Labour Law & Hr Consultant
Mindhour Partner, Ass.professor/adm. Officer,
Director - Hr
Recruitment/talent Acquisition, Career Counselling
Consultancy_hr & Ir
YOUR FIRST QUESTION: how to deal a situation where employees are indicted in criminal case by the authorities and under police/judicial custody/remanded for investigations?
The employer's right and power to initiate disciplinary action against any employee are not unlimited. They are limited to the zone of employment that too against only such acts enumerated as misconducts in the Standing Orders. However. Model Standing Orders provide for the suspension of an employee where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to do so. In other words, it is a power of discretion of the employer defined by the factors of necessity and adverse implications on the estabishment. Therefore, much consideration is to be given before placing an employee under suspension for his alleged involvement in a criminal act outside the zone of his employment in case he is under police/judicial custody/ remanded for investigation because he has to be paid subsstence allowance till he comes out of custody on bail or after investigation.
The details of action taken by the management in this regard so far and the conflict of interest that you've mentioned necessitating your second question seem to be contradictory to me. In the first place, you have taken the decision of suspension superfluously by going through the letter of the particular enabling provision of the stdg. order it seems. Second, you are not able to serve the suspension orders or to have any communication with the employees who are held incmmunicado because of their custody. But, the suspension orders have come into effect from the very moment of issue. So, no possibility of avoiding payment of subsistence allowance as long as the suspension is revoked. My suggestion under this circumstance, therefore, would be to wait till their release from custody, revoke the suspension as soon as they are enlarged on bail or released on the close of the investigation. No answer can be given as to their termination of employment at this stage by removing their names from the rolls.
4th July 2015 From India, Salem
It seems your organisation have suspended the employee for the Act of criminal issues/case pending with other authorities in the instant case by Police/Judicial Custody..
In the first sense how can you suspend the employee unless you have got an ample of evidence against them, have you received any complain lodged or information from any authority, have you got it verified?
In these circumstances, you should have got the communicative address apart from the one residence address you have in your ledgers, and the other from the authorities through whom you can communicate to the employee. Thus you have two kinds of addresses for the person/employee whom you want to suspend. Further, you have mentioned that the criminal case have no connection with your organisation, means, the employee is absent either with information or without information. If the employee is absenting from day to day work with information you can put the salary in abeyance and let him come to work and the period of absence may be regularised with appropriate proceedings or on available evidence, whatever the case may be when the criminal case is not connected with your organisation the whole issue is related to discipline in the point of you and proceed with the same, in case the criminal activity is related to your organiation you can directly suspend the individual and pendency revoked at the end of the case.
Split the case you will find a solution, also, get the help of your lawyer in such cases..
best of luck .........
4th July 2015 From India, Arcot
What I want to add regarding:What action can be initiated under this circumstance to aviod 50% salary lose to the management???
Or how the Management can terminate the employees from the payroll???
50% subsistence allowance is a welfare provision for the employee and his dependents.
It is a business expenditure and should be regarded as such.
Tomorrow the employee may come out on bail or eve get acquitted and join back,the gesture of following welfare provisions would boost employee morale.
So wait and watch how things work out.
One can find out details of case against employee.
4th July 2015 From India, Pune
Before we consider options before you, I state my assumption in this case and that is the concerned employee is a "workman" under Industrial Disputes Act 1947. Proceeding from this assumption, kindly note the following points:
1) As an employer you do have right to terminate employment of any such employee by following established/approved procedures under applicable for a serious enough misconduct-described under the Industrial Employment (Standing Orders) Act 1946.
2) If you have already suspended this employee BECAUSE there apparently a criminal proceeding against him, you need to be able frame (in the right sense) a charge and follow the procedure.
3) The subsistence allowance will have to be paid at stipulated rates till first 180 days and thereafter at the rate of full salary if the departmental proceedings are not complete for any reasons.
4) Do you have an official intimation about his arrest either from the police, or the complainants or by his family?
5) if no, kindly proceed as per normal procedure and take the matters to the logical conclusion.
You must however also note that if the disciplinary action has its base in the said criminal proceedings, and if at a later date the employee is absolved of the charges (even if by being given benefit of doubt) you will be obliged to take him back in employment without a blemish and pay him full back wages and if you don't he will claim these through a court of law.
Professionally I do approve the hurry in suspending him without adequate information on hands! This has amounted to "shooting first and aiming later"!
In the given situation addressing relevant correspondence to his latest home address on records and ending with a public notification of the charge and of the Notice of Enquiry, and take the matter forward in line with law!
July 7, 2015
7th July 2015 From India, Pune
In the above case, the conflict of interest in terms of double employment has already been established.
From the view point of the employer, a sufficient base is there to enquire the incident.
Employees association with other employer/outsider has criminal in nature and a non- bailable offence. Obviously the process has to be followed as per the IR part.
The above said employees are only accused not convicted, I had raised a question without any prejudices, even though the statements of authorities and fellow employees are pointing to participation of an offence by the employees, but the facts has not been established by a competent court.
Extended Police custody/ Extension of Judicial custody for enquire is a ground for the above query while fulfilling the IR process. But when considering a challenge by the employees in future, we need to have a logical conclusion on the facts of the case to have locus standi in the competent court to justify the termination.
Appreciate your participation and advice further.
7th July 2015 From India, Pune
8th July 2015 From India, Kolkata
1. If he is proved guilty, you have two reasons to terminate.....on unauthorized absence and one on being found guilty for criminal offense.
2. If he is acquitted,you have only one reason of his unauthorized absence as you have not received any communication from his or his family on his case.
Suspension, without any basic documentation may not be tenable in court.
16th July 2015 From India, Hyderabad