Hello every one,i want legal advice related to instant occurred in company there is one worker who is suspended for his misconduct,suspension was iven him for 4 days without leave,is it correct legally?? i want solution related to this problem that what is the legal producer to follow for suspension.??
aslo one another issues is that if worker unaccepted the Given memo then how much time we can Suspend that worker Or rusticate that worker? ive such help rearding this.
i am new fresher in legal department of the company.
From India, Vapi
3aslo one another issues is that if worker unaccepted the Given memo then how much time we can Suspend that worker Or rusticate that worker? ive such help rearding this.
i am new fresher in legal department of the company.
From India, Vapi
Dear Mayur,
First query: - What was the nature of misconduct? Did you conduct the domestic enquiry? Did you suspend the employee to award him punishment? If yes, then any punishment without proper enquiry is wrongful.
Second query: - Issue of official communication is mandatory for the employees. They cannot refuse to accept it. Non-acceptance of communication itself is misconduct under the provisions of Indian Standing Orders Act. Suspend the employee for refusal to accept the memo. Block his entry at security. Issue him second memo for refusal to accept the first memo. Conduct collective domestic enquiry for both the misconducts.
General comments: - I recommend you reading books on Industrial Standing Orders Act of your state. While buying book, make sure that case laws are given for each clause. Secondly, you may subscribe to Labour Law Reporter (LLR). This is a monthly magazine and is useful for the any legal professional, upcoming like you or experienced one.
Thanks,
Dinesh Divekar
From India, Bangalore
First query: - What was the nature of misconduct? Did you conduct the domestic enquiry? Did you suspend the employee to award him punishment? If yes, then any punishment without proper enquiry is wrongful.
Second query: - Issue of official communication is mandatory for the employees. They cannot refuse to accept it. Non-acceptance of communication itself is misconduct under the provisions of Indian Standing Orders Act. Suspend the employee for refusal to accept the memo. Block his entry at security. Issue him second memo for refusal to accept the first memo. Conduct collective domestic enquiry for both the misconducts.
General comments: - I recommend you reading books on Industrial Standing Orders Act of your state. While buying book, make sure that case laws are given for each clause. Secondly, you may subscribe to Labour Law Reporter (LLR). This is a monthly magazine and is useful for the any legal professional, upcoming like you or experienced one.
Thanks,
Dinesh Divekar
From India, Bangalore
Dear Mayur,
Let me elaborate the answer of Mr.Dinesh on the point of suspension so as to understand the concept of suspension in the employment context.
Basically suspension of an employee from service is a temporary exclusion of his services keeping his contract of employment alive or intact. Again it may be of two types - (i) interim suspension or suspension pending enquiry into some grave charges of misconduct and (ii) punitive suspension or suspension awarded as a punishment after following the procedure of disciplinary action.
Interim suspension is not a punishment.In the words of the Bombay High Court ( Municipal Corporation of Greater Bombay vs Lakshman Saidoo Timmanapyati - [1991(1)CLR 653] " Interim Suspension is a preventive measure or a check aimed at minimizing further loss or damage to an employer at the hands of an employee who has, prima facie, been involved in serious misconduct and can also be justified in cases where the conduct of the disciplinary proceedings can be demonstrably affected." It is a 'procedural convenience' to hold an enquiry against the delinquent employee. So the order of interim suspension is an administrative order only. But it can not be a routine administrative matter.The employer should exercise the power of interim suspension with utmost care and application of mind depending upon the necessity to do so for it is matter that should be strictly in accordance with the Standing Orders or service regulations applicable only.Non-payment of subsistence allowance for the entire period of suspension pending disciplinary proceedings strictly at the rates specified in the Standing Orders applicable to the establishment will negate the entire action of the employer.Similarly the period of suspension should be regularised when the punishment is awarded.
"Punitive Suspension" on the contrary is a punishment rendering the entire period of suspension ordered as punishment as non-qualifying service for service benefits like increment,promotion, gratuity etc.and attaches stigma to the employee's service. The number of days that can be awarded as punitive suspension can not be more than what is fixed in the Standing Orders or Service Regulations.
From India, Salem
Let me elaborate the answer of Mr.Dinesh on the point of suspension so as to understand the concept of suspension in the employment context.
Basically suspension of an employee from service is a temporary exclusion of his services keeping his contract of employment alive or intact. Again it may be of two types - (i) interim suspension or suspension pending enquiry into some grave charges of misconduct and (ii) punitive suspension or suspension awarded as a punishment after following the procedure of disciplinary action.
Interim suspension is not a punishment.In the words of the Bombay High Court ( Municipal Corporation of Greater Bombay vs Lakshman Saidoo Timmanapyati - [1991(1)CLR 653] " Interim Suspension is a preventive measure or a check aimed at minimizing further loss or damage to an employer at the hands of an employee who has, prima facie, been involved in serious misconduct and can also be justified in cases where the conduct of the disciplinary proceedings can be demonstrably affected." It is a 'procedural convenience' to hold an enquiry against the delinquent employee. So the order of interim suspension is an administrative order only. But it can not be a routine administrative matter.The employer should exercise the power of interim suspension with utmost care and application of mind depending upon the necessity to do so for it is matter that should be strictly in accordance with the Standing Orders or service regulations applicable only.Non-payment of subsistence allowance for the entire period of suspension pending disciplinary proceedings strictly at the rates specified in the Standing Orders applicable to the establishment will negate the entire action of the employer.Similarly the period of suspension should be regularised when the punishment is awarded.
"Punitive Suspension" on the contrary is a punishment rendering the entire period of suspension ordered as punishment as non-qualifying service for service benefits like increment,promotion, gratuity etc.and attaches stigma to the employee's service. The number of days that can be awarded as punitive suspension can not be more than what is fixed in the Standing Orders or Service Regulations.
From India, Salem
In addition to what Mr.Dinesh and Umakantan said, I would like to know whether you have standing orders/ service rules/settlement in place to empower you to suspend an employee.If not it may make it messy as it seems you have imposed punitive suspension even before conducting an inquiry.Full details need to be furnished for an appropriate reply in cases of indiscipline.
B.Saikumar
From India, Mumbai
B.Saikumar
From India, Mumbai
Thank you all fo you for giving the useful guideline for the problem which arising to me.in such situation the suspension wll one only on the inqury basis if i am not wrong.the current situation is that union is also there in our company so they will also interfering to the matters of company.
now i am very much clear regarding the the suspension of such employee.
Thank you again for the solution.
From India, Vapi
now i am very much clear regarding the the suspension of such employee.
Thank you again for the solution.
From India, Vapi
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