Dinesh Divekar
Business Mentor, Consultant And Trainer
Kishorkulkarni
Law Practice
Gopinath Varahamurthi
Mindhour Partner, Ass.professor/adm. Officer,
Adv. Manoj Liyonzon
Advocate, Chennai
Captrajeshwarsingh
Human Resource, Production, Safety ,security

Team,
One of our employee has been arrested by the police & FIR has been registered. Now he is in cell.
In case if he is released on bail, can we allow the employee to work or should we wait till the case is closed.
Kindly enlighten me all the pros & cons of this issue.

From India, Madras
Dear Mahesh,

Nobody is guilty till it is proved, this is what Indian jurisprudence teaches us. Therefore, prima facie, the employee is not guilty.

You have not written what are the charges, what is the gravity of offense, whether it was domestic issue etc. It is so easy to fix someone. Take the case of Section 498-A. Large number of suicides happens because wives implicate their husbands under this section. Do not forget that on the one side there are women atrocities and on the another all the family laws are heavily tilted towards women. Men or women, manipulate the laws for their insidious gains.

About 4 years ago, HR Manager of Infosys was arrested for murdering his wife. Infosys had removed him from the job because the charges were severe and there was enough evidence at hand.

Therefore, I request you to first find out the facts of the case. Whether there was act of moral turpitude, whether there is material evidence, quality of the evidence etc. If the charges are not so severe then you may allow him to continue. I say so because suppose you remove him from the job and what if court acquits the accused? In that case will it not be injustice to the employee? Will you pay him the back wages and restore his job?

I request you to take equanimous view and not get carried away. The arrest might have become talk of the town in your company. However, tell the employees to mind their own business.

Thanks,

Dinesh V Divekar


From India, Bangalore
Dear Mahesh,
Your query in short is that, what are the options left with Employer, when his employee is arrested and likely to be released on bail.
Simple answer to this query is that, in the given situation employer has no any options but to let him join on work.
Unless the conduct of the employee has something to do with the work, business, other employees and property of the employer, and his arrest is in that connection, well, employer cannot take any disciplinary action against him only for the reason that FIR is filed against him and he is under custody of Police or deny him joining when he is released on bail.
I hope you are clear with this.
With regards,
Adv. KH Kulkarni

From India, Kolhapur
Dear Mahesh,
Before removing name of the employee from the rolls, two things that matter. First is whether the misconduct was of severe nature and company authorities lodged FIR against the employee. In that case, you may conduct the domestic enquiry and terminate the services of the employee.
The second thing is about offence committed in personal life. For this the reply is given above.
Let me compare the incident with the conviction of sitting Chief Minister of one of the states of India. Her residence was raided, she was booked for Disproportionate Asset (DA) case. She couple of months in the jail as under-trial. Nevertheless, she remained in the office of Chief Minister till she was convicted. She had resigned only after after the court verdict. Therefore, if CM can hold the public office in spite of charges against her then why we should apply lofty standards to the employee of some private company? Will it not be our sanctimoniousness?
Thanks,
Dinesh Divekar

From India, Bangalore
You have not clarified whether it is a civil case or criminal case. If it is a criminal case, you cannot take back
the employee till he is cleared off the offense by court/police. If it is civil case of minor nature, take the opinion of Lawyer
and continue him on rolls subject to court verdict. You should clearly indicate to the employee about his reinstatement.
D.SUBBA RAO

From India, Visakhapatnam
Dear Mr D Subbarao,

Yes, we do not the complete facts of the case. Nevertheless, if the employee is booked under criminal case and if he is out on the bail why we cannot take back him that I could not understand. Which law or act prohibits him to retain his job?

About third of our elected representatives in Lok Sabha have criminal charges against them. 1-2 are union ministers also. Does it mean that a person can contest elections, can occupy a public office but cannot become employee of some private company!

Yes, company may use the discretionary powers for the removal of the employee but then as written in my first post, company should clear their stand in case of acquittal by court.

Thanks,

Dinesh Divekar

You have not clarified whether it is a civil case or criminal case. If it is a criminal case, you cannot take back

the employee till he is cleared off the offense by court/police. If it is civil case of minor nature, take the opinion of Lawyer

and continue him on rolls subject to court verdict. You should clearly indicate to the employee about his reinstatement.

D.SUBBA RAO[/QUOTE]

From India, Bangalore
Police never book a civil case or FIR cannot be for a civil matter. This is a very basic and preliminary knowledge which every law student possesses. The fact that a FIR is lodged against an employee and that he is in custody and that he is likely to be released on bail is sufficient to indicate that a criminal case has been filed against him and this is not any civil matter. Interestingly, certain complaints such as missing persons, found persons, found property, lost property are civil in nature as long as there is no crime involved in it.

The law relating to the representative of people (MPs and MLAs) is different than laws pertaining to service and employment. They differ conceptually. MP and MLAs are not paid servants and such there are no service-rules for them so that their employer can take any action. However, being public figure, the citizens expect them to be morally high. But, alas, this remained only a dream till the Apex Court blew its whistle. So, there are certain rules now framed as far as persons against whom offence has been proved and they are held guilty.

In case of a government servant, if he is arrested and is under custody for more than 48 hours, he stands suspended because of a specific provision in service rules. However, this is not the rule for private industries. If an employee is under arrest unconnected to his employment, at the most, he will have to be treated as “unauthorised absent on work” and depending on the circumstance, such as any connection to his conduct and employment, his employer has a right to take disciplinary action. But, his employer cannot shut doors for him without following the procedure of law and the principles of natural justice. In case of arrest totally unconnected to employment, I doubt, his employer even can issue him a charge sheet merely for his arrest by police.

From India, Kolhapur
Magesh
If the issue is relevant to your company, then regulate your company policy, else issue a notice to employee seeking explanation letter with regards to his arrest. based upon the reason stated, you shall consider his employment continuity under humanitarian grounds if reasons are acceptable & if not a very serious criminal offence.

From India, Chennai
You can not put person on fault merely on the account of FIR. We can take the action against employee if he is convicted for the act committed by him and court has given verdict for same.
regards,
Capt Rajeshwar Singh

From India, Thana
dear Mahaysh,

take simple steps..

the employee is in a cell, the police lodged FIR..

the crime is certainly and must be grave, and the formalities need be completed under the sections by the Police/Law authorities

case 1) Since, the employee is in a cell, assume you have not lodged complaint to arrest or put the employee in a cell, from the organisation point of you he is not a employee committed crime in the organisation premises or used your organisation in a fault issues/matter..

then the employee is in absent, if you have received a letter for absence treat it as leave otherwise after the certain period you send a letter for his absence in case you might have not heard anything about the FIR as it not relevant for your organisation..

After a period of time either adhering the formalities you may terminate the employee or based on his performance and position take appropriate action.

Case 2) In case your organisation have received information about his crime committed and related to your organisation, prima facie establish there a crime occurred and suspend the employee from the services, the allowances is subsistence allowance(half of the pay) or stop the allowances still he got the relief from the crime, certainly the period of absence is related to your organisation and the employee you cannot remove/strike out from the organisation roles.

case 3) If the employee committed crime and there is no relevance with the organisation, his absence is purely comes under your rules and regulations, long absent can be treated as deemed fit by the appropriate authorities, you may straight away remove him from services giving appropriate notice as his functions may no longer required, however, on humanitarian grounds you may not remove him from services and kept pending extended till such date he is free from from the crime as declared by the court or by the appropriate authorities or based on relevant orders, further, if the employee come on bail he may certainly be engaged or employed as there is no relevant to the crime and organisation, yet, if the crime is grave like killing of wife, subordinate staff, another employee etc, at the outer place and organisation suffers removing of the employee is the right decision..

best of luck ...

From India, Arcot
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