When disciplinary action is proposed to be taken by the management against an employee whether by way of dismissal or any other punishment as stated in the Industrial Employment Standing Order Act 1946 or the ertified Standing Order,  a domestic enquiry is conducted  for finding out whether the  proposed  action  is  warranted  against  the  delinquent.  A  full fledged domestic enquiry establishes the bonafide intentions of the management.

Generally, where the misconducts are serious, the company appoints an outside enquiry officer, who has the experience of conducting domestic enquiries. This is to ensure that the enquiry is sound and the employee does not escape the punishment of dismissal on technical grounds or on the lapse on the part of the enquiry officer. Hence the Enquiry is always entrusted to a professional for serious misconducts, where the management is clear that it does not want to retain the employee  who  is chargesheeted. While the domestic enquiry may be conducted by an enquiry officer, who is generally a legal professional or a person who is experienced in conducting domestic enquiries, the chargesheeted worker has the right to bring a co-worker or a union  office  bearer  to  defend  him  in  the  enquiry. Apart  from the chargesheeted worker, another co-worker or office bearer of a union defending him and the enquiry officer, one more person also attends the enquiry on behalf of the management. That person is called the management representative.  The  role  of  the  Management  Representative is  very  much similar  to  the  public  prosecutor  and  he  has  to  lead  the evidence  and substantiate  the  charges  that  have  been  leveled  against the  chargesheeted workman.  In  the  Domestic  Enquiry,  this  person  is called  the  Presenting Officer or Management Representative.

Where the enquiry returns the verdict of guilty and the employee is dismissed, the  Departmental  enquiry  conducted  against the  employee is challenged or the punishment imposed is challenged as being disproportionate by the dismissed employee by raising an industrial dispute.

Under Section 11 A of the Industrial Disputes Act, Labour Courts have the power  to  scrutinize  the  action  taken  by  the  employer  and  evaluate 
independently, whether the punishment of dismissal imposed was fair and proper.

The employee pleads before the Court that the enquiry conducted against him was farce, stage managed, not conducted in a fair and proper manner, the management has not followed the principles of natural justice while conducting   the  enquiry,  no  rules  and  regulations  as  prescribed  in the standing orders were followed by the management. It is further contended by the employee that the Report and findings of the Enquiry officer are perverse and not based on the documents and evidence on record.  Many a times it is noticed  that  Courts  have  held  that  the  enquiry  held  against a delinquent employee  is either not fair or proper and  or the  findings of the Enquiry Officer is perverse and not based on the documents and evidence recorded before the Enquiry Officer. In such a   situation the employer as per the prevailing  law,  is  given  another  opportunity  once  again  to  lead evidence both oral and documentary and prove the charges before the court. Such a situation could be averted if the Management Representative performs his job in a diligent manner in presenting his case before the Enquiry Officer. When  the  management  initiates  disciplinary  proceedings  against its employees by issuing a charge sheet, the role of the Management Representative/ Presenting officer is to investigate into the charges against the charge-sheeted employee and then present the case before the Enquiry officer the case in support of the charges leveled against the charge-sheeted employee.

As per the prevailing law and case laws, there is no requirement of a Management Representative (MR)/Presenting Officer (PO) in the enquiry. However, in the absence  of a MR,  the Enquiry Officer  will have  to lead many questions and with a view to avoid the charge that the enquiry officer has played the role of prosecutor as well as a judge, it has become a practice to have a person marshalling the case against the chargesheeted employee as a Management Representative or a Presenting Officer.

It must be noted that the burden of establishing the charges against the charge sheeted employee rests on the Management Representative/ Presenting  officer.  The  Management  Representative  acts as  an  agent  or nominee  of  the  competent  authority.  His  main  function is  to   show  why charges should be deemed to be established, if not beyond reasonable doubt at least on the basis of preponderance of probability, by leading oral and documentary evidence (direct and circumstantial ) and by drawing logical inferences there from. The Management representative must present the case of the management before the Enquiry officer in an effective, understandable and orderly manner with   precision, clarity and logic with a view to proving the  charges.  In  order  to  achieve  the  said  objectives  the Management Representative  should  familiarize  himself  with  the  case  and he  has  to prepare himself thoroughly.

A few important requirements that the MR is supposed to understand and follow are outlined:

a.)  Before  accepting  his  appointment  as  MR,  he  should  discuss  with the management and sort out any doubts pertaining to the case and should have an  understanding of what the facts are in the matter and what are the strong evidences that are readily available. He must also understand the weak links and chinks in the story that will be attacked and highlighted by the worker and his defense representative and see how well the facts can be marshaled with evidence to enable the enquiry officer to decide in the matter without any ambiguity. There are many factual and technical aspects of the case that he may be required to familiarize himself with. This is very much important for he is expected to prepare himself thoroughly and put up the case of the management before the Enquiry officer.

b.) The Management representative should call for the relevant documents based on which the charge sheet is issued. He should also get in touch with the witnesses through whom (author of the documents) documents based on which the charges are leveled against the charge sheeted employee are to be proved so as to enable him to prove the documents through the respective witnesses.  His most  crucial  task  is to present  both oral  and documentary evidences  on  behalf  of  the  management  in  a  proper sequence  before  the enquiry officer.  In a case pertaining to a charge of False Reporting by a Medical  Representative  in  a  pharmaceutical  company, the  contractual requirement  was  that  the  Medical  Representative  had  to visit  12  doctors every  day  and  report  in  his  daily  call  report (DCR).   The  Medical representative had written that he had met a Doctor, who had actually died and  the  medical  representative  was  not  aware  of  this when he  wrote  the report. The false reporting of the Medical Representative came to light when the  Area  Business  Manager  (ABM)  made  a  visit  to  the area  without  the knowledge  of  the  Medical  Representative  .The  Area Business  Manager immediately  informed  that  Zonal  Manager  about  the incidence  of  false reporting.  The  Zonal  Manager  with  a  view  to  catch the  Medical Representative red handed asked the   ABM to arrange for a joint visit with the   Medical  Representative.  The Medical Representative along with the Zonal manager called on the doctors. The Medical Representative took the Zonal manager to the Clinic of the doctor who had expired long back. When asked  by the Zonal Manager about the false reporting of the doctor , the Medical representative explained that he was visiting the clinic regularly and mentioning in the Daily call report (DCR) as Doctor dead and that he has not falsely reported in the DCR. This was not a convincing reply as the so called visit to the Doctor’s clinic who had expired long back was not an effective call except for the first visit when he came to know about the death of the Doctor.  This  is  a  clear  cut  case  of  false  reporting.  Since  the Medical Representative has to complete his daily quota of doctor calls, he went on mentioning having visited a doctor who was dead.

c.)  As  regards  standard  of  proof,  it  has  been  held  in  various judicial pronouncements that strict rules of evidence are inapplicable and strict mode of  proof  prescribed  by  the  Evidence  act  as  applicable  in Criminal proceedings cannot be invoked in disciplinary proceedings. A departmental enquiry is not a criminal case and the standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. The standard  of  proof  is  not  proof  beyond  reasonable  doubt  but the preponderance  of  probabilities  tending  to  draw  an  inference  that  the fact must be more probable. The probative value could be gauged from facts and circumstances in a given case. It is, therefore, necessary for the MR to place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue.

d.)  The  Management  Representative  should  meet  the  witnesses  well  in advance  before  their evidence and discuss  with them the strategy  that he would like to adopt during the enquiry. Also before cross examination of the witnesses, it is necessary to refresh the memory of the witnesses by referring to their statements recorded at the time of their examination in chief. In the above case the Management Representative should meet the Area Business manager and the Zonal Manager and discuss the matter of false reporting by the Medical Representative thoroughly.

e.) Where there are more than one witnesses, the Management Representative should make it sure that the evidence given by the witnesses corroborate with each other. In the above case the Area Business manager should in his evidence say that when he checked the daily call report of the Medical  Representative,  he  found  that  the  Medical Representative  has falsely included the name of the Doctor who has expired   and after keeping a watch for a month he made a surprise visit and found that the doctor had expired  long  back  which  fact  was  not  brought  to  the notice  of  the management by the Medical representative. He should further say that he immediately  informed  his  superior  i.e.  the  Zonal  Manager. The  Zonal Manager directed the ABM to arrange for his joint visit with the Medical Representative which was accordingly done and the false reporting of the Medical  Representative  was  exposed.   Before  the  evidence  of  the Zonal Manager as the second witness is recorded, the Management Representative must  educate  the  Zonal  Manager  and  ensure  that  his statement corroborates  with  the  statement  made  by  the  Area  Business Manager, otherwise  the  entire  exercise  would  be  futile.  The Management Representative  may  also  show  the  witness  the  statement recorded  by the earlier witness to refresh his memory. It is to be noted that all this has to be done  much  earlier  before  the  date  of  enquiry  when  the evidence  of  the second /subsequent witness is to be recorded.

f.) The Management representative should remain alert during the enquiry and make  sure  that  the  enquiry  proceeds  on  the  right  lines.  Should the defense make an attempt to deviate from the main issue or bring in irrelevant issues,  he  should  promptly  intervene  and  record  his  note  of dissent  and object to recording such irrelevant issue.

As the enquiry proceeds, the Management Representative should take down notes so that no points are left out during cross examination /re examination.

g.) The Management representative should demolish the case of the Defense side by bringing out the material contradiction in the documents produced by the defense side and the oral testimony of the defense.

h.)  The  Management  Representative  should  completely  destroy  the testimony  of the defense  by  cross examining  on each and every disputed averments made by the defense.

i.) If the defense is denying the case put up by the management, it is the role of the Management  Representative  to put questions to the defense  which would make him give answers in favour of the management.

j.) The Management representative should also put up suggestions during the 
course of cross examination of the defense with regard to the stand of the management. For example in the above cited example of the false reporting a question by way of suggestion could be “I put it to you that you falsely included the name of the Doctor who had expired long back  in your Daily call report ( DCR ) just to complete  to daily quota of Doctor visits.

k.) The Management Representative through out the conduct of the enquiry should  conduct  himself  in  such  a  manner  that  the  defense  will have no reason to feel that the Management Representative has undue influence over the Enquiry Authority In short, the MR should make bold assertions of his rights in conformity with law and at the same time be polite during the enquiry 

l) In the absence of proper preparation or homework by the Presenting Officer and the leading of evidence, it is possible that the witnesses may make statements  that  are  contradictory  and  the  evidentiary  value  of such witnesses gets reduced. Once they are discredited in the cross examination of having made false or wrong statement, their testimony cannot be the basis for  a  conviction  of  guilt.  The  enquiry  can  be  easily destabilized  if  the evidence is not substantial and reliable.

m) The  enquiry  officer  may  be  an  impartial  person  but  as  a person appointed by the  management,  he is quite  well versed  with how workers defend  themselves  and  how  the  defense  will  rubbish  the testimony.  His insights  can  help  the  witnesses  in  the  way  in  which they  will  testify. Evidences  of  dubious  value  or  those  which  cannot  be clinching  may  be dropped  as  otherwise;  it  would  enable  the  defense  to blow  holes  in  the management submission. Keeping the testimony to the bare facts and giving answers to the point during cross-examination and not general or roundabout replies will help to nail the culprit. The witness may also refuse to answer questions if they are not relevant and state that in his opinion the question was not relevant to the charges. The management representative should walk through the  deposition  with the  witnesses  along with the  enquiry  officer, before it is actually presented.


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