Case Study - Domestic Enquiry, drafting and awarding punishment - What would be our recommendation?

Dear Veterans,

Need your help in the case below:

Case:

Mr. Anilkumar, a technician in your factory, has been a chronic absentee. He has been absent from his work periodically and for prolonged periods. He has been counseled quite a few times, but records are not kept, and he has been awarded a few punishments in the past after conducting an inquiry. In each case, he accepted his fault at the first instance, and the matter was closed with punishment.

On the last occasion, he was absent from June 1, 2018, to November 15, 2018, without permission, and one last chance was given to him.

On December 10, 2018, he started absenting from his work without any permission until the issue of his charge sheet dated April 11, 2019.

The management is considering his dismissal on account of his persistent absenteeism.

Anil was issued a charge sheet, and a domestic inquiry was conducted. He fully participated in the inquiry along with his representative. His representative happened to be his brother, an educated person, but not an employee of the organization. He was found guilty by the EO. The EO submitted his report to the DA.

He was issued a second show cause notice proposing to dismiss him and seeking his response as to why he should not be dismissed for his continued absenteeism.

Anil responded that he should not be dismissed for the following reasons:

1. The referred charge sheet was never issued to him except that he received his copy during the inquiry.
2. It is an incorrect allegation that he has a habit of indulging in unauthorized absenteeism as his previous absences were never proven through the inquiry. [Note: It is a fact that the previous domestic inquiry was not carried out strictly as required and once he admitted his fault, the inquiry did not proceed further.]
3. That as such the above-referred absence is his first offense and hence he deserves to be given a second chance.

Now I need to answer the following questions, please shed some light on them.

1. What would be our recommendation to the management regarding punishment?
2. Drafting a final letter of punishment.

If the charge of misconduct is accepted by the delinquent, there is no necessity to conduct a domestic inquiry if the proposed punishment is other than dismissal.

The reasoning behind the final reply of the delinquent is totally unacceptable. He never questioned the earlier punishment through an appeal to a higher authority in the organization or by raising an industrial dispute before the Conciliation Machinery under the ID Act, 1947.

Based on the findings of the enquiry officer, you can dismiss this worker. There is no question of a first offense or second offense. Since he is a habitual absentee and his misconduct was proven during a properly conducted domestic enquiry, you are to dismiss him.

With regard to the draft final letter, please prepare and post it before us for validation.

Once the employer (read Punishing Authority) issues the Proposed Punishment Letter to the Delinquent Employee who attended the Domestic Enquiry held (let us presuppose) in accordance with the Principles of Natural Justice in the aftermath of the Submission of the Inquiry Report with Definite and Conclusive Findings of the Enquiry Officer, the employer must have applied his/her mind to the Inquiry Findings and would have surely decided to give a Proportionate Punishment, which is the Proposed Order of Dismissal. The employer can go ahead with the Proposed Quantum of Punishment of Dismissal.

However, if the employer has not issued a Proper Charge-Sheet/Show-Cause Notice informing the Delinquent Employee about the Charges/allegations of Misconduct or the Enquiry has not been held properly, then the employer has a better option to Restart the Disciplinary Action Steps afresh to obviate the Order of Reinstatement issued by the Authority concerned.

Examine the Facts on Record and Act Judiciously/Scrupulously.

Kritarth Team of Domestic Enquiry Practitioner
Bengaluru
22 Nov 2019

Thank you very much for all the valuable inputs. I was getting a little confused about his reply points - whether we can dismiss him or not, as that was bothering me. Now it's clear that, as he was a habitual absentee, we can dismiss him based on the findings of EO.

Sirs, could you help me with a format for a punishment letter, if any? This way, I can draft it and send it across to you for validation.

Based on the findings of the inquiry officer, you can dismiss this worker. There is no question of a first or second offense. Since he is a habitual absentee and his misconduct was proven during a properly conducted domestic inquiry, you are to dismiss him.

With regard to the draft of the final letter, you prepare and post it to us for validation.

Dear Sir,
As advised by you, have prepared the draft of Dismissal Order in the above case. Request you to validate the same and share your views.
Dismissal Order
Date -
From
The Disciplinary Authority
To
Mr Anil Kumar
Technician
Sub – Dismissal on account of habitual absenteeism
Dear Mr Anilkumar,
You were charge sheeted vide this office letter no…..dated…. and you submitted your explanation too. An enquiry committee was set up to hold an impartial enquiry into the matter and provide you ample opportunity to defend yourself. You fully participated in the current enquiry along with your representative and the EO held you guilty of the charges levelled against you.
In the past also you were charged with same misconduct of habitual absenteeism, enquiry was held and you accepted the charge also. In addition to it, you were counselled on multiple occasions in good faith. However, no improvement was observed.
The reasons given by you to your 2nd show cause notice are untenable. It is with deep regret the undersigned is of the opinion that your misconduct is of grave nature which cannot be taken leniently anymore and strong disciplinary action i.e. dismissal from service is warranted as per clause no………..of Factory Standing Orders. A person of your capability, getting dismissal because of such charge of misconduct is a sad thing to happen.
You are hereby directed to handover all the company’s material in your possession to concerned departments and obtain “No Dues” certificate so that your terminal dues are released as early as possible.
Disciplinary Authority

Draft is perfectly okay; however suggesting following changes.
QUOTE
You were charge sheeted vide this office letter no…..dated…. and you submitted your explanation which was received by us on--. With a view to maintain natural justice, an enquiry committee was constituted by the management to hold an impartial enquiry into the matter and provided you with ample opportunities to defend yourself. You have fully participated in the current enquiry along with your representative, and the EO found you guilty of the charges levelled against you.
In the past also you were charge sheeted with same misconduct of habitual absenteeism, enquiry was held and you accepted the charge also. In addition to it, you were counselled on multiple occasions by the management in good faith. However, no improvement was observed from you
The reasons given by you to your 2nd show cause notice are untenable, unjustifiable and irrelevant. Undersigned , after perusing the report from the Enquiry Officer. is of the opinion that your misconduct is of grave nature which cannot be taken leniently anymore and strong disciplinary action i.e. dismissal from service is warranted as per clause no………..of Factory Standing Orders. A person of your capability, getting dismissal because of such charge of misconduct is a sad thing to happen.
You are hereby directed to handover all the company’s property in your possession to your immediate supervisor and obtain “No Dues” certificate from all the departments concerned, so that your terminal dues are released as early as possible.
UNQUOTE
only few gramatical erros are rectified.
Good draft