Termination of govt employee under suspension regarding
Querist :
Anonymous
(Querist) 29 July 2018
This query is : Resolved
I am a permanent employee of central public sector company. The company follows govt of India rules.
I was granted Ccl for 3 months with permission to leave the country. I had travelled abroad. Post exhaustion of my sanctioned leaves, I had applied for extension of leave. On receipt of non- approval for extension of my leave, (communicated to me after almost 4 months), I was prepared to return to India.
As I was planning to depart, I twisted my knee and suffered severe leg pain and Muscle Tear rendering me unable to take a long duration flight. On being advised to take rest and avoid all journeys by the local physician, I found myself in circumstances beyond my control and had no choice but to stay back. I did apply for medical leave alongwith medical certificate from doctor. I did not receive any response from office.
Despite being on leave without pay, in order to do justice to my position, I have been in constant touch with the Office and have been attending to work through internet and following all the instructions and directions given to me from time to time. I tried to provide all support to the best of my ability to minimize the impact of physical absence from work.
After two months, I received a memo requiring me to submit explaination as to why disciplinary proceedings should not be initiated against me for unauthorized absence from work. I did submit my justification and also further requested them to grant me extra ordinary leave after debuting earned / medical leaves.
No communication / response has been received by me till date regarding the same also.
Unfortunately, since my recovery was not as expected, I had again applied for further leave on medical grounds( along with medical certificate from doctor) as my doctor
Had suggested me to further take rest and refused to give Fitness certificate. I had again requested that extra ordinary leave may be granted .
No response on this also has been received by me.
After 2 months , I have received a Suspension order as disciplinary proceedings/ actions are contemplated for unauthorized absence from work.
In this context, I have a few queries:
1. Is this suspension justified / legal? What should I do - appeal for revocation?
2. Can I be terminated under suspension? (I know they assume that I don�t intend to return and are upset about it) If yes, how and on what grounds? What should I do to avoid it ?
3. What should be my course of action -given the fact I can�t travel back right now ?
4. Can I simply join office when my doctor provides me with Fitment Certificate ?
Sudhir Kumar, Advocate
(Expert) 30 July 2018
1. Is this suspension justified / legal? What should I do - appeal for revocation?
Suspension of such nature is prima-facie not justified and is also no in favour of organisation. Now after suspending you they have declared your absence as no more unauthorised. Under suspension you cannot join and they have made matter slightly easy for you.
on EOL you were not earning even a single penny. Now they have made you eligible for subsistence allowance during suspension.
You can now draw half wages by signing a certificate of non-employment (each month). Delay/denial of such allowance amounts to denial of defnece opportunity and the whole proceedings can go for a six.
Sudhir Kumar, Advocate
(Expert) 30 July 2018
2. Can I be terminated under suspension? (I know they assume that I don�t intend to return and are upset about it)
It is not termination rather it can be dismissal/removal.
Sudhir Kumar, Advocate
(Expert) 30 July 2018
If yes, how and on what grounds?
Now they have to issue a chargesheet to you and issue notice of inquiry (obviously in India) and hold ex-parte inquiry if you do not participate (after due notice to you)
Sudhir Kumar, Advocate
(Expert) 30 July 2018
What should I do to avoid it ?
when you are chargesheted then (subject to any other provision in your PSU CDA Rules) you are eligible for help of one serving/retired govt servant to defend you in the inquiry (but not in your absence)
Sudhir Kumar, Advocate
(Expert) 30 July 2018
3. What should be my course of action -given the fact I can�t travel back right now ?
you have conveyed them your physical inability to join.
However you have created a situation where circumstantial evidence is against you and can lead to irresistible conclusion that you are not willing to join and are extending your stay abroad by managing certificate from dosctor abroad.
Have you contacted Indian embassy/High Commission in this regard.
Has PSU contacted Indian embassy/High Commission in this regard for organising second medical opinion on your MC..
Sudhir Kumar, Advocate
(Expert) 30 July 2018
4. Can I simply join office when my doctor provides me with Fitment Certificate ?
NO. They have at the moment exempted you from joining.
Guest
(Expert) 30 July 2018
Replies to your queries, in nutshell, are as follows:
1. Regarding legality of your suspension, it can be administratively irregular, but can't be said to be illegal. Normally, a public servant is suspended for commission of any grave offense as against the conduct & discipline rules of the organization. Suspension is normally made to keep the employee away from his duty point to avoid tampering of any vital evidence against him. When already away from office being absent from duty on account of unauthorized absence, suspension was not called for in your case. Even otherwise also, suspension in unauthorized absence case was not justified. Your suspension can either be the result of lack of knowledge of rules and regulations by the Vigilance/HR/Admn. of the PSU, or can be with the intention to favour you by making you eligible for subsistence allowance even on account of your unauthorized absence. No doubt, you can submit an appeal against your suspension, but it is for you to think whether you want to lose the benefit of subsistence allowance or not.
2. You can't be terminated without proving your guilt through regularly conducted departmental inquiry and giving you an opportunity to defend your case during the course of departmental inquiry after serving you with a charge sheet pertaining to major penalty.
3. You can avoid it by getting your leave duly sanctioned by the competent authority before issue of any charge sheet. Discretion to sanction leave always lies with the competent authorities. However, if charge sheet is issued, departmental inquiry is a must to be conducted in order to arrive at some final decision about the charge against you. If charge is proved, removal from service cannot be avoided
4. You can't join office without getting your suspension order revoked by the competent authority.
