Struggling with Subsistence Allowance During PSB Suspension: Can Employers Be Held Accountable?

Respected Seniors, this is a live case, and the enquiry here is on behalf of a colleague of mine who has put in 27 years of service in a PSB. She is under suspension for some charges and was issued a charge sheet after 135 days of suspension. She was not provided any means to claim any part of her subsistence allowance as the total amount paid was appropriated towards various loans under the pretext of keeping them regular. Even the optional deductions were made without her consent.

To date, she has not been able to access even a single rupee of her subsistence allowance. Is there any way? Is it necessary for someone to beg for her rights until the procedure is complete? The forums available in PSB are not responding. Can the employer be made answerable for the non-payment of subsistence allowance in this case?

If there is anyone who can help in this regard, I can upload the complete case study with details if any more information is required.

Regards.

It is unfortunate that such a senior employee has been facing a Departmental Enquiry. There have been several judgments on this matter concerning deductions from Subsistence Allowance. Only PF and ESIC deductions can be made from the Subsistence allowance pending enquiry. Any other deductions can be made only upon the consent of the employee. Moreover, the quantum of Subsistence allowance, which is 50% initially, has to be raised to 75% after three months of continued suspension. Do pursue the matter with the Appellate Authority of PSB, or Tribunal and Labour Court, as appropriate.

Warm regards.

Understanding Subsistence Allowance

Subsistence means survival, existence, maintenance, or sustenance. A subsistence allowance is paid to the employee kept under suspension pending an inquiry to survive until the inquiry is completed and action is taken based on the inquiry report. Hence, the amount has to be paid to the employee for his/her survival. Non-payment of subsistence allowance is illegal.

Legal Framework for Subsistence Allowance

Section 10-A of the Industrial Employment (Standing Order) Act 1946 provides for the payment of a subsistence allowance. According to Subsection (2) of Section 10A, any dispute regarding the Subsistence Allowance may be referred to the Labor Court. The award of the Labor Court can be executed under Section 33-C (Recovery of money due from an employer) of the Industrial Disputes Act 1947, and the amount can be recovered under the Revenue Recovery Act.

Dear Natural Justice, In my earliest comments, in the first paragraph, I mentioned the requirement for the payment of a subsistence allowance. In the second paragraph, I suggested legal remedies for the non-payment of the subsistence allowance. I would like to know what action has been taken by the affected employee and what the current position is.

The present status remains unchanged. The employee in question, being a lady, is currently experiencing some mid-age health complications. The inability to access even a single rupee of her earnings has made her more dependent on her family, like many other Indian women who conform to their environment for the benefit of others. Even though her legal position is correct, mustering the strength to stand up and fight against a large organization for her rights requires significant preparation.

In the world we live in, people often confuse things. The term "Natural Justice" is unfamiliar to many unless they experience it firsthand.

Finding suitable lawyers in her current location is a challenge. When advocating for an individual against an organization for legal remedies, one needs a 100% trustworthy person who upholds their professional ethics and avoids mixing things up.

I would like to communicate through your private email to share more details if you permit.

Thank you for the follow-up, sir. Today, I have begun to believe that "TRUTH and JUSTICE Prevails."

Thank you for your prompt reply. I can understand the helplessness of the employee under suspension after 27 years of a good track record.

You can very well send the details to me. For your kind information, with a post-graduation in Labour Laws and specialization in Domestic/Departmental Enquiry (Government, corporate, and cooperative sectors), I have been working as a Trainer at an HRD Institution for over two decades. I have worked in Kerala, Tamil Nadu, and presently in Maharashtra.

Regards.

Addressing Non-Payment of Subsistence Allowance During Suspension

The question raised by you is about the non-payment of subsistence allowance during the suspension period. Make an application to the employer, and if not paid, approach the Labour Court as per the legal procedure.

The experts can only guide you to obtain the subsistence allowance. If the employee has not committed the alleged misconduct, that must be proven before the enquiry officer.

Subsistence Allowance and Natural Justice

This thread is specifically about the payment of subsistence allowance only. The questions being put forth are with the clear understanding that the charges mentioned in the chargesheet, its reply, and other procedures and penalties which the employee may or may not face, depending on whether they are found guilty or not, are entirely not connected with this issue.

After a strong follow-up this month, a part of the subsistence allowance reached her, but only after sending a part of this forum's views to the P & HR by mail. When viewed as a right for survival, it is not only the right of an employee but also a constitutional right of a person to survive and exist.

But still, my question is: if a person who was placed under suspension at least 6 to 7 months ago has to wait and fight for this basic right of survival after 6 months, even though there are clear service conditions about what is to be paid when someone is under suspension and what deductions are to be made, what recourse is available?

Understanding Natural Justice

What is Natural Justice? It is the protection against the arbitrary exercise of power by ensuring fair play with the following principles:

1. Audi alteram partem (Latin for "hear the other side"): No accused, or a person directly affected by a decision, shall be condemned unless given a full chance to prepare and submit his or her case and rebuttal to the opposing party's arguments.

2. Nemo judex in causa sua (Latin for "no man a judge in his own case"): No decision is valid if it was influenced by any financial consideration or other interest or bias of the decision-maker.

These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to have no effect (ultra vires) if found in contravention of natural justice.

The act of the employer withholding the subsistence allowance or appropriating it in such a way that the employee could not access it, thereby putting the employee into a difficult financial condition, affects any working person adversely. This creates a very disturbing effect on any employee who is yet to be proved guilty, thereby putting the delinquent employee in a position where they cannot prepare for their case and rebut the opposing party's arguments. When there is a case to be fought and decided, why is there a punishment before? Is this not against Natural Justice? Can this not be challenged?

The point of contention is the non-payment of subsistence to date, thereby not granting the employee the basic NATURAL JUSTICE and RIGHT FOR SURVIVAL. What is the limitation time for this if the employee wants to take up this matter after the enquiry and other procedures are over?

The very purpose of this query is not just getting subsistence allowance but to bring to the notice of everyone involved what steps should be ensured so that delinquent employees are given a fair opportunity to present their part without being bowed down by the pressures created by the unemployed/unpaid condition.

'NIRBHAYA's fight for survival was a motivation for the fight against certain social immoralities, which would now continue even though she lost her battle of life. Likewise, let this case of the fight for survival of my colleague, even though she has suffered (but survived to date because of the support of a strong family), be a motivational factor for the modus operandi of such cases where the punishment period had started even before the presentation of the case and the hearings.

If there are any contradictions or impoliteness in my post, please bring that to my notice.

A part of the subsistence allowance is now received after strong follow-up. This could have been done by making an application immediately after the completion of the wage/salary period when the subsistence allowance was not paid.

Make Another Application

Now, make another application to get the entitled subsistence allowance as per eligibility. It seems that the employee has been under suspension for about 6-7 months. Hence, the rate of the subsistence allowance is also now increased after 3 months. If not paid, inform the employer that for getting the eligible subsistence allowance, the employee is approaching the competent authority (Labour Court).

Legal Remedies

Any person who is aggrieved may make use of the legal remedies available by approaching the appropriate forum for justice. The law cannot help those who are not diligent in exercising their rights.

Latest in this Thread

The fight is still ongoing without any legal actions being taken to date. A claim for the subsistence underpayment in the initial months has been sent, and now it has been acknowledged, with eligible perks being partially paid. Thanks to the forum and its support.

But I am certainly thinking at this point in time—when an employee is placed under suspension, usually the situation escalates if the employee chooses to go to the Labor court—does the employee have the right or limitation to fight or at least challenge the "conduct of the organization during the period of suspension" after the inquiry is over or if the employee decides to leave the organization?

Can legal experts clarify in this regard?

In the above reply, you have expressed concern about approaching the Labour Court. You mentioned that the employee under suspension was not paid a subsistence allowance for about 6-7 months. I suggested approaching the Labour Court, as provided by law, to obtain the subsistence allowance that the employer had failed to provide.

If the employee is content without the subsistence allowance, then there is no need to go to the Labour Court to seek it. My suggestion is straightforward. For those with grievances, there is a grievance redressal system in India. Whether to utilize it or not is up to the aggrieved individual.