An employee who was in custody beyond 48 hours is deemed to be suspended as per certified standing order for workmen. In this case, what will be the status of the subsistence allowance if the workman is in custody?
From India, Sambalpur
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2From India, Sambalpur
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What is custody? You mean Police Custody or Judicial Custody? Then which "certified" standing orders say that 'custody for more than 48 hours would be deemed as suspension? Is there any deemed suspension? In order to be eligible for subsistence allowance, the suspension should be made in writing quoting the reason thereof. Police/Judicial custody shall be for any act/misconduct on the part of the employee carried out outside the office or not connected with employment.
Then how can you suspend him from service? If he is under police custody, obviously, he would not come to work, and that day would be marked as absent. When he returns, you can ask for absence without intimation which is a misconduct, though a minor misconduct. He would say that he was under Police/Judicial Custody, and that was why he could not apply for leave. If your standing orders permit an employee to be punished for an act done outside the office, then you can suspend him and call for explanations, and proceed with a domestic enquiry. Without asking the employee what the crime committed was or how the crime could relate to your office, you cannot initiate any action against your employee. Therefore, please read the clause carefully.
From India, Kannur
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Then how can you suspend him from service? If he is under police custody, obviously, he would not come to work, and that day would be marked as absent. When he returns, you can ask for absence without intimation which is a misconduct, though a minor misconduct. He would say that he was under Police/Judicial Custody, and that was why he could not apply for leave. If your standing orders permit an employee to be punished for an act done outside the office, then you can suspend him and call for explanations, and proceed with a domestic enquiry. Without asking the employee what the crime committed was or how the crime could relate to your office, you cannot initiate any action against your employee. Therefore, please read the clause carefully.
From India, Kannur
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Sir,
The workman was suspended as a result of involvement in a theft inside the plant. Upon a complaint by management to the local police station, the police arrested him. The court also rejected his bail application, but he was later granted bail by the high court. As a public sector company, we are required to initiate proceedings as per the certified standing order, which states that a workman held in custody for more than 48 hours is deemed to be suspended.
From India, Sambalpur
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The workman was suspended as a result of involvement in a theft inside the plant. Upon a complaint by management to the local police station, the police arrested him. The court also rejected his bail application, but he was later granted bail by the high court. As a public sector company, we are required to initiate proceedings as per the certified standing order, which states that a workman held in custody for more than 48 hours is deemed to be suspended.
From India, Sambalpur
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Ok, fine. In such a situation, you should have suspended the employee first before an FIR is lodged against the employee. When your certified standing orders mention deemed suspension, they should also address subsistence allowance. In the absence of it, it should be deemed that subsistence allowance will accrue from the date of suspension or deemed suspension. In any case, you cannot deny subsistence allowance because it is a suspension pending enquiry. Until the charges leveled against him are proven, he remains an employee, and you should provide him with an allowance, called subsistence allowance.
I am not sure if deemed suspension would be maintainable before the court; therefore, it is better to send a separate communication to the employee.
From India, Kannur
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I am not sure if deemed suspension would be maintainable before the court; therefore, it is better to send a separate communication to the employee.
From India, Kannur
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Rule 10 of the CCS (CCA) Rules applicable to Central Government employees provides for deemed suspension in case of detention in custody beyond 48 hours.
10. Suspension
(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension:
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in the case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of the appointing authority:
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
The public sector companies have more or less adapted said provisions in their discipline rules. An employee placed under deemed suspension requires to be paid subsistence allowance, as admissible, irrespective of whether he is in custody or otherwise.
From India, Kochi
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10. Suspension
(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension:
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in the case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of the appointing authority:
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
The public sector companies have more or less adapted said provisions in their discipline rules. An employee placed under deemed suspension requires to be paid subsistence allowance, as admissible, irrespective of whether he is in custody or otherwise.
From India, Kochi
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Dear Cite HR Member Jkpmpratap,
As I understand from your question and subsequent clarification that your organization is a Public Sector Company and the employee was arrested on a complaint of theft lodged by the Company. You want to know about the status of subsistence allowance when the workman is in custody, and you have also referred to the Standing Orders. An appropriate answer cannot be given for the want of the following information:
1. You have not indicated whether your company is a State Public Sector company or a Central Public Sector company.
2. You have not indicated in which state your company is located because Standing Orders may differ from state to state.
However, it may be informed that in the present case, there is procedural irregularity on the part of the Management. It is stated in your post that the Management lodged an FIR against a worker suspecting his involvement in an internal theft. According to standing SOP, when the Management suspects an employee's involvement in any illegal activity, the Management is not required to wait for the police to make an inquiry and arrest the culprit employee. It is enough for the Management to suspend an employee on the basis of suspicion pending inquiry. However, this was not done.
Now, the employee was arrested and remained in custody for more than 48 hours, so he is to be treated under deemed suspension from the date of his arrest. The bail of the employee has no bearing because the employee's involvement in theft is on record. He will continue to remain under suspension until the finalization of the disciplinary proceedings. It may be noted that the departmental proceedings can be instituted irrespective of the pendency of court's proceedings.
The employee is eligible for a subsistence allowance at 50% of his basic pay plus other admissible allowances. This is a general rule. A reference is to be made to the CSO of your company, and if it is silent, then the Management has to follow the guidelines of PSUs of the concerned State or Central PSU as the case may be.
Hope this meets your query.
Chandramani Lal Srivastava
srivastavacmlal@gmail.com
+91 9315516083
New Delhi
From India, New Delhi
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As I understand from your question and subsequent clarification that your organization is a Public Sector Company and the employee was arrested on a complaint of theft lodged by the Company. You want to know about the status of subsistence allowance when the workman is in custody, and you have also referred to the Standing Orders. An appropriate answer cannot be given for the want of the following information:
1. You have not indicated whether your company is a State Public Sector company or a Central Public Sector company.
2. You have not indicated in which state your company is located because Standing Orders may differ from state to state.
However, it may be informed that in the present case, there is procedural irregularity on the part of the Management. It is stated in your post that the Management lodged an FIR against a worker suspecting his involvement in an internal theft. According to standing SOP, when the Management suspects an employee's involvement in any illegal activity, the Management is not required to wait for the police to make an inquiry and arrest the culprit employee. It is enough for the Management to suspend an employee on the basis of suspicion pending inquiry. However, this was not done.
Now, the employee was arrested and remained in custody for more than 48 hours, so he is to be treated under deemed suspension from the date of his arrest. The bail of the employee has no bearing because the employee's involvement in theft is on record. He will continue to remain under suspension until the finalization of the disciplinary proceedings. It may be noted that the departmental proceedings can be instituted irrespective of the pendency of court's proceedings.
The employee is eligible for a subsistence allowance at 50% of his basic pay plus other admissible allowances. This is a general rule. A reference is to be made to the CSO of your company, and if it is silent, then the Management has to follow the guidelines of PSUs of the concerned State or Central PSU as the case may be.
Hope this meets your query.
Chandramani Lal Srivastava
srivastavacmlal@gmail.com
+91 9315516083
New Delhi
From India, New Delhi
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