Employee in Custody: Should We Grant Leave or Mark Absence in Manufacturing?

I would like to know if an employee is under judicial custody due to criminal proceedings on his personal front and is remaining absent from duty, should we give leave or mark him absent for the days he has not reported to duty.

Please provide your insights along with supporting case laws as we belong to the manufacturing industry.

Thanks

Regards

Handling Employee Absence Due to Judicial Custody

It depends on the company policy. If the Standing Orders of the company provide that conviction for a crime is misconduct, you can proceed accordingly. However, under no circumstance should 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 (Casual Leave) or PL (Privilege Leave) as per his eligibility.

Regards,
Madhu.T.K

Handling Employee Absence Due to Judicial Custody

In a manufacturing industry, you shall definitely have Certified Standing Orders (CSO) of the company. If an employee is under judicial custody and facing criminal proceedings, such an employee comes under the purview of the definition of "misconduct," and you can take action against him in accordance with the relevant clauses of the CSO.

Absence from duty (due to facing criminal proceedings) should be construed as "Leave without Pay." If he is convicted by the court, you can proceed with action as per the CSO of your company.

Thanks,
R K Nair

Employee Absence Due to Criminal Proceedings

No law in the land says that when an employee is involved in a criminal case, you should not remove them from service. As an employer, you have every right to demand the attendance of an employee or take action in accordance with the law for unauthorized absence. It is your right as an employer to demand what you want.

A criminal case may run for many years, and you cannot keep the post vacant until an employee is cleared or found guilty. If you feel that the position the employee is handling is quite important, then it demands immediate replacement. As an employer, you must 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 so. Your stand has to be clear as to whether you need to retain or remove the employee for unauthorized absence.

Thanks, everybody. Can anybody please share any judgments regarding giving an employee leave without pay when they are in judicial custody, instead of just a day off?

Thanks

Understanding Leave Policies: Leave with Pay vs. Absence

Law recognizes two things: leave with pay or absence. In some cases, the employee doesn't have credited leave; still, he avails leave with permission or sanction, which can be called Leave without pay. It is your right to grant leave or mark absent for the day the worker did not come to work. If you grant leave, pay him wages, and do not pay if you mark him absent. You do not need to refer to any judgments since your service rules or standing orders will address these issues.

It has been reported by you that an employee is under judicial custody facing criminal proceedings, and you have inquired whether he should be marked as absent or allowed leave. You work in the manufacturing industry.

Judicial Custody and Leave Policy

The position is that when an employee is in judicial custody, he cannot apply for leave himself. 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, actions as provided in the 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 deemed suspension from the date of his arrest until further orders. An order of deemed suspension is to be passed by the competent Disciplinary Authority as per the delegation of powers of the company. In such a situation, there is no need to mark absent or leave because the employee is under deemed suspension.

Reinstatement Process

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

Subsistence Allowance

The employee under suspension will receive only a subsistence allowance as per the policy of the company. The settled rule is that 50% of the Basic Pay and DA is given as Subsistence Allowance during the period of suspension. Later on, after the conclusion of the 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.

Considerations for Criminal Proceedings

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

With regards,

Srivastava C.M. Lal

It is not made clear whether your establishment is governed by certified standing orders, despite some members pointing to it. If so, what do your standing orders say in this regard? If not, is your establishment governed by service rules or any statutory provisions? If so, what do they say about such a situation? It is difficult to reply without details.

Regards,
B. Saikumar
IN-House HR & IR Advisor
Navi Mumbai

Judicial Custody and Employee Suspension

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 until further orders.

3) Case laws in such cases may not be available because criminal proceedings are on account of a 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 a 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.

Clarifications on Judicial Custody and Suspension

Answer to 1) The police are not required to send an intimation to anyone but to their higher-ups and to the jurisdictional court. Maybe out of courtesy, they may inform his family.

Answer to 2) You can place an employee in deemed suspension if your service rules or CSO provide it; otherwise, you cannot.

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

Handling Terminal Dues for an Employee in Judicial Custody

How should we treat an employee's terminal dues if he is going to be superannuated during judicial custody?

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You can keep the superannuation benefits pending depending upon the service rules of the company. However, gratuity, which is payable even if the employee has been convicted of a criminal offense, should be paid on time unless the criminal act or misconduct has taken place during the course of employment. That means if the crime has nothing to do with employment or the crime took place outside the office and is not connected with the office, then he is eligible for gratuity.

Regards,
Madhu.T.K

Thank you for the valuable feedback. I would like to point out that the police have a duty to inform the employer, particularly in the case of a government servant. Rules exist on this subject.

In my previous reply, I made it clear that suspension is utilized for official misconduct. However, since judicial custody is part of criminal proceedings, an employee can be placed under deemed suspension as per the organization's rules. In the absence of specific rules, suspension is not prohibited, as the principles of Natural Justice would apply to both the employer and the employee.

Thirdly, an inquiry is typically conducted for misconduct that occurs during the performance of official duties. In the current scenario of judicial custody related to a personal matter, action can be taken based on the information provided by the employee and verified by the employer.

An employee will be marked as absent if no information is sent to the employer by the employee.

Thank you.

Thank you, Madhu T.K., for your valuable suggestion. We are central PSU employees having standing orders for non-executive employees. According to these orders, we have the discretion to suspend an employee if they are found to be in judicial custody. I would like to know if the employee can avail leave from their credit during their time in judicial custody.