Dear Seniors,
If we add the clause in the Appointment Letter of the Workman that during domestic enquiry proceedings the Subsistence Allowance would be only 50% of (Gross Wages = Basic + DA + HRA + Other Allowances), then irrespective of the duration of the domestic enquiry proceedings, the employer would be liable to pay only 50% Subsistence Allowance. Is there any judgment regarding this?
Thanks in anticipation.
From India, Pune
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470If we add the clause in the Appointment Letter of the Workman that during domestic enquiry proceedings the Subsistence Allowance would be only 50% of (Gross Wages = Basic + DA + HRA + Other Allowances), then irrespective of the duration of the domestic enquiry proceedings, the employer would be liable to pay only 50% Subsistence Allowance. Is there any judgment regarding this?
Thanks in anticipation.
From India, Pune
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Dear Prashant,
Going by the apex court judgment, payment of subsistence allowance during the pendency of a domestic inquiry is unavoidable. Failure to do so would weaken our defense and could result in a judgment favoring the accused. You may refer to Capt. Paul Antony Vs. Bharat Gold Mines Ltd., settled by the Supreme Court about 10 years ago on this very issue, which is worth taking a cue from. I can post this judgment ASAP.
Kumar.s.
From India, Bangalore
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Going by the apex court judgment, payment of subsistence allowance during the pendency of a domestic inquiry is unavoidable. Failure to do so would weaken our defense and could result in a judgment favoring the accused. You may refer to Capt. Paul Antony Vs. Bharat Gold Mines Ltd., settled by the Supreme Court about 10 years ago on this very issue, which is worth taking a cue from. I can post this judgment ASAP.
Kumar.s.
From India, Bangalore
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Dear Prashant,
Here are the attachments relevant to the subject of suspension, inquiry, payment of subsistence allowance, etc., and collection of some other comments, remarks, and opinions to enlighten the matter. A HR person who keeps referring to such materials as frequently as possible would become knowledgeable about the most important matters.
Regards,
Kumar S.
From India, Bangalore
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Here are the attachments relevant to the subject of suspension, inquiry, payment of subsistence allowance, etc., and collection of some other comments, remarks, and opinions to enlighten the matter. A HR person who keeps referring to such materials as frequently as possible would become knowledgeable about the most important matters.
Regards,
Kumar S.
From India, Bangalore
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If the suspension is extended beyond 90 days, the employee should be given 75% of pay. In some State Acts (like that of the Kerala Payment of Subsistence Allowance Act), if the suspension is extended beyond 180 days, the employee should be paid 100% of the salary. Salary for all purposes shall include basic salary and dearness allowance. At the same time, if the extension of suspension is due to non-cooperation of the suspended employee to appear for an inquiry, the allowance shall be withheld.
Madhu.T.K
From India, Kannur
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Madhu.T.K
From India, Kannur
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There are legal provisions that apply to cases where an employee is suspended pending an inquiry into charges leveled against him/her.
Moreover, why do you want to include such a clause in the appointment letter? It is best avoided. After all, instances of suspension are rather rare, and when they occur, the provisions of the law would automatically apply.
Vasant Nair
From India, Mumbai
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Moreover, why do you want to include such a clause in the appointment letter? It is best avoided. After all, instances of suspension are rather rare, and when they occur, the provisions of the law would automatically apply.
Vasant Nair
From India, Mumbai
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Dear member,
First and foremost, I agree with Vasant. Why do you want to include a clause of subsistence allowance in the appointment letter as the cases are very rare when you suspend a workman pending inquiry?
Secondly, the provisions of subsistence allowance are clearly defined, and whatever you put in the appointment letter will not hold good as the provisions you are mentioning are less favorable to the workman than specified in the law.
Regards,
Preetam Deshpande
From India, Mumbai
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First and foremost, I agree with Vasant. Why do you want to include a clause of subsistence allowance in the appointment letter as the cases are very rare when you suspend a workman pending inquiry?
Secondly, the provisions of subsistence allowance are clearly defined, and whatever you put in the appointment letter will not hold good as the provisions you are mentioning are less favorable to the workman than specified in the law.
Regards,
Preetam Deshpande
From India, Mumbai
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Prashant,
It is well defined in the ID Act about the quantum of payment towards subsistence allowance when you put someone on "suspension pending inquiry". Whether you mention it in your appointment or not, this will automatically be applied. Mentioning the same in the appointment letter will be redundant and probably signal a negative message to a newcomer.
Focus on conveying positive aspects and the benefits available to the individual upon accepting the offer and the general terms of service in the appointment letter. Other details, such as the one you specified, can be outlined in the Standing Orders, which you can make him read and understand.
V. Balaji
From India, Madras
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It is well defined in the ID Act about the quantum of payment towards subsistence allowance when you put someone on "suspension pending inquiry". Whether you mention it in your appointment or not, this will automatically be applied. Mentioning the same in the appointment letter will be redundant and probably signal a negative message to a newcomer.
Focus on conveying positive aspects and the benefits available to the individual upon accepting the offer and the general terms of service in the appointment letter. Other details, such as the one you specified, can be outlined in the Standing Orders, which you can make him read and understand.
V. Balaji
From India, Madras
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The ID Act is silent on subsistence allowance. It is the Standing Orders Act which makes subsistence allowance mandatory, as Madhu has pointed out. In establishments not covered by the Standing Orders Act, it is advisable to include it as a term of employment.
VARGHESE MATHEW
09961266966
From India, Thiruvananthapuram
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VARGHESE MATHEW
09961266966
From India, Thiruvananthapuram
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Sorry, it is not the ID Act which defines the quantum of Subsistence Allowance. It is the Standing Orders which does so. Vasant Nair
From India, Mumbai
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From India, Mumbai
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Dear Prashant ji, I suggest to issue appointment letter as per attached draft which is in KISS formula. Always adopt KISS.... any where, any time. Thanks with regards. Keshav Korgaonkar
From India, Mumbai
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From India, Mumbai
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Dear friends,
I observed that many friends in HR have tried to:
1. Include a clause in the appointment order stating, "During the probation period, termination can occur without notice, without assigning any reason whatsoever."
2. "The probation period can be extended at the discretion of the management."
3. "Duties and responsibilities, terms & conditions of your appointment, etc., will be issued to you in due course," and so on.
It is my humble opinion that these kinds of one-sided terms do not hold up under legal scrutiny and would fail to uphold natural justice.
When framing terms and conditions, it is always advisable to list out almost all possible and applicable terms and conditions of appointment and attach them to the offer stage itself. If possible, clearly mention under what circumstances the probation could be extended and up to what period. We should, to the extent possible, leave no terms ambiguous. Clearly defining all terms and conditions would prevent any ambiguities in the administration of HR functions.
Additionally, communications should be in writing, duly acknowledged, and accepted by the concerned employee.
Importantly, the terms, rules, and regulations should invariably be consistent with the law of the land, and none should be ultra vires any applicable act or legislation.
Similarly, when HR is required to take disciplinary action against any employee, regardless of their level, it should be done only through the domestic inquiry route without fail. Any deviation from the procedures could lead to litigations going against the employer.
Kumar S.
From India, Bangalore
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I observed that many friends in HR have tried to:
1. Include a clause in the appointment order stating, "During the probation period, termination can occur without notice, without assigning any reason whatsoever."
2. "The probation period can be extended at the discretion of the management."
3. "Duties and responsibilities, terms & conditions of your appointment, etc., will be issued to you in due course," and so on.
It is my humble opinion that these kinds of one-sided terms do not hold up under legal scrutiny and would fail to uphold natural justice.
When framing terms and conditions, it is always advisable to list out almost all possible and applicable terms and conditions of appointment and attach them to the offer stage itself. If possible, clearly mention under what circumstances the probation could be extended and up to what period. We should, to the extent possible, leave no terms ambiguous. Clearly defining all terms and conditions would prevent any ambiguities in the administration of HR functions.
Additionally, communications should be in writing, duly acknowledged, and accepted by the concerned employee.
Importantly, the terms, rules, and regulations should invariably be consistent with the law of the land, and none should be ultra vires any applicable act or legislation.
Similarly, when HR is required to take disciplinary action against any employee, regardless of their level, it should be done only through the domestic inquiry route without fail. Any deviation from the procedures could lead to litigations going against the employer.
Kumar S.
From India, Bangalore
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Dears, Can we pay the increment during the suspension period Regards/Sridharrajan
From United States, Huntsville
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From United States, Huntsville
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Dear Sridhar, While an Employee is under "Suspension" he is eligible for "Subsistence Allowance" in what context, you are proposing to pay Increment.Please elaborate your proposal
From India, New Delhi
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From India, New Delhi
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During the suspension period, the employer-employee relationship remains intact. In the absence of any express order stating that the employee placed under suspension pending an inquiry is not entitled to any increment, he should be paid the increment due, and the subsistence allowance should be paid based on the increased salary. Obviously, the subsistence allowance is a percentage (50%, 75%, or 100%, as the case may be) of his pay, and once his pay is increased by the element of the increment given, the subsistence pay will also increase.
No doubt, if your increments are purely based on performance, you need not pay it. But if the employee is under a time scale with annual increments marked against each grade, he should be paid the increment.
In support of the above, there are a lot of court cases available. One case is attached for your reference.
From India, Kannur
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No doubt, if your increments are purely based on performance, you need not pay it. But if the employee is under a time scale with annual increments marked against each grade, he should be paid the increment.
In support of the above, there are a lot of court cases available. One case is attached for your reference.
From India, Kannur
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Whether to deduct epf ,esic and labour welfare from 50 % of subsistence allowance processed?
From India, Kannur
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From India, Kannur
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Subsistence allowance is an allowance paid to a worker for their survival during a suspension period when the worker is not on duty. Therefore, it will not come under the definition of wages under the EPF & MP Act, and no PF should be deducted from the amount paid. At the same time, since the employee is an insured person even though they are under suspension, the amount paid for their survival, i.e., the subsistence allowance, will attract ESI contribution.
From India, Kannur
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From India, Kannur
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Appointment Letter to an Employee for fixed period.doc
The karnataka payment of subsistence allowance Act, 1988.pdf