Female Employee Arrested for Dowry Death: What Steps Should HR Take in This Situation?

One of the female employees is absent since 29.04.2015. It is hearsay that she has been arrested by the police and sent to jail for the dowry death of her daughter-in-law. As HR, what actions should be taken.

The company will have to verify this information by checking with family members as shown in employee records. If actually arrested and convicted, the company will have to strike off the name of the employee from the company after following due process of verifying all company documents/property and the latest state of work.

Considerations for Employee Conviction

Do your standing orders speak about actions to be taken on conviction by a court of law? What is the period of conviction? Will the company want to continue with the employee after release from imprisonment?

To the best of my knowledge, HR does not have any direct relation with the private matters of the employee. You are not required to defend or provide any help to the concerned employee from the company.

Handling Employee Absence Due to Criminal Investigation

On the other hand, if you do not wish to keep the employee because of the criminal investigation against her, you should send her a notice asking her to join back, especially if she has been absent without approval. Depending on the response you get, you should proceed. Follow the procedure in the standing orders. Generally, if an employee does not respond or rejoin, you can terminate her.

Dear Saswata,

Certainly, HR has no direct relation with private matters, but without knowing where the employee has disappeared, without knowing where the company property, if any, is held with the concerned employee, HR cannot finalize the matter of termination, etc. HR will have to find out the details of the conviction, etc., to obtain a decision from the company management on whether to dismiss the employee or keep her under suspension until she gets bail, etc.

A piece of news about a similar case in my company indicates that a male candidate is also involved in a dowry case. He has been asked to resign from the company. When he insisted on staying, management clearly told him, "We will give you an opportunity when you submit a No Objection Certificate (NOC) from the police administration." Currently, he is no longer with the company.

I think you have misread/misunderstood what Budhpal mentioned: '...she is arrested by police and sent to jail...'. In all probability, this means that the employee has been sent to judicial custody after the FIR has been lodged—so the aspect of 'conviction' doesn't even figure at this point in time. That would come much later—after the charges are framed by the police in court, the court hearings/arguments, etc., which would be at least a few years from now.

HR Actions to Consider

As HR, the minimum that can and should be done would be to ascertain the facts of the case. A normal inquiry at the concerned police station would give the full facts of the case.

Caution in Dowry-Related Cases

However, given that many (not most) of the dowry-related cases have a very low conviction rate—as even the Supreme Court has remarked recently—suggest treading carefully while contemplating any action like termination. What if the employee is later found to be not guilty and then files a case against the company?

Procedures in Public Sector Undertakings (PSUs)

In PSUs, the first step is usually to put the concerned employee under suspension (after getting the relevant paperwork from the PS/court) and then revoke the suspension once he/she is exonerated by the court (but the employee would lose the seniority, promotions for the period of absence—to the extent I know). In case the employee is convicted, then termination follows automatically.

Financial Considerations

However, any company action does not include holding any payments like salary, allowances, PF, gratuity, etc., that the employee is due to get—all payments will have to be made as per HR policies as the indictment is purely personal in nature and not official.

Regards,
TS

It seems like you have misread or misunderstood what Budhpal mentioned: "...she is arrested by the police and sent to jail...". In all probability, this means that the employee has been sent to judicial custody after the FIR has been lodged—so the aspect of 'conviction' doesn't even figure at this point in time. This highlights the importance of writing properly and clearly so that different interpretations are not made by readers who may not know the facts of the case.

Handling Employee Arrests

In the case where an employee is only arrested by the police and not yet convicted, PSUs will have to suspend her if she is in custody for more than 48 hours. Upon being released, the lady can rejoin unless the offenses alleged in the FIR are very serious, in which case the management can keep her under suspension. Conviction by the court will, of course, mean dismissal from service. All of this is in the future, depending on how the case progresses.

I am ABSOLUTELY with you on this, Nathrao - 'This shows the importance of writing properly and clearly so that different interpretations are not made by posters who will not know the facts of the case'. Unfortunately, that's always been one major problem with quite a few thread initiators for years now - giving half-facts/inputs and sometimes even misleading information.

Rgds,
TS

The queriest seems to belong to Delhi, thus governed by the Delhi Shops and Establishment Act Rules. In Rule 13, there is no misconduct pertaining to the commission of a crime outside the premises of the establishment. Thus, the following decision as stated in the Glaxo case is applicable:

Ranjan Lakule Vs. Council of Architecture India Habitant Centre and Ors. - Court Judgment, 2009(2)BomCR479

"22. The issue can also be considered from another aspect. The misconduct must be in the course of his professional work as an Architect, and the alleged misconduct must render him unfit to practice as an Architect. The misconduct, therefore, must be related to the profession of Architecture. At the relevant time when the petitioner applied for the post of Principal, he was working as a professor in the Sir J.J. College of Architecture. The application for the post of Principal was not in connection with his work in the profession of an architect. The academic post which he held had no connection with the profession of an architect, i.e., because as Section 30(1) itself notes, if the misconduct is proved, that must render him unfit to practice as an Architect. When a penal provision is construed, that must be considered strictly. This is the normal course of construction of penal provisions. The provision, therefore, regarding misconduct in the Regulations must be strictly construed. See: (Glaxo Laboratories (I) Ltd. v. Presiding Officer Labour Court Meerut and Ors.: (1984)ILLJ16SC). Once so construed, in the absence of the alleged act having no connection with the practice of the profession of an Architect, the disciplinary proceedings against the petitioner must be quashed."

Further, the payment of subsistence allowance is to be governed by the rules of the company, and if there is no such rule, then the employee is entitled to his full remuneration for the period of his interim suspension:

A Constitution Bench of the Apex Court in R.P. Kapur v. Union of India, AIR 1964 Supreme Court 787

"The general principle, therefore, is that an employer can suspend an employee pending an inquiry into his conduct, and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension, or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand, if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith."

Thus, a close scrutiny of rules and regulations, standing orders, whichever is applicable, has to be carried out by the HR.

Thanks

Sushil

The originator of the thread, Mr. Budhpal, has written that "it is hearsay that the employee has been arrested by the police and is in lockup," which means he is not sure about it. The HR then may verify from the police, and if found true, has to place the concerned employee under suspension. If subsequently bail is granted, then suspension can be revoked, but the company's action should be based on the final outcome of the case. What if she is acquitted? Why should she be made to suffer? If, on the other hand, she is convicted, then the management has to terminate her. Regarding morality, are not many of our MPs/MLAs facing court cases for serious crimes?

True, it is that for government or semi-government organizations, the DOPT has issued instructions to place an employee charged with dowry death. However, in private organizations where an employee is to be suspended, and no rules of subsistence allowance are in force, whereby the full wages have to be paid during suspension, it is uncertain for how long an employee may remain in judicial custody. The question arises: Is the company ready to bear the burden of paying salary for an uncertain period, especially if more employees accidentally happen to be involved in criminal cases?

Further Observations of the Apex Court

Further observations of the Apex Court in the BABU LAL case below will have a significant impact on the economic health of the company without any work being done.

BABU LAL versus STATE OF HARYANA & ORS

Supreme Court Cases 1991 SCC (2) 335: JT 1991 (1) 211 1991 SCALE (1) 39

"The order of suspension made by the respondent No. 2 is admittedly on the sole ground that criminal proceedings were pending against the appellant. The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceedings which ultimately ended with the acquittal of the appellant. It is the settled position in law that the appellant who was suspended on the ground of the pendency of criminal proceedings against him, on being acquitted of the criminal charge, is entitled to be reinstated in service."

These perspectives need to be kept in mind.

Thanks,

Sushil

Going by the basic principles of Administrative Law, a company cannot terminate an employee without giving him or her a chance to provide representation. If it does so, then the termination is illegal and liable to be set aside. Furthermore, the company can only terminate an employee on the grounds of non-attendance and not based on a pending police inquiry or trial.

Handling Employee Absence Due to Legal Issues

In view of the latest law laid down by the Apex Court, as followed in the Ex-Constable Kishore Kumar Singh decision by the Punjab and Haryana High Court, absence must be willful beyond compelling circumstances like an accident, illness, etc. If an employee can show that they were implicated in a false criminal case and arrested during the period of absence, then they cannot be said to have committed misconduct due to a lack of devotion to duty or unauthorized absence. It is thus better to treat them on leave without pay.

Whereas if you suspend them, they will be required to be paid subsistence allowance or full wages, as per rules discussed earlier. The suspension cannot be prolonged very much. If the criminal case ultimately results in a conviction, then they can be terminated based on the moral turpitude involved in the criminal case. The above line of approach is subject to the explanation the employee gives for their absence.

Thanks,
Sushil

In a case known to me, an employee of a central PSU was arrested on charges of gold smuggling. He was immediately placed under suspension. Later, he obtained bail and is now contesting the charges against him in court. Meanwhile, after six months, the management terminated his services.

I would like Mr. Luthra to tell us what happens if the employee is finally acquitted. He has ten years of service left. What if the court decision comes after that?

Conduct Rules in PSU and Private Employment

In PSUs, the conduct rules are similar to those prevalent in government sectors. These rules are quite comprehensive, and even the term "unbecoming of a public servant" covers many misconducts involving moral turpitude. It is well established that when a government servant commits misconduct contrary to conduct rules, they can be prosecuted in criminal courts, and disciplinary proceedings can also be simultaneously held on the same cause of action. This is because the extent of proof required in criminal proceedings is beyond reasonable doubt, whereas in disciplinary proceedings, it is based on the preponderance of probabilities. Thus, the delinquent could be terminated for misconduct, and a later acquittal from criminal courts will have no impact on the termination. However, if the termination was based on a conviction that was later set aside, then the delinquent is entitled to be reinstated. Please refer to the Apex Court decision in the Babulal case cited above. Should you want citations for the permissibility of simultaneous criminal and disciplinary proceedings, these can be provided.

In the case of a private employer, they are generally governed by misconduct rules defined under the Shops and Establishment Acts and thus governed by the Glaxo decision of the Apex Court, whereby misconduct has to be specified. In that case, an act committed outside the establishment was held as not covered under misconduct. In a PSU, it will be considered misconduct.

Thanks

Regards,
Sushil