Subsistence allowance
RAMANARAYANAN.G
(Querist) 31 December 2014
This query is : Resolved
Sir,
A factory worker in a Kerala Government undertaking is under suspension and now availing 100% subsistence allowance as per ID Act. As domestic inquiry proceedings are not completed yet, the organisation has taken a lenient view to admit him provisionally back to the job withdrawing the suspension provided he execute an undertaking in Rs.100/-stamp paper that even though he is admitted back to the job, the domestic inquiry proceedings against him will continue and he is agreeable to abide by all lawful decisions taken by the disciplinary action committee of the company with whom the domestic inquiry proceedings are in progress.However he declined to furnish such an undertaking and joining for duty on the plea that the charges leveled against him is fabricated willfully by the company and he is innocent.He is opting for continuing in the suspension availing 100% subsistence allowance.In this context I request your goodselves to kindly advice whether under such circumstances he is eligible for subsistence allowance in future?
RAMANARAYANAN G
P. Venu
(Expert) 01 January 2015
An undertaking serves no purpose where the terms of engagement are governed by the law or the rules having force of law. Hence the company can reinstate him at its discretion without any undertaking from him.
Guest
(Expert) 01 January 2015
Dear Mr. Ramanarayanan,
First of all subsistence allowance cannot be 100% of the wages the employee was earning. That can be regulated as per the provisions of the Certified Standing Order (CSO), as approved by the certifying authority of the state. So, in that respect you are required to check with the provisions of the CSO.
Secondly, in domestic/departmental inquiry case, no legal undertaking or agreement of the worker is required to be taken. The management can revoke his suspension on merits and at its sole discretion, if there is no scope of tampering with the evidence/documents on the part of the suspended worker when reinstated on duty. So, there is no justification in getting any undertaking from the worker for the purpose of revocation of his suspension.
Third, irrespective of whether the charge leveled against the worker is fabricated or not, he is bound to cooperate with the inquiry process. However, it is incumbent upon the management to prove the charge lawfully and on the basis of correct evidence, as burden of proof lies on the prosecution side (management).
However, subsistence allowance is a must to be paid in time every month to the worker during his suspension period. That issue is not dependent upon the completion of domestic inquiry. He is free to go to the labour commissioner to take up his case of non-payment of his subsistence allowance.
ajay sethi
(Expert) 01 January 2015
agree with dhingraji
Isaac Gabriel
(Expert) 01 January 2015
Undertaking has no relevance here.The management is at liberty to proceed with the disciplinary action as per rules.Till such time the subsistance allowance should be paid.If at all the management feels,he can be reinstated without pre-condition and if he refuses he shall be at fault and the management can stop paying the subsistance allowance poinintg out the disobedience irrespective of the case going on.
Dr J C Vashista
(Expert) 02 January 2015
I fully agree with expert Mr. PS Dhingra.
In case a workman is paid 100% of his earned wages, how it can be termed as "subsistance allowance", which cannot be more than 75% of the wages/salary of the deliquent official during his suspension. There is some ambiguity in payment or nomenclature of payment wwhich can either be "subsistance allowance" or "wages/salary".
The said MOU has no force, relevancy or leglility. It is meaningless and non-est/non-executable, in case of violation of its terms and conditions.
The suspended/deliquent official has to join DE if he wishes to take the opportunity of being heard on the charges levelled against him and get natural justice (which may or may not be in his favour).
RAMANARAYANAN.G
(Querist) 03 January 2015
Sir,
Thank you very much for the advice.I would like to further know that if he is admitted back unconditionally, will the subsequent departmental/domestic inquiries stand against him as he can claim during departmental/domestic inquiry that the company has admitted him back to the job unconditionally revoking suspension as he is innocent and hence the disciplinary proceedings against him is illegal? The company willing to admit him back to job not on thinking that he is innocent and the suspension was wrongly made.
Guest
(Expert) 03 January 2015
Even on his reinstatement from suspension domestic inquiries will stand and can be held during the duty period of the worker, as per the procedure laid down in the CSO. Revokation of suspension order does not grant any certificate to the worker that he is innocent or suspension was wrong. Suspension can prove wrong only when the worker is exonerated of the charge after having not been proved guilty during the regularly held inquiry proceedings.
malipeddi jaggarao
(Expert) 07 January 2015
I agree with expert Shri P.S.Dhingra.
I have not heard any rule that 100% subsistence allowance is paid to a suspended employee.
Whom you are representing in the query? If it is management under what rule 100% subsistence allowance is granted to the suspended employee? When the employee was suspended? What are the reasons for not completing the process of departmental enquiry?
Apart from all above, in the revocation order, the management will have to give reasons for revocation. If it is inordinate delay, the revocation order itself will speak that the suspension is revoked due to ....reasons and though the suspension is revoked, the disciplinary proceedings against the employee would continue and this act of revocation has nothing to do with the charge sheet or disciplinary proceedings.
Isaac Gabriel
(Expert) 08 January 2015
With due respect to Experts Vasishta and Mallipedi,the subsistence allowance to be paid are 50% upto six months,thereafter,75% upto 9 months,and if the suspension exeeds 9 months,100% of the pay is to be paid as subsistence allowance,if the delay is not attributed to the employee.
malipeddi jaggarao
(Expert) 08 January 2015
I agree with you expert Mr.Gabriel ji. That is the reason why I put the queries to know about the period of suspension.
T. Kalaiselvan, Advocate
(Expert) 02 January 2015
