Can a Suspended Employee Resign? Understanding the Legal Standpoint During Suspension

Employee Resignation During Suspension

During a suspension period, can a suspended employee submit a resignation or not? What does the law say about this?

Regards,

There is no law prohibiting an employee under suspension from terminating the contract of service by submitting a resignation since suspension does not automatically end the contract of service. The acceptance of such a resignation during a suspension pending an action into misconduct relies on the specific facts and circumstances of each case and the negotiations involved. Normally, a resignation will not be accepted while disciplinary action is pending.

Regards,
B. Saikumar
Mumbai

I agree with Saikumar ji. However, I would like to further add that although normally a resignation will not be accepted pending disciplinary action as stated by him, you can accept it with an undertaking or declaration from the employee that he is resigning of his own accord and there is no issue or dispute between him and the company.

This decision can be made by you after analyzing the gravity of misconduct and other circumstances.

It depends upon the case.

Suppose his suspension is pending an enquiry because he has injured worker(s) and those workers are hospitalized. In this case, will you accept his resignation?

Suppose his suspension is pending an enquiry because of his heavy absenteeism. Now, will you accept his resignation?

Everyone will say in the first case you should not accept it. In the second case, you may accept the resignation, so one should remember that the situation or the case decides whether to accept it or not.

My humble opinion is that in both cases you should not accept the resignation. Let the proceedings get completed and then make the decision.

Regards,
Arun J.

The opinion I provided is intended to demonstrate management's strength in front of workers and to set a benchmark among them.

Accepting a resignation is a permanent resolution of disputes. If management's sole aim is to remove that person, then accepting the resignation is a good option. However, if management wishes to set a benchmark, then let the proceedings be completed.

Regards,
Arun J.

I fully agree with the views expressed by the learned members. In addition, I'd like to submit something more to have a thorough understanding of the term 'suspension' from a legal perspective relating to disciplinary proceedings in organizations. It is a powerful tool available in the hands of employers to discipline erring employees at times without snapping the employment relationship. It is always prohibitive in nature as the suspended employee is debarred from holding his office or from discharging his duties as before for a specified period of time or till the completion of certain proceedings whether already started or likely to be at a future date; sometimes, it is punitive when awarded as a punishment.

In the former, acceptance of the resignation of the employee is dependent on one or more of the following factors:
(a) the gravity of the charge of misconduct
(b) conditions precedent to resignation such as the notice period, specific provision, if any, regarding inclusion/exclusion of the suspension period in the notice period, etc.
(c) the discretion of the employer.

In the latter, again, it is the discretion of the employer—if he is of the view that enough is enough, resignation may be accepted forthwith—or after fully undergoing the punitive suspension.

The simple and straightforward answer to the query is, "Yes, he can resign." The Terms of Employment and Industrial Employment Standing Orders Act do state this.

An employee who is suspended pending an enquiry means that the employee has committed some wrongdoing against a person, system, or otherwise. By resigning, that employee wants to avoid punishment for their wrongdoing. In the case of resignation, the complainant has a veto. Only if the complainant agrees can the suspended person resign.

If the employer accepts the resignation without consulting the complainant, the employer is wronging the complainants. This action could strain relations with existing employees at the cost of the suspended and resigned employee, who will no longer have any involvement with the organization, employer, or employees.

Even when the suspended employee submits a resignation, it is up to the employer to accept or reject the resignation. The employer is not bound to accept the resignation because they have the option to terminate the employee. This termination can serve as an example for existing employees, demonstrating the consequences of misbehavior.

Regards,
Vibhakar Ramtirthkar

SVR Associates

HR Consultant

Yes, technically, a person who is under suspension can submit a resignation. The employer may or may not accept the resignation. The employer will tend to accept the resignation if the time and effort involved in a disciplinary enquiry (DE) are not commensurate with the likely penalty. In the case of a grave offense or to send a signal to others, the employer may not accept the resignation, as already pointed out by other members; the employer now has the upper hand.

Regards,
Col. Rathi

As all seniors have advised, technically, resignation can be accepted during suspension but is subject to certain conditions. Therefore, you are requested to let us know all the charges leveled for suspension so that the seniors can advise you appropriately.

Employer Acceptance of Resignation During Inquiry

How can an employer accept a resignation and continue a domestic inquiry against the employee even after the resignation? It is not proper to accept a resignation during suspension or pending disciplinary action and then withhold retirement benefits such as gratuity.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Decision on Disciplinary Action (DE)

DE will have to be called off. It depends on whether the employer wants to continue with DE or not. In case the employer, keeping in mind expenses to be paid under the suspension period and likely litigation that may follow, decides that even though the case is strong, the efforts involved are not worth it, they may decide to accept the resignation. In doing so, the employer gets rid of the employee. The employee gets off without punishment but has to resign. So each such case has pros and cons.

Regards, Col. Rathi

Certain litigation will not be over even after resignation. This goes without saying for both the workman and the manager. Depending upon the gravity, when a criminal case is registered against an employee, the resignation can be accepted, and it does not amount to clearing from all the allegations. This needs detailed discussion.

Regards,
Vivian Chandrashekar
[Phone Number Removed For Privacy Reasons]

Resignation During Disciplinary Action

The issue is about accepting resignation pending disciplinary action but not litigation. The employer cannot accept resignation and relieve the employee on one hand and continue a domestic inquiry against him on the other hand, as both are legally inconsistent.

Regards,
B. Saikumar
Mumbai

I agree with Saikumar, sir. If you want to accept the resignation, then you have to cancel the inquiry. You cannot do both things at the same time. Either keep the inquiry going by refusing his resignation or accept the resignation, cancel the inquiry, and let the employee exit.

Regards,
Arun J.

Dear All Respected Contributors and the Anonymous,

The opinions given above by most of the Contributors seem to convey the idea that an employee can submit a resignation during the suspension period, but it will depend upon the management to accept or reject it. I would clarify as under:

1. An employee is governed by the rules and regulations of a company. The disciplinary rules provide that an employee under suspension cannot submit a resignation. However, an employee can submit a resignation at his own accord.

2. In case the management wants to save time and money on the DE (departmental enquiry), then it can negotiate with the employee on its terms and conditions. There is no bar on this practice. In such a situation, the management's action will also send a message to the employees that delinquent employees are liable to be removed.

3. In case the employee was suspended on the basis of some complaint, even then it is the prerogative of the management to accept or reject the resignation. There is no question of the complainant's dissatisfaction.

4. The benefits to be released on full and final settlement will depend on the rules and regulations of the company and the decision of the management thereon.

With due regards to all.

Regards,
C.M. LAL SRIVASTAVA

Hi all,

What should be done if HR is not sharing the inquiry report with the suspended employee and the company's standing acts?