Suspension Limbo: Can You Take Legal Action If Your Employer Stays Silent?

I want to know if a person who is under suspension due to an ongoing investigation has any time limit or deadline for the organization to provide an update or revert back to the suspended employee. For example, if an employee has been on suspension for the last three months and the organization has not given any updates or deadlines despite several follow-ups by the employee, is there any legal action that can be taken?

Your query is baseless. We cannot answer your query without knowing the complete scenario. Neither I nor anyone else could work on your issue if you provide us with such a clueless post. How can you even expect legal advice to be provided to you [hitherto One-Sided]?

Questions to Consider

- Why was the employee suspended?
- What reason was provided for his suspension?
- Why was it for a period of 3 months [unless a substantial (element/material) suspicion]?
- Did the Company promise to get back by the stipulated time stand?
- What reasons were given by the employer in those several follow-ups?

You need to give us the detailed conditions and state of affairs to get a clear picture. You may also need to understand that giving any answer at this time would be erroneous. Therefore, for our seniors and legal advisors to respond to your query, you need to draft and comprehend the above as desired.

If you provided more details as Sharmila said, it would have enabled members to give a specific reply. However, some basic steps that can be suggested are:

When the employee is following up with the company about his suspension, he may be asking about the revocation of suspension, how long he shall be under suspension, or challenging his suspension, etc. The company, instead of keeping quiet, can send a suitable reply to the employee concerned. It appears that the employee has been suspended pending investigation. Therefore, the suspension can continue until the investigation concludes. The company can decide on the fate of the suspension—whether to continue or to revoke—based on the investigation report. For the present, I do not visualize any legal remedy for the employee since it is only three months since he has been suspended.

Regards,
B. Saikumar
Mumbai

There is no "time limit" prescribed for "suspension pending inquiry." However, unreasonable and unjustified delay on the part of "management" shall amount to a violation of the "principle of natural justice," and the employee can file a complaint with the concerned labor machinery.

For your information, up to 90 days, the employee is liable to receive 50% of their wages as subsistence allowance. If the delay extends beyond 90 days due to reasons attributed to management, the subsistence allowance has to be 75%.

Regards,
Shailesh Parikh
Vadodara, Gujarat
[Phone Number Removed For Privacy Reasons]

If the management decision "No time limit" for suspension against a pending inquiry is not correct, the inquiry should be time-bound. If management is causing delays, you can inquire about the reasons. Additionally, you are entitled to receive a subsistence allowance.

Keep following up with management via emails or letters and avoid telephonic communication with them. If management is evading responses to your emails, it will demonstrate willful fault and conspiracy.

Regards,
Nishant

Isn't suspension pending enquiry, a departmental enquiry has been ordered and if so it's still not concluded? The time period should be reasonable; that's all we can say. Of course, what should be the 'time period' to end the suspension has to be interpreted only by the Conciliation and/or by a competent court. What you can do now is send a letter to the enquiry officer pointing out the inordinate delay. What about the Subsistence Allowance, are you not paid? As long as it's delayed, you won't lose anything as the law says the following about the subsistence allowance during a suspension period like this:

Industrial Employment Standing Orders Act, 1946

"10A. Payment of subsistence allowance-

1[10-A. Payment of subsistence allowance. (1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman a subsistence allowance.

(a) At the rate of fifty percent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and

(b) At the rate of seventy-five percent of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.

(2) If any dispute arises regarding the subsistence allowance payable to a workman under subsection (1), the workman or the employer concerned may refer the dispute to the Labour Court constituted under the Industrial Disputes Act, 1947 (14 of 1947) within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.

(3) Notwithstanding anything contained in the foregoing provisions of this section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State".

Please check the applicability of the said provisions.

Regards, Kumar.S.

It all depends on the misconduct committed by the employee. If the same is related to some continuous act for quite some time, I have the personal experience that it takes time to get to the bottom of the loss incurred due to it, which can extend up to years. Although, as rightly suggested by Kumar S. and Shailesh Parikh, such a person is eligible for a subsistence allowance.

I would request you to elaborate on the incident in order to allow the worthy members to provide you with adequate opinions.

Regards.

Suspension Period for Employees Pending Enquiry

There is no specific period of limitation for suspending an employee pending enquiry unless mentioned in the service rules, standing orders, conduct rules, or terms of the contract applicable to him.

In certain State Acts like the Kerala Cooperative Societies Act 1969, no employee can be suspended for more than one year at a time without the prior and express approval of the Registrar of Cooperative Societies.

Since the purpose of suspending an employee is to conduct an enquiry into the charges leveled against the employee, no time limit can be prescribed as the enquiry must adhere to the principles of Natural Justice. Generally, suspension is implemented when the charges are serious in nature, potentially leading to the awarding of major punishment after the conduct of the enquiry.

An employee under suspension is entitled to a Subsistence Allowance, which is 50% for the first ninety days and 75% after 90 days as per Section 10A of the IE(SO) Act 1946.

Some States prescribe a higher subsistence allowance. For example, under the Kerala Payment of Subsistence Allowance Act 1973 and the Tamil Nadu Payment of Subsistence Allowance Act 1981, after 180 days, the employee under suspension is entitled to receive 100% of wages as subsistence allowance. In Karnataka, the Payment of Subsistence Allowance Act 1988 (effective from 1992) provides 90% after 180 days. I am not familiar with similar State Acts in other States.

It is always in the interest of the employer to conduct the enquiry and complete the process as early as possible, as the subsistence allowance, once paid, cannot be recovered in any case. In the event of reinstatement and revoking suspension, the salary/wages in full, after deducting the subsistence allowance paid, must be reimbursed.

Now, decide how long you want to suspend an employee?

Regards,
K C S Kutty