Dear All.
The brief fact of the case is that, the company management had issued suspension order to one union representative for indiscipline act of leaving workplace without prior permission of concerned supervisor, instigated/ gathered workmen & riotous, disorderly behaviour with the security supervisor. In suspension order it was stated that, the management will issue separate charge sheet and Domestic Enquiry will conduct by appointing E.O & M.R.
However, the management had not issued any charge sheet or conduct enquiry nor paid Subsistence Allowance during his suspension period, as per the provisions of Standing Order applicable to company. Subsequently after lapse of 3-4 months the management ask delinquent worker to submit good conduct bond/apology letter, no action will initiate & the Suspension Order will be withdrawn immediately. The delinquent employee refused to submit any apology letter or good conduct bond as desired by the management, he stated that, "i have not committed any misconduct, being a workers representative I was asking security supervisors to see and arrange proper safety of the workers."
The management with the help of other union representative, the issue resolved and without taking any apology letter or good conduct bond from the delinquent worker the suspension order withdrawn. In the said suspension withdrawal letter the management has narrated that, "you have committed serious misconduct and the charges are proved in preliminary /internal enquiry conducted by the management. Further stated that, " considering your long service with the company, based on the principle of natural justice & equity, management is taking lenient view & you are hereby warned.........
Accordingly, the delinquent worker join his duties and file application claiming full wages of suspension period, as the management had not issued any charge sheets and there was no domestic enquiry conducted, no charges has been proved hence he is entitle for full wages. That since the, management had not paid any subsistence allowance during suspension period, after receiving the full wages claim, the management released subsistence allowance as applicable.
Series of letters were exchange between the delinquent worker and management but the management has refuse to pay full wages of the suspension period, stating that, the charges leveled against him is proved in preliminary enquiry. On the contrary the delinquent worker replied that, there was no charge sheet issued, no charges are leveled against him and no enquiry officer was appointed, no domestic enquiry was conducted hence he is entitle for full wages.
In-spite of the fact, management does not paid him full wage as claimed by delinquent worker, hence he filed complaint before Asst. Labour Commissioner Authority, since the management is not responding & appearing in the complaint before the authority, the authority is on verge of making failure report and advice delinquent worker to proceed further to file claim in proper courts. The Authority has given final date for hearing, wherein we have file written argument with supportive law points.
As per my view, since the management had not issued any charge sheet or leveled any charges against delinquent worker and there was no domestic enquiry conducted. Also the delinquent worker had not accepted his mistakes by submitting apology letter or good conduct bond. The management has withdrawn suspension order on his own accord. Merely stating that, the charges leveled against him are proved in preliminary enquiry does not sufficient, valid or legally correct in the eyes of law. Because as per the principle of natural justice & equity, even during preliminary enquiry the management ought to provide opportunity to defend or to put his side. The act of management is illegal, baseless hence the delinquent worker is entitle for full wages of suspension period.
In view of he above, my kind request to all experts to suggest, advice points to be included in final written argument with case laws to be submitted before the Authority.
Thanks & Regards.
Shaikh.
From India, Nashik
5The brief fact of the case is that, the company management had issued suspension order to one union representative for indiscipline act of leaving workplace without prior permission of concerned supervisor, instigated/ gathered workmen & riotous, disorderly behaviour with the security supervisor. In suspension order it was stated that, the management will issue separate charge sheet and Domestic Enquiry will conduct by appointing E.O & M.R.
However, the management had not issued any charge sheet or conduct enquiry nor paid Subsistence Allowance during his suspension period, as per the provisions of Standing Order applicable to company. Subsequently after lapse of 3-4 months the management ask delinquent worker to submit good conduct bond/apology letter, no action will initiate & the Suspension Order will be withdrawn immediately. The delinquent employee refused to submit any apology letter or good conduct bond as desired by the management, he stated that, "i have not committed any misconduct, being a workers representative I was asking security supervisors to see and arrange proper safety of the workers."
The management with the help of other union representative, the issue resolved and without taking any apology letter or good conduct bond from the delinquent worker the suspension order withdrawn. In the said suspension withdrawal letter the management has narrated that, "you have committed serious misconduct and the charges are proved in preliminary /internal enquiry conducted by the management. Further stated that, " considering your long service with the company, based on the principle of natural justice & equity, management is taking lenient view & you are hereby warned.........
Accordingly, the delinquent worker join his duties and file application claiming full wages of suspension period, as the management had not issued any charge sheets and there was no domestic enquiry conducted, no charges has been proved hence he is entitle for full wages. That since the, management had not paid any subsistence allowance during suspension period, after receiving the full wages claim, the management released subsistence allowance as applicable.
Series of letters were exchange between the delinquent worker and management but the management has refuse to pay full wages of the suspension period, stating that, the charges leveled against him is proved in preliminary enquiry. On the contrary the delinquent worker replied that, there was no charge sheet issued, no charges are leveled against him and no enquiry officer was appointed, no domestic enquiry was conducted hence he is entitle for full wages.
In-spite of the fact, management does not paid him full wage as claimed by delinquent worker, hence he filed complaint before Asst. Labour Commissioner Authority, since the management is not responding & appearing in the complaint before the authority, the authority is on verge of making failure report and advice delinquent worker to proceed further to file claim in proper courts. The Authority has given final date for hearing, wherein we have file written argument with supportive law points.
As per my view, since the management had not issued any charge sheet or leveled any charges against delinquent worker and there was no domestic enquiry conducted. Also the delinquent worker had not accepted his mistakes by submitting apology letter or good conduct bond. The management has withdrawn suspension order on his own accord. Merely stating that, the charges leveled against him are proved in preliminary enquiry does not sufficient, valid or legally correct in the eyes of law. Because as per the principle of natural justice & equity, even during preliminary enquiry the management ought to provide opportunity to defend or to put his side. The act of management is illegal, baseless hence the delinquent worker is entitle for full wages of suspension period.
In view of he above, my kind request to all experts to suggest, advice points to be included in final written argument with case laws to be submitted before the Authority.
Thanks & Regards.
Shaikh.
From India, Nashik
Dear Mr Shaikh,
As per given information, if you have accepted the warning letter then you are not entitled to any back wages since the warning is the simplest way of punishment against any misconduct.
Thanks
From India, Delhi
As per given information, if you have accepted the warning letter then you are not entitled to any back wages since the warning is the simplest way of punishment against any misconduct.
Thanks
From India, Delhi
Sir.
Basically the management has issued suspension order stating the separate charge sheet will be issued and domestic enquiry will conduct furthermore they have stated that the names of E.O and the date, place of enquiry will be communicated by separate letter.
As per the provisions of Certified Standing Orders applicable to company, Non of these happened, for more clarification i am sending extract of certified standing order applicable to the company.
23. Misconduct: Enquiries, Procedure and Punishment: -
1. A workman against whom any action is proposed to be taken for misconduct may be suspended pending the enquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the workman. If as a result of the enquiry held or explanation tendered, it is decided not to take any action under Standing Order 23(3) the workman shall be deemed to have been on duty and shall be entitled to full wages and all privileges for the period of suspension.
2. A workman against whom an inquiry is to be held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defense and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea shall be recorded.
3. A workman guilty of misconduct may be: -
a) Warned or censured or
b) Suspended on order in writing signed by the Manager for a period not exceeding four day’s or
c) Subjected to action as permitted in the Payment of Wages Act, 1936 or
d) Dismissed without notice or compensation in lieu of notice.
4. No order under sub-clause (c) of clause (3) shall be made unless the workman concerned has been informed in writing of the alleged misconduct and given an opportunity to explain the circumstances alleged against him.
5. No order of suspension or dismissal under Standing Order 23(3) (b) or (d) shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Standing Order 23(2).
If a workman refuses to accept a charge sheet and provided that he has been asked to accept the charge-sheet in the presence of at least one witness, be shall be told verbally the time and place at which the enquiry into his alleged misconduct is to be held and if he refused or fails to present himself at that time, the inquiry shall be concluded ex-party and the punishment awarded shall take account of misconduct under Standing Order No.22 thus committed.
6. In awarding punishment under this Standing Order the Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist.
24. Misdemeanor: -
A workman may be warned or censured, or, after giving him an opportunity to be heard action as permitted in the Payment of Wages Act, 1936, may be taken against him, for any of the under noted offences: -
a) Late attendance.
b) Negligence in performing duties.
c) Neglect of work.
d) Absence without leave or without sufficient cause from the appointed place of work.
e) Entering or leaving or attempting to enter or leave the premises of the establishment except by agate or entrance appointed.
f) Committing nuisance on the premises of the establishment.
g) Breach of any rule or instruction for maintenance or running of any department.
IN light of the above provisions of the Certified Standing Order applicable to company, i think the delinquent employee is eligible for full wages of the suspension period.
Kindly advice.
Shaikh.
From India, Nashik
Basically the management has issued suspension order stating the separate charge sheet will be issued and domestic enquiry will conduct furthermore they have stated that the names of E.O and the date, place of enquiry will be communicated by separate letter.
As per the provisions of Certified Standing Orders applicable to company, Non of these happened, for more clarification i am sending extract of certified standing order applicable to the company.
23. Misconduct: Enquiries, Procedure and Punishment: -
1. A workman against whom any action is proposed to be taken for misconduct may be suspended pending the enquiry or for the period, if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the workman. If as a result of the enquiry held or explanation tendered, it is decided not to take any action under Standing Order 23(3) the workman shall be deemed to have been on duty and shall be entitled to full wages and all privileges for the period of suspension.
2. A workman against whom an inquiry is to be held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defense and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea shall be recorded.
3. A workman guilty of misconduct may be: -
a) Warned or censured or
b) Suspended on order in writing signed by the Manager for a period not exceeding four day’s or
c) Subjected to action as permitted in the Payment of Wages Act, 1936 or
d) Dismissed without notice or compensation in lieu of notice.
4. No order under sub-clause (c) of clause (3) shall be made unless the workman concerned has been informed in writing of the alleged misconduct and given an opportunity to explain the circumstances alleged against him.
5. No order of suspension or dismissal under Standing Order 23(3) (b) or (d) shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Standing Order 23(2).
If a workman refuses to accept a charge sheet and provided that he has been asked to accept the charge-sheet in the presence of at least one witness, be shall be told verbally the time and place at which the enquiry into his alleged misconduct is to be held and if he refused or fails to present himself at that time, the inquiry shall be concluded ex-party and the punishment awarded shall take account of misconduct under Standing Order No.22 thus committed.
6. In awarding punishment under this Standing Order the Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist.
24. Misdemeanor: -
A workman may be warned or censured, or, after giving him an opportunity to be heard action as permitted in the Payment of Wages Act, 1936, may be taken against him, for any of the under noted offences: -
a) Late attendance.
b) Negligence in performing duties.
c) Neglect of work.
d) Absence without leave or without sufficient cause from the appointed place of work.
e) Entering or leaving or attempting to enter or leave the premises of the establishment except by agate or entrance appointed.
f) Committing nuisance on the premises of the establishment.
g) Breach of any rule or instruction for maintenance or running of any department.
IN light of the above provisions of the Certified Standing Order applicable to company, i think the delinquent employee is eligible for full wages of the suspension period.
Kindly advice.
Shaikh.
From India, Nashik
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