One of our permanent workers was long absent and when we enquire his whereabouts, his colleagues told that he went to Mumbai for personal grounds. But we served show-cause notice and initiated domestic inquiry for his long absence. After a month's time, we got a message that he was arrested in a theft case in Andhra where he was jailed and a criminal case was under hearing stage. My question is whether we can terminate this worker by conducting an ex-parte enquiry? , and how an employer can be protected legally by taking this step.
From India, New Delhi
Dear Kumar

Was the employee issued show cause notice for his long absence. Has he responded. If not please issue show cause notice and based on his response or non response you may go for enquiry. It is not for us to say there will be a ex parte enquiry. If the employee does not turn for the enquiry the enquiry officer may decide to have an exparte enquiry.

In my view we should issue show cause notice to the employee for his long absenteeism. And based on his reply or non reply the information we have gathered on his arrest in a criminal case can be put him at the appropriate time.

From India, Chennai
Dear Mr.Kumar,

How long the employee has been remaining absent?
Whether the employee was unauthorisedly absent right from the day one of his such absence? Or
Whether he entered on authorised leave initially for certain number of days but subsequently continued his absence without extension or any intimation and remains incommunicado?
What's the source of the information about his imprisonment as an undertrial involved in a theft case in Andhra?
Whether any official intimation from the Andhra Police to your Management about his arrest and continued detainment?
Whether any lock-up in Police custody beyond certain hours is a valid reason for the suspension of the employee under your standing orders or service regulations?
May I presume that the episode of his arrest and detainment is oral and informal information from some people known to the absentee worker only?

My opinion is that in the absence of any formal intimation about his arrest and detainment either from the Police or his family, you can proceed against the employee on the charge of misconduct of unauthorised absence. You can frame charges and send the charge sheet and all other subsequent communications to the last known residential address of the delinquent employee available in your records by registered post and conduct a domestic enquiry with due notice to him as aforesaid. As a final resort of communication, you should resort to publication in any vernacular popular News paper.
Then set him exparte and terminate his services for the proven misconduct of unauthorised absence.

From India, Salem
KK!HR
1114

It does not appear to be a case of theft, because such long detention generally does not happen in theft cases and bail is granted. Looking to the pandemic condition courts have become more lenient in granting bail. So it is felt that there is more to it than the case of theft and you may ascertain more facts as you proceed along the lines suggested by Learned Umakanthan Sir.
From India, Mumbai
Dear Mr. Kumar, You can terminate the employee on ground of long absent without information (absconding) and failed to participate in the domestic enquiry.
From India, Mumbai
Dear Kumar,

Yes , you have every right to proceed with proper disciplinary action- chargesheet and domestic enquiry independently and parallely to the criminal case.

Lot of are has to be taken ensure that all communications are sent on the last known address on record, as the chargesheeted may not be able to be present for the enquiry. On record, it must be seen that all fair and reasonable opportunity is given.

Before considering punishment of termination, the gravity of the misconduct and past record needs to be examined by way of justification before awarding such serious and extreme punishment particularly in view of the probable ex- parts enquiry.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
Dear All Thanks for your valuable replies.
From India, New Delhi

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