Understanding Suspension Inquiries: How Long Can You Suspend an Employee Without Pay?

What is a Suspension Inquiry?

In the context of employment regulations, a suspension inquiry refers to the process of investigating an employee's conduct or actions that have led to their suspension from work. It is essential to follow the guidelines outlined in the Labour Law Act when conducting a suspension inquiry to ensure fairness and compliance with legal requirements.

Duration of Suspension Without Pay

Regarding the duration of suspending an employee without pay based on doubt, the specific number of days allowed for such suspension can vary depending on the company's policies, the nature of the doubt or allegations, and the applicable employment laws. It is crucial to consult the relevant legal provisions and seek guidance from HR professionals to determine the appropriate course of action in such situations.

Reasons for Suspending an Employee

Suspending the services of an employee or workman is a punishment imposed by management for disciplinary grounds, such as:

1. If the concerned employee engages in activities that are subversive of discipline and good behavior.
2. Commits a major or severe misconduct.
3. Causes damage to company property.
4. Shows willful insubordination.
5. Engages in shouting or manhandling of superior officers, co-workers, or staff.
6. Engages in loitering or go-slow in work.
7. Intimidates others to go slow.
8. Attends work under the influence of alcohol, etc.

Process of Suspension

Depending upon the gravity of the misconduct, the decision to suspend their services shall be taken. Management can issue an advice memo, warning letter, Show Cause Notice (SCN), Charge sheet, or Charge sheet-cum-Suspension Order (depending on the severity of the misconduct) and conduct a domestic enquiry to investigate the charges against the delinquent employee. Based on the enquiry report, appropriate punishment may be awarded.

Dear [Email Removed For Privacy Reasons], your question is not clear. However, I presume you want to know how to suspend an employee immediately based on serious allegations of misconduct. If so, how to proceed and how long the suspension can last pending an inquiry. On this premise, I would like to answer your query as follows:

Suspension Pending Inquiry

Suspension pending inquiry can be resorted to when an employee is reported to have committed grave misconduct like theft, assault of a co-employee, acts of provocation, or threatening behavior. The employee's presence on the premises could be detrimental to the safety of others and industrial peace, and there is a concern that the accused employee might tamper with witnesses.

Please note that suspension pending inquiry is not a punishment.

Immediately upon suspension, or within a day or two, the suspended employee should be issued a detailed charge sheet cum show cause notice. This notice should seek the employee's explanation within 24/48/72 hours as to why suitable disciplinary action should not be taken against them for the alleged misconduct. Upon receipt of the inquiry or if the employee fails to submit an explanation in writing, an inquiry should be ordered to be conducted on a specified date, time, and place, and notified accordingly. Preferably, an outside inquiry officer should be appointed and notified in the inquiry notice.

Conducting the Inquiry

The inquiry should be conducted and concluded within a reasonable time. If there are guidelines on the duration of the inquiry, the period of six months, as observed by the Supreme Court, is a reference. During the suspension pending inquiry, the employee should be paid a subsistence allowance at a specified percentage of their basic salary as laid down in the certified standing orders of the company. Where certified standing orders are not available, payment should be made in accordance with the Model Standing Orders Act in conjunction with the Payment of Subsistence Allowance Act.

Post-Inquiry Actions

Once the charges of misconduct are proven, and if the employee is adjudged guilty by the inquiry officer, you can award punishment in proportion to the misconduct proved. The punishment should be within the list of punishments as enumerated in the certified standing orders or model standing orders, considering the past record of service. If you decide to award the punishment of summary dismissal, and a dispute is pending before any conciliation officer/labor court/tribunal, or any other legal forum, you should apply for post-fact approval. If the employee is a protected workman, you need permission from the concerned authorities before dismissing them.

For your query, this information should be sufficient. If you require any more technical clarifications, please write in a crystal clear and cogent manner as to what exactly you need.

All the best,

Regards, Panchsen P. Senthilkumar

Suspension of an Employee Pending Inquiry

An employer can suspend any employee pending an inquiry if the employee's presence in the establishment during the inquiry is not desirable.

Subsistence Allowance During Suspension

As per model standing orders or certified standing orders, the subsistence allowance to a suspended employee may be half of their salary for the first 90 days and two-thirds thereafter for up to 120 days. If the inquiry continues beyond that and the reasons for the delay are not attributable to the employee, the employee is entitled to 100% of their salary.

Thank you, Mr. Shobhit, for clarifying to readers that the payment of subsistence allowance for the entire period of suspension pending inquiry is a legal liability of the employer or the disciplining authority as per laws. The period for such suspension pending inquiry is regulated in the certified standing orders or the codified service rules as may be applicable to the concerned employee. Any act contrary to these provisions is not only an unfair practice on the part of the employer but also constitutes a breach of laws. It should never be misused as a "tool" to teach employees a lesson or drag out the disciplinary or inquiry proceedings.

Kritarth Consulting Team, 29.7.2020

Suspension in Employment

Suspension, in the realm of employment, means the debarment of an employee by the employer from attending to their work as usual. In other words, suspension is the state of the contract of employment being kept in suspended animation. It is of two types: one is punitive suspension, and the other is interim suspension or suspension pending inquiry.

Employer's Power to Suspend

The power of an employer to suspend an employee is an inherent power that comes with the authority to employ and maintain disciplinary control over the acts of the employee within the zone of employment. Therefore, normally it cannot be questioned unless on the allegation of colorable exercise of power or as a measure of victimization.

Punitive Suspension

Punitive suspension, as the name indicates, is a punishment awarded consequent to proven misconduct. The entire period of punitive suspension would be treated as "dies non," which means a day that cannot be treated as duty for any service purpose, including service benefits. It would automatically imply, therefore, that no wages shall be payable for the entire period of punitive suspension. Besides, the duration of punitive suspension should not exceed the number of days mentioned in the standing orders or service regulations concerned.

Interim Suspension or Suspension Pending Inquiry

Interim suspension or suspension pending inquiry is a procedural convenience adopted by the employer to prevent the delinquent employee from disrupting the disciplinary process, possibly by tampering with records or influencing witnesses by their continued presence in the post. It can be ordered either on the contemplation of the charges or after framing charges, depending on the gravity of the circumstances. Thus, suspension pending inquiry does not sever the employer-employee relationship nor is it a punishment. Therefore, it is only an administrative order of the employer, and as such, no court would normally interfere with the order of suspension unless it is passed mala fide and without even prima facie evidence on record connecting the employee with the misconduct in question. In this connection, the observation of the Bombay High Court in Municipal Corporation of Greater Bombay & Another Vs Laxman Saidoo Timmanapyati & Others [1991 (1) CLR 653] that suspension is not to be misunderstood as being a punitive measure and that it would be a healthy practice to insist on the Suspending Authority passing a reasonable order in which the grounds of suspension are spelled out is worthy of consideration by every disciplinary authority. I think that the above proposition answers the second question of Vinitthakkar.

Legal Provisions for Suspension

Another proposition of law is that though the employer can place an employee under suspension pending inquiry into their misconduct, such suspension has to be effected in accordance with the procedure, if any, laid by the rules governing the service conditions or in the standing orders applicable to the establishment. For instance, the ratio decidendi of the Supreme Court in P.R. Naik Vs Union of India [AIR 1972 SC 554] is that when an inquiry is contemplated, suspension cannot be ordered unless the Rules provide to that effect, and if the Rules provide for suspension only after an inquiry is initiated, suspension cannot be ordered before the commencement of the inquiry.

Subsistence Allowance During Suspension

Prompt and timely payment of subsistence allowance to the suspended employee at the rates specified in the standing orders/service regulations or any law in force is another important requirement during suspension. The failure to do so would normally vitiate the entire disciplinary proceedings in judicial review later.

Regularization of Suspension Period

When any punishment other than dismissal from service is awarded to the delinquent employee at the end of the disciplinary proceedings, the period of suspension should be regularized accordingly by paying actual wages minus the subsistence allowance already paid. Otherwise, it would amount to double punishment for the same set of misconduct.

Revocation of Interim Suspension

Sometimes, the circumstances may warrant the revocation of interim suspension due to its unnecessary prolongation, by an order of any court of law, or by virtue of the employee's attaining the age of superannuation.

Good insights by Umakanthan Sir, as always. Thank you, Umakanthan Sir. I was not aware that when any punishment other than dismissal from service is awarded to the delinquent employee at the end of the disciplinary proceedings, the period of suspension should be regularized accordingly by paying actual wages minus the subsistence allowance already paid. Otherwise, it would amount to double punishment for the same set of misconduct. Thank you once again.

I would like to add to what our learned Umakanthan Sir has so painstakingly explained in detail. There is no outer limit for suspension pending inquiry. However, the payment of subsistence allowance is necessary for the entire period as per the applicable Standing Orders or rules. Generally, for the first three months, 50% of wages is to be paid as subsistence allowance. Beyond the initial three months, it may increase to 75% or decrease to 25% depending on whether the employee is responsible for delaying the inquiry. It is essential to check the applicable provisions and act accordingly.