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, inspite of accepting his resignation sent him a notice (after 10-20 days) that your resignation has been put on hold and a detailed inquiry will be conducted against you and during your absence you will work on no work no pay basis.
will this suffice or other measures should have been adopted
need earliest reply
From India, Dehra Dun
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, inspite of accepting his resignation sent him a notice (after 10-20 days) that your resignation has been put on hold and a detailed inquiry will be conducted against you and during your absence you will work on no work no pay basis.
will this suffice or other measures should have been adopted
need earliest reply
From India, Dehra Dun
Since resignation is not accepted, the employer-employee relationship continues. Disciplinary action can be initiated with issue of a charge sheet. May be kept under suspension pending enquiry (see your standing orders) in which case subsistence allowance to be paid. Other than these disciplinary procedures (required if you decide later to dismiss him in case charges are proved, and to forfeiture of gratuity, leave encashment etc.), FIR may be lodged with police under applicable provisions of IPC and a criminal case also may be initiated.
From India, Bangalore
From India, Bangalore
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 it was again kept on hold? Was the resignation to take immediate effect? or is to take effect from a future date ? if so was the notice sent within such future date?Was it accepted with immediate effect or with effect from future date? was the acceptance communicated to the employee? What is this working on no work-no pay basis? All these issues are to be examined before taking a disciplinary action.
B.Saikumar
From India, Mumbai
B.Saikumar
From India, Mumbai
Dear Mr. Bhardwaj,
I agree with the views of Mr. Sajan, except for few things as detailed below. You may proceed as under :-
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 for getting his presence marked for payment of subsistence allowance and ensuring that he has not secured employment elsewhere during the period of suspension. Clearly mention the amount of misappropriation and ask for explanation. Order and Conduct an inquiry. Notify the employee concerned to participate and defend him/her self. Mentioning of amount is necessary, so that the same may be mentioned in Dismissal Order if charges proved and employee found guilty of misconduct.
Send copy of constitution of Inquiry Committee and fixing of date of inquiry to Accused employee(AW) through Regd. Post with A/D giving reasonable time for postal delivery. If AW fails to participate in inquiry and defend himself, give two more dates for attending the inquiry. A record of absence is to be recorded by the Inquiry Officer(IO). Even if thereafter the AW fails, conclude the inquiry proceedings ex-parte. IO will give his findings and conclude with proving the charges as the AW failed to defend him/her self.
Then the Disciplinary Authority will order for punishment as deemed fit. In this case, it might be dismissal from service on moral turpitude ground with forfeiture of gratuity and other terminal dues to the extent of misappropriation of funds.
PLEASE NOTE THAT :
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. DON'T USE THE TERM "ON HOLD" FOR KEEPING THE ACCEPTANCE OF RESIGNATION IN ABEYANCE. COMMUNICATE THE ERRING EMPLOYEE THAT RESIGNATION HAS NOT BEEN ACCEPTED AND HE HAS BEEN FOUND GUILTY OF MISCONDUCT.
AK JAIN
From India, Jabalpur
I agree with the views of Mr. Sajan, except for few things as detailed below. You may proceed as under :-
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 for getting his presence marked for payment of subsistence allowance and ensuring that he has not secured employment elsewhere during the period of suspension. Clearly mention the amount of misappropriation and ask for explanation. Order and Conduct an inquiry. Notify the employee concerned to participate and defend him/her self. Mentioning of amount is necessary, so that the same may be mentioned in Dismissal Order if charges proved and employee found guilty of misconduct.
Send copy of constitution of Inquiry Committee and fixing of date of inquiry to Accused employee(AW) through Regd. Post with A/D giving reasonable time for postal delivery. If AW fails to participate in inquiry and defend himself, give two more dates for attending the inquiry. A record of absence is to be recorded by the Inquiry Officer(IO). Even if thereafter the AW fails, conclude the inquiry proceedings ex-parte. IO will give his findings and conclude with proving the charges as the AW failed to defend him/her self.
Then the Disciplinary Authority will order for punishment as deemed fit. In this case, it might be dismissal from service on moral turpitude ground with forfeiture of gratuity and other terminal dues to the extent of misappropriation of funds.
PLEASE NOTE THAT :
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. DON'T USE THE TERM "ON HOLD" FOR KEEPING THE ACCEPTANCE OF RESIGNATION IN ABEYANCE. COMMUNICATE THE ERRING EMPLOYEE THAT RESIGNATION HAS NOT BEEN ACCEPTED AND HE HAS BEEN FOUND GUILTY OF MISCONDUCT.
AK JAIN
From India, Jabalpur
Hi all,
I appreciate further inputs given by Mr. A K Jain. However, I would suggest, it should be mentioned that misconduct is alleged, until the charges are proved in a duly held domestic/departmental enquiry (rather than "he has been found guilty of misconduct - see last sentence) at this stage. Otherwise it may be argued later that management was prejudiced and predetermined to hold the employee guilty.
V K Sajan
From India, Bangalore
I appreciate further inputs given by Mr. A K Jain. However, I would suggest, it should be mentioned that misconduct is alleged, until the charges are proved in a duly held domestic/departmental enquiry (rather than "he has been found guilty of misconduct - see last sentence) at this stage. Otherwise it may be argued later that management was prejudiced and predetermined to hold the employee guilty.
V K Sajan
From India, Bangalore
Dear All,
I required all of yours help on urgent basis on below matter, please help me out from this situation:-
I was working with an Limited company and there was some mishappening done by some other employe and my name was also involved in that. After that company has suspended me and I am on suspension from Sep. 2009 to till date. After almost 9 months company has started to give me the suspension allowance of 75% of my gross salary. Now after 5 years they had started the official inquiry against me and calling me in HO in every week. There enquiry officer and personal manager are forcing me to put the resign and leave the matter.
Could anyone please suggest me what I have to do in this situation. Should I have to put resign or face the inquiry procidings. And if I asked for the inquiry, then how can I handle these professionals.
Thanks & Regards
Amit
From India, Delhi
I required all of yours help on urgent basis on below matter, please help me out from this situation:-
I was working with an Limited company and there was some mishappening done by some other employe and my name was also involved in that. After that company has suspended me and I am on suspension from Sep. 2009 to till date. After almost 9 months company has started to give me the suspension allowance of 75% of my gross salary. Now after 5 years they had started the official inquiry against me and calling me in HO in every week. There enquiry officer and personal manager are forcing me to put the resign and leave the matter.
Could anyone please suggest me what I have to do in this situation. Should I have to put resign or face the inquiry procidings. And if I asked for the inquiry, then how can I handle these professionals.
Thanks & Regards
Amit
From India, Delhi
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 @ 75% after 9 months of suspension. 3) The inquiry proceedings have started after lapse of about 5 years.
My suggestions :- 1) Go through the Certified Standing Orders of your Company. There must be some time frame mentioned to complete inquiry in disciplinary cases, modalities for payment of subsistence allowance, assistance of co-worker, etc. etc.
2) Normally, after a suspension period of 10 days, 50% of wages/salary is payable as subsistence allowance till 90 days in some establishments and thereafter @ 75% for rest of the period for suspension. The only condition is that the suspended employee has to submit a declaration that he is not undertaken any employment elsewhere. As regards completion of inquiry, the normal time period is 6 months from the date of issuance of chargesheet. However this period can extend 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 take shelter of court of law in Hon'ble High Court under whose jurisdiction your company comes or before the court, which is deemed fit.
First of all you must claim subsistence allowance from the date of expiry of 10 days @ 50% and @ 75% after expiry of 90 days of suspension. Obtain a receipt of the application from office concerned to have a proof of submission of claim. But before that, please go through Certified Standing Order for your company or Model Standing Orders.
You may feel free to ask in case of any doubt.
AK Jain
HR Personnel.
From India, Jabalpur
The inputs given by you : 1) You have been alleged of misconduct in Sept. 2009. 2) The Company is paying Subsistence allowance @ 75% after 9 months of suspension. 3) The inquiry proceedings have started after lapse of about 5 years.
My suggestions :- 1) Go through the Certified Standing Orders of your Company. There must be some time frame mentioned to complete inquiry in disciplinary cases, modalities for payment of subsistence allowance, assistance of co-worker, etc. etc.
2) Normally, after a suspension period of 10 days, 50% of wages/salary is payable as subsistence allowance till 90 days in some establishments and thereafter @ 75% for rest of the period for suspension. The only condition is that the suspended employee has to submit a declaration that he is not undertaken any employment elsewhere. As regards completion of inquiry, the normal time period is 6 months from the date of issuance of chargesheet. However this period can extend 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 take shelter of court of law in Hon'ble High Court under whose jurisdiction your company comes or before the court, which is deemed fit.
First of all you must claim subsistence allowance from the date of expiry of 10 days @ 50% and @ 75% after expiry of 90 days of suspension. Obtain a receipt of the application from office concerned to have a proof of submission of claim. But before that, please go through Certified Standing Order for your company or Model Standing Orders.
You may feel free to ask in case of any doubt.
AK Jain
HR Personnel.
From India, Jabalpur
Dear Mr. Jain please accept my heartiest thanks for your valuable suggestions and reply. Kindly suggest some more things if you feels free,
1. From where I can collect the Standing orders of my company. And if standing order comes in my favor then how I can fight on its behalf and what the benefits I can get.
2. In my case proceedings get started after 5 years, then is it beneficial for me?
3. My company comes under the Maharashtra Govt. and I was working in Gurgaon Branch. Then which jurisdiction's door I have to knock.
4. One more suggest I would require, that they are the entire committee and I am the single person and also not having any strong proof against the charges. May be I found guilty then what the action they can taken against me. Or if I not found guilty then what the financial benefits I will get from them.
Thanks & Regards
Amit
From India, Delhi
1. From where I can collect the Standing orders of my company. And if standing order comes in my favor then how I can fight on its behalf and what the benefits I can get.
2. In my case proceedings get started after 5 years, then is it beneficial for me?
3. My company comes under the Maharashtra Govt. and I was working in Gurgaon Branch. Then which jurisdiction's door I have to knock.
4. One more suggest I would require, that they are the entire committee and I am the single person and also not having any strong proof against the charges. May be I found guilty then what the action they can taken against me. Or if I not found guilty then what the financial benefits I will get from them.
Thanks & Regards
Amit
From India, Delhi
Dear Amit,
I am happy that my suggestions helped you.
1) You can request for Certified standing Order copy from HR deptt. personally, through application or through RTI Act - 2005.
2) There is no question of beneficial or non-beneficial. The question is of justice or injustice.
3) There is no specific question about jurisdiction. You can approach the court which suits you according to your easy accessibility. The jurisdiction if challenged by the Counselor of management can be set aside by the Hon'ble court if your ground for approaching to this court is justified and is accepted by the Hon'ble Judge.
4) As suggested earlier, you can take help of a co-worker who will assist / help you in inquiry proceedings. Normally these are Union leaders if you have any in your organization. If not, you may take legal assistance, else you may discuss your Memo/Chargesheet on my phone/mail(arunjain.ccl@gmail.com) for a pure friendly advise, nothing professional, if you wish. Pl note that this discussion will purely be on a friendly platform, having no legal implications, whatsoever.
AK Jain
HR Professional.
From India, Jabalpur
I am happy that my suggestions helped you.
1) You can request for Certified standing Order copy from HR deptt. personally, through application or through RTI Act - 2005.
2) There is no question of beneficial or non-beneficial. The question is of justice or injustice.
3) There is no specific question about jurisdiction. You can approach the court which suits you according to your easy accessibility. The jurisdiction if challenged by the Counselor of management can be set aside by the Hon'ble court if your ground for approaching to this court is justified and is accepted by the Hon'ble Judge.
4) As suggested earlier, you can take help of a co-worker who will assist / help you in inquiry proceedings. Normally these are Union leaders if you have any in your organization. If not, you may take legal assistance, else you may discuss your Memo/Chargesheet on my phone/mail(arunjain.ccl@gmail.com) for a pure friendly advise, nothing professional, if you wish. Pl note that this discussion will purely be on a friendly platform, having no legal implications, whatsoever.
AK Jain
HR Professional.
From India, Jabalpur
Dear All,
After all the valuable suggestions received from your side I fought my case strongly with company's HR and Enquiry Officer.
After that, verbally they told me that your are not looking involved in any case or guilty and we will try to join you back in the organization. And for this you have to give an handwritten letter without date that after joining you will not claim for the balance 6 years 25% salary and other compensation. But I refused the same and requested to them, that it is not possible or I can think about it only after re-joining letter issuance. And you have to pay me salary as per present scenario.
After that trickily they had mention in the final findings report that I was involved in the case. They had also not provided the findings copy to me. When I asked the reason to them, they replied that the findings report can't be against the senior manager and we have to mention someone's name and you are the last choice. They said that don't worry we will put an extra clause "Benefit Of Doubts" in your favor in final official report and you will be re-join after that.
The final inquiry was in june-15 first week and they were supposed to call me back for other formalities in july-15 first week. But till now they had not replied me any thing. When I called the HR, he replied that he had not get any information from HO.
Please suggest, what to do now.
Thanks & Regards
Amit Kumar
From India, Delhi
After all the valuable suggestions received from your side I fought my case strongly with company's HR and Enquiry Officer.
After that, verbally they told me that your are not looking involved in any case or guilty and we will try to join you back in the organization. And for this you have to give an handwritten letter without date that after joining you will not claim for the balance 6 years 25% salary and other compensation. But I refused the same and requested to them, that it is not possible or I can think about it only after re-joining letter issuance. And you have to pay me salary as per present scenario.
After that trickily they had mention in the final findings report that I was involved in the case. They had also not provided the findings copy to me. When I asked the reason to them, they replied that the findings report can't be against the senior manager and we have to mention someone's name and you are the last choice. They said that don't worry we will put an extra clause "Benefit Of Doubts" in your favor in final official report and you will be re-join after that.
The final inquiry was in june-15 first week and they were supposed to call me back for other formalities in july-15 first week. But till now they had not replied me any thing. When I called the HR, he replied that he had not get any information from HO.
Please suggest, what to do now.
Thanks & Regards
Amit Kumar
From India, Delhi
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DISCIPLINARY ACTION.ppt
Record of disciplinary action.doc