Want to know during suspension period the suspended employee can give resignation or not??? what law says about this
From India, Mumbai
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From India, Mumbai
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There is no law prohibiting an employee under suspension from terminating the contract of service by submitting a resignation since suspension does not automatically end the contract of service. The acceptance of such a resignation during a suspension pending an action into misconduct relies on the specific facts and circumstances of each case and the negotiations involved. Normally, a resignation will not be accepted while disciplinary action is pending.
B. Saikumar
Mumbai
From India, Mumbai
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1931B. Saikumar
Mumbai
From India, Mumbai
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Dear Anonymous,
I agree with Saikumar ji. However, I would like to further add that although normally a resignation will not be accepted pending disciplinary action as stated by him, you can accept it with an undertaking or declaration from the employee that he is resigning of his own accord and there is no issue or dispute between him and the company.
This decision can be made by you after analyzing the gravity of misconduct and other circumstances.
From India, Mumbai
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I agree with Saikumar ji. However, I would like to further add that although normally a resignation will not be accepted pending disciplinary action as stated by him, you can accept it with an undertaking or declaration from the employee that he is resigning of his own accord and there is no issue or dispute between him and the company.
This decision can be made by you after analyzing the gravity of misconduct and other circumstances.
From India, Mumbai
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It is depending upon the case.
Suppose if his suspension is pending enquiry because he has injured worker(s) and those workers are hospitalized, in this case, will you accept his resignation?
Suppose if his suspension is pending enquiry because of his heavy absenteeism, now will you accept his resignation?
Everyone will say in the first case you should not accept. In the second case, you may accept the resignation, so one should remember that the situation or the case decides whether to accept it or not.
My humble opinion is in both cases you should not accept the resignation. Let the proceedings get completed and then take the decision.
Arun J.
From India, Hyderabad
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Suppose if his suspension is pending enquiry because he has injured worker(s) and those workers are hospitalized, in this case, will you accept his resignation?
Suppose if his suspension is pending enquiry because of his heavy absenteeism, now will you accept his resignation?
Everyone will say in the first case you should not accept. In the second case, you may accept the resignation, so one should remember that the situation or the case decides whether to accept it or not.
My humble opinion is in both cases you should not accept the resignation. Let the proceedings get completed and then take the decision.
Arun J.
From India, Hyderabad
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The above opinion I gave is to show management facing strong in front of workers and to set a benchmark among them.
Accepting resignation is a permanent resolution of disputes. If management's aim is solely to remove that person, then accepting resignation is a good option. However, if management wishes to set a benchmark, then let the proceedings be completed.
Arun J.
From India, Hyderabad
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Accepting resignation is a permanent resolution of disputes. If management's aim is solely to remove that person, then accepting resignation is a good option. However, if management wishes to set a benchmark, then let the proceedings be completed.
Arun J.
From India, Hyderabad
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I fully agree with the views expressed by the learned members.
In addition, I'd like to submit something more to have a thorough understanding of the term 'suspension' from a legal perspective relating to disciplinary proceedings in organizations. It is a powerful tool available in the hands of employers to discipline erring employees at times without snapping the employment relationship. It is always prohibitive in nature as the suspended employee is debarred from holding his office or from discharging his duties as before for a specified period of time or till the completion of certain proceedings whether already started or likely to be at a future date; sometimes, it is punitive when awarded as a punishment.
In the former, acceptance of the resignation of the employee is dependent on one or more of the following factors: (a) the gravity of the charge of misconduct (b) conditions precedent to resignation such as the notice period, specific provision, if any regarding inclusion/exclusion of the suspension period in the notice period, etc., (c) the discretion of the employer. In the latter, again, it is the discretion of the employer---if he is of the view that enough is enough, resignation may be accepted forthwith-- or after fully undergoing the punitive suspension.
From India, Salem
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In addition, I'd like to submit something more to have a thorough understanding of the term 'suspension' from a legal perspective relating to disciplinary proceedings in organizations. It is a powerful tool available in the hands of employers to discipline erring employees at times without snapping the employment relationship. It is always prohibitive in nature as the suspended employee is debarred from holding his office or from discharging his duties as before for a specified period of time or till the completion of certain proceedings whether already started or likely to be at a future date; sometimes, it is punitive when awarded as a punishment.
In the former, acceptance of the resignation of the employee is dependent on one or more of the following factors: (a) the gravity of the charge of misconduct (b) conditions precedent to resignation such as the notice period, specific provision, if any regarding inclusion/exclusion of the suspension period in the notice period, etc., (c) the discretion of the employer. In the latter, again, it is the discretion of the employer---if he is of the view that enough is enough, resignation may be accepted forthwith-- or after fully undergoing the punitive suspension.
From India, Salem
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The simple and straight answer to the querry is ....Yes, he can resign....... The Terms of employment and Industrial Employment Standing Orders Act do say it.
From India, Hyderabad
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From India, Hyderabad
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Dear All,
An employee who is suspended pending an enquiry means that the employee has committed some wrongdoing against a person, system, or otherwise. By resigning, that employee wants to avoid punishment for their wrongdoing. In the case of resignation, the complainant has a veto. Only if the complainant agrees can the suspended person resign.
If the employer accepts the resignation without consulting the complainant, the employer is wronging the complainants. This action could strain relations with existing employees at the cost of the suspended and resigned employee, who will no longer have any involvement with the organization, employer, or employees.
Even when the suspended employee submits a resignation, it is up to the employer to accept or reject the resignation. The employer is not bound to accept the resignation because they have the option to terminate the employee. This termination can serve as an example for existing employees, demonstrating the consequences of misbehavior.
Vibhakar Ramtirthkar
SVR Associates
HR Consultant
From India, Pune
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An employee who is suspended pending an enquiry means that the employee has committed some wrongdoing against a person, system, or otherwise. By resigning, that employee wants to avoid punishment for their wrongdoing. In the case of resignation, the complainant has a veto. Only if the complainant agrees can the suspended person resign.
If the employer accepts the resignation without consulting the complainant, the employer is wronging the complainants. This action could strain relations with existing employees at the cost of the suspended and resigned employee, who will no longer have any involvement with the organization, employer, or employees.
Even when the suspended employee submits a resignation, it is up to the employer to accept or reject the resignation. The employer is not bound to accept the resignation because they have the option to terminate the employee. This termination can serve as an example for existing employees, demonstrating the consequences of misbehavior.
Vibhakar Ramtirthkar
SVR Associates
HR Consultant
From India, Pune
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Dear All,
Yes, technically, the person who is under suspension can submit resignation. The Employer may or may not accept the resignation. The Employer will tend to accept the resignation in case time and effort in DE are not commensurate with the likely penalty. In the case of a grave offense or to give a signal to others, the Employer may not accept, as already pointed out by other members; the Employer now has the upper hand.
Regards, Col. Rathi
From India, Delhi
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Yes, technically, the person who is under suspension can submit resignation. The Employer may or may not accept the resignation. The Employer will tend to accept the resignation in case time and effort in DE are not commensurate with the likely penalty. In the case of a grave offense or to give a signal to others, the Employer may not accept, as already pointed out by other members; the Employer now has the upper hand.
Regards, Col. Rathi
From India, Delhi
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Upon resignation, the management can withhold all the retirement benefits until the completion of the inquiry. In certain cases, it can also stop the payment of gratuity for specific misconduct. Please refer to the Gratuity Act for more information.
From India, Bangalore
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From India, Bangalore
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As all seniors have advised, technically, resignation can be accepted during suspension but subject to: So, you are requested to let us know all the charges leveled for suspension wherein the seniors can advise you appropriately.
From India, Ahmadabad
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From India, Ahmadabad
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How can the employer accept a resignation and continue a domestic inquiry against the employee even after the resignation? It is not proper to accept a resignation during suspension or pending disciplinary action and then withhold retirement benefits such as gratuity.
B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
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B. Saikumar
HR & Labour Law Advisor
Mumbai
From India, Mumbai
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Dear All,
DE will have to be called off. It depends on whether the employer wants to continue with DE or not. In case the employer, keeping in mind expenses to be paid under the suspension period and likely litigation that may follow, decides that even though the case is strong but efforts involved are not worth it, may decide and can decide to accept resignation. In doing so, the employer gets rid of the employee. The employee gets off without punishment but has to resign. So each such case has pros and cons.
Regards, Col. Rathi
From India, Delhi
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DE will have to be called off. It depends on whether the employer wants to continue with DE or not. In case the employer, keeping in mind expenses to be paid under the suspension period and likely litigation that may follow, decides that even though the case is strong but efforts involved are not worth it, may decide and can decide to accept resignation. In doing so, the employer gets rid of the employee. The employee gets off without punishment but has to resign. So each such case has pros and cons.
Regards, Col. Rathi
From India, Delhi
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Dear All,
Certain litigation will not be over even after resignation. This goes without saying for both the workman and the manager. Depending upon the gravity, when a criminal case is registered against an employee, the resignation can be accepted, and it does not amount to clearing from all the allegations. This needs detailed discussion.
Vivian Chandrashekar
9916138191
From India, Bangalore
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Certain litigation will not be over even after resignation. This goes without saying for both the workman and the manager. Depending upon the gravity, when a criminal case is registered against an employee, the resignation can be accepted, and it does not amount to clearing from all the allegations. This needs detailed discussion.
Vivian Chandrashekar
9916138191
From India, Bangalore
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The issue is about accepting resignation pending disciplinary action but not litigation. The employer cannot accept resignation and relieve the employee on one hand and continue domestic inquiry against him on the other hand, as both are legally inconsistent.
B. Saikumar
Mumbai
From India, Mumbai
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B. Saikumar
Mumbai
From India, Mumbai
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I agree with Saikumar, sir. If you want to accept the resignation, then you have to cancel the enquiry. You cannot do both things at the same time. Either keep the enquiry going by refusing his resignation or accept the resignation, cancel the enquiry, and let the employee exit.
Arun J.
From India, Hyderabad
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Arun J.
From India, Hyderabad
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Dear All Respected Contributors and the Anonymous,
The opinions given above by most of the Contributors seem to convey the idea that an employee can submit resignation during the suspension period, but it will depend upon the management to accept or reject it. I would clarify as under:
1. An employee is governed by the rules and regulations of a company. The disciplinary rules provide that an employee under suspension cannot submit resignation. However, an employee can submit resignation at his own accord.
2. In case the management wants to save time and money on the DE (departmental enquiry), then it can negotiate with the employee on its terms and conditions. There is no bar on this practice. In such a situation, the management's action will also send a message to the employees that delinquent employees are liable to be removed.
3. In case the employee was suspended on the basis of some complaint, even then it is the prerogative of the management to accept or reject the resignation. There is no question of the complainant's dissatisfaction.
4. The benefits to be released on full and final settlement will depend on the rules and regulations of the company and the decision of the management thereon.
With due regards to all.
C.M. LAL SRIVASTAVA
From India, New Delhi
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The opinions given above by most of the Contributors seem to convey the idea that an employee can submit resignation during the suspension period, but it will depend upon the management to accept or reject it. I would clarify as under:
1. An employee is governed by the rules and regulations of a company. The disciplinary rules provide that an employee under suspension cannot submit resignation. However, an employee can submit resignation at his own accord.
2. In case the management wants to save time and money on the DE (departmental enquiry), then it can negotiate with the employee on its terms and conditions. There is no bar on this practice. In such a situation, the management's action will also send a message to the employees that delinquent employees are liable to be removed.
3. In case the employee was suspended on the basis of some complaint, even then it is the prerogative of the management to accept or reject the resignation. There is no question of the complainant's dissatisfaction.
4. The benefits to be released on full and final settlement will depend on the rules and regulations of the company and the decision of the management thereon.
With due regards to all.
C.M. LAL SRIVASTAVA
From India, New Delhi
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Hi All , What to do if HR is not sharing enquiry report to the suspended employee and company standing acts
From India, Nadiad
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From India, Nadiad
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Dear Pune HR,
Your query pertains to HR not sharing the inquiry report with the suspended employee and the company's standing acts. It is clarified that after the completion of the inquiry, the inquiry report is to be considered by the specified/competent Disciplinary Authority based on the findings provided by the Inquiry Officer. The Disciplinary Authority may either agree or disagree with the findings of the Inquiry Officer. If the Disciplinary Authority intends to impose any penalty, they are required to serve a show cause notice to the concerned employee and consider any representation submitted by the employee before making a decision on the penalty.
There is also a possibility that the Disciplinary Authority may choose to close the disciplinary proceedings at their discretion and prudence; however, in such cases, communication must be sent to the employee.
I hope this addresses your query.
C.M. Lal Srivastava
09818680671
From India, New Delhi
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Your query pertains to HR not sharing the inquiry report with the suspended employee and the company's standing acts. It is clarified that after the completion of the inquiry, the inquiry report is to be considered by the specified/competent Disciplinary Authority based on the findings provided by the Inquiry Officer. The Disciplinary Authority may either agree or disagree with the findings of the Inquiry Officer. If the Disciplinary Authority intends to impose any penalty, they are required to serve a show cause notice to the concerned employee and consider any representation submitted by the employee before making a decision on the penalty.
There is also a possibility that the Disciplinary Authority may choose to close the disciplinary proceedings at their discretion and prudence; however, in such cases, communication must be sent to the employee.
I hope this addresses your query.
C.M. Lal Srivastava
09818680671
From India, New Delhi
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Dear Pune.HR,
Since the posting of the text of certified Standing Orders under Section 9 of the Industrial Employment (Standing Orders) Act, 1946, is considered sufficient compliance for communication to the employees governed by the orders, it is not necessary to provide a copy to the delinquent concerned.
Non-supplying the copy of the inquiry report along with the second show cause notice proposing the punishment to be awarded to the delinquent is a serious lapse on the part of the management.
Thank you.
From India, Salem
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Since the posting of the text of certified Standing Orders under Section 9 of the Industrial Employment (Standing Orders) Act, 1946, is considered sufficient compliance for communication to the employees governed by the orders, it is not necessary to provide a copy to the delinquent concerned.
Non-supplying the copy of the inquiry report along with the second show cause notice proposing the punishment to be awarded to the delinquent is a serious lapse on the part of the management.
Thank you.
From India, Salem
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Thank you, Shrivastava Sir and Umakanthan Sir, for your valuable response. Currently, the employee has been suspended for the last 3 months. The employee has provided all the necessary proofs and has cooperated with the inquiry process. The allegations raised during the domestic inquiry were proven false against the inquiry officer; however, HR is unwilling to revoke the suspension. The employee holds an Officer Grade position. It appears that HR has personal issues with the employee and is biased in favor of supporting the manager.
The employee is being harassed by the manager through false reporting to the Higher Management. Following the employee's last response, the employer has credited 50% of the salary. However, in the show cause notice, the employee is accused of misconduct, and the salary slip indicates the employee as absent for all working days.
Can the employee inquire about the final conclusion of the inquiry, which has been pending for almost 2 months? It seems that HR is reluctant to close the matter. Additionally, HR is communicating without including Higher Management in the correspondence.
I seek your advice on how to proceed further.
From India, Nadiad
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The employee is being harassed by the manager through false reporting to the Higher Management. Following the employee's last response, the employer has credited 50% of the salary. However, in the show cause notice, the employee is accused of misconduct, and the salary slip indicates the employee as absent for all working days.
Can the employee inquire about the final conclusion of the inquiry, which has been pending for almost 2 months? It seems that HR is reluctant to close the matter. Additionally, HR is communicating without including Higher Management in the correspondence.
I seek your advice on how to proceed further.
From India, Nadiad
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Dear Pune HR,
If the delinquent employee is an officer with supervisory responsibilities and drawing a monthly salary above Rs. 10,000, he will not be considered a "workman" and therefore would not be covered by the rules of discipline set forth in the Standing Orders applicable to the establishment. On the other hand, he would be covered by the service regulations, if any, relating to disciplinary control or the terms of his employment contract as the case may be. However, this does not imply that any lapses noticed in the disciplinary procedure adopted by the employer in the case of an employee who is beyond the purview of the Standing Orders are not serious enough to violate the principles of natural justice and cannot be questioned at all; on the contrary, such a serious procedural lapse can vitiate the entire proceedings in a later judicial scrutiny.
In the case you mentioned, I am unsure why the HR is being blamed - whether the HR person is the designated disciplinary authority. If the delinquent employee believes that the HR is acting unfairly due to personal animosity or indifference, I believe nothing should prevent them from approaching the disciplinary authority for prompt resolution of the matter or immediate revocation of suspension pending final orders as deemed appropriate. Indefinitely keeping an employee under suspension solely because they are receiving subsistence allowance could be seen as an act of victimization. It would be advisable for the employee to politely bring this issue to the attention of the top management.
Thank you.
From India, Salem
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If the delinquent employee is an officer with supervisory responsibilities and drawing a monthly salary above Rs. 10,000, he will not be considered a "workman" and therefore would not be covered by the rules of discipline set forth in the Standing Orders applicable to the establishment. On the other hand, he would be covered by the service regulations, if any, relating to disciplinary control or the terms of his employment contract as the case may be. However, this does not imply that any lapses noticed in the disciplinary procedure adopted by the employer in the case of an employee who is beyond the purview of the Standing Orders are not serious enough to violate the principles of natural justice and cannot be questioned at all; on the contrary, such a serious procedural lapse can vitiate the entire proceedings in a later judicial scrutiny.
In the case you mentioned, I am unsure why the HR is being blamed - whether the HR person is the designated disciplinary authority. If the delinquent employee believes that the HR is acting unfairly due to personal animosity or indifference, I believe nothing should prevent them from approaching the disciplinary authority for prompt resolution of the matter or immediate revocation of suspension pending final orders as deemed appropriate. Indefinitely keeping an employee under suspension solely because they are receiving subsistence allowance could be seen as an act of victimization. It would be advisable for the employee to politely bring this issue to the attention of the top management.
Thank you.
From India, Salem
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How to Handle an Employee Resignation.doc