Hello, One of the employees in a company has been suspended in January end itself . The Employee is being paid Subsistence allowance till the completion of Disciplinary Enquiry. He will be paid 50 % of the wages till the period of 90 days as per Standing Orders.
The enquiry was in process but due to lockdown it has now been postponed, otherwise could have been completed before 90 days.
In the meantime the 90 day period is getting exhausted in the lockdown. Will the company now be liable to pay him wages at increased rate (say 75 % ) or will the lockdown period not be counted as part of his 90 day period for calculating subsistence allowance to be given under suspension.
Any Thoughts ?
8The enquiry was in process but due to lockdown it has now been postponed, otherwise could have been completed before 90 days.
In the meantime the 90 day period is getting exhausted in the lockdown. Will the company now be liable to pay him wages at increased rate (say 75 % ) or will the lockdown period not be counted as part of his 90 day period for calculating subsistence allowance to be given under suspension.
Any Thoughts ?
Dear Mayank,
The suddenly imposed lock down and its consequent impact on the further continuance of the enquiry proceedings do not in any way alter the employee's status of suspension nor they are attributable to the employee.
Therefore, on crossing the initial limit of 90 days of suspension pending enquiry, the subsistence allowance should be paid at enhanced rate only.
From India, Salem
The suddenly imposed lock down and its consequent impact on the further continuance of the enquiry proceedings do not in any way alter the employee's status of suspension nor they are attributable to the employee.
Therefore, on crossing the initial limit of 90 days of suspension pending enquiry, the subsistence allowance should be paid at enhanced rate only.
From India, Salem
Dear Colleague,
In my opinion, the EO should go on record to order postponement of the enquiry due to compelling circumstances not attributable to any party to the enquiry.
If the enquiry is postponed for such reasons which are not of anybody's making, the suspension period be treated as broken and will continue later as part of ninety days from the date the enquiry is ordered to be resumed. I am only using a logic and am aware that it is not backed by legal strength.
I am attempting to suggest a new precedent for legal review by the authorities. as such a situation is unlikely to have occured before.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
In my opinion, the EO should go on record to order postponement of the enquiry due to compelling circumstances not attributable to any party to the enquiry.
If the enquiry is postponed for such reasons which are not of anybody's making, the suspension period be treated as broken and will continue later as part of ninety days from the date the enquiry is ordered to be resumed. I am only using a logic and am aware that it is not backed by legal strength.
I am attempting to suggest a new precedent for legal review by the authorities. as such a situation is unlikely to have occured before.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
The lock-down is not a deciding factor in deciding the enhancement of subsistence allowance. The settled norm is that subsistence allowance is to be enhanced on the completion of the initial period of 90 days if the delay in the completion of the disciplinary proceedings is not attributable to the employee concerned.
From India, Kochi
From India, Kochi
Earlier on occasions, the Law & Order Authorities Imposed/Promulgated " Curfew" with Conditions to Issue Curfew Permits to Limited-People-Only Engaged in/ on Essential Services and the Present Situation is similar in nature.
What Mr Umakanthan holds is Valid in Employment Laws and Ought to be Followed/Copied
Kritarth Consultants,
Management Care-Takers,
Bengaluru Service Delivery Centre,
21.4.20
From India, Delhi
What Mr Umakanthan holds is Valid in Employment Laws and Ought to be Followed/Copied
Kritarth Consultants,
Management Care-Takers,
Bengaluru Service Delivery Centre,
21.4.20
From India, Delhi
Dear Colleague,
Notwithstanding the present legal position , a contention is being raised here for judicial review later to decide the propriety of paying subsistence allowance at enhanced rate .
The moot point is that the enquiry is being forced to be postponed beyond 90 days and the delay in completing enquiry is not attributable to workman during the lockdown period, it is also equally not attributable to the EO/ Management.
I am raising a question of principle for judicial consideration in this unprecedented circumstances.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Notwithstanding the present legal position , a contention is being raised here for judicial review later to decide the propriety of paying subsistence allowance at enhanced rate .
The moot point is that the enquiry is being forced to be postponed beyond 90 days and the delay in completing enquiry is not attributable to workman during the lockdown period, it is also equally not attributable to the EO/ Management.
I am raising a question of principle for judicial consideration in this unprecedented circumstances.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Dear Mayank,
The subsistence allowance for the first 90 days is one half of the emoluments and shall be three fourth if exceeds the above period. But if the inquiry is prolonged beyond 90 days for reasons attributable to workman, the subsistence allowance shall be reduced to one fourth of the emoluments.
The question is, why the inquiry could not been completed within period of 90 days by the management. Whether the delay is due to non-cooperation by the employee or by the management. If, the sudden impose of lock down amidst the inquiry period is unprecedented situation. In view of the present situation emoluments shall be paid three fourth.
From India, Mumbai
The subsistence allowance for the first 90 days is one half of the emoluments and shall be three fourth if exceeds the above period. But if the inquiry is prolonged beyond 90 days for reasons attributable to workman, the subsistence allowance shall be reduced to one fourth of the emoluments.
The question is, why the inquiry could not been completed within period of 90 days by the management. Whether the delay is due to non-cooperation by the employee or by the management. If, the sudden impose of lock down amidst the inquiry period is unprecedented situation. In view of the present situation emoluments shall be paid three fourth.
From India, Mumbai
Dear Mr.Vinayak,
Perhaps the point you raised is a valid question of law and as such can be subject to judicial review if the employer chooses explicitly not to pay the subsistence allowance at the enhanced rate so long as the lock down continues as a situation beyond his reasonable expectation or control;that's fine.
However, before such a decision, it is imperative to analyze the concepts of suspension and subsistence allowance in the realm of employment as part of disciplinary proceedings either anticipated or in progress. It is not necessary that every disciplinary proceeding, anticipated or in progress against an employee, would warrant suspension. It is the serious nature of the misconduct alleged and the possibility of the delinquent's meddling with the documents or influencing the witnesses, if any to his favour are the factors to keep him temporarily out of his official position. Therefore, the employer is the sole judge to decide the matter and thus it is a matter of discretion only. If placed under suspension pending enquiry, the delinquent is deprived of his earnings out of the contract of employment which is kept under animated suspension only though he is bound to submit himself to the proceedings as and when required. That's the objective behind the sanction of subsistence allowance during the entire period of suspension. At the same time the enhancement of its rate of payment linking to the suspension period's different spells emanates from the need for the expeditious disposal of the disciplinary proceedings by the employer to ward off any unfair labor practice under the pretext of suspension. Therefore, it is not necessary that every disciplinary proceeding and the delinquent's suspension should be concurrent and concomitant.
If we analyze the situation presented by Mr.Mayank-lad in this back drop, what would require our attention to refute enhanced rate of subsistence allowance beyond the first or subsequent spell of suspension is whether the delay is attributable on the part of the suspended employee only. If the answer is "no", then he is entitled to enhanced rate of subsistence allowance as long as he is under suspension pending enquiry. The difficulty if any like the intervening lock down faced by the employer cannot be a reasonable ground against enhancement of the rate of subsistence allowance thus prescribed in the service regulations or the contract of employment for it is only a concession to the prolonged suspension.
From India, Salem
Perhaps the point you raised is a valid question of law and as such can be subject to judicial review if the employer chooses explicitly not to pay the subsistence allowance at the enhanced rate so long as the lock down continues as a situation beyond his reasonable expectation or control;that's fine.
However, before such a decision, it is imperative to analyze the concepts of suspension and subsistence allowance in the realm of employment as part of disciplinary proceedings either anticipated or in progress. It is not necessary that every disciplinary proceeding, anticipated or in progress against an employee, would warrant suspension. It is the serious nature of the misconduct alleged and the possibility of the delinquent's meddling with the documents or influencing the witnesses, if any to his favour are the factors to keep him temporarily out of his official position. Therefore, the employer is the sole judge to decide the matter and thus it is a matter of discretion only. If placed under suspension pending enquiry, the delinquent is deprived of his earnings out of the contract of employment which is kept under animated suspension only though he is bound to submit himself to the proceedings as and when required. That's the objective behind the sanction of subsistence allowance during the entire period of suspension. At the same time the enhancement of its rate of payment linking to the suspension period's different spells emanates from the need for the expeditious disposal of the disciplinary proceedings by the employer to ward off any unfair labor practice under the pretext of suspension. Therefore, it is not necessary that every disciplinary proceeding and the delinquent's suspension should be concurrent and concomitant.
If we analyze the situation presented by Mr.Mayank-lad in this back drop, what would require our attention to refute enhanced rate of subsistence allowance beyond the first or subsequent spell of suspension is whether the delay is attributable on the part of the suspended employee only. If the answer is "no", then he is entitled to enhanced rate of subsistence allowance as long as he is under suspension pending enquiry. The difficulty if any like the intervening lock down faced by the employer cannot be a reasonable ground against enhancement of the rate of subsistence allowance thus prescribed in the service regulations or the contract of employment for it is only a concession to the prolonged suspension.
From India, Salem
Dear Mr Umakanthan,
You have well brought out the legal position on the aspect of the propriety and justification for suspending an employee and consequent payment of subsistence allowance as per present provisions in the Standing orders.
In the post of Mayank, the suspension is a given thing and the applicable rate of payment of subsistence allowance during the lockdown period is point in question.
As per current legal provisions , as you have rightly stated, under any circumstances and whether lockdown or no lockdown, subsistence allowance at enhanced rate after 90 days of delay is payable to the suspended employee if it is not due to him. But here I am raising the very question of principle as to why enhanced rate should apply when it is
not also attributable to the employer.
At least you seem to see some merit in my contention and thanks for that.
My points are academic and hypothetical and am happy it has enabled churning erudite responses and learning.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
You have well brought out the legal position on the aspect of the propriety and justification for suspending an employee and consequent payment of subsistence allowance as per present provisions in the Standing orders.
In the post of Mayank, the suspension is a given thing and the applicable rate of payment of subsistence allowance during the lockdown period is point in question.
As per current legal provisions , as you have rightly stated, under any circumstances and whether lockdown or no lockdown, subsistence allowance at enhanced rate after 90 days of delay is payable to the suspended employee if it is not due to him. But here I am raising the very question of principle as to why enhanced rate should apply when it is
not also attributable to the employer.
At least you seem to see some merit in my contention and thanks for that.
My points are academic and hypothetical and am happy it has enabled churning erudite responses and learning.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
If an employee is taking substance allowance and he has resigned before the suspension is his resignation is valid . As after resignation they have imposed false allegation and than suspended on 31st march as the enquiry has been done on 26th feb 2020 and resignation has been placed on 17 Feb 2020 please suggest shall I go legal for my FNF settlement .
From India, Lucknow
From India, Lucknow
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