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kumaracme
421

Dear HR Team leaders

What is the difference between suspension pending enquiry and punitive suspension.? Also for a suspended worker whether subsistence allowance required to be paid or not during the suspension period ?

From India, New Delhi
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Umakanthan53
Labour Law & Hr Consultant
Nagarkar Vinayak L
Hr And Employee Relations Consultant

umakanthan53
6016

Dear Kumar,

In the realm of employment, the term ' suspension ' refers to the state of an employee being kept away temporarily from discharging his duties by the employer under the contract of employment while the same remains intact.
Suspension can be ordered by the employer when certain charges of grave misconduct are contemplated against the employee and/or a domestic enquiry is to be conducted into the charges already framed as a pre-emptive measure of disabling the delinquent to tamper with the records or influencing the witnesses, if any with his official position. This is called "suspension pending enquiry".

Suspension can also be awarded as a punishment on the conclusion of the disciplinary proceedings. This is called as "Punitive Suspension".

Subsistence allowance is the sum paid during the entire period of suspension pending enquiry as the employee is deprived of his normal salary due to the suspension. The rate of subsistence allowance is calculated as a percentage to his salary drawn immediately before his suspension and also varies according to the duration of suspension. The rate is fixed under the Standing Orders or any other special law in force for the purpose. Normally, it is 50% of the last drawn salary during the first 90 days of suspension and 75% during the next 90 days and beyond 180 days, it can be 100%.
The objective is two-fold. The first one is to enable the employee to participate in the disciplinary proceedings despite the loss of his earnings due to suspension; and the second is to indirectly compel the employer to dispose of the disciplinary action expeditiously. No deductions other than contribution to ESI shall be made from the subsistence allowance which shall be paid monthly on the normal date of disbursement of salary.
It can be reduced if the delay,if any in the disciplinary proceedings is attributable on the part of the suspended employee or it can be denied if he is found to be gainfully employed elsewhere.
Thus, the payment of subsistence allowance is an inseparable part of the entire exercise of the process of suspension pending enquiry and any default or deviation by the employer in this regard would vitiate the entire disciplinary proceedings.
It is to be noted that suspension pending enquiry is not a punishment and as such on the disposal of the disciplinary proceedings with any punishment other than dismissal, the period of suspension undergone shall be regularised and salary minus the subsistence allowance received shall be paid to the employee. Otherwise, it will tantamount to double punishment. It would not be out of context to mention here that in the absence of a provision for suspension pending enquiry in the contract of employment or the service regulations, still the employer can place a delinquent employee under suspension pending enquiry subject to the condition that he shall be paid his normal wages as subsistence allowance.

Punitive Suspension, on the contrary, is a punishment as the very name suggests and has an indelible stigma attached to it whereby depriving the employee of the salary for the period of suspension, break in continuity of service for the purpose of periodical increments, terminal benefits etc.
Punitive Suspension can be awarded only to the maximum no of days prescribed in the Standing Orders or service regulations and it is 30 days, if I remember correct. At times, the no of days spent on suspension pending enquiry can also be ordered by the disciplinary authority in the end to be treated as Punitive Suspension; but the subsistence allowance already paid cannot be recovered.

Therefore, suspension of the services of an employee pending enquiry or as a measure of punishment is an an important step in the disciplinary process. Keeping the delinquent employee under prolonged suspension without or belated enquiry just because he has been paid subsistence allowance, placing an employee on suspension on the very date of his superannuation on flimsy charges etc, have been regarded as unfair practices on the
part of the employer by the higher judiciary in a no of cases. Therefore, It shall be handled by the employer with utmost care and discretion failing which it can have a boomeranging effect in Judicial review.

From India, Salem
kumaracme
421

Dear HR Leaders Thanks for your erudite and knowledgeable replies which are useful for my understanding.
From India, New Delhi
Nagarkar Vinayak L
617

Dear colleague,

I think , under the Model Standing Orders, the period of maximum suspension by way of punishment prescribed is four days.

Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
umakanthan53
6016

Yes and thank you Mr.Vinayak. It is 4 days under Model Standing Orders for Industries other than Coal Mines and 10 days for Coal Mines.
From India, Salem
kumaracme
421

Dear HR Team, Thanks for your erudite and knowledgeable reply which are useful for my understanding.
From India, New Delhi
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