PRELIMINARY HEARING IN DOMESTIC ENQUIRY

Prof.G.P.Naik, Ph.D
Principal Consultant at TalentAvenues 

Preliminary hearing (PH) is generally, the first sitting or first day of domestic enquiry (DE). PH need not have to be confused with preliminary enquiry or investigation. To conduct it during the first sitting itself, two conditions should have been fulfilled namely; (a) both the parties namely Management Representative (MR) and Charge Sheeted Employee (CSE) should be present and (b) Charge sheet and notice of enquiry must have been sent to CSE by the management by then. If these conditions are not fulfilled then; PH has to be held during second or subsequent sitting when the conditions are met. PH is meant to plan for the regular hearing and not to conduct chief examination or cross examination.

For more details

PH is part of domestic enquiry and is compulsory, before starting the regular hearing. It will be held only after the charge sheet and notice of enquiry is issued by disciplinary authority (DA) to the charge sheeted employee (CSE). It is initiated, moderated and concluded by the Enquiry Officer (EO). Hence, EO after receiving from DA, his order of appointment as enquiry officer, will send the notice of PH in writing to (a) MR and (CSE).

If CSE fails to appear for PH by remaining incommunicado (without sending any oral or written communication), on two or three dates, the EO may instruct the MR to publish a notice of enquiry in local newspaper. If CSE remains absent even thereafter, the EO shall continue (not conclude) the enquiry ex-parte (continuation in the absence of other party).    

Objectives of PH

1. To introduce or get to know all the parties in the enquiry.
2. To understand the enquiry procedure.
3. To plan for the future course of (date, time, place, duration etc., of regular hearing) enquiry.
4. To find out by the EO, if due process of enquiry has been followed by DA in issuing the charge sheet, issuing the notice of enquiry, granting permission to CSE and CE to attend the enquiry or in paying the allowances if any to CSE for this purpose (like travelling expenses) etc.
5. To educate all the parties about their rights and obligations in the enquiry.
6. To develop a plan of action for the smooth conduct of domestic enquiry, in the presence of all the parties.
7. To submit by both the parties, their authorization letters to represent in the enquiry.
8. To submit by both the parties the (a) names of their witnesses and (b) copies of documents in support of their case.
9. To make representation to EO seeking (a) help, (b) clarification, (c) resignation of EO by alleging conflict of interest and lack of faith etc.
10. To seek conclusion of the enquiry by CSE, if he wishes to admit unconditionally, all the allegations and charges made by the management in the charge sheet.   

Activities during the PH
1) Both the parties (MR and CSE) and EO along with a typist will arrive for PH at the predetermined place as per the notified date and time.

2) They will sit in the enquiry room around a square table or round table, in such a way that they can see each other.

3) Typist will set up/ start his laptop / desktop to type the proceedings instantly.

4) EO will introduce himself to all the parties present and state that he was appointed as EO by DA’s order dated... .

5) CSE and MR also introduce themselves.

6) MR submits a copy of his appointment/ authorization letter issued by DA to represent the case on behalf of the management.

7) CSE submits a copy of his authorisation letter, authorising his co-employee (CE) (say Mr. A) to assist him in the enquiry.

8) MR may oppose the proposed CE if it is in violation of standing order or service rules.

9) EO will reject or uphold such opposition in accordance with norms based on merits.

10) EO will ask the CSE (a) whether and when he has received the charge sheet (b) whether he understood the contents/charges mentioned therein and (c) whether he accepts the allegations and charges.

11) CSE will say (a) not received or (b) received but did not understand its content or (c) received and understood its content.  CSE may (a) reject all the allegations and charges as false or (b) may accept some of them and reject the rest or (c) accept all of them. 

12) If CSE has not received the charge sheet a copy can be provided instantly, if he has not understood it, EO can explain it, if he admits the allegations and charges unconditionally, the enquiry can be concluded by mentioning at the end of the proceedings of PH that  “The enquiry is concluded, since CSE has unconditionally admitted all the allegations and charges” (In such a case the enquiry gets over here and the matter goes back to DA for proposing and imposing the punishment to CSE. Otherwise regular hearing will start for chief examination, cross examination and final submission by the parties as under. Conditional admission is not to be accepted. If CSE has accepted few allegations and charges, then leading the evidence and documents should be limited only to the allegations and charges not accepted).

13) EO will explain the procedure of enquiry to both the parties as under.

1. CSE has the right to take the assistance of a co-employee (CE) in accordance with the provisions of company rules/ standing orders. The time spent by him in the enquiry will be treated as on duty leave.
2. If the enquiry is conducted outside the workplace the CSE and CE will be paid reasonable travelling expenses by the company.
3. Both the parties have the right to produce relevant documents and material objects in support of their case.
4. The copies of documents/ objects produced by one party will be made available to the opposite party.
5. Both the parties have the right to produce witnesses in support of their case and conduct chief examination.
6. Witnesses from management side have to be produced first and only after concluding their cross examination, the witnesses from employee side have to be produced.
7. Witnesses should personally appear in the enquiry for chief examination.
8. Chief examination can be given orally or in writing.
9. Both the parties have the right to conduct cross examination of witnesses produced by the opposite party.
10. Chief examination and cross examination of witnesses will be conducted in the presence of both the parties.  
11. Both the parties should attend the enquiry as per the date, time and venue determined by the EO, failing which the enquiry can be held exparte.
12. Both the parties have the right to make final submission after the completion of cross examination from both the sides.
13. Parties have the right to make requests or representation to EO from time to time and EO will pass appropriate orders based on merits.
14. Both the parties should desist from quarrelling, threatening, violence and other undesirable behaviours during the enquiry, failing which the enquiry will be conducted ex-parte by debarring such parties.  
15. The proceedings of every hearing will be typed, corrected, printed, should be signed by all the parties and copies given to all the parties.
16. After conclusion of the enquiry, EO will submit his report of findings to DA, along with the records of enquiry. 

 
14) EO will first ask the MR (management side) to produce the witnesses and documents to prove the allegations and charges against CSE. (As per enquiry norms only thereafter the CSE shall lead evidence to defend himself).

15) MR will produce immediately or agree to do so in the next hearing.

16) EO asks MR to give copies of submitted documents or material objects to CSE. (Copies of documents or material objects submitted by one party has to be given to other party).

17) EO will hear the grievances, requests or complaints if any of the parties and pass necessary orders.

18) EO may discuss the suitable date, time, or place for regular hearing. For example certain dates may not be convenient to some witnesses, CSE is physically handicapped and the venue of the enquiry which is in third floor does not have elevator, one of the key witness is bedridden for medical reasons and cannot travel to the venue of the enquiry.

Challenges and solutions in PH
PH need not be a smooth affair in every case. It can pose several challenges, some of which are described below along with possible solution.

1. CSE has not received the charge sheet. Give a copy of charge sheet or ask MR to give a copy.
2. CSE has not understood the charge sheet, Explain the contents of the charge sheet.
3. Charge sheet is in English and CSE wants a copy in the language understood by him. Ask MR to provide a translated version in the next hearing, or explain in local language, unless the MR proves that CSE knows / understands English
4. CE has not come or not identified by CSE. Inform CSE that it is his/ her right to have a CE.
5. 5) CSE or CE is physically handicapped/ sick and the Venue of the enquiry does not have elevator. Ask the MR to inform the DA for changing the venue.
6. Enquiry is conducted outside the workplace of CSE and company is not paying the travelling allowance to CSE and CE. Ask the MR to arrange reasonable travelling allowance to CSE and CE.
7. Enquiry is conducted after the working hours and CSE and CE refuses to attend. Fix the enquiry during working hours, or order for payment of overtime allowance.
8. CSE admits all the allegations and charges. Record the same in the proceedings of preliminary hearing, close the enquiry and submit the report of findings by stating that CSE has unconditionally admitted all the allegations and charges. 
9. CSE admits some charges and allegations and denies the rest. Record it and ask the MR to produce evidence / documents only in respect of the denied allegations / charges.
10. CSE or CE absents. Adjourn, and issue the notice for next hearing. If absenteeism continues consecutively for three or more hearings, hold it ex-parte.
11. CSE is violent/ abuses others during the hearing. Adjourn, and issue the notice for next hearing with a warning. If violent behaviour/ abusive language continue again, consider holding it ex-parte by recording the reasons.  Consider video recording of the proceedings or consider deploying a couple of security guards or both.
12. MR or CE fails to submit authorization letters. Ask them to submit in the next hearing failing which they will not be allowed to participate.
13. CSE or CE refuses to sign the proceedings. Mention at the place meant for their signature in the proceeding “refused to sign”
14. CSE or CE makes additions/ modifications in the typed/ written proceedings of the enquiry by writing certain things. Delete them or refuse to sign such proceedings.
15. Computer/ type writer not working. Hand written proceeding is acceptable.
16. Typist is not available or has not come. Hand written proceeding is acceptable.
17. CSE / CE brings their dependents, friends, or pets to the enquiry. Don’t allow the dependents, friends, or pets to the enquiry room.
18. MR brings another officer/ person for his assistance. What is the reason? Don’t allow.
19. One of the parties play music in the enquiry. Ask them not to do so or debar them if they do not agree.
20. One of the parties smokes or drinks liquor in the enquiry. Ask them not to do so or debar them if they do not agree.
21. CSE wants to be represented by an advocate. Allow if management does not object or management side is represented by a person of law background.
22. One of the parties wants change in date, place, and time of the hearing. Allow if possible and if not objected by other parties.
23. List of witnesses and documents are not ready. Ask them to submit in the next hearing, failing which another opportunity will not be given.
24. Any party or witness cannot speak. He may be allowed to give the statements/ answers in writing.
25. Any party or witness cannot write. He may be allowed to give the statements/ answers orally.
26. Witness cannot be present in the enquiry physically due to valid reasons like staying abroad or ill health. Consider video calling, if that is not possible debar such a witness. 

 
(Proceeding of a preliminary hearing given below will help you understand it better)

PROCEEDINGS OF THE DOMESTIC ENQUIRY AGAINST MR. RAMAN DEV, EMPLOYEE NO.1114, WORKMAN EMPLOYED WITH PONIM INDIA PRIVIATE LIMITED AT ITS FACTORY LOCATED IN NO.4009, PEENYA SECOND STAGE, BANGALORE IN THE MATTER OF CHARGE SHEET CUM SHOW CAUSE NOTICE DATED 10TH SEPTEMBER 2017
 
Session No:1        
Date: 15th May 2018
Time: Started  at 10 am and concluded at 1 pm
Venue: Meeting Hall of the factory 
 
PARTIES PRESENT
Dr. G P Naik - Enquiry officer (EO)
Mr. Munish Kumar- Management representative (MR)
Mr. Raman Dev- Charge sheeted employee (CSE)
Mr. Johnson David- Co- employee (CE)
 

1. EO introduced himself to all the parties present in the enquiry and requested others to introduce themselves. Then MR introduced himself to all the parties in the enquiry, followed by CSE and CE.
2. EO asked MR and CE to submit the letter of authorisation (in three sets) by which they are empowered to represent the parties in the enquiry.
3. Accordingly MR submitted the letter of appointment issued to him by the DA. One copy was given back as an acknowledgement for the receipt of the same, with signature of the EO, second copy was given to the opposite party and third copy was taken on record of the enquiry and kept in the EO file.
4. CE submitted the letter of appointment issued to him by the CSE. One copy was given back as an acknowledgement for the receipt of the same, with signature of the EO, second copy was given to the opposite party and third copy was taken on record of the enquiry and kept in the EO file.
5. EO asked the CSE the following questions and CSE answered as under:
   Q. (1) Did you receive the charge sheet dated 10th September 2017?
   A (1)  Yes.
   
   ​Q (2) Did you read it and understood the content?
   A (2) Yes.
   
   Q (3) Do you admit the allegations and charges made against you in this charge sheet?
   A (3) No. They are false.
6. Since CSE denied the allegations and charges against her, EO asked MR to produce, if he has any evidence or witnesses to prove the allegations and charges.
7. MR submitted the documents to EO in three sets to substantiate the allegations and charges.
8. MR also submitted a list of witnesses he intends to examine in the enquiry to prove the allegations and charges.
9. EO taken them on record after giving one set to the CSE.  Third set was returned back to MR for his record with the signature of EO.
10. CSE said she will submit her documents and list of witnesses in due course.
11.  EO explained the rights and obligations of the parties and the procedure of enquiry to all those present, as under.

• CSE has the right to bring any employee of her choice to the enquiry, for her assistance in accordance with the standing order/ service rules of the company. In this case CSE has already brought Mr.Johnson David as CE.
• Proceedings will be held during the working hours of CSE and CE.
• If the enquiry is held outside the workplace of CSE and CE, they are entitled to be paid travelling allowance by the employer.
• The proceedings will be held in the same venue from 10 am to 5 pm every Monday and Thursday of the week.  EO has the right to change the date, time or venue of the enquiry for the reasons to be recorded in writing and such changes if any will be communicated to all the parties, sufficiently in advance.
• Both the parties have the right to produce evidences and witnesses in support of their case.
• Both the parties have the right to get copies of the evidences submitted by the opposite party.
• Both the parties have the right to examine witnesses in support of their case, in the enquiry, in the presence of opposite party.
• Both the parties have the right to cross examine the witnesses produced by the opposite party in the enquiry.
• The enquiry will be conducted in accordance with principles of natural justice and as per standing orders/ service rules of the company.
• Parties must attend the enquiry as per the date, time, and venue determined by the EO from time to time.
• If any party absents from enquiry without prior permission of the EO, it will be presumed that they are not interested and the enquiry will be held ex-parte.
• Both the parties have right to make final submission the examination and cross examination of witnesses from both the side is completed.
• The evidences and witnesses from management side will be examined first as per the principles of natural justice followed by   evidences and witnesses from CSE side. 
• Proceedings of the enquiry will be recorded in writing, printed and signed by all the parties present and copies will be given to all of them.
• Proceedings will be conducted in the language understood by the CSE.
• Parties may seek necessary guidance and reasonable assistance from the EO during the course of the enquiry.

 
The next hearing will be held on 20th June 2018 at 10.45 am at the same venue.  All the parties are advised to come fully prepared. If any party fails to attend the enquiry, it will be presumed that they are not interested in participation and the enquiry will be ex-parte.  
 
      Signed                                                                      Signed                 
G P Naik (EO)                                                     Munish Kumar (MR)  

           Signed                                                                 Signed
Ramani Devi (CSE)                                             Johnson David (CE)