Dear Sir/Madam,
I have a query. Suppose an employee, after committing financial irregularities, tenders his immediate resignation to the management. Thereafter, he goes on long absence. Management, despite accepting his resignation, sent him a notice (after 10-20 days) stating that his resignation has been put on hold and a detailed inquiry will be conducted against him. During his absence, he will work on a no work, no pay basis. Will this suffice, or should other measures have been adopted?
I need an earliest reply.
From India, Dehra Dun
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1I have a query. Suppose an employee, after committing financial irregularities, tenders his immediate resignation to the management. Thereafter, he goes on long absence. Management, despite accepting his resignation, sent him a notice (after 10-20 days) stating that his resignation has been put on hold and a detailed inquiry will be conducted against him. During his absence, he will work on a no work, no pay basis. Will this suffice, or should other measures have been adopted?
I need an earliest reply.
From India, Dehra Dun
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Since resignation is not accepted, the employer-employee relationship continues. Disciplinary action can be initiated with the issue of a charge sheet. The employee may be kept under suspension pending an inquiry (see your standing orders), in which case a subsistence allowance is to be paid. Other than these disciplinary procedures (required if you decide later to dismiss him in case charges are proved, and for the forfeiture of gratuity, leave encashment, etc.), an FIR may be lodged with the police under the applicable provisions of the IPC, and a criminal case may also be initiated.
From India, Bangalore
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From India, Bangalore
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Your action seems to have some contradictions. Your statement that, in spite of accepting his resignation, management has sent him a notice informing him that his resignation has been put on hold. Once the resignation has been accepted, how was it again kept on hold? Was the resignation to take immediate effect, or is it to take effect from a future date? If so, was the notice sent within such a future date? Was it accepted with immediate effect or with effect from a future date? Was the acceptance communicated to the employee? What is this working on a no-work-no-pay basis? All these issues are to be examined before taking disciplinary action.
B. Saikumar
From India, Mumbai
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B. Saikumar
From India, Mumbai
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Dear Mr. Bhardwaj,
I agree with the views of Mr. Sajan, except for a few things as detailed below. You may proceed as follows:
Issue a Chargesheet as per Standing Orders applicable, mentioning the Clause No.(s) under which charges have been framed. Place the employee concerned under suspension and ask him to report on working days to get his presence marked for payment of subsistence allowance and to ensure that he has not secured employment elsewhere during the period of suspension. Clearly mention the amount of misappropriation and ask for an explanation. Order and conduct an inquiry. Notify the employee concerned to participate and defend himself/herself. Mentioning the amount is necessary so that it may be included in the Dismissal Order if charges are proved and the employee is found guilty of misconduct.
Send a copy of the constitution of the Inquiry Committee and fix the date of the inquiry for the Accused employee (AW) through Registered Post with A/D, allowing reasonable time for postal delivery. If AW fails to participate in the inquiry and defend himself, provide two more dates for attending the inquiry. The Inquiry Officer (IO) should record the absence. Even if the AW fails thereafter, conclude the inquiry proceedings ex-parte. The IO will give his findings and conclude by proving the charges as the AW failed to defend himself/herself.
The Disciplinary Authority will then order the punishment deemed fit. In this case, it might be dismissal from service on moral turpitude grounds with forfeiture of gratuity and other terminal dues to the extent of misappropriation of funds.
PLEASE NOTE:
1) GRATUITY CANNOT BE FORFEITED UNLESS THE AMOUNT OF FORFEITURE IS MENTIONED IN THE DISMISSAL ORDER, AND DISMISSAL IS BEING MADE ON THE GROUND OF MORAL TURPITUDE.
2) ENSURE THAT RESIGNATION IS NOT ACCEPTED. DO NOT USE THE TERM "ON HOLD" FOR KEEPING THE ACCEPTANCE OF RESIGNATION IN ABEYANCE. COMMUNICATE TO THE ERRING EMPLOYEE THAT RESIGNATION HAS NOT BEEN ACCEPTED, AND HE HAS BEEN FOUND GUILTY OF MISCONDUCT.
AK JAIN
From India, New+Delhi
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I agree with the views of Mr. Sajan, except for a few things as detailed below. You may proceed as follows:
Issue a Chargesheet as per Standing Orders applicable, mentioning the Clause No.(s) under which charges have been framed. Place the employee concerned under suspension and ask him to report on working days to get his presence marked for payment of subsistence allowance and to ensure that he has not secured employment elsewhere during the period of suspension. Clearly mention the amount of misappropriation and ask for an explanation. Order and conduct an inquiry. Notify the employee concerned to participate and defend himself/herself. Mentioning the amount is necessary so that it may be included in the Dismissal Order if charges are proved and the employee is found guilty of misconduct.
Send a copy of the constitution of the Inquiry Committee and fix the date of the inquiry for the Accused employee (AW) through Registered Post with A/D, allowing reasonable time for postal delivery. If AW fails to participate in the inquiry and defend himself, provide two more dates for attending the inquiry. The Inquiry Officer (IO) should record the absence. Even if the AW fails thereafter, conclude the inquiry proceedings ex-parte. The IO will give his findings and conclude by proving the charges as the AW failed to defend himself/herself.
The Disciplinary Authority will then order the punishment deemed fit. In this case, it might be dismissal from service on moral turpitude grounds with forfeiture of gratuity and other terminal dues to the extent of misappropriation of funds.
PLEASE NOTE:
1) GRATUITY CANNOT BE FORFEITED UNLESS THE AMOUNT OF FORFEITURE IS MENTIONED IN THE DISMISSAL ORDER, AND DISMISSAL IS BEING MADE ON THE GROUND OF MORAL TURPITUDE.
2) ENSURE THAT RESIGNATION IS NOT ACCEPTED. DO NOT USE THE TERM "ON HOLD" FOR KEEPING THE ACCEPTANCE OF RESIGNATION IN ABEYANCE. COMMUNICATE TO THE ERRING EMPLOYEE THAT RESIGNATION HAS NOT BEEN ACCEPTED, AND HE HAS BEEN FOUND GUILTY OF MISCONDUCT.
AK JAIN
From India, New+Delhi
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Hi all,
I appreciate the further inputs provided by Mr. A K Jain. However, I would suggest that it should be mentioned that misconduct is alleged until the charges are proven in a duly conducted domestic/departmental inquiry, rather than stating "he has been found guilty of misconduct - see the last sentence" at this stage. Otherwise, it could be argued later that the management was prejudiced and had already decided to find the employee guilty.
V K Sajan
From India, Bangalore
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I appreciate the further inputs provided by Mr. A K Jain. However, I would suggest that it should be mentioned that misconduct is alleged until the charges are proven in a duly conducted domestic/departmental inquiry, rather than stating "he has been found guilty of misconduct - see the last sentence" at this stage. Otherwise, it could be argued later that the management was prejudiced and had already decided to find the employee guilty.
V K Sajan
From India, Bangalore
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Dear All,
I require all of your help on an urgent basis regarding the matter below. Please assist me in resolving this situation:
I was working with a Limited company, and there was an incident involving another employee where my name was also implicated. As a result, the company suspended me, and I have been on suspension from Sep. 2009 until the present date. After almost 9 months, the company began providing me with a suspension allowance, which amounts to 75% of my gross salary. Now, after 5 years, an official inquiry has been initiated against me, and I am being called to the Head Office every week. The inquiry officer and the personnel manager are pressuring me to resign and drop the matter.
Could anyone please suggest what I should do in this situation? Should I resign or face the inquiry proceedings? If I opt for the inquiry, how should I handle these professionals?
Thanks & Regards,
Amit
From India, Delhi
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I require all of your help on an urgent basis regarding the matter below. Please assist me in resolving this situation:
I was working with a Limited company, and there was an incident involving another employee where my name was also implicated. As a result, the company suspended me, and I have been on suspension from Sep. 2009 until the present date. After almost 9 months, the company began providing me with a suspension allowance, which amounts to 75% of my gross salary. Now, after 5 years, an official inquiry has been initiated against me, and I am being called to the Head Office every week. The inquiry officer and the personnel manager are pressuring me to resign and drop the matter.
Could anyone please suggest what I should do in this situation? Should I resign or face the inquiry proceedings? If I opt for the inquiry, how should I handle these professionals?
Thanks & Regards,
Amit
From India, Delhi
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Dear Mr. Amit,
The inputs given by you:
1) You have been alleged of misconduct in Sept. 2009.
2) The company is paying subsistence allowance at 75% after 9 months of suspension.
3) The inquiry proceedings have started after a lapse of about 5 years.
My suggestions:
1) Go through the Certified Standing Orders of your company. There must be a timeframe mentioned to complete the inquiry in disciplinary cases, modalities for the payment of subsistence allowance, assistance of co-workers, etc.
2) Normally, after a suspension period of 10 days, 50% of wages/salary is payable as a subsistence allowance for 90 days in some establishments, and thereafter at 75% for the rest of the suspension period. The only condition is that the suspended employee has to submit a declaration that he has not undertaken any employment elsewhere. As for the completion of the inquiry, the normal time period is 6 months from the date of the issuance of the chargesheet. However, this period can be extended depending upon the proceedings and the gravity of the charges. But the proceedings must start within 6 months.
3) You need not submit your resignation if you are not guilty. Defend yourself honestly. Honesty will prevail.
4) If you are being forced to resign, you can seek shelter in the court of law in the Honorable High Court under whose jurisdiction your company falls or before any other court that is deemed appropriate.
First of all, you must claim the subsistence allowance from the date of the expiry of 10 days at 50% and at 75% after the expiry of 90 days of suspension. Obtain a receipt of the application from the concerned office to have proof of the submission of the claim. But before that, please review the Certified Standing Order for your company or Model Standing Orders.
Feel free to ask in case of any doubt.
AK Jain
HR Personnel.
From India, New+Delhi
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The inputs given by you:
1) You have been alleged of misconduct in Sept. 2009.
2) The company is paying subsistence allowance at 75% after 9 months of suspension.
3) The inquiry proceedings have started after a lapse of about 5 years.
My suggestions:
1) Go through the Certified Standing Orders of your company. There must be a timeframe mentioned to complete the inquiry in disciplinary cases, modalities for the payment of subsistence allowance, assistance of co-workers, etc.
2) Normally, after a suspension period of 10 days, 50% of wages/salary is payable as a subsistence allowance for 90 days in some establishments, and thereafter at 75% for the rest of the suspension period. The only condition is that the suspended employee has to submit a declaration that he has not undertaken any employment elsewhere. As for the completion of the inquiry, the normal time period is 6 months from the date of the issuance of the chargesheet. However, this period can be extended depending upon the proceedings and the gravity of the charges. But the proceedings must start within 6 months.
3) You need not submit your resignation if you are not guilty. Defend yourself honestly. Honesty will prevail.
4) If you are being forced to resign, you can seek shelter in the court of law in the Honorable High Court under whose jurisdiction your company falls or before any other court that is deemed appropriate.
First of all, you must claim the subsistence allowance from the date of the expiry of 10 days at 50% and at 75% after the expiry of 90 days of suspension. Obtain a receipt of the application from the concerned office to have proof of the submission of the claim. But before that, please review the Certified Standing Order for your company or Model Standing Orders.
Feel free to ask in case of any doubt.
AK Jain
HR Personnel.
From India, New+Delhi
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Dear Mr. Jain,
Please accept my heartiest thanks for your valuable suggestions and reply. Kindly suggest some more things if you feel free.
1. From where can I collect the Standing Orders of my company? If the standing order is in my favor, how can I fight on its behalf, and what are the benefits I can get?
2. In my case, proceedings started after 5 years. Is it beneficial for me?
3. My company falls under the Maharashtra Government, and I was working in the Gurgaon branch. Which jurisdiction's door do I have to knock?
4. One more suggestion I would require: They are the entire committee, and I am the single person without any strong proof against the charges. If I am found guilty, what actions can they take against me? If I am not found guilty, what financial benefits will I get from them?
Thanks & Regards,
Amit
From India, Delhi
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Please accept my heartiest thanks for your valuable suggestions and reply. Kindly suggest some more things if you feel free.
1. From where can I collect the Standing Orders of my company? If the standing order is in my favor, how can I fight on its behalf, and what are the benefits I can get?
2. In my case, proceedings started after 5 years. Is it beneficial for me?
3. My company falls under the Maharashtra Government, and I was working in the Gurgaon branch. Which jurisdiction's door do I have to knock?
4. One more suggestion I would require: They are the entire committee, and I am the single person without any strong proof against the charges. If I am found guilty, what actions can they take against me? If I am not found guilty, what financial benefits will I get from them?
Thanks & Regards,
Amit
From India, Delhi
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Dear Amit,
I am happy that my suggestions helped you.
1) You can request a Certified Standing Order copy from the HR department personally, through an application, or through the RTI Act - 2005.
2) There is no question of beneficial or non-beneficial. The question is one of justice or injustice.
3) There is no specific question about jurisdiction. You can approach the court that suits you according to your easy accessibility. The jurisdiction, if challenged by the Counselor of management, can be set aside by the Honorable court if your grounds for approaching this court are justified and accepted by the Honorable Judge.
4) As suggested earlier, you can seek help from a co-worker who will assist/help you in the inquiry proceedings. Normally, these are Union leaders if you have any in your organization. If not, you may seek legal assistance, or you may discuss your Memo/Chargesheet via my phone/email (arunjain.ccl@gmail.com) for purely friendly advice, nothing professional, if you wish. Please note that this discussion will purely be on a friendly platform, with no legal implications whatsoever.
AK Jain
HR Professional.
From India, New+Delhi
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I am happy that my suggestions helped you.
1) You can request a Certified Standing Order copy from the HR department personally, through an application, or through the RTI Act - 2005.
2) There is no question of beneficial or non-beneficial. The question is one of justice or injustice.
3) There is no specific question about jurisdiction. You can approach the court that suits you according to your easy accessibility. The jurisdiction, if challenged by the Counselor of management, can be set aside by the Honorable court if your grounds for approaching this court are justified and accepted by the Honorable Judge.
4) As suggested earlier, you can seek help from a co-worker who will assist/help you in the inquiry proceedings. Normally, these are Union leaders if you have any in your organization. If not, you may seek legal assistance, or you may discuss your Memo/Chargesheet via my phone/email (arunjain.ccl@gmail.com) for purely friendly advice, nothing professional, if you wish. Please note that this discussion will purely be on a friendly platform, with no legal implications whatsoever.
AK Jain
HR Professional.
From India, New+Delhi
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Dear All,
After all the valuable suggestions received from your side, I fought my case strongly with the company's HR and Enquiry Officer.
After that, verbally, they told me that you are not looking involved in any case or guilty, and we will try to join you back in the organization. For this, you have to give a handwritten letter without a date stating that after joining, you will not claim the balance of 6 years' 25% salary and other compensation. However, I refused the same and requested to them that it is not possible, or I can only think about it after the re-joining letter is issued. Also, you have to pay me a salary as per the present scenario.
Subsequently, they trickily mentioned in the final findings report that I was involved in the case. They did not provide me with a copy of the findings. When I asked the reason, they replied that the findings report cannot be against the senior manager, and they have to mention someone's name, and you are the last choice. They assured me not to worry, as they will include an extra clause "Benefit Of Doubts" in your favor in the final official report, and you will be re-joining after that.
The final inquiry was in June 2015, the first week, and they were supposed to call me back for other formalities in July 2015, the first week. However, they have not replied to me anything yet. When I called the HR, he replied that he had not received any information from the HO.
Please suggest what to do now.
Thanks & Regards,
Amit Kumar
From India, Delhi
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After all the valuable suggestions received from your side, I fought my case strongly with the company's HR and Enquiry Officer.
After that, verbally, they told me that you are not looking involved in any case or guilty, and we will try to join you back in the organization. For this, you have to give a handwritten letter without a date stating that after joining, you will not claim the balance of 6 years' 25% salary and other compensation. However, I refused the same and requested to them that it is not possible, or I can only think about it after the re-joining letter is issued. Also, you have to pay me a salary as per the present scenario.
Subsequently, they trickily mentioned in the final findings report that I was involved in the case. They did not provide me with a copy of the findings. When I asked the reason, they replied that the findings report cannot be against the senior manager, and they have to mention someone's name, and you are the last choice. They assured me not to worry, as they will include an extra clause "Benefit Of Doubts" in your favor in the final official report, and you will be re-joining after that.
The final inquiry was in June 2015, the first week, and they were supposed to call me back for other formalities in July 2015, the first week. However, they have not replied to me anything yet. When I called the HR, he replied that he had not received any information from the HO.
Please suggest what to do now.
Thanks & Regards,
Amit Kumar
From India, Delhi
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Dear Mr. Nathrao,
Thank you for your reply. I'm confused about your line "I would take them to court and ask for back wages and certainly look for another job." I would require some more valuable suggestions from all the seniors. All are kindly requested to please help me in this matter on an urgent basis.
Thanks & Regards,
Amit Kumar
From India, Delhi
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Thank you for your reply. I'm confused about your line "I would take them to court and ask for back wages and certainly look for another job." I would require some more valuable suggestions from all the seniors. All are kindly requested to please help me in this matter on an urgent basis.
Thanks & Regards,
Amit Kumar
From India, Delhi
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Dear Seniors,
Please accept my heartiest thanks to all for your favorable suggestions.
Here once again I am in need of your suggestions; kindly help me in this matter related to this inquiry.
Two to three days ago, I received a call from HR offering me a position in the company's branch nearest to me. However, he mentioned that I would need to resign from my current position and there would be a rejoining process with a new employee code. After listening carefully, I declined the offer, stating my preference to rejoin with my previous employee code. He expressed some difficulty but asked for time to consider and then disconnected the call.
Now, I have some questions regarding this situation:
1. Will they offer me my previous employee code, or will I have to join with a new one?
2. Can I claim any promotions? As six years have passed, if I had remained in service, I would have likely received 2 or 3 promotions.
3. Can I negotiate my current salary? Receiving my salary from six years ago would pose financial challenges.
4. Is there any compensation I can claim from the company?
If anyone has additional helpful insights, please share.
Awaiting all of your suggestions.
Thanks & Regards,
Amit Kumar
From India, Delhi
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Please accept my heartiest thanks to all for your favorable suggestions.
Here once again I am in need of your suggestions; kindly help me in this matter related to this inquiry.
Two to three days ago, I received a call from HR offering me a position in the company's branch nearest to me. However, he mentioned that I would need to resign from my current position and there would be a rejoining process with a new employee code. After listening carefully, I declined the offer, stating my preference to rejoin with my previous employee code. He expressed some difficulty but asked for time to consider and then disconnected the call.
Now, I have some questions regarding this situation:
1. Will they offer me my previous employee code, or will I have to join with a new one?
2. Can I claim any promotions? As six years have passed, if I had remained in service, I would have likely received 2 or 3 promotions.
3. Can I negotiate my current salary? Receiving my salary from six years ago would pose financial challenges.
4. Is there any compensation I can claim from the company?
If anyone has additional helpful insights, please share.
Awaiting all of your suggestions.
Thanks & Regards,
Amit Kumar
From India, Delhi
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DISCIPLINARY ACTION.ppt
Record of disciplinary action.doc