Suspension of an Employee
Suspension of an Employee
Suspension of an employee means keeping an employee away from work-place temporarily for reasons of discipline. However, the suspension does not mean removal from service of employment. The suspension of an employee will be based on the grounds of misconduct, violation of rules of the company, causing damage to the property of the company etc. During the suspension period, the employee cannot perform duty till the claim is resolved. There are lot of differences between “suspension” and “dismissal” where the suspension is temporary and dismissal is permanent decision either by rule of the employer or by law. We will have a look at the suspension of an employee in detail.
Conditions on Suspending an employee
The suspension of an employee can be performed under the following conditions:
Suspension Pending Domestic Enquiry
If an employee has committed misconduct inside the work premises, then such employee will be suspended immediately under pending investigations. This is called Suspension Pending Enquiry. The suspension order will be issued along with charge-sheet, the charge-sheet must follow within 7 days of issue of the suspension order.
Suspension Pending Court’s Order
If the employee has accused in a court of law for any criminal offence, the concerned authority is liable to suspend an employee under suspension pending court’s order.
Suspension as Punishment
Even though an employee is not suspended under pending enquiry, if it is decided to suspend an employee for the misconduct committed by the employee, the concerned authority may do so after the conclusion of the enquiry. In such cases, the suspended employee will not be allowed to receive any payment during the suspension.
Right to Suspend an Employee
The right to suspend an employee during the pendency of an enquiry against the employee are regulated under the provisions regulating the conditions of service. During the suspension, an employee is only prevented from discharging the duties of his office for the time being.
Note: If the rules are framed by the employer in-specific for not to pay during the suspension, the employer cannot claim the same.
During the suspension, the service of an employee is not permanently deprived. The employee still continues to be a member of the service in spite of the order of suspension. Further, during the period of his suspension, the employee is paid with allowance known as “suspension allowance” or subsistence allowance. The suspension allowance which will be normally less than the salary of an employee.
However, there is a provision of Section 10A of the Industrial Employment (Standing Orders) Act, for payment of subsistence allowance during the term of suspension against the pending enquiry. Therefore, under Section 10A, the employer is liable to pay subsistence allowance during the term of suspension against pending enquiry. If the misconduct is proved after the enquiry, the employee is terminated and not entitled to any wages for the suspension period. But, if the enquiry results in reinstatement, then the employee would be entitled to receive full wages (Pay + allowances) for the suspension period.
Note: This is applicable even when the employer decides to give lesser punishment to the employee which means the reinstatement or punishment will be beneficial to the employee.
Payment of Suspension Allowance
The employer suspends an employee against pending investigation or enquiry into complaints or charges of misconduct against the employee in such case the employer should pay suspension allowance to such employee under the following conditions:
- For the first ninety days of suspension, the employee will be provided with the wages at the rate of 50% of such wages.
- For the remaining period of suspension or in case of any delay in the completion of any proceedings against such employee, the wages at the rate of 75% of the total wages will be provided.
In case of any discrepancy regarding the suspension allowance payable to an employee, the employer or the employee would refer the dispute to the Labour Court. The Labour Court after hearing may decide the dispute and such decision will be final and binding on the parties.
If any provisions not discussed here and if better allowance or law is followed in any part of the country, the same can be adopted by the employer and employees.
Suspension Allowances Includes all Compensatory Allowance
As per Rule 5 of the Model Standing Orders states that suspension allowance should be equal to one-half of the basic salary, dearness allowance and other compensatory allowances. On the other hand, the service charges to a suspended employee of a hotel will be included in the compensatory allowance for calculating subsistence allowance, which has to be paid to an employee.
Recovery of money due from an Employer
In case of any amount is due to an employee from an employer, the employee can make an application to the Government for recovery of the due amount. The Government if satisfied after verification of the application, will issue a certificate for that due amount to the collector who proceeds to recover the same.
Note: Every application should be made within a year from the date on which the amount became payable to the employee from the employer. If the application is made after the expiry of the above period, the Government may approve the application after knowing the reason and satisfied for not making the application within the prescribed period.
The department enquiry can be initiated when the law of suspension or subsistence allowance are not followed.