Can We Recover Subsistence Allowance for 5 Years Marked as "Dies Non" After Employee Reinstatement?

Employee Suspension and Reinstatement

An employee was arrested on a criminal charge for theft from the office and was suspended in the year 2000. He was acquitted on technical grounds by the Honorable Court after 13 years. Thereafter, he has been reinstated in duty after being kept under a prolonged suspension period of 13 years. He has been allowed to resume duty from the year 2013, but the decision was kept pending on the charge sheet.

Disciplinary Proceedings and Penalty

In the disciplinary proceedings, the disciplinary authority has decided to impose a penalty to treat 5 years out of the 13 years of the suspension period as "dies non" for all purposes. During the entire 13-year period of suspension, he has been paid a subsistence allowance. Now, whether the subsistence allowance for the period of 5 years treated as "dies non" should be recovered.

Hi Yusuf, the definition of dies non is as follows: "In service terms, 'dies non' means a day which cannot be treated as duty for any purpose. It does not constitute a break in service. However, the period treated as 'dies non' does not qualify as service for pensionary benefits or increment."

I need to understand why the disciplinary authority is considering the 5 years as dies non when the honorable court has given its judgment in the employee's favor irrespective of any reason. In my opinion, non-subsistence can be recovered.

Dear Yusuf,

Had I correctly understood your post, the sequence of events should have been as follows:

1) The delinquent employee may have been charged with the misconduct of committing theft while on duty in the year 2000.

2) Subsequently, the management filed a complaint with the Police, leading to the initiation of a criminal case against the delinquent in a Criminal Court.

3) At the same time, the management took internal disciplinary action against him in accordance with the organization's service rules, placing him under suspension pending an investigation and providing him with a subsistence allowance since 2000.

4) It is evident from the post that the investigation was conducted shortly after the suspension, and the final orders were not issued pending the outcome of the criminal trial.

5) Even though the Court's 2013 verdict resulted in acquittal on technical grounds only, not a complete exoneration of the accused, the management still intends to impose some form of punishment on the same charges they initially brought against him, leading to the concept of "dies non of five years of service" being mentioned.

Am I correct? Since the misconduct involved theft by the delinquent, the management retains the right to pursue the same charges internally or departmentally and make an independent decision irrespective of the Criminal Court's verdict, including imposing a punishment they see fit. Thus, the imposition of "dies non" for a period of 5 years implies that these five years will not be considered for service benefits, if applicable.

Regarding the remaining period of suspension served by the employee, how do you plan to account for those years? Will they be treated as duty periods with wages?

In any case, once subsistence allowance is paid, it cannot be reclaimed. The employee must be paid wages minus the subsistence allowance already provided for the period outside the five years.

Thank you.

Thank you, Harpreet Walia Ji and Umakanthan Ji. Yes, sir. Although the Court's verdict of 2013 resulted in acquittal based on technical grounds only, the management wishes to impose some form of punishment due to the employee's misconduct of committing theft while on duty in the year 2000.

Nevertheless, in respect of the Court's decision and to take a lenient approach, the employee has been permitted to return to duty in 2013. The 8-year period of suspension served by the employee will be considered as duty time with full pay.

With kind regards,

Dear Yusuf,

It is a bit confusing. Out of 13 years of suspension, the decision is to treat 8 years as on duty and five years as dies non. I feel the order cannot be sustained in a court of law. Is there a provision for treating the suspension period as dies non in your rules? Technically, when a subsistence allowance is paid, how can that period be treated as dies non?

Dear Yusuf, in this context, our senior counsel Mr. Umakanthan M. has given a brief description of the topic. The subsistence allowance is a matter of right for an employee when they are kept out of a job, regardless of the reason. It is unfortunate that resolving a theft committed by one individual took 13 long years. In this instance, the 13-year period is considered "dies non," which is neither counted as part of service nor considered a break in service. The penalty determined cannot be adjusted against the subsistence allowance. Rather, the workman is at full liberty to challenge your decision on the penalty, which seems superficial.

This is in response to the comments of our learned friends Prabhat and KK!HR. Their response prompts me to rethink and therefore compels me to modify my earlier comment on the proposal of the management, for which I am thankful to both of them.

Legal Position on Suspension Pending Enquiry

At the outset, I would like to remind them of the legal position that they are already well aware of—that suspension pending enquiry, per se, is neither a punishment nor a severance of the employer-employee relationship. Even punitive suspension cannot exceed the maximum number of days prescribed in the standing orders or service regulations.

Employer's Discretion in Cases of Misconduct

When any misconduct partaking the nature of a criminal offense is committed by an employee during the course of his employment, the employer has the discretion to take criminal action through the police or to initiate departmental action under the rules of discipline only, or to take both actions depending on the gravity of the misconduct and the circumstances. When both channels of action are simultaneously preferred by the employer, since criminal action through the court of law is a long-drawn battle and based on strict rules of evidence, the employer may proceed with the departmental disciplinary action, complete all the procedural steps, and dispose of it on merits independently or await the outcome of the criminal case. In case the criminal case ends with a conviction, the punishment awarded by the employer either before or after the court's verdict would not be affected. Otherwise, in the event of the acquittal or exoneration of the accused/employee, the punishment, if any, awarded by the employer will not stand. If the acquittal is purely on technical grounds, it will not affect the decision of the employer in the concurrent departmental proceedings. That's why some employers await the outcome of the criminal trial and award punishment to the delinquent on the same set of charges departmentally tried only after its final disposal.

Doubt Raised by M/S. Prabhat and KK!HR

Now, coming to the doubt raised by M/S. Prabhat and KK!HR. The delinquent employee was kept under suspension continuously for a period of 13 years conterminous with the disposal of the criminal case ending in acquittal on technical grounds. As such, the employer can take any final decision independent of the verdict of the criminal court. He can issue a severe warning or award punitive suspension (the number of days is limited to the maximum as per the standing orders), stop increments with or without cumulative effect, or dismiss him. However, the employer wants to show some lenience for some reason or another, and that leniency or mercy gives way to some problem. Any punishment other than dismissal would require the regularization of the entire period of suspension of 13 years, failing which would amount to double punishment. In case of regularization, the wages due for the entire 13 years of suspension should be paid, of course, after adjusting the subsistence allowance already paid. In order to circumvent this legal impediment only, the management proposes to award a punishment of "dies non for a period of five years of suspension already undergone" because it would disqualify him from claiming all employment benefits, including wages.

If the workman simply accepts it in view of reemployment, there will be no problem. If he agitates it later, I am doubtful whether this would withstand judicial scrutiny.