Dear Seniors,
If any employee commits an act that constitutes misconduct as per the standing orders, and the delinquent employee acknowledges their mistake, how many maximum days can we legally suspend him/her without payment?
Is there any legal support for the management's actions regarding suspension under any Act or Section?
From India, Pune
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47If any employee commits an act that constitutes misconduct as per the standing orders, and the delinquent employee acknowledges their mistake, how many maximum days can we legally suspend him/her without payment?
Is there any legal support for the management's actions regarding suspension under any Act or Section?
From India, Pune
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Dear prashant1314,
I am happy to note that you understand, as evident in your post, the difference between "suspension pending enquiry" and "suspension as punishment."
Now, Suspension as punishment is generally awarded for minor misconduct, which includes minor infractions and does not involve any moral turpitude or severe misconduct, such as habitual late coming, unauthorized absence, etc. Although I do not have any factual data across industries, generally, it ranges from two days to a maximum of a week.
Warm regards.
From India, Delhi
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I am happy to note that you understand, as evident in your post, the difference between "suspension pending enquiry" and "suspension as punishment."
Now, Suspension as punishment is generally awarded for minor misconduct, which includes minor infractions and does not involve any moral turpitude or severe misconduct, such as habitual late coming, unauthorized absence, etc. Although I do not have any factual data across industries, generally, it ranges from two days to a maximum of a week.
Warm regards.
From India, Delhi
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Dear Seniors,
If we punish any employee for misconduct, is that "Punishment - Suspension" deemed as a break in service? If so, where should this break be mentioned or used for official purposes?
Thanks in advance!!!
From India, Pune
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If we punish any employee for misconduct, is that "Punishment - Suspension" deemed as a break in service? If so, where should this break be mentioned or used for official purposes?
Thanks in advance!!!
From India, Pune
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Dear Prashant,
Once you decide to take a break in service, you have to process the Full and Final settlement (F&F) and then allow him to rejoin. However, in case of misconduct, you can suspend him for a certain period and issue a letter to him.
You may decide on the course of action based on your situation.
With regards,
flyingstarter.
From India, Madras
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Once you decide to take a break in service, you have to process the Full and Final settlement (F&F) and then allow him to rejoin. However, in case of misconduct, you can suspend him for a certain period and issue a letter to him.
You may decide on the course of action based on your situation.
With regards,
flyingstarter.
From India, Madras
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Dear Prashant1314,
When an employee is awarded the punishment of "suspension" (for a specified number of days), it is to be considered simply as a 'punishment,' and there should not be any thought or attempt to consider it as affecting the continuity of service (in fact, by undergoing punishment, the employee affirms that they are still in service). Thus, it is NOT a break in service. Hope I have made the point amply clear. One can, however, record this punishment awarded in the service book/personnel file/employee database for future reference.
Warm regards.
P.S. I am consolidating your two separate threads on the subject by merging them for easy reference by members.
From India, Delhi
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When an employee is awarded the punishment of "suspension" (for a specified number of days), it is to be considered simply as a 'punishment,' and there should not be any thought or attempt to consider it as affecting the continuity of service (in fact, by undergoing punishment, the employee affirms that they are still in service). Thus, it is NOT a break in service. Hope I have made the point amply clear. One can, however, record this punishment awarded in the service book/personnel file/employee database for future reference.
Warm regards.
P.S. I am consolidating your two separate threads on the subject by merging them for easy reference by members.
From India, Delhi
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Dear Raj Kumar,
I would like to differ with your opinion insofar as the terms "suspension as punishment" and "awarded for minor misconducts" are concerned.
In fact, suspension is neither treated as a punishment, nor is it awarded for minor misconduct. Suspension is not resorted to unless there is a valid reason that the employee has committed a serious misconduct that is considered worth the award of a major penalty and requires the issuance of a Charge Sheet for the purpose of a full-fledged departmental inquiry to justify some major penalty. Suspension is resorted to when the employee is expected to manipulate the inquiry, tamper with records, or is likely to destroy the evidence against him if he is allowed to work in his position. If no charge sheet is issued, the suspension is treated as invalid and will have to be considered as duty for all purposes.
As such, an employee can be placed under suspension:
(a) when a disciplinary proceeding is contemplated or pending against him;
(b) where, in the position of authority competent to suspend, he has engaged in activities prejudicial to the interest of security of the state/organization; or
(c) where a case against him in respect of any criminal offense is under investigation, inquiry, or trial.
As held in Mohd. Azam v. State of A.P., AIR 1956 A.P. 619, "Suspension" has been defined as the temporary deprivation of one's office or position.
Further, as held in Mohd. Ghouse v. State of A.P., AIR 1957 SC 246: 1957 SCR 414 and Kem Chand v. Union of India, AIR 1963 SC 687: (1963) Sup. I. SCR 229, "Suspension" pending a departmental or judicial proceeding against an employee is NOT A PENALTY.
As held in Abullais Khan v. State of West Bengal, GB CB (1986)II p.44; (19862 ATR 97: SLJ (19862 CAT 134, suspension is not justified when there is no risk of tampering with documents.
As held in Balwantray Patel v. State of M.P., AIR 1968 SC 800: (1968) SCR 577, "The general law on the subject of suspension has been laid down in three cases viz., the management of Hotel Imperial, New Delhi v. Hotel Workers' Union (1960) SCR 476; T. Caje v. U. Jormanik Siem (1961) SCR 750 and R.P. Kapoor v. Union of India (1964)5 SCR 431, it is now well settled that the power to suspend, in the sense of the right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be created by either a statute governing the contract or an express term in the contract itself. Ordinarily, therefore, the absence of power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, HE SHALL HAVE TO PAY WAGES DURING THE PERIOD OF SUSPENSION.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
Raj Kumar Hansdah said:
Dear prashant1314,
I am happy to note that you understand, as evident in your post, the difference between "suspension pending inquiry" and "suspension as punishment."
Suspension as punishment is generally awarded for minor misconducts, which are minor infractions and do not involve any moral turpitude or any severe misconduct, such as habitual late coming, unauthorized absence, etc.
Although I do not have any factual data across industries, generally, it ranges from two days to a maximum of a week.
Warm regards.
From India, Delhi
Acknowledge(0)Amend(0)
I would like to differ with your opinion insofar as the terms "suspension as punishment" and "awarded for minor misconducts" are concerned.
In fact, suspension is neither treated as a punishment, nor is it awarded for minor misconduct. Suspension is not resorted to unless there is a valid reason that the employee has committed a serious misconduct that is considered worth the award of a major penalty and requires the issuance of a Charge Sheet for the purpose of a full-fledged departmental inquiry to justify some major penalty. Suspension is resorted to when the employee is expected to manipulate the inquiry, tamper with records, or is likely to destroy the evidence against him if he is allowed to work in his position. If no charge sheet is issued, the suspension is treated as invalid and will have to be considered as duty for all purposes.
As such, an employee can be placed under suspension:
(a) when a disciplinary proceeding is contemplated or pending against him;
(b) where, in the position of authority competent to suspend, he has engaged in activities prejudicial to the interest of security of the state/organization; or
(c) where a case against him in respect of any criminal offense is under investigation, inquiry, or trial.
As held in Mohd. Azam v. State of A.P., AIR 1956 A.P. 619, "Suspension" has been defined as the temporary deprivation of one's office or position.
Further, as held in Mohd. Ghouse v. State of A.P., AIR 1957 SC 246: 1957 SCR 414 and Kem Chand v. Union of India, AIR 1963 SC 687: (1963) Sup. I. SCR 229, "Suspension" pending a departmental or judicial proceeding against an employee is NOT A PENALTY.
As held in Abullais Khan v. State of West Bengal, GB CB (1986)II p.44; (19862 ATR 97: SLJ (19862 CAT 134, suspension is not justified when there is no risk of tampering with documents.
As held in Balwantray Patel v. State of M.P., AIR 1968 SC 800: (1968) SCR 577, "The general law on the subject of suspension has been laid down in three cases viz., the management of Hotel Imperial, New Delhi v. Hotel Workers' Union (1960) SCR 476; T. Caje v. U. Jormanik Siem (1961) SCR 750 and R.P. Kapoor v. Union of India (1964)5 SCR 431, it is now well settled that the power to suspend, in the sense of the right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be created by either a statute governing the contract or an express term in the contract itself. Ordinarily, therefore, the absence of power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, HE SHALL HAVE TO PAY WAGES DURING THE PERIOD OF SUSPENSION.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
Raj Kumar Hansdah said:
Dear prashant1314,
I am happy to note that you understand, as evident in your post, the difference between "suspension pending inquiry" and "suspension as punishment."
Suspension as punishment is generally awarded for minor misconducts, which are minor infractions and do not involve any moral turpitude or any severe misconduct, such as habitual late coming, unauthorized absence, etc.
Although I do not have any factual data across industries, generally, it ranges from two days to a maximum of a week.
Warm regards.
From India, Delhi
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Dear Prashant,
Your brief version does not provide a clear picture of the case. Disciplinary matters are of a sensitive nature, and any opinion in such cases can easily mislead you if necessary information is not provided. You have not stated whether the employee admitted his fault upon the service of a simple notice or after being served with a charge sheet. Additionally, you have not mentioned whether the employee was already suspended or if you intend to suspend him now after his admission of guilt.
However, for your information, it should be clarified that suspension cannot be made with retrospective effect unless it is deemed suspension due to the employee being held in police custody in a criminal case. As stated in Hemanta Kumar v. S.N. Mukherjee, AIR 1954 Cal. 340, "there can be no meaning in suspending a man from working during a period that has passed, or suspending a man from occupying a position or holding a privilege in the past."
Furthermore, when an employee has admitted his mistake merely upon receiving a simple notice (other than a charge sheet), you can either issue a warning letter for caution in the future or, if the misconduct is serious, issue a charge sheet for proper disciplinary action and the possibility of imposing a suitable penalty. Suspension is not considered a penalty. However, if the employee admits guilt upon receiving a charge sheet, a suitable penalty can be awarded as per the Conduct and Discipline Rules of your organization.
For further information, you may also refer to my previous post in response to Mr. Raj Kumar Hansdah's opinion.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
More at http://citehr.com#ixzz17UzGE7BQ
From India, Delhi
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Your brief version does not provide a clear picture of the case. Disciplinary matters are of a sensitive nature, and any opinion in such cases can easily mislead you if necessary information is not provided. You have not stated whether the employee admitted his fault upon the service of a simple notice or after being served with a charge sheet. Additionally, you have not mentioned whether the employee was already suspended or if you intend to suspend him now after his admission of guilt.
However, for your information, it should be clarified that suspension cannot be made with retrospective effect unless it is deemed suspension due to the employee being held in police custody in a criminal case. As stated in Hemanta Kumar v. S.N. Mukherjee, AIR 1954 Cal. 340, "there can be no meaning in suspending a man from working during a period that has passed, or suspending a man from occupying a position or holding a privilege in the past."
Furthermore, when an employee has admitted his mistake merely upon receiving a simple notice (other than a charge sheet), you can either issue a warning letter for caution in the future or, if the misconduct is serious, issue a charge sheet for proper disciplinary action and the possibility of imposing a suitable penalty. Suspension is not considered a penalty. However, if the employee admits guilt upon receiving a charge sheet, a suitable penalty can be awarded as per the Conduct and Discipline Rules of your organization.
For further information, you may also refer to my previous post in response to Mr. Raj Kumar Hansdah's opinion.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
More at http://citehr.com#ixzz17UzGE7BQ
From India, Delhi
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