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subsistence allowance & Standing Oredrs

(Querist) 15 November 2008 This query is : Resolved 
Dear Harbhajansingh Ji,Hello
Once again i would like to have your guidence.
still my domestic inquiry is going on for the last eight months,i requisted to my inquiry officer for providing me 75% of my salary(still i heve been getting ony 50% of my salary.)
Inquiry officer asked me 'under which section of ID Act/Labour Act,subsistence allowance can be increased? please provide me all the details about this act',it is surprised, because she(Inquiry officer)is also a lawyer of industrial court,
can you please tell me about the section,
my company is Ahmedabad based Indian Pharmaceutical company and i am a Medical Representative in M.P. State.
One more thing, my company does not have certified/formal standing orders,i asked to my inquiry officer, regarding this matter,but she refused to reply and told me that it is not necessary for domestic inquiry,she told about some new rules which are given by Supreme court,is it true?
Please guide me and send your reply as eary as possible.
thanks.
H. S. Thukral (Expert) 18 November 2008
Dear Mr. Jayanttelang:
( I am keeping your query open since we have many other Ld. Experts who may improve upon my advice)
As I said earlier the right of suspension of an employee is governed by the contract of employment or some statutory rules as Standing Ordrs. In the absence of this right in contract of employment or in the eventuality of there being no standing orders, the right to suspend shall only mean that the employer forbids his employee to work and since the relationship of master and servant subsists, the employee must obey. The employee in not attending his duties in deference of his master's wishes, is entitiled to full wages. However if the contract of employment provides for a right to suspend with the employer, the relationship during the period of suspension of master and servant would snap temporarily and no wages could be payable. If there are standing orders applicable to an organisation, which are framed on the basis of model standing orders, the employee shall be entitiled to subsistence allowance as per those orders.

In your case, there is no provision in the contract of employment and there are no standing orders applicable to your orgnisation, you are entitiled to full wages during this period.

Remedy lies in filing a claim application under section 33 C(2) of the ID Act. I also advise you to constantly remind the inquiry officer of your dwindling finances hampering your inquiry proceedings for lack of legal advice. This would help you while legality of inquiry proceedings shall be decided.

Last time I had given you few citations of SC supporting above law point and it seems that you have not gone through the same. I therefore make couple of those available to you for immediate reference. This shall make things clearer to you.


PETITIONER:
V. P. GINDRONIYA

Vs.

RESPONDENT:
STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT:
29/01/1970

BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
GROVER, A.N.
RAY, A.N.
DUA, I.D.

CITATION:
1970 AIR 1494 1970 SCR (3) 418
1970 SCC (1) 362
CITATOR INFO :
F 1974 SC1281 (7)
RF 1976 SC1775 (13)
F 1977 SC1146 (11)


ACT:
Public Servant-Master and Servant-Master's right to suspend
servant pending enquiry-No such right expressly provided in
contract or statutorily-Effect of order of suspension.



HEADNOTE:
On May 7, 1964, the respondent-State ordered a departmental
enquiry against the appellant who was a temporary public
servant in its service and placed him under suspension
pending the enquiry. On June 6, 1964 the appellant gave a
notice to the respondent resigning from service. On August
1, 1964 the appellant was asked to file a reply to the
charges .against him. The appellant filed a writ petition
in the High Court to quash the proceedings on the ground
that, as he was no longer in the respondent's service, the
respondent could not take any departmental action against
him. The petition was dismissed.
In appeal to this Court,
HELD : (1) The general principle is that if the master has a
power to suspend his servant pending an enquiry into his
misconduct, either in the contract of service or in the
statute or the rules framed thereunder governing the
service, an order of suspension passed by the master has the
effect of temporarily suspending the relationship of master
and servant with the consequence that the servant is not
bound to render service and the master is not bound to pay
any wages during the period of suspension. Such a power to
suspend the contract of service cannot be implied and
therefore, if in the absence of such a power in the
contract, statute or rules, an order of suspension is passed
by the master it only forbids the -servant to work without
affecting the relationship of master and servant, and the
master will have to pay the servant's wag


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