Madhu.T.K
Industrial Relations And Labour Laws
Rkn61
Hr Manager
Vivian Chandrashekar
Aast. Gen. Manager-hr
Hotgautam
Hr Manager
+3 Others

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Dear All,
I would like to know that if an employee is under judicial custody due to criminal proceedings on his personal front and he is remaining absent from duty.
Should we give leave or mark him absent for the days he has not reported to duty.
Please tell us with supporting case laws . We belong to manufacturing industry.
Thanks

It depends on the company policy. If the Standing Orders of the company provides that conviction for crime is a misconduct, you can proceed accordingly. But under no circumstance, the employee facing a trial be terminated. Normally under such circumstances the employee will not apply for leave or it is not possible for him to apply for leave. Therefore, you can take his absence as leave without pay and if he is acquitted, you can allow him to convert the leaves to CL or PL as per his eligibility.
Madhu.T.K

In a manufacturing industry, definitely you shall be having Certified Standing Orders of the Company.
If an employee is under judicial custody and is facing criminal proceedings, such an employees
comes under the purview of definition of "misconduct" and you can take action against him, in accordance
with the relevant clauses of CSO.
Absence from duty (due to facing criminal proceedings) should be construed as "Leave without Pay" .
If he is convicted by Court, you can proceed with action, as per CSO of your company.
Thanks
R K Nair

No law in land says that when an employee is in criminal case, you should not remove him from service. As an employer, you have every right to demand attendance of an employee or take action in accordance with law for unauthorised absence. It is your right as an employer to demand what you want. A criminal case may run into many years, and you cannot keep the post vacant till an employee comes clean or may be found guilty. If you feel that the position that the employee handling is quite important, then it demands immediate replacement. As an employer, you have to act in accordance with your business requirements.
If your management feels that the employee should be taken back after clearing the case, then you are welcome to do. Your stand has to be clearer as to, you need to retain or remove the employee for unauthorised absence.

Thanks evrybody.. Can anybody please share any judgements to give said employee leave without pay not leave for the day’s he is in judicial custody. Thanks
Law recognise two things. Leave with pay or absent. In some cases, the employee don't have credit leave, still he avails leave with permission/sanction which can be called as Leave without pay. It is your right to give leave or mark absent for the day the workman did not come to work. If you grant leave, pay him wages and don't pay if you mark him absent. You need not have to refer any judgement since your service rules or Standing order will talk on these issue.
Dear Mr Sankalp

It is reported by you that an employee is under judicial custody facing criminal proceeding and you have inquired whether he be marked Absent or allowed leave. You are working in a manufacturing industry.

The position is that when an employee is in judicial custody, he himself cannot apply for leave. The Police are required to send an intimation to the employer that such and such employee is under judicial custody on such and such charge. When an employee is under judicial custody then action as provided in Discipline and Appeal Rules of the company or the Certified Standing Orders, as applicable, have to be referred to. The ideal position is that such an employee is placed under deemded suspension from the date of his arrest till further orders. An order of deemded suspension is to be passed by the competent Disciplinary Authority as per delegation of powers of the Company. In such a situation there is no need mark absent or leave because the employee is under deemed suspension.

Thereafter when the employee gets bail, he has to apply for reinstatement. The Company will consider his application on merits and pass an order whether to reinstate or not. Conditions of reinstatement will have to be mentioned in the reinstatement of order. The reinstatement order will be subject to review on final outcome/judgment of the court case.

The employee under suspension will receive only subsistence allowance as per policy of the Company. The settled rule is that 50% of the Basic Pay and DA is given as Subsistence Allowance during he period of suspension. Later on after the conclusion of court case, the Company will decide on merits whether the suspension period should be treated as duty or leave without pay or any other treatment to be given.

Case laws in such case may not be available because criminal proceeding is on account of personal matter, not for any official reason. Subsistence Allowance is normally given under the rules when an employee is suspended on account of official misconduct. In this case suspension would be on account of personal matter, so the Management would have to decide on merits.

With regards.

Srivastava C.M. Lal


It is not made clear by you whether your establishment is governed by certified standing orders despite some members pointed to it. If so what your standing orders say in this regard.If not whether your establishment is governed by service rules or any statutory provisions If so what they say about such situation.It is difficult to reply without details.
B.Saikumar
IN-House HR & IR Advisor
Navi Mubai

1) The Police are required to send an intimation to the employer that such and such employee is under judicial custody on such and such charge.

2) The ideal position is that such an employee is placed under deemed suspension from the date of his arrest till further orders.

3) Case laws in such case may not be available because criminal proceeding is on account of personal matter, not for any official reason. Subsistence Allowance is normally given under the rules when an employee is suspended on account of official misconduct. In this case suspension would be on account of personal matter, so the Management would have to decide on merits.

I have copied the above from Mr. Srivastava C.M. Lal's posting and would give my views on his above points as follows.

Ans to 1) Police is not required to send intimation to any one but to their higher ups and to the jurisdictional court. May be out of courtesy, they may inform his family.

Ans to 2) You can place employee in deemed suspension if your service rules or CSO provide or else you cannot.

Ans to 3) You will end up in paying subsistence allowance when you place an employee under suspension. Hence, avoid suspension. Hold enquiry without suspending.

How to treat an employee terminal dues if he is going to be superannuated during judicial custody.

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