ESI Deduction On Subsistance Allowance

Dear Seniors,
I am HR officer in a Manufacturing company, we suspend few employees on misconduct on work place. for them we are paying subsistence allowance of 75% of gross according to our standing order for more than 90 days for those inquiry is still in process.
MY question whether ESI legibility is on there gross salary or on gross of subsistence allowance.
for eg: His gross is Rs.15500/- which is more than ESIC limit, but his subsistence allowance is Rs.11600/- which is with in ESIC limit. should we consider for ESIC .
i am waiting for your reply

Sir,
The question you have raised is difficult to answer because such like situations are very rare. As mentioned, you are paying some employees subsistance allowance of Rs.11600/- per month i.e. some %age of wage and rest is payable on decision of case, if case decided in favour of employees. Therefore, in my opinion, the employees may continue not be coverable at present till the decision of the case. However, if the employees fails to win their case, then they will be coverable and contribution payable in respect of said employee from the date the said employees are placed under suspension.
In order to be more safe, I will suggest you to please take up the matter with the appropriate Regional /Sub/Divisional Office of ESIC, where your unit is covered by intimating all facts and ask them to advise you in the matter immediately to avoid any levy of interest and damages for late deposit of contribution in respect of said employees.