From India, Sambalpur

What is custody?
You mean Police Custody oor Judicial Custody?
Then which "certified" standing orders say that 'custody for more than 48 hours would be deemed as suspension?
Is there any deemed suspension?
In order to be eligible for subsistence allowance, the suspension should be made in writing quoting the reason thereof. Police/ Judicial custody shall be for any act/ misconduct on the part of the employee carried out outside the office or not connected with employment. Then how can you suspend him from service? If he is under police custody, obviously, he would not come to work, and that day would be marked as absent. When he returns, you can ask for absence without intimation which is a misconduct, though a minor misconduct. He would say that he was under Police/ Judicial Custody, and that was why he could not apply for leave. If your standing orders permits an employee to be punished for an act done outside the office, then you can suspend him and call for explanations, and proceed with domestic enquiry. Without asking the employee what was the crime committed, or how the crime could relate to your office, you cannot initiate any action against your employee. Therefore, please read the clause carefully.

From India, Kannur

The workmen suspended as a result of involvement in a theft inside the plant and on compliant by management to the local police station, after enquiry, police arrested him. The court also rejected his bail application and after he has obtained bail from high court. As a public sector company, we have to initiate the proceedings as the certified standing order which states that an workmen beyond 48 hrs in custody is deemed to be suspended

From India, Sambalpur

Ok, fine. In such situation, you should have suspended the employee first, before an FIR is lodged against the employee. When your certified standing orders say about deemed suspension, then it should also have said about subsistence allowance. In the absence of it, it should be deemed that subsistence allowance will accrue from the date of that suspension or deemed suspension. In any case, you cannot deny subsistence allowance because it is a suspension pending enquiry, and till the charges levelled against him are not proved, he is an employee only, and for his subsistence, you should provide him an allowance, called subsistence allowance.

I am not sure if the deemed suspension would be maintainable before the Court, and therefore, it is better, a separate communication is sent to the employee.

From India, Kannur

Rule 10 of the CCS(CCA) Rules applicable to Central Government employees provides for deemed suspension in case of detention in custody beyond 48 years-
10. Suspension
(1) The appointing authority or any authority to which it is subordinate or the
disciplinary authority or any other authority empowered in that behalf by the
President, by general or special order, may place a Government servant under
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(aa) where, in the opinion of the authority aforesaid, he has engaged himself in
activities prejudicial to the interest of the security of the State; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under
suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody,
whether on a criminal charge or otherwise, for a period exceeding forty-eight
(b) with effect from the date of his conviction, if, in the event of a conviction for
an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours
and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this subrule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.

The public sector companies have more or less adapted said provisions in their discipline rules.
An employee placed under deemed suspensions requires to be paid subsistence allowance, as admissible, irrespective of whether he is in custody or otherwise.

From India, Kochi

Thank you Sir for your informative comment on the topic.
From India, Kannur

Dear Cite HR Member Jkpmpratap,

As I understand from your question and subsequent clarification that your organization is a Public Sector Company and the employee was arrested on a complaint of theft lodged by the Company. You want to know about the status of subsistence allowance when the workman is in custody and you have also referred to the Standing Orders. An appropriate answer cannot be given for want of the following information-

1. You have not indicated as to whether your company is a State Public Sector company or a Central Public Sector company.
2. You have not indicated in which state your company is located because Standing Orders may differ from state to state.

However it may be informed that in the present case there is procedural irregularity on the part of the Management. It is stated in your post that the Management lodged FIR against a worker suspecting his involvement in an internal theft. According to standing SOP when the Management suspects an employee's involvement in any illegal activity, then the Management is not required to wait for the police to make an enquiry and arrest the culprit employee. It is enough for the Management to suspend an employee on the basis of suspicion pending enquiry. However this was not done.

Now the employee was arrested and remained in custody for more than 48 hours, so he is to be treated under deemed suspension from the date of his arrest. The bail of the employee has no bearing because the employee's involvement in theft is on record. He will continue to remain under suspension till finalization of the disciplinary proceedings. It may be noted that the departmental proceedings can be instituted irrespective of the pendency of court's proceedings.

The employee is eligible for subsistence allowance @ 50% of his basic pay plus other admissible allowances. This is general rule. A reference is to be made to the CSO of your company and if it is silent then the Management has to follow the guidelines of PSUs of the concerned State or Central PSU as the case may be.

Hope this meets your query.

Chandramani Lal Srivastava
+91 9315516083
New Delhi

From India, New Delhi
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