Employee Arrested: Should We Allow Them Back at Work Before the Case Closes?

Employee Arrest and Workplace Implications

One of our employees has been arrested by the police, and an FIR has been registered. Currently, he is in a cell. If he is released on bail, can we allow the employee to work, or should we wait until the case is closed? Kindly enlighten me on all the pros and cons of this issue.

Thank you.

Nobody is guilty until it is proved; this is what Indian jurisprudence teaches us. Therefore, prima facie, the employee is not guilty. You have not mentioned the charges, the gravity of the offense, or whether it was a domestic issue. It is easy to accuse someone. Take, for example, Section 498-A. A large number of suicides occur because wives implicate their husbands under this section. Remember, there are instances of women facing atrocities, but also, all family laws heavily favor women. Both men and women sometimes manipulate laws for their own gains.

About four years ago, the HR Manager of Infosys was arrested for murdering his wife. Infosys removed him from the job due to the severity of the charges and the ample evidence available.

Therefore, I urge you to first gather all the facts of the case. Consider if there was an act of moral turpitude, the presence of material evidence, and the quality of the evidence. If the charges are not severe, you may allow the employee to continue. This suggestion is made because if you terminate the employee, and later the court acquits them, it would be unjust. Will you then pay them back wages and restore their job?

I ask you to maintain an impartial perspective and not be swayed by emotions. The arrest may have sparked rumors in your company. However, remind the employees to focus on their work.

Thanks,

Dinesh V Divekar

Your query, in short, is: what options does an employer have when their employee is arrested and likely to be released on bail? The simple answer to this query is that in this situation, the employer has no options but to allow the employee to return to work. Unless the employee's conduct is directly related to the work, business, other employees, or property of the employer, and the arrest is connected to that, the employer cannot take any disciplinary action based solely on the fact that an FIR has been filed against the employee and they are in police custody or deny them the opportunity to return to work upon release on bail.

I hope this clarifies the situation.

With regards,
Adv. KH Kulkarni

Before removing the name of the employee from the rolls, two things matter. First, whether the misconduct was of a severe nature and company authorities lodged an 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 an offence committed in personal life. For this, the reply is given above.

Let me compare the incident with the conviction of the sitting Chief Minister of one of the states of India. Her residence was raided, and she was booked for a Disproportionate Asset (DA) case. She spent a couple of months in jail as an under-trial. Nevertheless, she remained in the office of Chief Minister until she was convicted. She resigned only after the court verdict. Therefore, if the CM can hold the public office despite charges against her, then why should we apply lofty standards to the employees of some private company? Will it not be our sanctimoniousness?

Thanks,

Dinesh Divekar

You have not clarified whether it is a civil case or a criminal case. If it is a criminal case, you cannot take back the employee until he is cleared of the offense by the court/police. If it is a civil case of a minor nature, seek the opinion of a lawyer and continue to employ him subject to the court's verdict. You should clearly indicate to the employee about his reinstatement.

Regards,
D. SUBBA RAO

Dear Mr. D Subbarao, Yes, we do not have the complete facts of the case. Nevertheless, if the employee is booked under a criminal case and if he is out on bail, why can't we take him back? I do not understand which law or act prohibits him from retaining his job.

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

Yes, the company may use discretionary powers for the removal of the employee. However, as mentioned in my first post, the company should clarify their stance in the case of acquittal by the 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 until he is cleared of the offense by the court/police. If it is a civil case of minor nature, take the opinion of a lawyer and continue him on the rolls subject to the court verdict. You should clearly indicate to the employee about his reinstatement.

D. Subbarao

Understanding Civil and Criminal Cases

Police never book a civil case, and an FIR cannot be filed for a civil matter. This is very basic and preliminary knowledge that every law student possesses. The fact that an FIR is lodged against an employee, 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 a civil matter. Interestingly, certain complaints such as missing persons, found persons, found property, and lost property are civil in nature as long as there is no crime involved.

Differences Between MPs/MLAs and Employees

The law relating to representatives of the people (MPs and MLAs) is different from laws pertaining to service and employment. They differ conceptually. MPs and MLAs are not paid servants, and as such, there are no service rules for them so that their employer can take any action. However, being public figures, citizens expect them to be morally upright. But, alas, this remained only a dream until the Apex Court intervened. So, there are certain rules now framed for persons against whom an offense has been proved and they are held guilty.

Implications for Government and Private Employees

In the 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 "unauthorized absent on work," and depending on the circumstances, 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 the case of an arrest totally unconnected to employment, I doubt his employer can even issue him a charge sheet merely for his arrest by the police.

If the issue is relevant to your company, then regulate your company policy. Otherwise, issue a notice to the employee seeking an explanation letter regarding his arrest. Based on the reasons stated, you shall consider his employment continuity under humanitarian grounds if the reasons are acceptable. If not, for a very serious criminal offense, appropriate action should be taken.

You cannot put a person at fault merely on the account of an FIR. We can take action against an employee if he is convicted for the act committed by him and the court has given a verdict for the same.

Regards,
Capt. Rajeshwar Singh

Handling Employee Arrest: Steps and Considerations

Take simple steps.

The employee is in a cell; the police have lodged an FIR. The crime is certainly grave and must be dealt with formally under the relevant sections by the Police/Law authorities.

Case 1: Employee Arrested Without Organizational Complaint

Since the employee is in a cell, assume you have not lodged a complaint to arrest or detain the employee. From the organization's perspective, he is not an employee who committed a crime on the premises or misused the organization in any way.

If the employee is absent, treat it as leave if you have received a letter for absence. Otherwise, after a certain period, send a letter regarding his absence. If you have not heard anything about the FIR, as it is not relevant to your organization.

After following the necessary formalities, you may terminate the employee or take appropriate action based on his performance and position.

Case 2: Crime Related to the Organization

If your organization has received information about a crime committed by the employee related to the organization, establish prima facie evidence of the crime. Suspend the employee from services and provide subsistence allowance (half of the pay) until he is relieved of the crime. The period of absence is related to your organization, and the employee cannot be removed from his roles within the organization.

Case 3: Crime Unrelated to the Organization

If the employee committed a crime unrelated to the organization, his absence falls under your rules and regulations. Prolonged absence can be dealt with as deemed fit by the appropriate authorities. You may remove him from services giving appropriate notice if his functions are no longer required. However, on humanitarian grounds, you may keep him pending until he is free from the crime as declared by the court or relevant authorities. If the employee is on bail, he may be engaged or employed if the crime has no relevance to the organization. In cases of severe crimes like murder, removing the employee is the right decision for the organization.

Best of luck...