Hi, A workman has been arrested in a criminal case. Management has suspended him. Can Management withhold his subsistence allowance till he comes out on bail? Please suggest. Regards,
From India, Delhi
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20From India, Delhi
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Questions about Suspension
Why did the management suspend him? Was that suspension made prior to his arrest? What was the ground on which the employee was placed under suspension? Is there any connection with his arrest?
Grounds for Suspension
You cannot suspend an employee for a reason that he was arrested for any criminal misconduct that happened outside the office or while he was not on duty and for a reason that has no connection with his office work. Naturally, when he is under judicial custody, he will not come to the office nor could apply for leave. Even if he applies for leave, what reason can he show? Even if he shows the reason, the real reason that he has been under police custody, it is up to the management to decide whether the leave should be approved or not. You should reject to approve the leave on the ground that leave is taken not for any genuine reason. Then it will be treated as leave without pay only. If he does not apply for leave, then also it will be leave without pay. Continuous absence without proper leave will lose his lien on employment, and then you can take a call, whether to terminate him or not. Till then you can mark his absence as leave without pay, and no salary needs to be paid for that period.
Mistake in Suspending the Employee
By suspending the employee, I would say that you have made a mistake. First, there should be a reason for suspension, and that reason should have some connection with the employment. Of course, if you have a mention of "any arrest/judicial custody would be treated as misconduct" under your certified Standing Orders, you can initiate disciplinary action. But when you know that the employee is under judicial custody, why should you start it?
Subsistence Allowance
If suspended, you should pay him a subsistence allowance. For that, you have to get an undertaking from the employee that he has not been gainfully employed during the period of suspension. Since the person is in custody, he cannot give that undertaking. Therefore, you can delay the payment of the subsistence allowance until he comes in person and gives such an undertaking.
From India, Kannur
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Why did the management suspend him? Was that suspension made prior to his arrest? What was the ground on which the employee was placed under suspension? Is there any connection with his arrest?
Grounds for Suspension
You cannot suspend an employee for a reason that he was arrested for any criminal misconduct that happened outside the office or while he was not on duty and for a reason that has no connection with his office work. Naturally, when he is under judicial custody, he will not come to the office nor could apply for leave. Even if he applies for leave, what reason can he show? Even if he shows the reason, the real reason that he has been under police custody, it is up to the management to decide whether the leave should be approved or not. You should reject to approve the leave on the ground that leave is taken not for any genuine reason. Then it will be treated as leave without pay only. If he does not apply for leave, then also it will be leave without pay. Continuous absence without proper leave will lose his lien on employment, and then you can take a call, whether to terminate him or not. Till then you can mark his absence as leave without pay, and no salary needs to be paid for that period.
Mistake in Suspending the Employee
By suspending the employee, I would say that you have made a mistake. First, there should be a reason for suspension, and that reason should have some connection with the employment. Of course, if you have a mention of "any arrest/judicial custody would be treated as misconduct" under your certified Standing Orders, you can initiate disciplinary action. But when you know that the employee is under judicial custody, why should you start it?
Subsistence Allowance
If suspended, you should pay him a subsistence allowance. For that, you have to get an undertaking from the employee that he has not been gainfully employed during the period of suspension. Since the person is in custody, he cannot give that undertaking. Therefore, you can delay the payment of the subsistence allowance until he comes in person and gives such an undertaking.
From India, Kannur
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The workman is liable to receive a subsistence allowance if suspended. The action of suspension by the management for a criminal act elsewhere is not fair if it is not in the standing order of the company. The materials in the post are not sufficient to guide further.
From India, Mumbai
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From India, Mumbai
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Standard Clause in Government Organizations
In government organizations/PSUs, there is a standard clause that an employee detained in custody for more than 48 hours is deemed to be suspended. Similarly, an employee detained in custody is not to be paid wages or subsistence allowance, and no leave is sanctioned for this period.
It is not clear from the query whether it pertains to a government organization.
From India, Mumbai
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In government organizations/PSUs, there is a standard clause that an employee detained in custody for more than 48 hours is deemed to be suspended. Similarly, an employee detained in custody is not to be paid wages or subsistence allowance, and no leave is sanctioned for this period.
It is not clear from the query whether it pertains to a government organization.
From India, Mumbai
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Subsistence allowance cannot be denied for suspension pending an inquiry as the worker has been arrested in a criminal case. Assuming that you have issued him a charge sheet cum suspension order pending an inquiry for being arrested in a criminal case, you may wait for the outcome of the criminal case. If he has been convicted by a court, you may, on the basis of the conviction order in the criminal case, take a chance to dismiss him from service as any domestic inquiry post-conviction is a redundant procedure, and you can rely on the order of the court. Most standing orders have a proviso that conviction by a court of law is a major misconduct, and dismissal from service is tenable. Although domestic inquiry and P Senthilkumar [Phone Number Removed For Privacy-Reasons]
From India, Chennai
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From India, Chennai
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Subsistence allowance cannot be denied to an employee who has been suspended pending an inquiry due to involvement in a criminal case. The management should follow a fair process while dealing with such situations to ensure compliance with labor laws and company policies. Here are the key points to consider:
1. Legal Compliance: Check the relevant labor laws and company policies regarding the provision of subsistence allowance during suspension.
2. Suspension Order: Issue a suspension order along with a charge sheet clearly outlining the reasons for suspension pending an inquiry.
3. Wait for Outcome: Wait for the outcome of the criminal case before taking further action. If the employee is convicted, the management can consider dismissal based on the court's order.
4. Major Misconduct: If the standing orders specify that conviction by a court of law is a major misconduct leading to dismissal, the management can proceed accordingly.
5. Fair Process: Ensure that the employee is given a chance to present their case and respond to the charges against them.
6. Communication: Maintain clear communication with the employee throughout the process to keep them informed of the developments.
7. Consult Legal Counsel: If needed, consult legal counsel to ensure that the actions taken are legally sound and compliant.
By following these steps, the management can handle the situation effectively and in accordance with the law.
From India, Gurugram
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1. Legal Compliance: Check the relevant labor laws and company policies regarding the provision of subsistence allowance during suspension.
2. Suspension Order: Issue a suspension order along with a charge sheet clearly outlining the reasons for suspension pending an inquiry.
3. Wait for Outcome: Wait for the outcome of the criminal case before taking further action. If the employee is convicted, the management can consider dismissal based on the court's order.
4. Major Misconduct: If the standing orders specify that conviction by a court of law is a major misconduct leading to dismissal, the management can proceed accordingly.
5. Fair Process: Ensure that the employee is given a chance to present their case and respond to the charges against them.
6. Communication: Maintain clear communication with the employee throughout the process to keep them informed of the developments.
7. Consult Legal Counsel: If needed, consult legal counsel to ensure that the actions taken are legally sound and compliant.
By following these steps, the management can handle the situation effectively and in accordance with the law.
From India, Gurugram
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The karnataka payment of subsistence allowance Act, 1988.pdf
SC directive on subsistence allowance to suspended staff.doc