Non-payment of subsistence allowance
sasankajyoti sharma
(Querist) 02 February 2012
This query is : Resolved
A CCL (Contractor's Casual Labour) employee of a Public Sector Undertaking was suspended from his service as his was an accused in a criminal case relating to the theft of some materials of the Undertaking. But after his trial the said employee has been given acquittal by the Trial Court.
During the period of trial the said Undertaking suspended him from his service and he has been reinstated in his previous service after his acquittal by the Trial Court.
From the date of his suspension to the date of his reinstatement his subsistence allowance was stopped by the said Undertaking and it is still unpaid to him.
The said Undertaking regularly deducts P. F. from his salary.
Now the question is, "Can he claim the said subsistence allowance unpaid to him or will he approach the Law?"
Raj Kumar Makkad
(Expert) 02 February 2012
As no formal order was passed awarding any punishment to the delinquent employee by employer so he is very well entitled to claim his subsistence allowance for the period of his suspension.
adv. rajeev ( rajoo )
(Expert) 03 February 2012
He can claim the allowance, Let him give a letter to pay the susistence allowance.
Nadeem Qureshi
(Expert) 03 February 2012
Dear Shashank
He is 100% entitled to claim subsistence allowance
Sudhir Kumar, Advocate
(Expert) 03 February 2012
I seek humble permission to disagree.
The query is not so simple as it appears to be. As described the employee was Contractor's Casual Labour employee of a Public Sector Undertaking
So he was :-
(i) Contractor Labour (not employed by the PSU and not Governed by the CDA Rules of the PSU from where the right of suspension and fair trail emerges).
(ii) Casual labour (not even regularly employed by contractor)
There can be no provision for suspending such employee.
So the person never had any claim to any post of PSU or even in the rolls of contractor. This person as appears the following things have happened to him :-
(i) He was casual labour (not of company) but employed through contractors. Basically outsources.
(ii) He was involved in a theft case.
(iii) He had been disengaged (what he believes as suspension)
(iv) He has been acquitted by the court. (It is not clear if acquittal is on merit of benefit of doubt).
(v) The PSU could not have been bound to take him back
(vi) The PSU and contractor have done mercy of re-engaging him (what he believes to be reinstatement).
Apparently he was never suspended and removed from the rolls and can have no claim on any benefit for the period.
It is stated the company regularly deducts PF from salary. This fact is not relevant to the point of issue. The PF can be deduced that only when salary is paid. This is an obligation under EPF&MP Act and is no proof of being regular employee. The act does not distinguish between regular/casual/contract/daily wager/ peaces rated paid employee. Apparently no PF could have been deducted during the period of disengagement (what he believes suspension)
The suspension could have been only if he had been in regular service of the company and then not only subsistence allowance rather backwages would have been admissible had the company not decided to continue suspension on acquittal and initiate departmental proceedings.
Murali Krishna
(Expert) 03 February 2012
Yes. Sri Sudhir Kumar explained the point succinctly.
Even if the person is in government employment, he is not entitled for any backwages during the period he was convicted and out of service. So, where is subsistence allowance.
Hon'ble Supreme Court in Union of India (UOI) and Ors. Vs. Jaipal Singh [(2004) 1 SCC 121] held that "...if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. ..., the employers are well within their rights to deny back wages to the respondent for the period he was not in service."
sasankajyoti sharma
(Querist) 04 February 2012
Dear Sudhir Kumar,
I appreciate your analysis. I like to add for your convenience that the person was acquitted on the benefit of doubt. He was not convicted. He was only an accused during his trial.
The authorities of the said Undertaking lodged an F. I. R. against the person on the basis of doubt and there was no concrete evidence. The said Undertaking had posted him as a chowkidar at its installations where the theft had occurred.
Thanx.
Raj Kumar Makkad
(Expert) 04 February 2012
The basic question here is that the person was not employee of the concern rather was of a contractor so otherwise also the liability of the PSU do not arise. The fact was overlooked earlier which Sudhir has pointed out perfectly.
