic enquiry, a copy attested by the said court of law or police station may be submitted. 
6. If a material object cannot be copied (say cash stolen or other objects damaged) the said objects may be produced in the enquiry for inspection by all the parties. 
7. Parties submitting the documents and objects may explain in the enquiry; how and what points of the allegations, they are trying to prove by submitting them. 
8. The opposite party will have the right and opportunity to ask questions or seek clarifications or ascertain the authenticity or challenge the relevance or reliance of such documents or objects.
9. All such documents or objects have to be submitted to the enquiry in the presence of the opposite party.
10. Opposite party will have the right to get copies of such documents/ objects from the party submitting them. 
11. If the document/ object needed by one party (say worker) for production in his defence, is in the custody of opposite party (say the management) he may make a request through the enquiry officer for providing the same and enquiry officer will pass appropriate orders based on merits.
12. Such documents/ objects have to be marked by the E.O. Marking means, the E.O. will give unique serial numbers to  them, sign on them with date and record them in the proceedings of the enquiry. 
    For example say the five documents submitted by the management will be marked as Ex.M-1(Exhibit from Management side) Ex.M-2, Ex.M-3, Ex.M-4, and Ex.M-5. The documents from worker side may be marked as Ex.W- or Ex.D- (Exhibit from worker or defence document). 
13. Opposite party will have the right to oppose the admission of any document for marking.
14. Marked documents have to be identified either by the CSE or by at least one witness from any side. Identifying person states that the document/ object is true and its contents like date, signature, facts, circumstances etc., are correct, and EO gets it recorded in the proceedings. 

  
CHIEF EXAMINATION AND CROSS EXAMINATION OF WITNESSES.
Generally parties in the enquiry believe that allegations of misconduct can be proved by (a) producing and examining the witnesses on their behalf and by (b) cross examining the witnesses produced by the opposite parties. Let us understand the meaning of examination and cross examination of witnesses.

Examination or chief examination: If a party (a) produces witnesses on his behalf (people who are said to be familiar with the incident of misconduct, say those who have seen, heard or connected with the alleged incident of misconduct), (b) requests him to reveal in the enquiry, what he knows or does not know about the incident of alleged misconduct and (c) the witness reveals information in the enquiry either by word of mouth or by body language or by writing, it is called examination in chief or chief examination. The basic rules of chief examination are as under.

RULES FOR CHIEF EXAMINATION

1. The witness has to personally appear in the enquiry to give his chief examination. In exceptional cases like witness being bedridden or living in a foreign country, the examination can be conducted through video conferencing. 
2. Chief examination has to be conducted in the presence of the opposite party.
3. Chief examination can be conducted orally by asking the witness to tell what he knows or the witness may chose to give it in writing about what he knows. If it is in writing, a copy has to be given to the opposite party.
4. Opposite party will have the right to cross examine all or any of the witnesses produced for chief examination.
5. The goals of a witness has to be to, protect the interest of the party who produced him for chief examination.

ADDITIONAL CHIEF EXAMINATION.
In case of any contradiction or confusion after the cross examination, about what the witness has said in the chief examination, the party can request permission from the enquiry officer to allow additional chief examination. Enquiry officer will pass appropriate orders based on merit after hearing all the parties in the matter. Additional chief examination is in addition to what has already been recorded in the initial chief examination.
 
CROSS EXAMINATION. 
Asking questions by one party to witnesses produced for chief examination by the opposite party is called cross examination. For example the charge sheeted employee asking questions to witnesses produced by the management. The purpose of the cross examination is to find out if the contents of chief examination is true, if so how far it is true. It is the right of the party to cross examine the witnesses produced by the other party. The basic rules of cross examination are as under.

RULES FOR CROSS EXAMINATION 

1. Cross examination has to be conducted only after the chief examination.
2. No one can be cross examined without being subjected to chief examination first. 
3. Cross examination is generally conducted orally by word of mouth. If a witness is unable to speak due to medical or physical conditions, it can be conducted by body language or by written question- answers.  
4. Cross examination has to be conducted in the enquiry in the presence of the other party.
5. Cross examination is a choice/ right of opposite party and not compulsion.
6. If cross examination is not conducted, the enquiry officer will consider the entire contents of chief examination as fully true.
7. If a witness who has given chief examination, does not appear for cross examination for whatever reasons, his entire chief examination becomes automatically invalid. Exceptions can be made in unusual circumstances, like dying declaration of a worker assaulted by another worker, which is video graphed or properly recorded in the presence of at least two witnesses.      
8. The goals of cross examination should be to filter out the truth and lies from the chief examination.
9. Cross examination should be confined to the subject matter of chief examination. 
10. Cross examination should not be allowed to be used for digging out new information.
11. Questions related to any document/ material object can be asked only if the witness identifies them (or say questions related to any document/ object can be asked only to those witnesses who identify them).

ADDITIONAL CROSS EXAMINATION.
If any new material facts have emerged in the case after the cross examination and the party considers it necessary in the interest of justice to conduct additional cross examination for any of the witnesses, he may make a request to enquiry officer for the same. Enquiry officer will pass appropriate orders based on merit after hearing all the parties in the matter. Additional cross examination is in addition to what has already been recorded in the initial cross examination.