Hi all,

Kindly go throughthe case:

1. Employee was arrested by police.
2. Police infomed the employer regrding his arrest.
3. the employer issued suspension order and sent tit through Regd. Post.
4. The Suspension order returned undelivered .
5. Several letters were isssued to him for absconding from duities wihtout intimation, But the letters returned un delivered.
6. Press noitce was given in newspapers.
7. The emloyee returned after 08 months and informed that during his absence he was resisiding in different plces at different points of time and so the letters were undelivered to him.
8. He was informed by his Controlling officer that he is under suspension and a deprtmetal enquiry was initited against him.
9. The employeeis now claiming subsistence allowace for the period of suspension.

Please Clarify:-

1. Whether suspesion will be effective from the date of issuance of order or from the date when he came to knoe baout it?
2. Is non-receipt of the letter is the responsibilty of the employer or the emloyee is responsible for that?
3. If at all subsistence allowance is granted what will be the quantum of susbsestence allownace?

Kindly reply.

Regards,

Anuj

The clarification required by you is given below :

1. Whether suspesion will be effective from the date of issuance of order or from the date when he came to knoe baout it?

a) The suspension pending enquiry will be form the date of communication to the employee when he recives it. Normally, if the employee refuses to accept, he will not be permitted to work and the suspension pending enquiry will be sent by registered post ack due and the suspension will eentually be effective from the time he received or refused to take the suspension order. In practice, suspension orde pending enquiry will be issued immediately ater the commiting of the misconduct.

b) In the instant case you received communication from police authorities that the employee has been arrested. Therefore, the suspension order takes effect from the date of the order even if the suspension order returned undelivered if the service rules(certified standing orders) specifies so. Since you have also advertised in news papers, the effective date of suspension order is from its date in the instant case.

c) In fact there was no need to suspend him pending enquiry and pay subsistence allowance while he was under police or judicial custody. You could have waited till he resume work and at that time you could have suspended him pending enquiry.

2. Is non-receipt of the letter is the responsibilty of the employer or the emloyee is responsible for that?

a) Any communication not received by the employee amounts to that it has not been served on the employee.

b) Employee must intimate the employer about his change of address. Normaly service rules (standing orders provides for such stipulations).

c) Even if the employee has not given his change of address, notification in news papers are required to ensure that proper communication is given.

3. If at all subsistence allowance is granted what will be the quantum of susbsestence allownace?

a) For the first NINETY DAYS at the rate of 50% of wages (inclusive of all allowances execept bonus and contribution to provident fund and pension fund and also gratuity payable on termination)

b) Thereafter 75% of wages if the delay in the disciplinary proceedings are not because of the employee.

In this regard, I would like to metion that full wages are payable if the punishment is not dismissal from service. In case of dismissal, the subsistence allowance already paid cannot be recovered.

Further, I would like to give a note of caution on suspension pending enquiry below, citing a case law of Divison Bench of Delhi High Court:

•POWER OF SUSPENSION HAS TO BE EXERCISED WITH CIRCUMSPECTION
CARE, AND AFTER APPLICATION OF MIND
•MUST MAKE A FAIR AND PROPER ASSESSMENT OF THE MATTER IN
GIVEN CIRCUMSTANCES CAREFULLY SCRUTINISE THAT prima facie THERE EXISTS GRAVE AND COMPELLING CIRCUMSTANCES, WHICH IN THE LIGHT OF THE MATERIAL AVAILABLE AND COLLECTED DURING THE PRIMARY
INVESTIGATION WOULD LEAD TO THE LIKELYHOOD OF DISMISSAL.
Delhi Electric supply undertaking v. G.P.Satsangi [1984] Lab.I.C.54 (65) (Del ) (DB)

I hope I could give you the requisite information.

Now I have a query for academic discussion.

What are the charges levelled against the employee - whether the offence for which police have arrested him or his absenteeism. If the employee is under arrest and the employer knows about it officially, his absence will not become a misconduct of unauthorised absence.

Regards,

davender