It is unfortunate that such a senior employee has been facing a Departmental Enquiry.
There has been several judgements on this matter.of deductions from Subsistence Allowance.
Only PF and ESIC deductions can be made from the Subsistence allowance pending enquiry.
Any other deductions can be made only upon the consent of the employee.
Moreover the quantum of Subsistence allowance which is 50% initially, has to be raised to 75% after three months of continued suspension.
Do pursue the matter with the Apellate Authority of PSB, or Tribunal and Labour Court, as appropriate.
18th May 2013 From India, Delhi
Section 10-A of the Industrial Employment (Standing Order) Act 1946 provides for payment of subsistence allowance. As per Sub Section (2) of Section 10A, any dispute regarding Subsistence Allowance may be referred to Labour Court. Award of Labour Court can be executed under Section 33-C (Recovery of money due from an employer) of the Industrial Disputes Act 1947 and the amount can be recovered under Revenue Recovery Act.
20th May 2013 From India, Madras
In my earliest comments, in the first para I have mentioned about the requirement for payment of subsistence allowance. In the second para, I have suggested the legal remedies for non payment of subsistence allowance.
I would like to know what is the action taken by the affected employee and what is the current position.
28th May 2013 From India, Madras
The present status is still the same. The employee in question being a lady is at present going through some midage health complications and the status of not able to touch even a single rupee of her earnings had put her more dependent on her family. Like every other indian women who submits to her environment to the benefit of other person. Eventhough her legal position is right, to gather strength to stand up and fight against a Huge organisation for rights is something which needs lot of preparation.
In the world out where we live people always mix up things. The very term Natural Justice is not known to many a persons unless they face it.
To find suitable lawyers in the place where she is staying at present is again a problem. When it comes to fight for an individual who is up against an organisation for legal remedies you need a 100% trustworthy person who believes in their professional ethics and who would not mix up the things.
I would like communicate in your private mail id to reveal more details if you permit.
Thank u for the followup sir. I have started believing today that " TRUTH and JUSTICE Prevails"
28th May 2013 From India, Mumbai
#AnonymousDear Natural Justice,
Thank you for your prompt reply. I can understand the helplessness of the employee under suspension after 27 years of good track record.
You can very well send the details to me. For your kind information,with a post graduation in Labour Laws, and specialised in Domestic/departmental enquiry (Govt. corporate and cooperative sector) I am working as a Trainer at HRD Institution over two decades, worked in Kerala, Tamil Nadu and presently in Maharashtra.
28th May 2013 From India, Madras
1st June 2013 From India, Mumbai
The questions which are being put are with the very clear understanding that the charges mentioned in the chargesheet and its reply and other procedures and penalty which the employee may or may not face depending on the fact that whether guilty or not - is entirely not connected with this issue.
After a strong followup this month a part of subsistence allowance reached her that also after sending a part of this forum's views to the P & HR by mail.
When it is viewed as the right for survival and basically it is not only the right as an employee but also about the constitutional right of person to survive and exist.
But still my question is if a person who was placed under suspension atlease 6 to 7 months back and has to wait and fight for this basic right of survival after 6 months even though there are clear service conditions about what is to be paid when some one is under suspension and what are all the deductions to be made, what is recourse available?
What is Natural Justice !!. It is the protection against arbitrary exercise of power by ensuring fair play with the following principles.
(1) Audi alteram partem (Latin for, hear the other side): no accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party's arguments;
(2) Nemo judex in causa sua (Latin for, no man a judge in his own case): no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker.
These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention of natural justice.
The act of the employer withholding the subsistence allowance or appropriating it in such a way that the employee could not access it thereby putting the employee into such difficult financial condition which basically affects any working person adversely, there by creating a very disturbing effect on any employee who is yet to be proved guilty there by putting the delinquent employee in such a position that the employee cannot prepare for her/his case and rebutt the opposing party's arguments. When there is a case to be fought and decided why there is a punishment before. Is this not against Natural Justice. Can this not be challenged ?
The point of contention is non payment of subsistence till date there by not granting the employee the basic NATURAL JUSTICE and RIGHT FOR SURVIVAL. What is the limitation time for this - if the employee wants to take up this matter after the enquiry and other procedures are over.?
The very purpose of this query is not just getting subsistence allowance but to bring to notice of everyone involved about what steps should be ensured so that the delinquent employees should also be given a fair opportunity to present their part without getting bowed down by the pressures created by the unemployed/ unpaid condition.
'NIRBHAYA' s fight for survival was motivation for the fight against certain social immoralities which would now continue even though she lost her battle of life and likewise let this case of fight for survival of my colleague even though she had suffered (but survived till date because of the support of the strong family) be a motivational factor for the modus operandi of such cases where the punishment period had started even before the presentation of the case and the hearings
If there is any contradictions / impoliteness in my this post - please bring that to my notice.
3rd June 2013 From India, Mumbai
Now make another application to get the entitled subsistence allowance as per eligibility. It seems that the employee is under suspension for about 6-7 months. Hence the rate of subsistence allowance is also now increased after 3 months. If not paid, inform the Employer that for getting the eligible subsistence allowance, the employee is approaching the competent authority (Labour court).
Any person who is aggrieved, may make use of the legal remedies available, by approaching the appropriate forum for justice. Law cannot help those who are not diligent in exercising their rights.
3rd June 2013 From India, Madras
The fight is still on without getting into any Legal actions till date. A claim for the subsistence lesspaid in the initial months is sent and now it is atleast acknowledged and the eligible perks were also paid partly. Thanks to the forum and its support.
But I am certainly thinking at this point of time - when a employee is placed under suspension normally the situation agravates if the employee chooses to go to Labour court - Do the employee has got the right / Limitation to fight out or atleast challenge the "conduct of the organisation during the period of suspension " after the enquiry is over or if the employee decides to leave the organisation ??
Can the legal experts clarify in this regards ??
24th June 2013 From India, Mumbai
If the employee is happy without subsistence allowance, then there is no need of going to Labour Court for getting subsistence allowance.
My suggestion is clear. Those who have grievances, there is a grievance redressal system in India. To make use of it or not is upto the person aggrieved.
4th July 2013 From India, Madras