Dear All,
The brief fact of the case is that the company management had issued a suspension order to one union representative for an act of indiscipline - leaving the workplace without prior permission from the concerned supervisor, instigating/gathering workmen, and engaging in riotous, disorderly behavior with the security supervisor. The suspension order stated that the management would issue a separate charge sheet, and a Domestic Enquiry would be conducted by appointing E.O & M.R.
However, the management did not issue any charge sheet, conduct an enquiry, or pay Subsistence Allowance during the suspension period, as per the provisions of the Standing Orders applicable to the company. After 3-4 months had passed, the management asked the delinquent worker to submit a good conduct bond/apology letter. They stated that no action would be initiated, and the suspension order would be withdrawn immediately if the worker complied. The delinquent employee refused, stating, "I have not committed any misconduct. Being a workers' representative, I was ensuring the proper safety of the workers."
With the help of other union representatives, the management resolved the issue without taking an apology letter or good conduct bond from the delinquent worker, and the suspension order was withdrawn. In the suspension withdrawal letter, the management narrated that the worker had committed serious misconduct, and the charges were proven in a preliminary/internal enquiry conducted by the management. They further mentioned that, considering the worker's long service with the company and based on the principles of natural justice and equity, a lenient view was taken, and the worker was warned.
The delinquent worker then resumed duties and filed an application claiming full wages for the suspension period. Since no charge sheets were issued, no domestic enquiry was conducted, and no charges were proved, the worker believed they were entitled to full wages. After receiving the full wages claim, the management released the applicable subsistence allowance, having not paid it during the suspension period.
Despite the exchange of letters between the delinquent worker and the management, the management refused to pay the full wages for the suspension period, claiming that the charges were proven in the preliminary enquiry. The worker argued that no charge sheet was issued, no charges were leveled against him, no enquiry officer was appointed, and no domestic enquiry was conducted, therefore he was entitled to full wages.
As the management did not pay the full wages claimed by the delinquent worker, he filed a complaint before the Asst. Labour Commissioner Authority. Since the management did not respond or appear before the authority, the authority is close to issuing a failure report and advising the worker to proceed to file a claim in the courts. The Authority has set a final date for the hearing, and we have filed written arguments with supporting legal points.
In my view, since no charge sheet was issued, and no charges were leveled against the delinquent worker, and no domestic enquiry was conducted, the worker, who did not admit his mistakes by submitting an apology letter or good conduct bond, is entitled to full wages. The management's act of withdrawing the suspension order on its own, merely stating that the charges were proven in a preliminary enquiry, is not sufficient, valid, or legally correct. According to the principles of natural justice and equity, even during a preliminary enquiry, the management should provide an opportunity for the worker to defend himself. The management's actions are illegal and baseless; hence, the delinquent worker is entitled to full wages for the suspension period.
In view of the above, I kindly request all experts to suggest and advise on points to be included in the final written argument and cite relevant case laws to be submitted before the Authority.
Thanks & Regards,
Shaikh.
From India, Nashik
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5The brief fact of the case is that the company management had issued a suspension order to one union representative for an act of indiscipline - leaving the workplace without prior permission from the concerned supervisor, instigating/gathering workmen, and engaging in riotous, disorderly behavior with the security supervisor. The suspension order stated that the management would issue a separate charge sheet, and a Domestic Enquiry would be conducted by appointing E.O & M.R.
However, the management did not issue any charge sheet, conduct an enquiry, or pay Subsistence Allowance during the suspension period, as per the provisions of the Standing Orders applicable to the company. After 3-4 months had passed, the management asked the delinquent worker to submit a good conduct bond/apology letter. They stated that no action would be initiated, and the suspension order would be withdrawn immediately if the worker complied. The delinquent employee refused, stating, "I have not committed any misconduct. Being a workers' representative, I was ensuring the proper safety of the workers."
With the help of other union representatives, the management resolved the issue without taking an apology letter or good conduct bond from the delinquent worker, and the suspension order was withdrawn. In the suspension withdrawal letter, the management narrated that the worker had committed serious misconduct, and the charges were proven in a preliminary/internal enquiry conducted by the management. They further mentioned that, considering the worker's long service with the company and based on the principles of natural justice and equity, a lenient view was taken, and the worker was warned.
The delinquent worker then resumed duties and filed an application claiming full wages for the suspension period. Since no charge sheets were issued, no domestic enquiry was conducted, and no charges were proved, the worker believed they were entitled to full wages. After receiving the full wages claim, the management released the applicable subsistence allowance, having not paid it during the suspension period.
Despite the exchange of letters between the delinquent worker and the management, the management refused to pay the full wages for the suspension period, claiming that the charges were proven in the preliminary enquiry. The worker argued that no charge sheet was issued, no charges were leveled against him, no enquiry officer was appointed, and no domestic enquiry was conducted, therefore he was entitled to full wages.
As the management did not pay the full wages claimed by the delinquent worker, he filed a complaint before the Asst. Labour Commissioner Authority. Since the management did not respond or appear before the authority, the authority is close to issuing a failure report and advising the worker to proceed to file a claim in the courts. The Authority has set a final date for the hearing, and we have filed written arguments with supporting legal points.
In my view, since no charge sheet was issued, and no charges were leveled against the delinquent worker, and no domestic enquiry was conducted, the worker, who did not admit his mistakes by submitting an apology letter or good conduct bond, is entitled to full wages. The management's act of withdrawing the suspension order on its own, merely stating that the charges were proven in a preliminary enquiry, is not sufficient, valid, or legally correct. According to the principles of natural justice and equity, even during a preliminary enquiry, the management should provide an opportunity for the worker to defend himself. The management's actions are illegal and baseless; hence, the delinquent worker is entitled to full wages for the suspension period.
In view of the above, I kindly request all experts to suggest and advise on points to be included in the final written argument and cite relevant case laws to be submitted before the Authority.
Thanks & Regards,
Shaikh.
From India, Nashik
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Dear Mr. Shaikh,
Based on the information provided, if you have accepted the warning letter, then you are not entitled to any back wages, as the warning is the simplest form of punishment for any misconduct.
Thanks
From India, Delhi
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Based on the information provided, if you have accepted the warning letter, then you are not entitled to any back wages, as the warning is the simplest form of punishment for any misconduct.
Thanks
From India, Delhi
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Sir.
Basically the management has issued suspension order stating the separate charge sheet will be issued and domestic enquiry will conduct furthermore they have stated that the names of E.O and the date, place of enquiry will be communicated by separate letter.
As per the provisions of Certified Standing Orders applicable to company, Non of these happened, for more clarification i am sending extract of certified standing order applicable to the company.
23. Misconduct: Enquiries, Procedure and Punishment: -
1. A workman against whom any action is proposed to be taken for misconduct may be suspended pending the enquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the workman. If as a result of the enquiry held or explanation tendered, it is decided not to take any action under Standing Order 23(3) the workman shall be deemed to have been on duty and shall be entitled to full wages and all privileges for the period of suspension.
2. A workman against whom an inquiry is to be held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defense and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea shall be recorded.
3. A workman guilty of misconduct may be: -
a) Warned or censured or
b) Suspended on order in writing signed by the Manager for a period not exceeding four day’s or
c) Subjected to action as permitted in the Payment of Wages Act, 1936 or
d) Dismissed without notice or compensation in lieu of notice.
4. No order under sub-clause (c) of clause (3) shall be made unless the workman concerned has been informed in writing of the alleged misconduct and given an opportunity to explain the circumstances alleged against him.
5. No order of suspension or dismissal under Standing Order 23(3) (b) or (d) shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Standing Order 23(2).
If a workman refuses to accept a charge sheet and provided that he has been asked to accept the charge-sheet in the presence of at least one witness, be shall be told verbally the time and place at which the enquiry into his alleged misconduct is to be held and if he refused or fails to present himself at that time, the inquiry shall be concluded ex-party and the punishment awarded shall take account of misconduct under Standing Order No.22 thus committed.
6. In awarding punishment under this Standing Order the Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist.
24. Misdemeanor: -
A workman may be warned or censured, or, after giving him an opportunity to be heard action as permitted in the Payment of Wages Act, 1936, may be taken against him, for any of the under noted offences: -
a) Late attendance.
b) Negligence in performing duties.
c) Neglect of work.
d) Absence without leave or without sufficient cause from the appointed place of work.
e) Entering or leaving or attempting to enter or leave the premises of the establishment except by agate or entrance appointed.
f) Committing nuisance on the premises of the establishment.
g) Breach of any rule or instruction for maintenance or running of any department.
IN light of the above provisions of the Certified Standing Order applicable to company, i think the delinquent employee is eligible for full wages of the suspension period.
Kindly advice.
Shaikh.
From India, Nashik
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Basically the management has issued suspension order stating the separate charge sheet will be issued and domestic enquiry will conduct furthermore they have stated that the names of E.O and the date, place of enquiry will be communicated by separate letter.
As per the provisions of Certified Standing Orders applicable to company, Non of these happened, for more clarification i am sending extract of certified standing order applicable to the company.
23. Misconduct: Enquiries, Procedure and Punishment: -
1. A workman against whom any action is proposed to be taken for misconduct may be suspended pending the enquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the workman. If as a result of the enquiry held or explanation tendered, it is decided not to take any action under Standing Order 23(3) the workman shall be deemed to have been on duty and shall be entitled to full wages and all privileges for the period of suspension.
2. A workman against whom an inquiry is to be held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defense and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea shall be recorded.
3. A workman guilty of misconduct may be: -
a) Warned or censured or
b) Suspended on order in writing signed by the Manager for a period not exceeding four day’s or
c) Subjected to action as permitted in the Payment of Wages Act, 1936 or
d) Dismissed without notice or compensation in lieu of notice.
4. No order under sub-clause (c) of clause (3) shall be made unless the workman concerned has been informed in writing of the alleged misconduct and given an opportunity to explain the circumstances alleged against him.
5. No order of suspension or dismissal under Standing Order 23(3) (b) or (d) shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Standing Order 23(2).
If a workman refuses to accept a charge sheet and provided that he has been asked to accept the charge-sheet in the presence of at least one witness, be shall be told verbally the time and place at which the enquiry into his alleged misconduct is to be held and if he refused or fails to present himself at that time, the inquiry shall be concluded ex-party and the punishment awarded shall take account of misconduct under Standing Order No.22 thus committed.
6. In awarding punishment under this Standing Order the Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist.
24. Misdemeanor: -
A workman may be warned or censured, or, after giving him an opportunity to be heard action as permitted in the Payment of Wages Act, 1936, may be taken against him, for any of the under noted offences: -
a) Late attendance.
b) Negligence in performing duties.
c) Neglect of work.
d) Absence without leave or without sufficient cause from the appointed place of work.
e) Entering or leaving or attempting to enter or leave the premises of the establishment except by agate or entrance appointed.
f) Committing nuisance on the premises of the establishment.
g) Breach of any rule or instruction for maintenance or running of any department.
IN light of the above provisions of the Certified Standing Order applicable to company, i think the delinquent employee is eligible for full wages of the suspension period.
Kindly advice.
Shaikh.
From India, Nashik
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