Is It Legal to Demand Full Salary During a Long Suspension Inquiry? Need Guidance!

We have an issue where four workers hit our supervisor. We have suspended them pending an inquiry. After the inquiry, they confessed to their indiscipline. Now, management and the union have jointly decided to take them back with a punishment of a four-day suspension.

The pending inquiry ran for almost one and a half years. We gave them 50% of their wages for the first three months and then 75% of their wages until now. The union is now demanding their full salary for the last one and a half years. Is this legal? Please guide us on this matter.

If an inquiry is not completed within 180 days, the payment of the allowance is 100%. Please refer to the Gujarat Industrial Establishment Standing Orders Act, 1946, Section 10-C for more details.

NOTES

First of all, please review the Standing Order provisions applicable to you. The guiding principle is that a suspended employee is entitled to full salary, etc., only if they are exonerated. Since the parties have mutually resolved the matter, it indicates that the charges have been accepted by both parties, so there is no question of exoneration. Moreover, there is a four-day suspension as punishment, so there is no further payment required. In addition to the suspension pending inquiry, the employee is to be treated as suspended for four more days as a penalty. Hope the punishment order clarifies this. If you pay salary, etc., for the suspension period, it would amount to condonation of the misconduct, which is not the case here. Assaulting a supervisor at the workplace is a serious charge and merits termination of service. The punishment limited to a four-day suspension is already a significant relief granted, and anything further would not be in the interest of discipline. Please be very rigid in this regard.

Regards,
KK

The inquiry took 18 months to complete, and at the end of the inquiry, the disciplinary hearing gave a 4-day suspension. That means it was a minor misconduct, which is why the punishment is so minimal. In that case, a suspension of 18 months, of which 6 months is at 50% of salary and the balance at 75% of salary, is definitely unfair, don't you think? If the facts are as I have stated above, then you should definitely give that money back to them.

The payment of subsistence allowance occurs only if you are covered by the IE (SO) Act 1946 or any state laws on the payment of subsistence allowance.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

This seems to be a mutual agreement or settlement between management and the union. Otherwise, such misconduct, if proved, attracts serious punishment, including termination of services. If both management and the union are ready to reach an agreement, I would suggest you settle under Section 2(p) of the ID Act. Here, you can reduce his punishment, and the suspended employee can unconditionally agree to settle this dispute and sign the agreement, where he will have to forgo his back wages or wages for the period of suspension. Since it is a mutual agreement, legal provisions are not applicable.

Regards,
PD

I somewhat agree with the learned followers, especially Mr. KK Nair. I would like to add the following:

Treatment of Suspension Period

In the case of a charge-sheet and/or suspension, there is specific mention regarding the treatment of the suspension period in the Certified Standing Orders applicable to the establishment/industry. If there are no such certified standing orders, the provisions of Model Standing Orders are made applicable.

As per the provisions of Standing Orders, no wage/salary is paid for the first 10 days. After the expiry of the 10th day, if the suspension continues, the accused workman is paid subsistence allowance at 50% of his normal salary/wages. After the expiry of 21 days, if the suspension continues, the accused workman is paid at 75% of his salary/wages if the inquiry is delayed due to reasons not attributed to the accused workman, or it is reduced to 25% if the inquiry is delayed for reasons attributed to the accused workman. However, this reduction of subsistence allowance must be recorded in the inquiry proceedings by the Inquiry Officer.

Furthermore, the workman has to give an undertaking periodically that he has not undertaken any alternate employment during the period of suspension. In the absence of such an undertaking or refusal to give one by the accused workman, it will make him liable for non-payment of subsistence allowance.

There is no question of making 100% payment. This 100% payment will only be made after the final outcome of the inquiry and findings of the Inquiry Officer in which he has exonerated the accused workman of the charges framed against him, for which he was charged/suspended. Making full payment prior to the outcome of the inquiry report/exoneration will imply automatic exoneration of the accused workman. It may be noted that the amount paid as subsistence allowance is recoverable from the 100% amount if paid at a later stage. Statutory deductions will be made from the subsistence allowance, such as PF, income tax, loans/advances, etc.

Regards,
AK Jain

I have only one question on this: The AW has been suspended for 18 months and has lost part of wages, allowance, and increment. At the end of 18 months, he has been awarded suspension of 4 days (less than 0.75% of the period already served). This is not just and equitable. All that is required then for the company wishing to harass someone is to suspend, delay the inquiry for years and, in the end, even if the punishment awarded is minor, but not fully exonerated, the worker has lost for no reason. So this can't be correct as such a travesty of justice will not be allowed in labor laws.

I somewhat agree with the learned followers, especially Mr. KK Nair. I would like to add the following:

Treatment of Suspension Period

In the case of a Charge-sheet and/or suspension, there is specific mention regarding the treatment of the Suspension Period in the Certified Standing Orders applicable to the establishment/industry. In case there is no such certified standing order, the provisions of Model Standing Orders are made applicable.

As per the provisions of Standing Orders, no wage/salary is paid for the period of the first 10 days. After the expiry of the 10th day, if the suspension continues, the Accused Workman is paid Subsistence Allowance at 50% of his normal salary/wages. After the expiry of 21 days, if the suspension continues, AW is paid at 75% of his salary/wages if the inquiry is delayed due to reasons not attributed to the AW and/or it is reduced to 25% if the inquiry is being delayed for the reasons attributed to AW. But this reduction of Subsistence Allowance has to be recorded in the inquiry proceedings by the Inquiry Officer.

Furthermore, the workman has to give an undertaking periodically that he has not undertaken any alternate employment during the period of suspension. In the absence of such an undertaking or refusal to give one by the AW, he will make him liable for non-payment of Subsistence Allowance. There is no question of making 100% payment. This 100% payment will only be made after the final outcome of the inquiry and findings of I.O. in which he has exonerated the AW of the charges framed against him, for which he was charged/suspended. Making full payment prior to the outcome of the Inquiry report/exoneration will imply automatic exoneration of AW. It may be noted that the amount paid as Subsistence allowance is recoverable from the 100% amount if paid at a later stage. Statutory deductions will be made from the Subsistence Allowance viz. PF, I. TAX, Loans/advances, etc.

Regards,
AK Jain

Responding to Shri Saswata Banerjee, let it not be presumed that a delay of 18 months may have been caused by management. Indeed, from my experience of over three decades, I can say that in most cases, it is the workman/defense helper who delays the inquiry. The logic is that with the passage of time, tempers would be cooled, and some sympathy would creep in. Managements are more or less interested in expediting the inquiry to teach a lesson to the erring employee and also to others.

Regards,
KK

In the absence of information in the post, I assume that workers did not delay the inquiry. Following that assumption, please explain why the worker will be deprived of 18 months of half wages, increments, etc., for an action where disciplinary action of 4 days suspension is imposed. I get a feeling that the courts are likely to issue adverse orders when the union decides to file a case.

The provision is there in Model Standing Orders applicable for Coal Mines. Again, Mr. KK Nair has given a very true scenario of the root cause behind the delay in the inquiry process. Regardless of what the provisions are, in the instant case, the employee has been awarded a punishment of only 4 days' pay loss or the suspension period has been confirmed for only 4 days. In such a situation, the employee is entitled to full wages/salary beyond the period of 4 days after the deduction of the amount actually paid to him as Subsistence Allowance.

Regards,
AK Jain

I would agree that there may be instances where management prolongs the inquiry for months, even years, and finally ends up imposing some trivial punishment just to deny the workman the remaining wages after payment of subsistence allowance for the suspension period. However, such cases are very few, although not unheard of. Such action must have the backing of the applicable Standing Orders (SO) provision.

There are certain SO provisions which state that even if the simplest of all punishments, without any consequence, such as censure, is imposed, the worker will not be entitled to any further payment. However, there are other SO provisions where it is stated that unless a major penalty is imposed, the workman would be entitled to remaining wages.

From the limited facts, it appears that the applicable provision did not entitle the workman to remaining wages. The union, having already extracted a light punishment of four days' suspension for such serious misconduct, which otherwise could have resulted in termination of service, now wants the remaining wages too. This would be putting a premium on such misconduct, and the erring worker is getting rewarded, thanks to his union activism. But it will have disastrous consequences for the organization, the morale of the assaulted supervisor, and the rest of the workforce. The message will not be something they feel happy about. Already, the workman has been let off lightly, that is what I feel. So please decide on the basis of the applicable SO provision.

Regards,
KK

I endorse the views of Saswat and others in the same line. You cannot punish someone twice for the same misconduct. Notwithstanding the gravity of the misconduct alleged and proved, it is over once the punishment is awarded. The scale and circumstances have no room for rumination as of now.

Understanding Suspension

We should remember that the term 'suspension', as it is, does not carry any stigma with itself as long as it is associated with the pendency of the inquiry, either contemplated or in existence. On the contrary, when it is awarded as a punishment, it becomes punitive in nature and acts as a bar in other respects like promotion, continuity of service period, etc.

Therefore, the workmen are entitled to full wages minus the suspension allowance already received, except for the 4 days of punitive suspension.

Regards