Dear Experts: An employee in an organization that comes under the central government service rule, was suspended pending disciplinary action from 28.11.2017 for the charges levelled against him. He was awarded the punishment of withholding 2 years increment (Not cumulative effect) for the proven misconducts levelled against him after due process of disciplinary proceedings. He was allowed to resume work from 10.10.2018. He was paid a subsistence allowance during his suspended period. Now, the VII pay commission was approved in the year 2020 by the central government taking effect from 01.01.2016 and the monetary effect was from October 2017. The arrears of salary as per VII Pay commission to the employees was paid out in March 2021 along with the salary. Now in this issue, my queries are -
1.Whether the suspended employee be paid the difference in Subsistence Allowance after the effect of VII Pay commission recommendation, as the suspended employee was paid SA under VI Pay commission recommendation?
2. When the charges levelled against him were proved in the enquiry and awarded specific punishment to the, whether the Management has a right (1) to recover the subsistence allowance paid to the employee for the period he was kept under suspension pending disciplinary action (or) or to adjust the said suspension period in the Balance of Earned Leave days credit or treated to be left on loss of pay on the ground that he was not on duty during the suspended period?
3. Is there any specific rules prevailing in Central Govt. payment of subsistence allowance referring to query no.2?
Request experts views, please. Thanks & regards.
V Sridhar
From India, Mumbai
251.Whether the suspended employee be paid the difference in Subsistence Allowance after the effect of VII Pay commission recommendation, as the suspended employee was paid SA under VI Pay commission recommendation?
2. When the charges levelled against him were proved in the enquiry and awarded specific punishment to the, whether the Management has a right (1) to recover the subsistence allowance paid to the employee for the period he was kept under suspension pending disciplinary action (or) or to adjust the said suspension period in the Balance of Earned Leave days credit or treated to be left on loss of pay on the ground that he was not on duty during the suspended period?
3. Is there any specific rules prevailing in Central Govt. payment of subsistence allowance referring to query no.2?
Request experts views, please. Thanks & regards.
V Sridhar
From India, Mumbai
The answer to your queries are as follows;
1. The employee was suspended on 28.11.2017, the financial effect of the VIIth Pay Commission was given effect from Oct'2017. So on the date of suspension, the suspended employee was already in receipt of wages as per VIIth Pay Commission so the subsistence allowance has to be paid on the basis of the revised salary. Moreover, on 28.11.2017 the Vith Pay Commission scales were not in existence so the clock cannot be turned back for this purpose.
2. The very word 'Subsistence Allowance' means, it is meant for the subsistence of the employee as well as his family, it is not an ex-gratia or a discretionary amount. It is an absolutely essential payment made to an employee and there cannot be any recovery or its adjustment with leave due even if the charges are held to be proved and punishment as per rules is imposed. The right of suspension is given to the employer but the suspended employee is still the employee of the organisation and the employer has decided to keep the employee away from work place for reasons well known, but in the process for the duration of suspension the employee is to be paid subsistence allowance for the frugal existence of the employee as well as the family.
3. An extract of the Central Government Rules is given below;
THE ALL INDIA SERVICES (DISCIPLINE AND APPEAL) RULES, 1969
4. Subsistence allowance during suspension.-
4(1) A member of the Service under suspension or deemed to have been placed under suspension by the Government concerned shall be entitled to receive from that Government:-
4(1)(a) a subsistence allowance at an amount equal to the leave salary which a member of the Service would have drawn if he had been on leave on half-average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary;
Provided that where the period of suspension exceed three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspensions has been prolonged for reasons, to be recorded in writing, not directly attributable to the member of the Service;
(ii) the amount of the subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons, to be recorded in writing directly attributable to a member of the Service;
(iii) the rate of the dearness allowance will be based on the increased or, as the case may be, the reduced amount of subsistence allowance admissible under sub-clause (i) or sub-clause (ii) above.
4(1)(b) any other compensatory allowance admissible from time to time on the basis of pay of which a member of the Service was in receipt on the date of suspension, subject to the fulfillment of other conditions laid down for the drawal of such allowance.
4(2) No member of the Service shall be entitled to receive payment under sub-rule (1) unless he furnished a certificate that he is not engaged in any other employment, business, profession or vocation.
4(3) The authority to grant subsistence allowance shall be the suspending authority.
Similar provision exists in The Central Civil Services (Classification, Control & Appeal) Rules, 1965
From India, Mumbai
1. The employee was suspended on 28.11.2017, the financial effect of the VIIth Pay Commission was given effect from Oct'2017. So on the date of suspension, the suspended employee was already in receipt of wages as per VIIth Pay Commission so the subsistence allowance has to be paid on the basis of the revised salary. Moreover, on 28.11.2017 the Vith Pay Commission scales were not in existence so the clock cannot be turned back for this purpose.
2. The very word 'Subsistence Allowance' means, it is meant for the subsistence of the employee as well as his family, it is not an ex-gratia or a discretionary amount. It is an absolutely essential payment made to an employee and there cannot be any recovery or its adjustment with leave due even if the charges are held to be proved and punishment as per rules is imposed. The right of suspension is given to the employer but the suspended employee is still the employee of the organisation and the employer has decided to keep the employee away from work place for reasons well known, but in the process for the duration of suspension the employee is to be paid subsistence allowance for the frugal existence of the employee as well as the family.
3. An extract of the Central Government Rules is given below;
THE ALL INDIA SERVICES (DISCIPLINE AND APPEAL) RULES, 1969
4. Subsistence allowance during suspension.-
4(1) A member of the Service under suspension or deemed to have been placed under suspension by the Government concerned shall be entitled to receive from that Government:-
4(1)(a) a subsistence allowance at an amount equal to the leave salary which a member of the Service would have drawn if he had been on leave on half-average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary;
Provided that where the period of suspension exceed three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspensions has been prolonged for reasons, to be recorded in writing, not directly attributable to the member of the Service;
(ii) the amount of the subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons, to be recorded in writing directly attributable to a member of the Service;
(iii) the rate of the dearness allowance will be based on the increased or, as the case may be, the reduced amount of subsistence allowance admissible under sub-clause (i) or sub-clause (ii) above.
4(1)(b) any other compensatory allowance admissible from time to time on the basis of pay of which a member of the Service was in receipt on the date of suspension, subject to the fulfillment of other conditions laid down for the drawal of such allowance.
4(2) No member of the Service shall be entitled to receive payment under sub-rule (1) unless he furnished a certificate that he is not engaged in any other employment, business, profession or vocation.
4(3) The authority to grant subsistence allowance shall be the suspending authority.
Similar provision exists in The Central Civil Services (Classification, Control & Appeal) Rules, 1965
From India, Mumbai
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