The residence of the workman was raided by Police Department under benefit of doubt by employer in view of possession of establishment property. Suitable search warrant was sought understanding the complications of the lost goods. FIR was registered and case was taken to court under IPC 378. The case is awaited for judgement. Meanwhile the employee was placed under suspension under Sec 2(g) of Subsistence Allowance Act and called for domestic enquiry for disciplinary proceedings. The delinquent employee has not attended the enquiry and put up a requisition stating to postpone the enquiry after the judgement of the trail case. The employer subsequently sent several call letters to employee for atteding the enquiry and further treated as exparte. The employee was dismissed since the tenure of suspension escalated for 260 days.
Now the question is
a) Since the domestic enquiry and the case under trial is of same facts can the employer dismiss the employee before judgement since it is not proved?
b) If he could not be dismissed should the employer pay 100% subsistence allowance? Refer Sec 10A of Industrial Employment Standing Order Act 1946.
c) If that is the case what would be the cost if the judgement prolongs? This is as such of penalising the employer for the misconduct of the employee. To prevent this what is the legal route.
I request the seniors to clarify on the above
From India, Coimbatore
1Now the question is
a) Since the domestic enquiry and the case under trial is of same facts can the employer dismiss the employee before judgement since it is not proved?
b) If he could not be dismissed should the employer pay 100% subsistence allowance? Refer Sec 10A of Industrial Employment Standing Order Act 1946.
c) If that is the case what would be the cost if the judgement prolongs? This is as such of penalising the employer for the misconduct of the employee. To prevent this what is the legal route.
I request the seniors to clarify on the above
From India, Coimbatore
Dear Dinesh,
Simultaneous initiation of disciplinary proceedings and criminal case in a Court of Law against the same employee on the same facts of misconduct is certainly a very tricky situation. The purpose of the disciplinary action undertaken by the employer on account of any grave misconduct is to come to a conclusion whether to retain the services of the employee in the organization or not. But the Criminal Court would look for adequate evidence beyond any doubt to convict the accused person. On a proper evaluation of the evidence adduced before it, the Court may acquit the accused on benefit of doubt or exonerate him of the charges or even convict him. In such a situation, whatever the decision of the employer on the punishment consequent on the disciplinary proceedings, it has to yield to the verdict of the Criminal Court only. Therefore, such a situation would warrant the employer to await the outcome of the pending criminal case only. Lots of judgments are there in the web in this regard.
From India, Salem
Simultaneous initiation of disciplinary proceedings and criminal case in a Court of Law against the same employee on the same facts of misconduct is certainly a very tricky situation. The purpose of the disciplinary action undertaken by the employer on account of any grave misconduct is to come to a conclusion whether to retain the services of the employee in the organization or not. But the Criminal Court would look for adequate evidence beyond any doubt to convict the accused person. On a proper evaluation of the evidence adduced before it, the Court may acquit the accused on benefit of doubt or exonerate him of the charges or even convict him. In such a situation, whatever the decision of the employer on the punishment consequent on the disciplinary proceedings, it has to yield to the verdict of the Criminal Court only. Therefore, such a situation would warrant the employer to await the outcome of the pending criminal case only. Lots of judgments are there in the web in this regard.
From India, Salem
Thanks for your suggestion sir.
Once if the employer is put up to await for the judgement which prolongs for more than 1 yr. He will be in a position to pay 100% wages as subsistence allowance. This is more pre-judicial and will become a coersive situation to the employer. How to face this scenario?
From India, Coimbatore
Once if the employer is put up to await for the judgement which prolongs for more than 1 yr. He will be in a position to pay 100% wages as subsistence allowance. This is more pre-judicial and will become a coersive situation to the employer. How to face this scenario?
From India, Coimbatore
In simultaneous criminal proceedings and domestic enquiry proceedings on same of charges of misconduct , if the court acquits an employee of an organisation , the employer is at liberty to award punishment of dismissal to an employee, depending the gravity of misconduct , after due compliance of the departmental / domestic enquiry following the principles of natural justice as procedure laid down in the standing orders applicable to the employee ,. Criminal proceedings and domestic enquiry are two different process whilst the former follows law of evidence the latter based on facts
The MP HC has held in R.K. Solanki vs Central Bank Of India on 7 February, 2018) upheld the action of employer in dismissing an employee for the same charges of misconduct and being acquitted in a trial court saw further hierarchical appellate proceedings by both the employee and employer culminated in the orders of MP HC which upheld the dismissal orders of the employer
The various citations relied on by the HC of MP are as follows;
The Indian Evidence Act, 1872
Article 226 in The Constitution Of India 1949
Union Of India vs Sardar Bahadur on 29 October, 1971
R.S. Saini vs State Of Punjab & Ors on 9 September, 1999
The Industrial Disputes Act, 1947
Citedby 0 docs
Jagjeevan @ Jage Ram vs Airport Authority Of India on 12 July, 2019)
As regards your second question, in view of the aforesaid judgement, I am of view that it will be in order for you to go ahead with dismissal order without necessarily waiting for the outcome of court which is not only time dragging but an unnecessary adjunct to the outcome of your departmental enquiry .
Panchsen
P.Senthilkumar
9884009193
From India, Chennai
The MP HC has held in R.K. Solanki vs Central Bank Of India on 7 February, 2018) upheld the action of employer in dismissing an employee for the same charges of misconduct and being acquitted in a trial court saw further hierarchical appellate proceedings by both the employee and employer culminated in the orders of MP HC which upheld the dismissal orders of the employer
The various citations relied on by the HC of MP are as follows;
The Indian Evidence Act, 1872
Article 226 in The Constitution Of India 1949
Union Of India vs Sardar Bahadur on 29 October, 1971
R.S. Saini vs State Of Punjab & Ors on 9 September, 1999
The Industrial Disputes Act, 1947
Citedby 0 docs
Jagjeevan @ Jage Ram vs Airport Authority Of India on 12 July, 2019)
As regards your second question, in view of the aforesaid judgement, I am of view that it will be in order for you to go ahead with dismissal order without necessarily waiting for the outcome of court which is not only time dragging but an unnecessary adjunct to the outcome of your departmental enquiry .
Panchsen
P.Senthilkumar
9884009193
From India, Chennai
In continuation to my immediate previous post , let me add that as regards payment of subsistence allowance ,it is an statutory obligation for the employer to pay the specified amount of subsistence in terms of percentage of salary or wages ,depending on the duration of enquiry i.e form start to close of enquiry .
Panchsen
P.Senthilkumar
From India, Chennai
Panchsen
P.Senthilkumar
From India, Chennai
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SC directive on subsistence allowance to suspended staff.doc