| Address: | kolkata west bengal |
DEar Sir
I was working in a MNC in Kolkata, West Bengal nearly 27 years. I was the General Secretary of the only recognized Union.
I was placed under suspension as per Bengal Industrial Employment (Standing Order)Rules 1946.In reply I stated that my service is not governed by that statute. My request to withdraw my unlawful suspension have paid no attention to the management. Requested again for a copy of Service Rule of the company under which they were empowered to suspend me. In reply they stated "As the Model Standing Orders have a statutory force it is not necessary to fall back on any service rule". I was getting subsistence allowance as per west bengal payments of subsistence allownce act 1969.
Now I approached before the Shops and Establishment authority to get back my full salary as per an Apex Court Order V.P.Gindroniya V State of MP(1970)3 SCR 448:AIR 1970SC 1494:(1970) 2 [protected]@1970 2 LLJ 143
iT IS CLEARLY MENTIONED IN THE ORDER "It is well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such item in the contract of employment or in the rules but in such case the employee is entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld".
When the management is under pressure from the authority on the ground that which statute empowered them to suspend and withheld my full salary they fabricated an administrative order dt 16.06.04(which has no reference in my suspension letter) just to give a belated legal shape to the so called charge sheet. Several correspondences have been exchanged but they never disclosed the existence of this Administrative order. They remained silent all along.
Ultimately management dismissed me from service in the year 2006.
I also went to labour court. But due to my absence they passed an award which gave no result in my favor.
Now the shops and establishment referee expressed their inability to pass an order in my favor due to some limitation and they advised to agitate in other forum. But they gave their findings that the Administrative Order should not be considered in case of applicant's claim.
Now I approached before the Hon'ble Kolkata high court.
Here also I got no fruitful result in my favor.
Now my question is :
1. Am I allowed to get subsistence allowance although I suspended illegally
2. Is there any provision in the subsistence allowance act to pay the allowance by instalment?
3.There is an Apex court order where the suspension order becomes invalid if it is not reviewed
within 90 days.Is it applicable to my case?
4.What is my next course of action?
5. If it is Division bench then I need your support because this is my last chance to survive.
6. Is there no law by which I can get back rights.
Sir please help me. I am suffering this mental anxieties since 2004. I have lost all of my savings during these 18 years.
I am now nearly 70 years old and need a peace of mind.
Thanking you Sir
Bijan Kumar Mitra
The Labour Relations Act (LRA) contains the following definition for unfair labour practice:
‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving:
1. Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
2. Unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
3. A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
4. an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
This article briefly discusses when suspension can be regarded as an unfair labour practice. The legislature has identified unfair conduct relating to suspension that can result in an unfair labour practice, therefore it must be assumed that in other instances suspension can be fair.
There are few prerequisites for suspension as unfair labour practice:
1. The unfair act/omission must have been committed/omitted by the employer. An omission can be described as failure on the part of the employer to perform an act that he had agreed to, had a duty to comply with or was legally obligated to perform.
2. An unfair labour practice can only happen where an employer-employee relationship exist.
What is suspension?
Suspension as the term used in situations where the employer decline to accept the employee’s services but does not terminate the contract of employment.
The courts have distinguished between 2 forms of suspension:
1. Disciplinary action short of dismissal (punitive suspension); or
2. implemented as a holding operation pending an inquiry into alleged misconduct (precautionary suspension).
The 2 forms or suspension will now be discussed in more detail.
Preventative/precautionary suspension
Suspension should not be implemented as a measure of first resort, as held in Lebu v Maquassi Hills Municipality:
“Suspension is a measure that has serious consequences for an employee, and is not a measure that should be resorted to lightly.”
In another case it was indicated that suspensions must, as a minimum requirement satisfy the following 3 criteria. The first two relate to substantive fairness and the third relates to procedural fairness:
1. The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct.
2. There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct, or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.
3. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made.
The duration of the suspension will be limited to the period stipulated in the disciplinary code, collective agreement, statutory regulations or contract of employment regulating the conditions of employment of the suspended employee. If the suspension persists after the prescribed period has been exhausted, the suspension can be deemed to be unfair, even if the investigation is still underway.
The employee must be granted the opportunity to furnish reasons why he should not be suspended. Failure to comply with this obligation can deem the suspension procedurally unfair. The employee’s right to be heard does not necessitate formal hearing proceedings. A written document with the reasons as well as dialogue between the parties is acceptable.
The employee will be entitled to full payment while suspended. The fact that the employee requested a postponement of the disciplinary proceedings does not justify the suspension to be unpaid.
Punitive/disciplinary suspension
For a suspension to fall within the scope of a punitive suspension it must be disciplinary in nature and intent. This form of suspension differs from a preventative suspension in that a punitive suspension is only implemented after guilt has been established and is imposed as a sanction and usually without pay.
Suspension as a sanction can only be implemented in circumstances where the contract of employment, disciplinary code, collective agreement or legislation allows for same. This is usually a sanction implemented in an attempt to rehabilitate or take corrective action for a transgression committed by the employee.
Remedies for unfair suspension
An employee can challenge their suspension by referring to an unfair labour practice dispute or by urgent application in the Labour Court. Employees have been successful at the Labour Court and had their suspensions lifted for the following reasons:
1. Employer violated the audi alteram partem
2. Employer did not comply with rules and procedures governing suspensions.
3. Suspension for an excessive period.
4. Invalid reason for suspension.
In conclusion, it is clear from the above that the employer should not suspend an employee without complying with the procedural and substantive requirements.
When making a decision to suspend an employee as a precautionary measure the employer must ensure that the employee could possibly have committed serious misconduct or that another justifiable reason exists. This alone will still not be a valid reason to suspend, only if there is a possibility that the employee might hamper the investigation will the substantive requirements be met. The employee should then be provided sufficient information to enable him to give reasons why he should not be suspended thus complying with the procedural requirements.
When enforcing a punitive suspension the rules, regulations and procedure governing the employer-employee relationship must be adhered to, together with the Codes of Good Practice. This type of sanction should only be imposed after the employee was found guilty of serious misconduct, but not serious enough to terminate the employment.
Failing to comply with the substantive and/or procedural requirements may render the suspension unfair and/or unlawful in certain instances and the employee can take recourse by lodging an unfair labour practice dispute or by means o[censored]rgent application at the Labour Court.
ABOUT THE AUTHOR
Gerrit Fyver has been with SEESA as BEE legal advisor since January 2011 and was transferred to SEESA Labour Legal Advisor in February 2015. He obtained his LLB degree from the University of the Free State in 2008, after which he completed his articles in the Nelson Mandela Bay area. Gerrit is currently completing his LLM degree at the Nelson Mandela Metropolitan University.
On the present of the communications made by the me since the time I was informed that a person with particulars “Mr N.Kumar – Kolkata” and even without his proper address and qualification was appointed as the Enquiry officer who is not at all competent for the said post and I was denied the information about his identity.
There is nothing on record to show that I was informed that the said appointee Enquiry officer accepted the offer/appointment.
The appointment letter appointing Mr. N. Kumar as Enquiry Officer is illegal and liable to be withdrawn or cancelled for the sanctity of the job assigned to the appointee . No person can be appointed without his/her proper address and identity that he is duly qualified for the post offered to him.
Surprisingly while the opposite party sought amd obtained prohibitory order barring his entry into the Head Office of the Company at 59E Chowringhee Road Kolkata 700020, it is ironical that the Enquiry Officer went at cross-purpose with the opposite party and fixed the premises of the said Head office of the company as the venue for domestic enquiry against the petitioner.
It is an act of impropriety of Enquiry officer to allow admission of the so call administrative order dt 16.06.2004 in a surreptous manner to facilitate the management to give a post –facto legal shape to an otherwise fake charge sheet.
Both the management and Enquiry Officer is ignorant about the implications of purported administrative orders with the labor laws involved in such orders. The management and Enquiry Officer should know that any order in violation of statute, as in the case of so called Administrative order dt 16.06.2004 is ab initio void. The appointee Enquiry officer is found to ne ignorant even of the basic principles of law, admitted a piece of paper as a documentary evidence surreptiously passed from the hands of prosecution to him and then what should have been rejected was accepted without marshalling its acceptability.
It will be evident from the records that neither the company nor the appointed Enquiry Officer had any respect for law nad procedures established by law.
The Enquiry Officer overlooked the fact that the said Administrative order MC:EM-Admin dt 16.06.2004 had no reference in the charge sheet.and hence can’t be the basis of the charge sheet.
The so called “Findings” of the Enquiry Officer without marshalling the evidences, analyzing and/or assessing their worth as proofs are nothing but story telling with the sole object of canvassing the cause if his master.
The records of the proceedings of Enquiry officer is the testimony that the said EO made personal imputations on the defendant confirming thereby that he would all along remain loyal and bias to his appointee.
Both the management and the appointee Enquiry officer did not pay heed to the repeated plea of rhe applicant that his conditions of service ate governed by contract of service and from time to time bipartite agreements and the Bengal Industrial Employment (Standing orders) Rules 1946 or any part of it was not applicable to the service of the applicant.
A few glaring infirmities of the Report of Enquiry dt 21.04.2006 highlighted herein below may be considered enough to come to conclusion that the basis of the said perfunctory report the decision of the management of dismissing the petitioner in relation to the charges against the later will not prevail, for
i) Want of Good faith;
ii) Motive of victimization or unfair labor practice;
iii) The management was guilty of basic error of law overlooked or ignored even by the Enquiry officer.
iv) Violation of principles of Natural Justice and fair play;
v) On the materials on record the finding was completely baseless or perverse and;
vi) Last but not the least that the enquiry suffered from either non application of mind or was a result of a closed mind.
The examples of infirmities are :
a) The report is bound to create the impression that the Enquiry officer was obliged to carry forward the case of the management even at the cost of his neutrality;
b) Without bothering to act as an independent authority to summarize the case of the contending parties he started his Report of Enquiry to state the case of the opposite Party by giving the caption “Short Recital of the case” as if the accised is a non entity to him. This kind of biasing is not only unbecoming but also unfair on the part of a person holding the position of Enquiry Officer.
c) Although in the said report at page 5 Reply dt 5th September 2005 submitted by Mr. Mitra to the charge sheet dated 1st September 2005 was taken in for records but the acceptance or rejection with reasons the contentions of the charge sheeted employee did not find any place in the Enquiry Report.
d) The enquiry officer admitted the inadmissible documents relied upon by the management in support of the charhes, namely –
i) Administrative Order dt 16.06.2004
ii) The Bengal Industrial Employment (Standing Orders) Rules 1946
iii) Diagnosis and prescription of an unregistered Medical Practitioner
e) The Enquiry Officer failed in his duty to enquire whether the FIR with the police was lofged to the alleged violence and physical injury
f) The Enquiry officer failed in his duty to check whether second medical opinion on the alleged physical injury sustained by the management staff was sought and obtained by the Opposiye party from a neutral authority for verifying the truth;
g) The Enquiry officer failed in his duty to check whether the management had any independent witness in support of the charges
h) The appointed Enquiry officer failed to identify the facts and incidents happened on 1st September 2005 on CCTV footage rather he was engaged to state as per discussion with management to discharge his duty
i) The Enquiry officer failed in his duty to identify and reject the misrepresentation of facts and law relied upon in evidence by the management.
j) The Enquiry Officer failed to trace any firm proof to establish the charges.
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