Misconduct under Employment Standing Order Act : Misconduct under Employment Standing Order Act Guided by-
Asst. prof Presented by-
H2- 32 Misconduct under employment standing order act : Misconduct under employment standing order act Misconduct-
the first duty of the employee is to obey the orders which the employer is justified in giving under the terms of employment. Misconduct is made of two words, ‘mis’ which means ‘bad’ and ‘conduct’ which means behaviour. It literally means to conduct wrong or improper conduct, bad behaviour, unlawful behaviour or conduct.
the term “misconduct” usually implies an act done willfully with a wrong intention and as applied to professional acts, even though such acts are not inherently wrongful, it means also dereliction of or deviation from duty. The following acts on the part of an employee have been held to be misconducts- : The following acts on the part of an employee have been held to be misconducts- Any act or conduct which is prejudicial or is likely to be prejudicial to the interests of the employer or to the reputation of the employer.
Any act or conduct inconsistent or incompatible with the due or peaceful discharge of the workman’s duty to his employer.
Any act or conduct of a worker, which makes it unsafe for the employer to retain him in service. cont’d : cont’d Any act or conduct of an employee, which is so grossly immoral so as to take him untrustworthy in the eyes of reasonable men.
Any act or conduct of an employee, which makes it impossible for the employer to rely on his faithfulness.
Any act or conduct of an employee, which is such as to open before his temptations for not discharging his duties properly.
Any act or conduct of an employee which disturbs the peaceful functioning at the place of work. Slide 5: Use of filthy or abusive language against co-employees, officers or employer.
Insulting behaviour and in-subordination as to make it impossible to retain the relation of master and servant
Habitual neglect of duties for which a worker is paid.
Neglect of the employee, though isolated, which or tends to cause serious and harmful consequences.
Theft, fraud or dishonesty in connection with the employer’s business. Slide 6: Illegal strike.
Breach of duty, absence without leave, non performance of job duties ,disobedience of orders.
Breach of discipline, disrespect to or assaulting superiors or subversion of discipline, disrupting relation with co-workers.
Delinquencies like telling lies, committing theft, fraud, dishonesty, disloyalty and corruption, damage to property or goodwill.
Disabling or disrespectful conduct, disreputable outside conduct. The legal dimension : The legal dimension Model standing orders under the industrial employment (standing orders) act, 1946,provide for disciplinary action for misconduct and give an illustrative list of acts and omissions Which can be generally regarded as misconducts. All establishments, whether they have certified standing orders or they follow Model Standing Orders, are necessarily required to follow certain procedural formalities before any punishment is awarded. The need for evolving a procedure is stipulated in clause 25 of the Model Standing Orders. the relevant clause are as follows- Slide 8: A workman guilty of misconduct may be:
Warned or censured, or
Fined, subject to and in accordance with the provisions of Payment of Wages Act,1936, or
Suspended by an order in writing, signed by the manager for a period not exceeding four days, or
Dismissed without notice. Slide 9: No order under sub-clause (b) of clause 1 shall be made unless the workman concerned has been informed in writing of the alleged misconduct or given an opportunity to explain the circumstances alleged against him.
No order of dismissal under sub clause (d) of clause 1 shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause 4. Legislation, enforcement and adjudication in Indian labor markets : Legislation, enforcement and adjudication in Indian labor markets Throughout the world, governments have enacted laws to protect the interests of the workers. India is no exception. In fact, in India, laws are often perceived to be too restrictive on employers. International comparisons show that the problem is not one of laws relating to conditions of work, but one of laws on hiring and, especially, dismissals. Laws in India on these matters are restrictive compared with other emerging economies, other nations in Asia and even developed countries. Misconduct as per the law : Misconduct as per the law The supreme court has held that even disorderly behaviour outside the factory constitutes misconduct, however, every such behaviour unconnected with employment would not constitute within the relevant standing orders and that in such a case, it would nonetheless be necessary to establish causal connection between the misconduct and the employment.
It is, thus well-settled that unless either in the certified standing orders and in the service regulations an act or omission is prescribed as “misconduct”, it is not open to the employer to fish it out some conduct as “misconduct” and punish the employee even though the alleged misconduct would not be comprehended in any of the enumerated misconducts. Employment standing order act according to Dr. Reddy : Employment standing order act according to Dr. Reddy The Industrial Employment Standing Order Act is an Act which directs all employers (who employ 100 or more workers) to have a certified standing orders of their own. The Act provides only for a model of standing orders and not the exact provisions to be incorporated.
As such rules relating to notice period required to be followed by different categories of employees such as probationer, regular etc should be provided by the respective employer in the respective standing orders only. Please note what we have earlier posted "If the standing order or the appointment order is silent about clause of probation........" That means you should have given a separate category of employees as "Probationer" in your standing Orders. Cont’d : Cont’d You should have mentioned in it "the notice period" and in the absence of such provision in the standing orders, he will be deemed a regular employee and the provisions of Industrial Disputes Act relating to serving of notice before termination, closure, transfer of undertaking etc will apply. Since in such circumstance a probationer is also to be given notice of retrenchment etc, he is morally bound to serve notice to the employer before he leaves. The duration of notice is purely an internal matter and if we refer the ID Act, from the part of employer is one month in such companies which employ less than 100 and three months in companied employing more than 100 employees.