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Thread Started by #san_chak03

Sir/Madam,
I would like to know If any employee is suspended for one week is he/she entitled for salary for his/her suspension period? Please give me the proper guideline.
Thanks & Regards
SandipChakraborty
12th January 2013 From India, Kolkata
Hi, If you giving the salary to him for suspension period then what is the use of suspension. Can anybody guide as per act?
12th January 2013 From India, Hyderabad
During the suspension period the employee is entitled for half wages as allowance . Normally suspension is opted for domestic inquiry and the motive of suspension is to prevent the employee to harm the inquiry proceeding .....
Regards,
Padamnave Parashar
Manager HR
12th January 2013 From India, Bhopal
Hi Padamnave, Can you mention where is the clause in law like you stated above. Awaiting for your reply,.
12th January 2013 From India, Hyderabad
Suspension are of two types
1. Suspension pending enquiry
2. Suspension as Punishment
Standing orders provide for Subsistence allowance in case of Suspension pending enquiry.. If my memory is right, 50% of Basic plus DA need to be paid for suspension pending enquiry for the first three months and 75% for the next three months and 100% if the enquiry is prolonged beyond six months.
In case of of punishment, no pay is payable. However model standing orders restrict the number of days of suspension to 30 .So when an employee is punished with a suspension of 7 days, no pay is payable.
T Sivasankaran
13th January 2013 From India, Chennai
Dear Sirs, An allowance called subsistence allowance will be paid to the employee who is suspended pending inquiry. Salary will be paid after the inquiry results
13th January 2013 From United States, Chicago
Dear Mr. Sandip,
1. Payment of Subsistence allowance is due to an employee who is kept under Suspension pending the result of an Enquiry. This is as per the rules depends of the period of days involved.
2. NO remuneration is entitled to an employee who has been suspended from work after conducting an Enquiry and suspension granted in the nature of Punishment.
Jagdish.K
Kochi
13th January 2013 From India, Kochi
need to know reason for suspension first it is not always true that employee make mistake sometime even employer makes with this regard i would advice to find out the reason then proper decision should be taken
13th January 2013 From India, Hyderabad
Dear Ms. Meena,
Reason for suspension is not a question an any juncture, as it is the prerogative of every Employer to suspend his/her employee prohibiting or re-leaving from work; and if that suspension is not in the nature of a punishment, the concerned employee is eligible for Subsistence Allowance as per the norms stipulated in the relevant Act/Rules. Reason for Suspension and reasonable opportunity to hearing shall be observed subsequent to Suspension.
Jagdish. K
Kochi
13th January 2013 From India, Kochi
Sir,

There is a correction in your views. Let me elucidate this.

1. There are certain form of wages/emoluments of an employee which has not to be taken for calculation of Subsistence Allowance. As such the management has to consider all remuneration other than those heads ( factors which need not to be taken for calculation of Subsistence Allowance viz. Bonus, Gratuity, contribution by employer to Provident Fund etc - as per Sec. 2 of the respective Act) which are specifically excluded in the statute for calculation of Subsistence Allowance.

2. When an employer suspends an employee pending investigation or inquiry into complaints or charges of misconduct against him, the contract of service is not rescinded and the relationship of employer and employee subsists. Thus, during suspension the employee is entitled to receive subsistence allowance. In M/s. Kshetriya Sri Gandhi Ashram, Gorakhpur vs. Deputy Labour Commissioner/Prescribed Authority under Payment of Wages Act and Another, Allahabad High Court explains subsistence allowance as a nick name for “reduced wages” or “reduced salary.” Thus, such subsistence allowance should be paid at the rate of 50% of the wages which the workman was entitled to, immediately preceding the date of such suspension, for the first 90 days of suspension and at the rate of 75%, thereafter if prolongs 6 months then at 100 % till the final decision. Labour Law Reporter, pg. no. 897, Allahabad High Court, August 2009.

3. Inorder to arrive the one day wage of a monthly paid employee, the dividing factor should be 26 days instead of 30 days in respect of a monthly paid employee as a worker gets full months' wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days excluding Sundays which are paid holidays, besides other extra holidays which could also make some marginal variation which is confirmed by learned judges:-

i. “….Wages paid for the entire month should be taken as paid for all the 30 days in the month in determining the rate of wages and not as paid for the actual number of working days. This contention runs counter to the well accepted principle that wages payable to an employee for a month are wages paid for the actual number of days he has worked which are taken as 26 days in a month after excluding Sundays which are given as compulsory holidays for all establishments; the holiday on Sunday is earned by the employee by working on the remaining days of the month. The rate of wages has, therefore, to be arrived at by dividing the total amount of wages paid in a month by 26 days and not by 30 days. The argument to the contrary has been set at rest by the Supreme Court in D.W. Mills Ltd. v. M. P. Buch (1980, Labour & Industrial cases, 1052). The Supreme Court held that "the wages for 26 days are to be treated as monthly wages and not of days." (DBR Mills v. Appellate Authority. Division Bench Andhra High Court).

ii. Justice A.P. Sen, speaking for the Supreme Court referred with approval to the judgment of the Gujarat High Court in Shri Digvijay Woollen Mills Ltd. v. Mahendra Prataprai Buch 1980 II LLJ 252 I (Gujarat) wherein the Gujarat High Court observed that a worker would get full months' wages not by remaining on duty for all the 30 days within a month but remaining on work and doing duty for only 26 days and the other extra holidays might make some marginal variation in the 26 working days but all Wage Boards and wage fixing authorities or Tribunals in the country had always followed that pattern of fixation of wages by that method of 26 working days. The learned Judge also referred to the observation of the Gujarat High Court in Shri Digvijay Woollen Mills' case (supra) to the effect that ordinarily, of course, a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court could not be called perverse, and that method was not anything unique or unknown. It may be pointed out that the explanation to sub-section (2) of Section 4 was added by Act 25 of 1984 subsequent to the said judgment of the Supreme Court. Therefore, it cannot be contended that the calculation of wages at 26 days a month under the Act is because of the explanation. The Supreme Court construed 15 days' wages to mean calculated on the basis of dividing the last drawn wages of a month by 26 and multiplying the same by 15. The mere fact that the agreement provides that the employee would be entitled to gratuity in addition to the compensation would make no difference for calculation of the 15 days wages as mentioned above. In the instant case the first respondent has followed the same method. In my view wherever compensation or wages have to be calculated for 15 days whether under the Payment of Gratuity Act or under settlement under Section 18 of the Industrial Disputes Act or any other agreement, unless otherwise expressly provided, it would only be on the basis of daily wage.

iii. It is to be kept in mind that the I.D. Act has been enacted for the benefit of the labour and therefore, even if two views were possible, the one which is favourable or more favourable to the workman should be accepted. The amount of compensation has thus to be worked out on the basis of entitlement of the workman for fifteen days and not half month's pay. A priori it would follow that the entitlement cannot be worked out without calculating one day's wage or pay. For calculating one day's wage a month has to be notionaliy treated as comprising of 26 days and not 30 days as in a calendar month. Bennett Coleman And Co. Ltd. vs Presiding Officer, Labour Court: 2003 (2) BLJR 1379, (2003) IIILLJ 981 Patna High Court.

Jagdish.K

Kochi
13th January 2013 From India, Kochi
Dear friends,
Pl.go thro' the attachments for your guidance on the subject. I hope most of your queries are answered which had been discussed earlier also in the forum, search and go thro'
Regards,
kumar.s.
13th January 2013 From India, Bangalore

Attached Files
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File Type: doc SC directive on subsistence allowance to suspended staff.doc (102.0 KB, 506 views)

Mr.Sandip
You have left so many gaps in information while seeking an answer to your query. The following are gaps in information.
1) If you want to suspend an employee pending an enquiry/investigation, you need to be vested with such power either by standing orders or service rules or settlements/awards or contarct of servcie. You have not clarified whether you have such enabling prvision under which you exercised the power of suspension.
2) When you suspend a workman/employee, you do not pay him slary but pay him sussitence allowance at the rates fixed by your Sstanding order/ servcie riules/settlments/contarct of servcie. You have not specified whether the employee is a workman or non-workman.
3) You have not specified whether you have suspended him as a punishment and if so whether it is so enumerated under your standing orders/servcie rules/settlements/ contaract of servcie.
B.Saikumar
HR & Labour Law advisor
Mumbai
13th January 2013 From India, Mumbai
Dear Mr. Sandip.

When an employee is suspended just for a week it means he is going to rejoin the duties after one week and he is entitled for full salary. Actually any employee is suspended when he has committed something wrong or is presumed that he has done something wrong but either management is not sure or are not having any evidence or sufficient evidence which is irrefutable and can stand in a court of law. So to verify the facts without interference of that person and not giving him any chance to tamper with the evidence or documentary proofs the normal practice is to charge sheet the person and suspend him.

In case the inquiry is completed in a one week period and employee is not punished with any penal action, employer has to pay him full salary for that period too. If there is some punishment and employee accepts the fault or proved guilty he will get paid as per the terms of punishment.

Otherwise for 1st 3 months of suspension employees is entitled for 50% of basic and 50% of DA but he is entitled for all other benefits which he was getting before suspension.

There are thousand's of cases in Government (including defence Forces) / Public Sector & private sectors where employees were on suspension for years to gather and later they won the cases in different courts and the employers had to pay them full salary with increments and promotions that too without their working.

So suspension is a very dangerous and two sided sword and I feel mostly it hurts employers more then it hurt the employee. So dear be carefull and more over in your case when an employee is just suspended for a week he will get whole salary.
14th January 2013 From India, Delhi
sir,
According to my views suspension is of 2 types one when there is inquiry to be conducted and one is inquiry is conducted . In first case he should be given salary and in second case when he /she is punished his/her salary can be stopped .
14th January 2013 From India, Delhi
sir
According to laws in J&K when any person is punished for a period of 7days he can be given salary after the verification of reason of his suspension. just if he is suspended due to unauthorise absent and then he/she is given a chance to prove his reason of absence .If he is geniun then his salary is realesed or otherwise his salary willnot be drawn. Suspension can be of many types so it depends what is reason and salary can only be realesed only after proving his geniuness otherwise salary canbe stopped and red entery canbe given in his servicebook.
thanks and regards
sunil shan
14th January 2013 From India, Delhi
Dear All,

This was really a good topic for the postings by so many experienced contributor. Suspension is ipso facto not a punishment. Suspension's main objective is for the fair inquiry proceeding so that witnesses may not be tempered with while deposing their statements. So supension is not meant for the punishment.

For what ever complains, charges, or omissions or commissions, if an employee is suspended then he is entitled subsistence allowances as per rule 10A of the Industrial Employment (standing orders) Act, 1946. An Employee is entitled for the 50% of the wages upto first 90 days period pending enquiry proceedings and 75% of the wages as subsistance allowances if the delay in enquiry proceedings beyond 90 days is not attributable to him. In private employment, subsistance allowances can not be increased more than 75% but in Government employment under FR/SR rules he is entitled for the 90% of the basic pay + Allowances + HRA, if departmental enquiry proceedings is delayed beyond six months due to reasons not attributable to the employee.

Now, after being suspension is revoked and employee joins duty after the completion of the enquiry proceedings, then three situation arises:-

1. The grave misconduct charges are proved under the enquiry and the employee is either dismissed or removed or compulsorily retired or major penalty is levied on the employee under the rules.

2. The misconduct is proved but the penalty levied upon the employee is minor under the rules of the company or Government and the employee is retained under the employment.

3. The misconduct is not proved and the employee is exonerated of the charges levied upon him.

In the (2) and (3) above, subsistance allowances will be paid and in (1) above subsistance allowances shall not be paid. This is the statute position till now.

Thanks to all.

Raj Singh Phogat

Advocate
14th January 2013 From India, Delhi
Dear All,

This was really a good topic for the postings by so many experienced contributor. Suspension is ipso facto not a punishment. Suspension's main objective is for the fair inquiry proceeding so that witnesses may not be tempered with while deposing their statements. So supension is not meant for the punishment.

For what ever complains, charges, or omissions or commissions, if an employee is suspended then he is entitled subsistence allowances as per rule 10A of the Industrial Employment (standing orders) Act, 1946. An Employee is entitled for the 50% of the wages upto first 90 days period pending enquiry proceedings and 75% of the wages as subsistance allowances if the delay in enquiry proceedings beyond 90 days is not attributable to him. In private employment, subsistance allowances can not be increased more than 75% but in Government employment under FR/SR rules he is entitled for the 90% of the basic pay + Allowances + HRA, if departmental enquiry proceedings is delayed beyond six months due to reasons not attributable to the employee.

Now, after being suspension is revoked and employee joins duty after the completion of the enquiry proceedings, then three situation arises:-

1. The grave misconduct charges are proved under the enquiry and the employee is either dismissed or removed or compulsorily retired or major penalty is levied on the employee under the rules.

2. The misconduct is proved but the penalty levied upon the employee is minor under the rules of the company or Government and the employee is retained under the employment.

3. The misconduct is not proved and the employee is exonerated of the charges levied upon him.

In the (2) and (3) above, subsistance allowances will be paid and in (1) above subsistance allowances shall not be paid. This is the statute position till now.

Thanks to all.

Raj Singh Phogat

Advocate
14th January 2013 From India, Delhi
Mr Sasikumar is correct.For more clarification Mr sandeep pl call me. Varghese Mathew 9961266966
18th January 2013 From India, Thiruvananthapuram
Dear sir, If an employee is suspended as a punishment is she/he payable or not as per the labor law or legally, if payable then How much should we pay. Please assist
8th April 2015 From India, Pune
If an employee is suspended for misbehaviour or misconduct should she/he be paid or not, if yes then how much.
9th April 2015 From India, Pune
Dear all respected professional,
I am from Admin team.
My company has given me the show cause notice (vendor invoice increase / power misuse) & then the given me suspension letter for 07 Days.
With in 7 days I am not provide any answer then they had done the chargsheet & domestic inquiry against me.
I was not attend any inquiry so they sent me the suspension order.
I am 2.6 year old employee, when this happens before 7 month back i want to resign but my head not accept the my resignation, she delete may mail in my mailbox also. he promise me he will promote me & company has already appreciated may job time to time.
I have good offer other company can i join the new company????????????
or after join new company my old company will take any legal action against me???????????
Pls guide me.
16th October 2015 From India
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