Suspension Without Inquiry for Over 3 Months: What Are the Implications and Next Steps?

One of my friends has been suspended from service pending inquiry. The period of suspension is not mentioned, and no suspension allowance is paid even though the staff rules indicate the basic salary. It has been more than three months, and no inquiry has been initiated. Kindly suggest the implications and how to proceed further.

Suspension and Subsistence Allowance

No mention is made about the post held by the suspended employee. It is not necessary to specify the period of suspension in the case of a pending inquiry because doing so implies that the suspension would continue until the inquiry is concluded or final orders are issued in the disciplinary proceedings, depending on the severity of the charges.

If disciplinary action is initiated and sustained without providing a subsistence allowance, the entire process would be jeopardized solely on this basis, and any punishment imposed based on the inquiry's findings could be overturned in a judicial review. It would be advisable for the suspended employee to request periodic subsistence allowance payments as per the applicable rules.

Dear Umakanthan,

The suspended employee is a Team Leader, and no inquiry has been initiated for the past 3 months. As per your suggestion, we will request suspension allowance.

Thanks and Regards

After 3 months, he will be eligible for full pay (or 75% of full pay, I don't remember). It can't be on basic alone.

Further, if there is inordinate delay (as seems to be in your case), you can complain to the labor commissioner or GLC and seek quashing of the proceedings.

Your friend is a management staff (Team Leader), not a workman. Therefore, if this is the case, the Company's Service Rules applicable for Management Staff Employees will be applicable. For a workman, the applicable Standing Orders framed as service rules state that in the order of suspension, if it is mentioned that the employee needs to mark his attendance on every working day at the Time Office so that the HR office can calculate subsistence allowance during the suspension period, then he will be entitled to subsistence allowance at 50% for the first 90 days. Thereafter, if the inquiry continues beyond 90 days, he is entitled to 75% of Basic + DA + VDA (as applicable there) until the inquiry is concluded.

Certainly, for an employee in the Company management cadre, the above said rules for claiming subsistence allowance are not applicable.

Thanks and regards,

RDS Yadav

Key Legal Facts Regarding Employment Suspension and Rights

1. Team Leader Classification
A team leader who merely checks and forwards tasks to seniors for consideration cannot be classified as a "Workman" under the Industrial Dispute Act. (Burmah Shell Oil Storage and Distributing Company of India Ltd. and Anr. v. Burmah Shell Management Staff Association and Ors. A.I.R. 1971 S.C. 922)

2. Quantum of Wages
The amount of wages/pay and the method of payment should not be factors when determining whether a person can be designated as a "workman." (Devinder Singh v Municipal Council, (2011) 6 SCC 584)

3. Industrial Employment Standing Order Act
Under this Act, if an employee does not initiate an inquiry, a subsistence allowance is paid to the suspended employee at 50% of wages for the first 90 days and 75% for the remaining period, provided the delay is not the fault of the suspended workman.

4. Labor Court Referral
If the team leader is considered a workman, they can refer the case to the Labor Court for payment of subsistence allowance.

5. Right to a Speedy Trial
The Supreme Court referenced the decision of a Constitution Bench in the case of Abdul Rehman Antulay v. R.S. Nayak, 1992 (1) SCC 225, establishing that the right to a speedy trial is a fundamental right implicit in Article 21 of the Constitution. Detailed directions were issued in this regard. (Ajay Kumar Choudhary v. Union Of India Through Its Secretary, Supreme Court Judgment, 16 February 2015). Therefore, under this legal principle, the suspended employee can request intervention from the Labour Court for the prompt resolution of the inquiry under its supervision.

6. Legal Relief Options
If the Team Leader is not considered a Workman, relief can still be sought in a court of law based on the right to a speedy trial.

7. Employer-Employee Relationship During Suspension
The relationship between employer and employee does not cease during suspension; hence, ESIC or EPF (The Welfare Legislation) still applies, and contributions must be made accordingly. The suspended employee can lodge a complaint with the EPF authority to exert pressure on the employer. Reference: Pf Contribution To Continue Even During Suspension | Business Standard News

Thank you.