Legal Advice on Employee Suspension
I want legal advice related to an incident that occurred in the company. There is one worker who has been suspended for his misconduct. The suspension was given to him for 4 days without leave. Is it correct legally? I want a solution related to this problem, specifically what is the legal procedure to follow for suspension.
Another issue is if the worker does not accept the given memo, then how much time can we suspend or rusticate that worker? I need help regarding this. I am a new fresher in the legal department of the company.
Regards
From India, Vapi
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3I want legal advice related to an incident that occurred in the company. There is one worker who has been suspended for his misconduct. The suspension was given to him for 4 days without leave. Is it correct legally? I want a solution related to this problem, specifically what is the legal procedure to follow for suspension.
Another issue is if the worker does not accept the given memo, then how much time can we suspend or rusticate that worker? I need help regarding this. I am a new fresher in the legal department of the company.
Regards
From India, Vapi
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Addressing Misconduct and Suspension Procedures
First query: What was the nature of the misconduct? Did you conduct the domestic inquiry? Did you suspend the employee to award him punishment? If yes, then any punishment without proper inquiry is wrongful.
Handling Official Communication
Second query: Issuing official communication is mandatory for employees. They cannot refuse to accept it. Non-acceptance of communication itself is misconduct under the provisions of the Indian Standing Orders Act. Suspend the employee for refusal to accept the memo. Block his entry at security. Issue him a second memo for refusal to accept the first memo. Conduct a collective domestic inquiry for both the misconducts.
General Recommendations
I recommend you read books on the Industrial Standing Orders Act of your state. When buying a book, make sure that case laws are given for each clause. Secondly, you may subscribe to Labour Law Reporter (LLR). This is a monthly magazine and is useful for any legal professional, whether upcoming like you or experienced.
Thanks,
Dinesh Divekar
From India, Bangalore
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First query: What was the nature of the misconduct? Did you conduct the domestic inquiry? Did you suspend the employee to award him punishment? If yes, then any punishment without proper inquiry is wrongful.
Handling Official Communication
Second query: Issuing official communication is mandatory for employees. They cannot refuse to accept it. Non-acceptance of communication itself is misconduct under the provisions of the Indian Standing Orders Act. Suspend the employee for refusal to accept the memo. Block his entry at security. Issue him a second memo for refusal to accept the first memo. Conduct a collective domestic inquiry for both the misconducts.
General Recommendations
I recommend you read books on the Industrial Standing Orders Act of your state. When buying a book, make sure that case laws are given for each clause. Secondly, you may subscribe to Labour Law Reporter (LLR). This is a monthly magazine and is useful for any legal professional, whether upcoming like you or experienced.
Thanks,
Dinesh Divekar
From India, Bangalore
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Let me elaborate on Mr. Dinesh's answer regarding the concept of suspension in the employment context.
Understanding Suspension in Employment
Basically, the suspension of an employee from service is a temporary exclusion of their services while keeping their contract of employment intact. It may be of two types: (i) interim suspension or suspension pending an inquiry into serious charges of misconduct, and (ii) punitive suspension or suspension imposed as a punishment following disciplinary procedures.
Interim Suspension
Interim suspension is not a punishment. According to the Bombay High Court (Municipal Corporation of Greater Bombay vs. Lakshman Saidoo Timmanapyati - [1991(1)CLR 653]), "Interim Suspension is a preventive measure or a check aimed at minimizing further loss or damage to an employer caused by an employee who, prima facie, has been involved in serious misconduct." It is a procedural convenience to conduct an inquiry against the employee. The employer must exercise the power of interim suspension carefully and in accordance with the applicable Standing Orders or service regulations. Non-payment of subsistence allowance during the suspension period, as specified in the Standing Orders, will invalidate the employer's action. The period of suspension should be regularized when a punishment is imposed.
Punitive Suspension
"Punitive Suspension," on the other hand, is a form of punishment that renders the entire suspension period as non-qualifying service for benefits such as increments, promotions, and gratuity, and it carries a stigma on the employee's record. The duration of punitive suspension cannot exceed the limits set in the Standing Orders or Service Regulations.
I hope this explanation clarifies the different aspects of suspension in the employment context.
Regards, [Your Name]
From India, Salem
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Understanding Suspension in Employment
Basically, the suspension of an employee from service is a temporary exclusion of their services while keeping their contract of employment intact. It may be of two types: (i) interim suspension or suspension pending an inquiry into serious charges of misconduct, and (ii) punitive suspension or suspension imposed as a punishment following disciplinary procedures.
Interim Suspension
Interim suspension is not a punishment. According to the Bombay High Court (Municipal Corporation of Greater Bombay vs. Lakshman Saidoo Timmanapyati - [1991(1)CLR 653]), "Interim Suspension is a preventive measure or a check aimed at minimizing further loss or damage to an employer caused by an employee who, prima facie, has been involved in serious misconduct." It is a procedural convenience to conduct an inquiry against the employee. The employer must exercise the power of interim suspension carefully and in accordance with the applicable Standing Orders or service regulations. Non-payment of subsistence allowance during the suspension period, as specified in the Standing Orders, will invalidate the employer's action. The period of suspension should be regularized when a punishment is imposed.
Punitive Suspension
"Punitive Suspension," on the other hand, is a form of punishment that renders the entire suspension period as non-qualifying service for benefits such as increments, promotions, and gratuity, and it carries a stigma on the employee's record. The duration of punitive suspension cannot exceed the limits set in the Standing Orders or Service Regulations.
I hope this explanation clarifies the different aspects of suspension in the employment context.
Regards, [Your Name]
From India, Salem
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In addition to what Mr. Dinesh and Umakantan said, I would like to know whether you have standing orders/service rules/settlement in place to empower you to suspend an employee. If not, it may make it messy as it seems you have imposed punitive suspension even before conducting an inquiry. Full details need to be furnished for an appropriate reply in cases of indiscipline.
B. Saikumar
From India, Mumbai
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B. Saikumar
From India, Mumbai
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Thank you all for giving the useful guidelines for the problem that has arisen for me. In such a situation, the suspension will be solely on an inquiry basis if I am not wrong. The current situation is that the union is also present in our company, so they will also be interfering in company matters.
Now I am very clear regarding the suspension of such an employee. Thank you again for the solution.
From India, Vapi
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Now I am very clear regarding the suspension of such an employee. Thank you again for the solution.
From India, Vapi
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