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vasudevan v (retired)     26 November 2011

Illegal suspension - remedy?

I NEED ADVISE ON THE FOLLOWING:

A COMPULSORILY REITRED WORKER FROM A PUBLIC SECTOR UNDERTAKING WAS SUSPENDED FOR 2 YEARS PRIOR TO HIS COMPULSORY RETIREMENT. THE WORKER IS GOVERNED BY ID ACT.

HIS SUSPENSION ORDER IS ILLEGAL AND WANTS TO CLAIM FULL WAGES FOR SUSPENSION PERIOD. PRESUMING THAT THE SUSPENSION ORDER IS ILLEGAL, IN WHICH FORUM THE REMEDY LIES?

WHETHER

01         A DISPUTE UNDER ID ACT

02         33C(2) OF ID ACT

03         A WRIT PETITION?

PLEASE TAKE THAT THE ORDER OF SUSPENSION IS ILLEGAL AND NULL AND VOID. SHOULD HE TO GET DECLARATION THAT THE ORDER OF SUSPENSION IS ILLEGAL FIRST?

 

 

 



Learning

 7 Replies

Sudhir Kumar, Advocate (Advocate)     27 November 2011

For the sake of getting sound advise you need to elaborate full facts lest the advise can be wrong. Why the suspension should be treated as illegal when it has resulted inmajor penalty?

You can proceeded wither wasy either  arti petitionor recourse to ID act.  You have not indicated what was the charge? whether there is any irregularity in the proceeding? whether penlaty was by the apporpiate authority?

1 Like

vasudevan v (retired)     27 November 2011

Dear Sir,

The short question that arise is whether the suspension order asking the employee not to leave Head Quarters during Suspension period with out permission from the employer is illegal or not?  For this, I have a supportive judgments from various High Courts that the employer cannot retain control over the employee whose contract was suspended pending enquiry and any instruction over him will entitle him full wages.

On this point, I need to raise either a dispute / 33C2 or a writ.

I am confident a dispute is always possible and I have doubt over other 2 remedies.  If you can throw light, I will be thankful.

 

darshana sawant (associate consultant)     28 November 2011

What does the suspension order state the reason to be ?  Under which rules have the management suspended you for 2 years ?  You can anyways raise a dispute under ID Act and challenge the suspension, in case you fall in workman or supervisory category.  In case you fall out of workman category, then ID act will not apply.  In that case you have to approach the civil court for recovery of dues.

Sudhir Kumar, Advocate (Advocate)     28 November 2011

You seem tobe interested not to disclose any fact and based on the material you have so far disclosed, the following facts are apparent.

  • A suspensin order "asking the employee not to leave Head Quarters during Suspension period with out permission from the employer"  is perfectly legal if the employer is Govt or PSU.

 

  • In this case the suspension has resulted in major penalty, it is prima-facie perfectly legal and justified.

course of action both ID Act (if falling under definition of workman) and writ petition both aare available to you but before moving to high court you will be contronred with the question :-

  • Has any appeal been made to Appellate Authority as per CDA Rules adopted by the PSU?

such appeal is generally within 46 days of penalty.  There may be some provision of Revision or Review Petition your CDA rules will have to be perused by anyone from whom you intend to get proper advise.

vasudevan v (retired)     29 November 2011

Dear All,

Thanks for the feedback.  The employee is a workman not a supervisor. He was employed in a public sector bank where well defined rules of disciplinary procedure is there. Suspension, subsistence allowance, disciplinary action are well defined. But the rule is silent on leaving Head Quarters without the permission of Bank. In this connection, please refer to following judgments on LAW point 

W.B.Khadi and Village Industries Board V. Dibyender Bhattacharya (1980) 3 SLR Calcutta 136 wherein it has been held that suspension order restraining employee from leaving station/Head Quarters during suspension period without permission is illegal. 

See also B.B.C.I railway V. B.C.Patel 1951  II LLJ 584 (BOMBAY HC)

I am aware of rules in many PSU/Govt departments, the format prescribed for suspnsion contains wordings similar to this and rules/circular cannot overrule LAW.  The point was legally discussed, decided and in case PSU/GOVT  PRESCRIBES, the rule itself can be challenged. 

Coming to the advise sought, challenging suspension order alone as invalid - dispute is definite remedy.

Whether 33C2, lies?  If any existing right is infringed under a settlement 33c2 operates.  But my question is when a Legal position is violated in labour matters where monetary claim arises, whether 33C2 comes into picture or not?

Writ may not be a remedy as many High Courts direct the workmen to seek remedy under special Law namely ID act.

For this purpose, gravity of misconduct is immaterial. Gravity of misconduct does not and cannot decide the legality of suspension order excepting very minor issue. Both operate under different arena.

 

1 Like

VS Dixit (Advocate)     30 November 2011

In my opinion, whether suspension is legal or illegal, the competent authority has to decide.  The Appellate Authority under Service Rules or concerend Labour Court under Section 10 through reference by Govt, or High Court under Art 226 of CofI will be the competent authorities, unless it is decided by any of the authorities same cannot be termed as 'Illegal Suspension.  An application u/s 33-C(2) would lie only after the rights of the parties are crystallised. Unless the rights of the parties are crystallised in the form of an award or order, no application u/s 33C(2).

Under Section 33(c)(2) of the ID Act, the labour court has no jurisdiction to decide whether suspension is legal or not and then grant relief. Therefore, the claim will not be maintanable. Under Section 33(c) (2) Subsistance Allowances can be treated as existing right.

1 Like

bijan kumar mitra   25 August 2018

DEar Sir

I could not find the clause in the ID ACT Book 1947 where it is mentioned "Under Section 33(c)(2) of the ID Act, the labour court has no jurisdiction to decide whether suspension is legal or not and then grant relief

Please help ne urgently 

I need this clause to show at the High court of Kolkata as my suspension is illegal as there was no rule ib the company when I was suspended in the year 2005

 

BKM

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