LIVE Online Course on Indian Constitution by Dr. Ravishankar Mor. Register Now!!
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

prabha (patent agent)     28 December 2012

Suspension order

Dear sir,

 

I was suspended on 3 oct 2012 on charge of fighting with a colleague outside ofc.chargesheet issued. my posting was in chennai and home in noida. did not get subsistence allowance for 3 months.. was asked to come for inquiry at chennai but i requested that i cant come due to no money.. they might conduct an exparte enquiry..what shud in do??



Learning

 11 Replies

Adv k . mahesh (advocate)     28 December 2012

first you should give an explanation letter to your chargesheet and then you have to give a letter for not paying susbsistence allowance as per the rules

but one thing you have to understand what ever the correspond is going on you should do on paper with acknolgement it may be regd post also and tommorrow there if exparte enquiry then you have to defend with those letters only 

what happened to the other collegue who was also included with you ....they shuold have suspeneded him also .... 

if possible attend the enquiry if they pay you subsistence allowance and do not avoid the enquiry 

 

1 Like

Kumar Doab (FIN)     28 December 2012

Mr. Mahesh has given valuable advice. Kindly follow it.

You may evaluate the option of demanding the payment of subsistence allowance, and to and fro tickets {e.g. air ticket if you are entitled or Rajdhani Exp AC II Tier, DD for money to be spent on say Taxi fare from Home to railway station at Noida, coolly charges up to train, collie charges from station to Taxi, Taxi from station to office and back, food charges during in transit, stay arrangement at Chennai, transit allowance, misc. expenses } and to supply the DD by Redg/speed post only so as to reach you sufficiently in advance say…. 7/15 days . Ask them to allow in writing by letter on letter head under original seal and signature by hand of the competent employee with his/her name, designation, dept, address written below his/her name} keeping say a union leader/advocate with you.

Submit the bill of even communications with the company e.g. emails, phone calls, fax, redg/sped post etc and demand immediate payment and seek advance for future set of communications.

Obtain POD of each redg/speed post from PO. Interne t generated POD under seal and signature of Post Master is free, and certified copy of run sheet of Post Man is for Rs.10/-. The PO keeps record of speed post for probably 6 months and redg post for  probably 18 months.

If the fight was outside office why the company is hyperactive?

Valuable advice of learned experts/members is sought.

1 Like

prabha (patent agent)     28 December 2012

sir,

many thanks.. they did not pay me any allowance.. i was notified on 18th of dec about enquiry on 28th i,e today. i tried booking rail ticket but in vain ..no money for air fare..i had conveyed the same to them on 22nd only that due to financial stringeny i will not be able to cm to chennai. however they also have a office in noida near my house. i requested for an enquiry there but no response on any query.

regarding the second guy: he was a contract employee.. contract withdrawn

sir, i had appealed to the appelate authority, the director... but no reply from anyone..dont know what to do

Kumar Doab (FIN)     28 December 2012

 

Meet a local competent and experienced labor consultant/service lawyer at location Noida/Delhi, with copies of all documents and give inputs in person. Let your lawyer structure and draft your reply for not being able to attend the meeting today and asking for future date…….You can access good lawyers at your location.

Your lawyer shall appraise you on lapses on the part of the company, on your part and future course of action. Suspension is subject to judicial review.

 

Has the authority mentioned charges in suspension order? The authority may not quote chapter and the verse, but is obliged to cover the grounds or short reasons for suspending its employee.

 

Is your establishment covered under Industrial Employment Standing Orders Act and framed its certified standing orders?

Has the company circulated and provided service rules including those on misconduct etc.

IESO Act/Model Standing Orders are enclosed.

Is there any mention of Arbitration/Arbitral decision in your appointment letter/service conditions?

Your lawyer may evaluate and opine that you fall within the category of a workman, or may confirm that you do not.

If you fall within the category of officer/manager {as per assessment of your lawyer} then you may check if your company framed and supplied you the disciplinary rules?

Your company might have stated in appointment letter that you shall abide by rules and regulations of the company which may change from time to time. This statement refers to

Standing orders or service regulation. Has the company supplied you the copy of such rules till date? Has  it has issued charge sheet?

Has the company issued any communication to you that you shall not leave your head quarter during the period of suspension or during the period of suspension your head quarter shall be……

 

The inquiry could not be completed within 90 days due to you or due to company?

 

In your company the payment of subsistence allowance should be regulated by certified standing orders, or conditions written in your appointment letter.

Has the company asked you to mark attendance on daily basis or not to attend office till further orders?

Have you shifted to your home town with approval of the company? The company may claim that absence of the employee on dated…..is non cooperation, and may extend the period of extension or take a decision……..

 

If you have been ordered /allowed to shift from Chennai to your home town in writing then you reply to company that you are not able to get any reservation in train, and hence can not reach. If you have saved the screenshot of waiting list of all trains you may attach it, including Tatkal Seva.

Request to give another date and supply you funds to make arrangements. Notify that you are facing financial constraints and company has not paid the monies to you.

Request to keep the venue at office ………..However the company may agree or may not agree.

 

Read

Workplace disciplinary rules

Read from Page 1 to Page 10.

At following link:

https://books.google.co.in/books?id=o52fK81E9kQC&lpg=PA9&ots=v7rtb7Xc66&dq=rules%20for%20suspending%20an%20employee%20in%20india&pg=PA9#v=onepage&q&f=true

 

Normally the Disciplinary Rules provide for appeal against suspension to the Appellate Authority within certain stipulated period from the date of suspension. This remedy should be invoked first. You have posted that you have appealed to the appellate authority. Has the company replied and provided its rules on payment of subsistence allowance to you and the reason of its non payment?

 

 

The Tamil Nadu Payment Of Subsistence Allowance Rules, 1981 are attached.

 

Supreme Court of India

Union Of India vs R.K.Chopra on 1 February, 2010

 

“14. The claim for payment of subsistence allowance of a Government servant is dealt with in Chapter VIII of Fundamental Rules. FR 53 which relevant for our purpose reads follows:- "F.R.53.(1) A Government servant under suspension or deemed to have been placed

under suspension by an order of the appointing authority shall be entitled to the following payments, namely:-

(i) xxxx xxxx xxxx xxxx (ii) in the case of any other Government servant--  1

(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave on half average pay or on half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary;

Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of

suspension shall be competent to vary the

amount of subsistence allowance for any period subsequent to the period of the first three months as follows:-

(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance

admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant;”

(ii) the amount of subsistence allowance, may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;

(iii) the rate of dearness allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above. (b) Any other compensatory allowances admissible from time to time on the basis of pay of which the  1Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowanc

You may find the “Madras High Court

K.Thiruppathy vs The Superintending Engineer on 29 November, 2011” as informative.

You can access Dept. of Labor of Tamilnadu at the following link;

 

www.labour.tn.gov.in/Labour/stateact1.jsp

 


Attached File : 600080499 tamilnadu rules on payment of subsitence allownace tnpsa81.pdf, 600080499 suspension and subsitence allowance union of india vs r.k.chopra on 1 february, 2010.pdf downloaded: 185 times

Sudhir Kumar, Advocate (Advocate)     28 December 2012

First of all you have not intimated whether you are emplopyed by Govt organisation or not. This hampers me from coming to final decision.

 

Based on the given facts I would say that non payment of subsistance allowance is denial of oppurtuinity of defence

 

You have also not stated if you have given certificate of non-employment.  If you are in Gov tbody and not given such certificate then the onus of delay in susbsitanc eallowacen is fully on you.

 

I would further add that you are entitlted to TA/DA in your entitlted class fro attending inquiry and it is part of duty.

 

You hve not stated full facts leading to suspension so thre is no statement from you that other employee was also guilty. When one person asaults othr it is not necesary to suspend the victim as well  "therefore what happened to the other collegue who was also included with you ....they shuold have suspeneded him also "

 

Though having high regard for Mr DoabI will say that it is not at all ncessary to intimate grounds of suspension (atleast in Govt employment)

 

You have not stated if you have appealed against suspension.

Kumar Doab (FIN)     28 December 2012

@ Prabha,

Mr. Sudhir Kumar has provided enough information to enable Prabha to proceed further. Mr. Sudhir Kumar has helped many of the querists with his expertise on such matters and has enriched the forum. It has indeed been a pleasure to read the valuable advice rendered by Mr. Sudhir Kumar.

Kindly follow the advice, post the details and defend yourself in the best possible manner.

Prabha has posted that “sir, i had appealed to the appelate authority, the director... but no reply from anyone..”

With limited understanding on such matters and without any intention to argue it is reiterated that” The authority may not quote chapter and the verse, but is obliged to cover the grounds or short reasons for suspending its employee.” Although who can stop the authority to write one liner” You are hereby suspended with immediate effect”.

Today you were to present yourself for the inquiry.

Kindly approach your counsel as ap and submit a carefully structured communication before you get an email, from the company.

Sudhir Kumar, Advocate (Advocate)     29 December 2012

Let him tell wheher employment is Govt or not.

prabha (patent agent)     29 December 2012

Dear sir,

 

yes it a govt of india undertaking oraganization

Sudhir Kumar, Advocate (Advocate)     29 December 2012

In case you have appealed against suspensin and there is no reply then you canfile case n CAT/High Court/Distict Judge as the case may be. 

 

Most of the undrtakings are either adopting CCS(CC&A) Rules or have copied them in the CDA Rules by virtue of which the suspension ceases to opperate if not reviewed within 90 days. Check your CDA Ruls.

 

You have still nto intimated if you have rendered necessary non-employment certificate (,mandatory for claiming subsistance allowance) for each month.  If not rendered then delay in payment is your fault.

1 Like

prabha (patent agent)     30 December 2012

sir i had furnshed my non employment declaration

Sudhir Kumar, Advocate (Advocate)     31 December 2012

you have been advised based on the available facts.

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query