138
Vishal.Sri
(Querist) 05 March 2012
This query is : Resolved
An employee has been convicted u/s 138 of NI Act and the penalty is 6 months SI.
In appeal, the sessons court has ordered as follows:
1. Petition permitted
2. Sentence alone is suspended
Hence the accused is released on Bail.
Now, the administration of the employee (Accused) has to take disciplinary action against him.
One view/ opinion is that as per the second order (MP of appeal), the person is convicted and the question or discussion in appeal shall be about modification of penalty only. So, we have take action as per our procedure.
An advocate has opined that there shall be a possibility of acquit and advised to stay the proceedings till the appeal is disposed.
Now, my question is what is the legal position of the case? and what the disciplinary authority has to do?
Thank you in advance.
Sudhir Kumar, Advocate
(Expert) 05 March 2012
Your query is vague. You never stated who the employer is. it is Govt or private.
Guest
(Expert) 05 March 2012
Deaprtmental action, if the employee is convicted, is not bound to be delayed by any disciplinary rule in wait of filing of any appeal in the court of law and its outcome later. Normally, disciplinary proceedings take its own time from its start to finalisation stage. So, the employee will also be free to submit his appeal to his appellate authority to justify his cause on which the appellate authority, if convinced, would be free to take any decision against the penalty awarded by the disciplinary authority.
The employee, even if acquitted on appeal later, can also submit his appeal or review petition, as the cse may be, to his appellate/reviewing authority.
Advocate M.Bhadra
(Expert) 05 March 2012
Since the sentence is suspended and without 48 hours custody the Employer authority may re-instate the employee till the order would passed by the Higher Court or acquitted.
prabhakar singh
(Expert) 05 March 2012
Now, my question is what is the legal position of the case? and what the disciplinary authority has to do?
IT WOULD BE HUMAN TO WIGHT FOR ORDER IN APPEAL AS IT IS NOT A GREAT CRIME.
Raj Kumar Makkad
(Expert) 05 March 2012
Case is now listed for the argument in appeal. If the department is desirous of initiation of any action on the basis of conviction of employee then it can initiate it at this stage and if the attitude of the department is lenient then this is not the proper stage to initiate as the appeal is under consideration which is in continuation of the main complaint.
Shonee Kapoor
(Expert) 05 March 2012
As long as the sentence is suspended, no disciplinary action would be sustainable.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Ajay Bansal
(Expert) 07 March 2012
Court's proceedings and departmental proceedings are seperate with each other.Both can be run.Otherwise also as only sentence is suspended and appeal is pending is Sessions Court, so department is free to start/continue its departmental proceedings.
SAINATH DEVALLA
(Expert) 08 March 2012
Dear Mr.Vishal,
The service rules are entirely different between govt,quasi govt,public sector and private sector.You have not mentioned where you belong to.What does your service rules say? You have to act as per those strictures.You cannot deviate from them.Now that the sentence is suspended and the employee is released on bail,he can attend office as usual.After the outcome of the appeal then your office can proceed further.
C. P. CHUGH
(Expert) 08 March 2012
Should not this querry be posted under Labour and Allied Laws instead of Criminal Law so as it to attract the attention of xperts in Labour and Service Matters.
Guest
(Expert) 08 March 2012
Dear Shri Chugh,
You observation is quite correct. Actually the title is wrong, which belongs to criminal law, but the query actully belongs to labour & services law. But with the present title the query cannot be posted under labour & service law. In fact, the author was required to write correct title about disciplinary action in case of conviction in criminal case.
