Dear Avinash,
I refer to your views "Anyway V.K. Guptaji, this forum is open for all to express their opinion. No one can say enough or long discussion etc. If you are not agree or not interested then, you can chose not to express your opinion or you can express it in proper way. I Hope you will learn how to express the opinion in open forum."
First of all I regret to hurt your feelings. I understand you have taken my views otherwise. My aim was to inform you that 'Powers vested in the authority is vast' and I can write long topic on this and my aim was not other than this.
As for my learning from you is concerned, henceforth I will not point out you on any point.
Thanks
V K Gupta
From India, Panipat
148I refer to your views "Anyway V.K. Guptaji, this forum is open for all to express their opinion. No one can say enough or long discussion etc. If you are not agree or not interested then, you can chose not to express your opinion or you can express it in proper way. I Hope you will learn how to express the opinion in open forum."
First of all I regret to hurt your feelings. I understand you have taken my views otherwise. My aim was to inform you that 'Powers vested in the authority is vast' and I can write long topic on this and my aim was not other than this.
As for my learning from you is concerned, henceforth I will not point out you on any point.
Thanks
V K Gupta
From India, Panipat
Dear Nabolbona,
From your above reply, it is not clear which matter is pending before the Hon'ble High Court (i) pertaining to your charge sheet or (ii) pertaining to rejection order of the Shops & establishment authority govt of West Bengal.
Thanks
V K Gupta
From India, Panipat
From your above reply, it is not clear which matter is pending before the Hon'ble High Court (i) pertaining to your charge sheet or (ii) pertaining to rejection order of the Shops & establishment authority govt of West Bengal.
Thanks
V K Gupta
From India, Panipat
A complaint whether written or oral has to be investigated by the competent authority to ascertain its veracity. Then the authority on whom power is vested to initiate departmental action needs to apply his mind whether there exists a preponderance of probabilities to go ahead with the departmental proceedings. Then a final decision to be taken either to suspend the employee or not. Based on the complaint, if the departmental proceedings is proceeded with (by or after placing the employee under suspension or not) it is the onus of the Management to prove the charges. During the enquiry process the complaint can be brought on record by means of the deposition by the author of the complaint if the complaint was given in writing or by the personal appearance of the person who has given verbal complaint in the enquiry. Such depositions / evidences will be cross examined. On the basis of evidentiary value of such documents or depositions the inquiring authority will submit his findings to the Disciplinary Authority who thereafter will take a decision regarding imposition of punishment, treatment of suspension period and/or the disposal of the chargesheet. It is purely the application of mind as well as prerogative of the disciplinary authority to get a complaint in writing or not.
M J P DEVADOSS
From India, Madurai
M J P DEVADOSS
From India, Madurai
Dear follower,
Many learned followers have replied to your query at length. What Mr. VK Gupta has written is most appropriate and justified. I too agree that :-
1. In no appointment letter clause of chargesheet/suspension is mentioned.
2. Since you have said it is a case with the Manager, then the Manager should know by what rules his services are guided. If he himself is ignorant, how can he guide others.
3. The Accused employee(AW) cannot challenge the Authority, he can simply face the inquiry and prove him not guilty. I have discussed the method of departmental inquiry earlier. First it is the Mgt. Reptv.(MR), who is to prove the accused employee guilty. Co-worker and AW shall cross examine the witness and documents submitted by MR. If MR passes his test, it is for the AW and CW to prove the AW not guilty.
4. Before issue of Charge sheet or suspension order, it is prerogative of Authority to inquire or rely upon the complaint made irrespective of the fact who has made it, provided he is satisfied with the reliability of the complaint made.
5. The AW can move to the Court, against the Charge sheet or suspension order and seek relief from there as per the Order of Hon'ble Court.
Here what I feel that the Manager is aggrieved not with the CS/Suspension Order but with the fact that a fourth grade employee has made the complaint and he has been accused.
AK Jain
HR Personnel
NCL, CIL
From India, Jabalpur
Many learned followers have replied to your query at length. What Mr. VK Gupta has written is most appropriate and justified. I too agree that :-
1. In no appointment letter clause of chargesheet/suspension is mentioned.
2. Since you have said it is a case with the Manager, then the Manager should know by what rules his services are guided. If he himself is ignorant, how can he guide others.
3. The Accused employee(AW) cannot challenge the Authority, he can simply face the inquiry and prove him not guilty. I have discussed the method of departmental inquiry earlier. First it is the Mgt. Reptv.(MR), who is to prove the accused employee guilty. Co-worker and AW shall cross examine the witness and documents submitted by MR. If MR passes his test, it is for the AW and CW to prove the AW not guilty.
4. Before issue of Charge sheet or suspension order, it is prerogative of Authority to inquire or rely upon the complaint made irrespective of the fact who has made it, provided he is satisfied with the reliability of the complaint made.
5. The AW can move to the Court, against the Charge sheet or suspension order and seek relief from there as per the Order of Hon'ble Court.
Here what I feel that the Manager is aggrieved not with the CS/Suspension Order but with the fact that a fourth grade employee has made the complaint and he has been accused.
AK Jain
HR Personnel
NCL, CIL
From India, Jabalpur
Dear followers
While taking any action against an employee company X must aware about the pros and cons of the laws guided in the appointment letter.
Appointment letter must contain the term of service will be governed by such and such act, which will be accepted by the employee before joining the organisation.
In the absence of such conditions the charge sheet will have no sanction of law.
From India, Calcutta
While taking any action against an employee company X must aware about the pros and cons of the laws guided in the appointment letter.
Appointment letter must contain the term of service will be governed by such and such act, which will be accepted by the employee before joining the organisation.
In the absence of such conditions the charge sheet will have no sanction of law.
From India, Calcutta
Dear Sanjay
Your Query dated 3-10-13 is as under:
Query: " Kindly share you views, can a manager can be issued a charge-sheet and placed under suspension on the basis of a verbal complaint of a fourth class contract employee."
Position: A Charge-Sheet or an Explanation Letter can be issues to any Employee on the Muster Roll of the Establishment. The Charge -Sheet or Letter for Explanation is a Sheet of Paper on which the Charges of Misconduct / Indiscipline is to be clearly mentioned / Typed / Hand-written specifying the Date, Time , Place of alleged occurrence and the occurrence itself, sufficiently precisely and definitely. The Charge -Sheet or E Letter also must contain How & Why the said Act of Misconduct is punishable and by What time-period the Reply or Explanation should be submitted to the Issuing Authority.
An Employee can be Suspended-Pending Enquiry in case the alleged Charge is of grave & serious nature requiring removal of the Charge-Sheeted Employee from the premises of the Establishment lest s/he might interfere with Witnesses or Documentary Evidence.
When S-P-E is called for, the Letter issued to the to-be-suspended Employee must follow the issue of C-S or E L first and a reference / mention made in S P E Letter.
The Complainant can be any person irrespective of his/her Status or Designation or Classification.
Further, in case of a Verbal Complaint a Preliminary Enquiry ( Fact finding) should be immediately conducted on receipt of the Verbal Complaint to ascertain , prima facies
whether a Case exist to frame a CS or E L and issue it.
In fact, Preliminary Enquiry should be conducted even when there is neither a Verbal or Written Complaint lodged but the Manager has come to know about an Act of Misconduct
committed.
For Guidance
For Kritarth Consulting Pvt Ltd
Harsh K Sharan
91 9560 453 756
8-10-13
From India, Delhi
Your Query dated 3-10-13 is as under:
Query: " Kindly share you views, can a manager can be issued a charge-sheet and placed under suspension on the basis of a verbal complaint of a fourth class contract employee."
Position: A Charge-Sheet or an Explanation Letter can be issues to any Employee on the Muster Roll of the Establishment. The Charge -Sheet or Letter for Explanation is a Sheet of Paper on which the Charges of Misconduct / Indiscipline is to be clearly mentioned / Typed / Hand-written specifying the Date, Time , Place of alleged occurrence and the occurrence itself, sufficiently precisely and definitely. The Charge -Sheet or E Letter also must contain How & Why the said Act of Misconduct is punishable and by What time-period the Reply or Explanation should be submitted to the Issuing Authority.
An Employee can be Suspended-Pending Enquiry in case the alleged Charge is of grave & serious nature requiring removal of the Charge-Sheeted Employee from the premises of the Establishment lest s/he might interfere with Witnesses or Documentary Evidence.
When S-P-E is called for, the Letter issued to the to-be-suspended Employee must follow the issue of C-S or E L first and a reference / mention made in S P E Letter.
The Complainant can be any person irrespective of his/her Status or Designation or Classification.
Further, in case of a Verbal Complaint a Preliminary Enquiry ( Fact finding) should be immediately conducted on receipt of the Verbal Complaint to ascertain , prima facies
whether a Case exist to frame a CS or E L and issue it.
In fact, Preliminary Enquiry should be conducted even when there is neither a Verbal or Written Complaint lodged but the Manager has come to know about an Act of Misconduct
committed.
For Guidance
For Kritarth Consulting Pvt Ltd
Harsh K Sharan
91 9560 453 756
8-10-13
From India, Delhi
Respected Shri Harsh K Sharan,
For Kritarth Consulting Pvt Ltd
The guidelines given by you are really very appreciable and useful. However I wish to request you to kindly guide if the Authority issues Order of Suspension to an Employee without issuing any kind of Letter for Explanation or Charge-Sheet and without giving him any Documentary Evidence or any Witnesses against the Suspended Employee and keep silent for about a year before issuing Charge-Sheet and get punished after about 2 ½ year, what should the Suspended employee do for justice if he is not guilty?
Ashok Gupta
From India, Mumbai
For Kritarth Consulting Pvt Ltd
The guidelines given by you are really very appreciable and useful. However I wish to request you to kindly guide if the Authority issues Order of Suspension to an Employee without issuing any kind of Letter for Explanation or Charge-Sheet and without giving him any Documentary Evidence or any Witnesses against the Suspended Employee and keep silent for about a year before issuing Charge-Sheet and get punished after about 2 ½ year, what should the Suspended employee do for justice if he is not guilty?
Ashok Gupta
From India, Mumbai
Hi
Interesting to note the divergent views on issues surrounding suspension.In my understanding,the act of suspension is the discretion of the Line Manager/HOD basing on the reports or allegations raised against an alleged offender.Suspension is normally done on gross offenses which are likely to result in dismissal or for the sake of investigation into an allegation of which the presence of the accused on the company premises may jeopardize the investigations or usually in cases that pose financial prejudice to the company.Most companies have a clearly laid out procedure usually recorded in the company's code of conduct of the conditions where suspension may be used.The code usually states the conditions on where suspension may be applied with or without salary and benefits.My first suggestion to you would be to go over your code of conduct and understand what it states in relation to your case.
Suspension in itself is not concerned about the source of the report whether it be a contract,casual or domestic employee.It is simply an isolation of the accused from the workplace to carry out investigations and it may be issued for only a specified period and not indefinitely.Since under civil law, the burden of proof lies with the line Manager to prove really that there is a case against the accused and it is during suspension that these facts are gathered without interference.Failure to prove or gather facts in this period means that when the suspension lapses ,the individual may automatically return to work.
According to principles of natural justice, you as the accused have to be fully aware of the facts surrounding your suspension and the facts clearly laid out in the letter.The letter should also state the validity of the suspension.
I hope I have contributed in a manner that may add value to your situation
Rgds
Leslie
From Zimbabwe
Interesting to note the divergent views on issues surrounding suspension.In my understanding,the act of suspension is the discretion of the Line Manager/HOD basing on the reports or allegations raised against an alleged offender.Suspension is normally done on gross offenses which are likely to result in dismissal or for the sake of investigation into an allegation of which the presence of the accused on the company premises may jeopardize the investigations or usually in cases that pose financial prejudice to the company.Most companies have a clearly laid out procedure usually recorded in the company's code of conduct of the conditions where suspension may be used.The code usually states the conditions on where suspension may be applied with or without salary and benefits.My first suggestion to you would be to go over your code of conduct and understand what it states in relation to your case.
Suspension in itself is not concerned about the source of the report whether it be a contract,casual or domestic employee.It is simply an isolation of the accused from the workplace to carry out investigations and it may be issued for only a specified period and not indefinitely.Since under civil law, the burden of proof lies with the line Manager to prove really that there is a case against the accused and it is during suspension that these facts are gathered without interference.Failure to prove or gather facts in this period means that when the suspension lapses ,the individual may automatically return to work.
According to principles of natural justice, you as the accused have to be fully aware of the facts surrounding your suspension and the facts clearly laid out in the letter.The letter should also state the validity of the suspension.
I hope I have contributed in a manner that may add value to your situation
Rgds
Leslie
From Zimbabwe
Dear Ashok
Letter of Suspension must have the Reference of the Charge-Sheet or Letter of Explanation
The S L must record the grave act of misconduct for which the Issuing Authority decided
to suspend -the Employee-pending Enquiry. During the period of Suspension, the Suspended Employee
is paid Subsistence Allowance for the whole period of suspension calculated at different rates.
More shocking is the info that action was actually taken after 2 years. Either the Management paid the S Allowance or did not pay any S A?
Concerned Employee has option to move the Judiciary ( Labor Court if a Worker) and seek redressal on the ground that the Long S Period was due to mala fide intention of Management.
Kritarth Consulting
10-10-13
--
From India, Delhi
Letter of Suspension must have the Reference of the Charge-Sheet or Letter of Explanation
The S L must record the grave act of misconduct for which the Issuing Authority decided
to suspend -the Employee-pending Enquiry. During the period of Suspension, the Suspended Employee
is paid Subsistence Allowance for the whole period of suspension calculated at different rates.
More shocking is the info that action was actually taken after 2 years. Either the Management paid the S Allowance or did not pay any S A?
Concerned Employee has option to move the Judiciary ( Labor Court if a Worker) and seek redressal on the ground that the Long S Period was due to mala fide intention of Management.
Kritarth Consulting
10-10-13
--
From India, Delhi
To,
Kritarth Consulting Pvt Ltd and Leslie Fungai
Dear Sir,
Thanks, Kritarth Consulting Pvt Ltd and Leslie Fungai, for your valuable guidelines.
As required, following are the contents of the Letter of Suspension: -
“It has been reported that while working as xxx under xxx you have committed serious irregularities in the matter of xxx.
As the acts of misconduct committed by you are of grave nature, your continuance in the post held by you or the office in which you are working is likely to vitiate the enquiry or to become detrimental to the proceedings or to the interest of the organization.
Under the circumstances I, the undersigned, being the competent authority as per xxx Employees’ Service Regulations, hereby order your suspension with immediate effect until further orders, pending further proceedings and final orders in the matter.
During the period of suspension you are eligible for subsistence allowance as per xxx rules.
You are directed to report for attendance during suspension on every Monday at 11.00 AM to xxx. In case Monday happens to be a Holiday, you should report on the immediately following working day.
During the period of your suspension you should not leave the Head Quarters without prior permission of xxx.”
In the above Order of Suspension no Reference of the Charge-Sheet or Letter of Explanation is given. The details of the grave act of misconduct are also not recorded in the Suspension Order, for which the Issuing Authority decided to suspend -the Employee-pending Enquiry.
During the entire Suspension period of 816 days, he is paid only 50% Subsistence Allowance and he is not paid 75% salary after 90 days and full salary after 180 days with all other consequential benefits.
Concerned Employee had gone to the High Court but the Court did not decide the matter on merits and disposed off the mater other way and awarded minor benefit only and the employee did not get justice after appeal also and now he has only option to make a Fraud case because here the Fraud is absolutely clear having many evidences on record against the authority as under: -
i. Copy of the Alleged Report received by Issuing Authority on the basis of which he suspended the employee is not supplied to him till the date.
ii. FIR lodged for alleged Matter does not show any evidence against him.
iii. A Letter submitted in respect of the said Matter does not show any evidence against him.
iv. No Letter for Explanation is issued to him before issuing Order of Suspension.
v. No Evidence is produces against him for issuing Order of Suspension.
vi. No Witness is produces against him for issuing Order of Suspension.
vii. No reply is given to his 9 (Nine) Grievance Letters till the date.
viii. Chargesheet is issued to him after 312 Days of Suspension.
ix. Departmental Enquiry is conducted in hurry after 639 Days of Suspension.
x. Departmental Enquiry is conducted under the influence of mala fide intention of Management and higher authorities.
xi. Show Cause Notice is issued to him after 754 Days of Suspension.
xii. Punishment Order is issued to him after 816 Days of Suspension.
xiii. Other employee has been entirely exonerated in the same matter and similar action.
xiv. Alleged Matter is NOT Proved in the Honorable Court of Law.
xv. No proper documents are supplied against his RTI Application by management.
So kindly advice - can the employee make Fraud case against the Authority or not to get justice on the ground of all above evidences and the Long Suspension Period that was due to mala fide intention of Management. And there is no time limit for filling the fraud case.
Your valuable guidance in the matter would be highly appreciated and helpful to him for his taking further action in the matter. Is it possible for him to make a Fraud case against the authority?
Ashok Gupta
From India, Mumbai
Kritarth Consulting Pvt Ltd and Leslie Fungai
Dear Sir,
Thanks, Kritarth Consulting Pvt Ltd and Leslie Fungai, for your valuable guidelines.
As required, following are the contents of the Letter of Suspension: -
“It has been reported that while working as xxx under xxx you have committed serious irregularities in the matter of xxx.
As the acts of misconduct committed by you are of grave nature, your continuance in the post held by you or the office in which you are working is likely to vitiate the enquiry or to become detrimental to the proceedings or to the interest of the organization.
Under the circumstances I, the undersigned, being the competent authority as per xxx Employees’ Service Regulations, hereby order your suspension with immediate effect until further orders, pending further proceedings and final orders in the matter.
During the period of suspension you are eligible for subsistence allowance as per xxx rules.
You are directed to report for attendance during suspension on every Monday at 11.00 AM to xxx. In case Monday happens to be a Holiday, you should report on the immediately following working day.
During the period of your suspension you should not leave the Head Quarters without prior permission of xxx.”
In the above Order of Suspension no Reference of the Charge-Sheet or Letter of Explanation is given. The details of the grave act of misconduct are also not recorded in the Suspension Order, for which the Issuing Authority decided to suspend -the Employee-pending Enquiry.
During the entire Suspension period of 816 days, he is paid only 50% Subsistence Allowance and he is not paid 75% salary after 90 days and full salary after 180 days with all other consequential benefits.
Concerned Employee had gone to the High Court but the Court did not decide the matter on merits and disposed off the mater other way and awarded minor benefit only and the employee did not get justice after appeal also and now he has only option to make a Fraud case because here the Fraud is absolutely clear having many evidences on record against the authority as under: -
i. Copy of the Alleged Report received by Issuing Authority on the basis of which he suspended the employee is not supplied to him till the date.
ii. FIR lodged for alleged Matter does not show any evidence against him.
iii. A Letter submitted in respect of the said Matter does not show any evidence against him.
iv. No Letter for Explanation is issued to him before issuing Order of Suspension.
v. No Evidence is produces against him for issuing Order of Suspension.
vi. No Witness is produces against him for issuing Order of Suspension.
vii. No reply is given to his 9 (Nine) Grievance Letters till the date.
viii. Chargesheet is issued to him after 312 Days of Suspension.
ix. Departmental Enquiry is conducted in hurry after 639 Days of Suspension.
x. Departmental Enquiry is conducted under the influence of mala fide intention of Management and higher authorities.
xi. Show Cause Notice is issued to him after 754 Days of Suspension.
xii. Punishment Order is issued to him after 816 Days of Suspension.
xiii. Other employee has been entirely exonerated in the same matter and similar action.
xiv. Alleged Matter is NOT Proved in the Honorable Court of Law.
xv. No proper documents are supplied against his RTI Application by management.
So kindly advice - can the employee make Fraud case against the Authority or not to get justice on the ground of all above evidences and the Long Suspension Period that was due to mala fide intention of Management. And there is no time limit for filling the fraud case.
Your valuable guidance in the matter would be highly appreciated and helpful to him for his taking further action in the matter. Is it possible for him to make a Fraud case against the authority?
Ashok Gupta
From India, Mumbai
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