Labour Law & Hr Consultant
PRABHAT RANJAN MOHANTY
Hr & Ir
Senior Manager/freelance Consultant
The definition of dies non is as "In service terms, “dies non” means a day, which cannot be treated as duty for any purpose. It does not constitute break in service. But the period treated as ‘dies non’ does not qualify as service for pensionary benefits or increment"
I need to understand that why the disciplinary authority is considering the 5 years as dies non when the hon'able court has given its judgement in employee's favor irrespective of any so reason. As per my opinion non subsistence can be recovered.
22nd November 2017 From India, New Delhi
Had I correctly understood your post, the march of the events should have been as follows:
1) The delinquent employee might have been charged with the misconduct of committing theft while on duty in the year 2000.
2) So the management lodged a complaint with the Police accordingly and basing on which a criminal case was instituted against the delinquent in a Criminal Court.
3)Simultaneously, the management proceeded against him as per the service rules of the organization and placed him under suspension pending enquiry and started paying him subsistence allowance since 2000.
4) It is discernible from the post that the enquiry was conducted soon after suspension and the final orders was not issued in anticipation of the outcome of criminal trial.
5) Just because of the reason that the Court's verdict of 2013 was of acquittal based on technical grounds only and not exoneration of the accused, even after his reinstatement, the management wants to award some punishment on the same charges leveled by them and that's the "dies non of five years of service " mentioned.
Am I correct?
Well, since the misconduct involved is theft by the delinquent the management is not precluded from proceeding against the same set of charges internally or departmentally and can come to their own conclusion independent of the Criminal Court's verdict and award a punishment as they deem fit. Hence the punishment of dies non for a period of 5 years which implies that those five years would not be considered for service benefits,if any.
What about the remaining period of suspension undergone by the employee? how you are going to treat those years? As duty period with wages?
Any way, subsistence allowance once paid can not be recovered. And you have to pay him wages minus the subsistence allowance already paid for the period other than the five years.
22nd November 2017 From India, Salem
Yes Sir. Although Court's verdict of 2013 was of acquittal based on technical grounds only, but the management wants to award some punishment because of misconduct of committing theft while on duty in the year 2000.
However, to honour Court's decision and taking a lenient view, he has been allowed to resume duty in the year 2013. The remaining 8 years period of suspension undergone by the employee shall be treated as duty period with full pay.
With kind regards,
23rd November 2017 From India, Mumbai
24th November 2017 From India, Mumbai
In this context our senior counsel Mr Umakanthan.M has given brief description to the topic. The substnenace allownce is a matter of right of an employee, when an employee keep-out of job whatever the reason be. It is a pitiable matter that to reasoned a theft commited by one took 13 long years by you. In this instant case 13 years is “dies-non” period which is neither counted as part of service nor considered as break in service. The penalty determined can not be adjusted against substinenece allownce. Rather the workmen at full liberty to challenge your decission of penalty, which seemed superficial.
24th November 2017 From India, Mumbai
At the outset, I would like to remind them the legal position already they are well aware of that suspension pending enquiry, per se, neither a punishment nor severance of the employer-employee relationship and even punitive suspension can not exceed the maximum no. of days prescribed in the standing orders or service regulations.
When any misconduct partaking the nature of a criminal offence is committed by an employee during the course of his employment, the employer has the discretion to take criminal action through the Police or to initiate departmental action under the Rules of discipline only or to take both the actions depending on the gravity of the misconduct and the circumstances. When both the channels of action are simultaneously preferred by the employer, since criminal action through Court of Law being a long-drawn battle and based on strict rules of evidence, the employer may proceed with the departmental disciplinary action, complete all the procedural steps and dispose it on merits independently or await the outcome of the criminal case. In case the criminal case ends up with conviction, the punishment awarded by the employer either before or after the Court's verdict would not get affected. Otherwise in the event of the acquittal being on exoneration of the accused/employee, the punishment if any awarded by the employer will not withstand; if the acquittal is purely on technical grounds, it will not affect the decision of the employer in the concurrent departmental proceedings. That's why some employers await the outcome of the criminal trial and award punishment to the delinquent on the same set of charges departmentally tried only after its final disposal.
Now, coming to the doubt raised by M/S. Prabhat and KK!HR. The delinquent employee was kept under suspension continuously for a period of 13 years coterminous with the disposal of the Criminal Case ending in acquittal on technical grounds. As such the employer can take any final decision independent of the verdict of the Criminal Court. He can issue a severe warning or award punitive suspension ( the no. of days is limited to the maximum as per the standing orders ), stop increments with or without cumulative effect or dismiss him. But, the employer wants to show some lenience for some reason or other and that leniency or mercy gives way to some problem. That is, any punishment other than dismissal would require the regularisation of the entire period of suspension of 13 years failing which it would tantamount to double punishment. In case of regularisation, the wages due for the entire 13 years of suspension should be paid, of course, after adjusting the subsistence allowance already paid. In order to circumvent this legal impediment only, the management proposes to award a punishment of "dies non for a period of five years of suspension already undergone" because it would disqualify him from claiming all employment benefits including wages.
If the workman simply accepts it in view of reemployment, there will be no problem. If he agitates it later, I am doubtful whether this would withstand judicial scrutiny.
24th November 2017 From India, Salem