Thread Started by #yusuf114

In the year 2011 one employee was arrested by police on criminal charges. The matter was solely between police and that employee. It was not connected with our office.
But due to arrest he was placed under suspension and still he is under suspension though he was realsed on bail after few days of arrest.
Recently in the year 2018 the Hon'ble High Court of Mumbai has acquitted him. Now he is requesting reinstatement with full back wages of entire period of suspension since 2011.
In view of acquittal by high court, now whether it is necessary to take any disciplinary action though no inquiry/chargesheet was framed against him by office after arrest/suspension ?
In case if he is reinstated, whether the period of suspension be treated as spent on duty ?
Whether eligible for full back wages after adjustment of subsistance allowance?
12th September 2018 From India, Mumbai
Get help of any labor lawyer, as the management was nowhere involved in his crime or arrest, so management had to issue a SCN for his absence from duty, failing which the management had to suspend/terminate
a labor counsel can guide better, after study of full history
12th September 2018
Dear Yusuf,
The suspension of the employee in the year 2011 by the Management under its disciplinary power seems to have emanated from the arrest of the employee for some criminal act unconnected with his employment under the management in any way. It could have been revoked as soon as he came out on bail. On the contrary, the Management thought it proper to keep him under suspension till the disposal of the criminal case. Therefore, disciplinary action had already commenced with the orders of the employee's suspension as well as its continuation till 2018 though not any charges were framed so far. It is also not known how the employer got the information of the arrest of the employee. Therefore, initiating D.P on the ground of absence now after a lapse of 7 years cannot stand judicial scrutiny.
Moreover, the cause of action for the suspension ordered and continued has become nullified by the acquittal of the criminal charges by the High Court.
Needless to point out that the power of suspension vested with the employer has to be exercised very judiciously. Only when there are sufficient reasons to believe that the continuance of the delinquent employee on the job would hamper the disciplinary action or the misconduct is of such a grave nature that immediate suspension of the individual would act as a deterrent to others, suspension can be a right prelude in any D.P.
Therefore, my humble opinion is that the Management should avoid precipitating the issue anymore at this stage.
Let them consider revoking the suspension forthwith and paying him full wages minus the subsistence allowance already paid with attendant benefits like regularisation of the entire period of suspension as duty, sanction of annual increments with retrospective effect.
No harm in legal consultation as suggested by the other learned friend.
13th September 2018 From India, Salem
Management should have taken legal advice at the time of arrest and subsequent release on bail.
Keeping him suspended for so long and now talking of action is not in order.
On what grounds will company take action on a case where he has been acquitted.
Company is bound to take him back and pay back wages and reduce the subsistence allowance paid to him.
13th September 2018 From India, Pune
Respectfully, I am thankful to Sharma Sir, Umakanthan Sir and Nathrao Sir for kind guidance which will definitely help to do justice by employer to employee.
One thing I am still unaware that whether the suspension can be revoked of an employee after he has been granted bail by any Hon'ble Court inspite of arrest / detention by police exceeded 48 hours and criminal case pending with court.
13th September 2018 From India, Mumbai
This is the second instance in our office in which employee was arrested by police.
One was arrested in year 2000 whose suspension was continued till 2013 i.e. only after acquittal from Hon'ble High Court. Though he was enlarged on bail soon after arrest but kept under suspension till final outcome of case.
Now this is the second case. In both these cases, employees have been kept under suspension during pending of court cases against them.
So is there a provision to revoke suspension after bail despite of the fact that the employee' arrest exceeded 48 hours and court case pending.
13th September 2018 From India, Mumbai
The "Pancea" suggested by Shri Umakantan is the Only Available Option before the Employer/ Management/ Appointing Authority, in the circumstances stated by Mr Yusuf.
Our Apex Court have maintained the Non-Negotiable Prerogative/Right of Employers to initiate appropriate Disciplinary Action including:
Suspension-Pending-Inquiry after the Employer applied his/her of Mind and found it expedient to issue the C/S and followed by Letter of Suspension-Pending-Inquiry which is the pre-requisite Step. Issuing a proper Charge-Sheet to the concerned Employed Person stating the Reason/Act of Misconduct (alleged) which in this case would have been "Unathorised Absence from Duty" as per the Standing Orders or Service Rules applicable to him/the Person.
Better Late than Never, Lesson Learnt for Future Decision-Making. The Employer's Act may Be Termed as "Arbitrary" causing immense inconviniences, suffering and loss to the Suspended Employee ( who happens to still be & remain on the Muster Rolls of the Establishment.
Let the Decision-Makers be Effective so as to Do Take Right Decision Right, First Time, Every Time.
Sharan, Kritarth Team of
Learner-Manager ,
13.9.2018
13th September 2018 From India, Delhi
Dear Yusuf,
First, let us know exactly whether the suspended employees were just let on bail only by the High Court or acquitted of the entire criminal charges filed against them by the Police.
Second, in what way you are interested in this case - as an affected employee or as his well-wisher or as a HR?
Whatever your answers might be, I hope honestly that my following further reply would suit the cases of suspension or termination of the services of any industrial employee in case of his arrest and custody by the Police or any other competent authority for his involvement in any criminal act /offense as well as his subsequent final conviction or acquittal by any competent Court of Law.
First and foremost, the employer's right and power to initiate a disciplinary action against anyone of his employees are not at all unlimited. In fact, they are restricted to the zone or sphere of employment in as much as they correspond to the acts specifically enumerated as misconducts in the Standing Orders or Service Regulations applicable. However, the Model Standing Orders provide for the suspension of an employee when criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to do so. In other words, it is a power of discretion of the employer well-defined by the parameters /factors of necessity and adverse implications on the establishment. Therefore, no knee-jerk reaction is expected of from the employer or his HR people. Much consideration is to be given before placing an employee under suspension for his alleged involvement in a criminal act outside the zone of his employment and his police custody because he has to be paid subsistence allowance till he comes out on bail or acquitted of the charges in case his suspension continued as in your examples.
I am quite unable to understand why you are searching for specific provisions to revoke suspension. The power to revoke suspension when the necessity for suspension is no more present is well-ingrained already in the power to suspend.
13th September 2018 From India, Salem
Dear Colleague,
Very well stated elaborately by Mr Umakanthan Sir.
You had right to frame charges as per the Standing Orders against the employee and hold independent enquiry simultaneously with the criminal proceedings which you failed to utilize for seven long years.
Your suspension was perhaps till criminal proceedings are concluded which has happened and the employee is acquitted.
At this stage your option is to revoke the suspension, take him back with continuity of service and pay him full back wages from the date of suspension till his rejoining less the suspension allowance already paid.
Regards,
Vinayak Nagarkar
HR- Consultant
13th September 2018 From India, Mumbai
Sir, since I am dealing with Establishment Division, I need to process the file keeping many aspects in view.
The suspended employee who was arrested in 2011 and later granted bail has since been acquitted of all charges by Honble High Court in the end of July 2018.
13th September 2018 From India, Mumbai
Dear Yusuf,
Get a representation in writing from the employee with certified copy of the High Court's orders for revocation of his suspension and immediate reinstatement with all attendant benefits. Submit a note to the authority concerned or the CEO as the case may be explaining the above legal position and request appropriate orders.
14th September 2018 From India, Salem
The employer made a gross mistake by keeping the person on suspension for 7 plus years for an invalid reason. The ground of employee is justified he is right to receive the backwages.
16th September 2018 From India, Mumbai
In the above case, the employee has been reinstated with full back wages and all benefits as spent on duty. He is being given arrears on each yearly increments also.
Now whether Earned Leave and Half Pay Leave shall also have to be credited on 1st of every January and July since 2011 ?
3rd November 2018 From India, Mumbai
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