How to Legally End Employment for a Suspended Worker with a Criminal FIR? Need Advice!

Dear All,

Urgently need your suggestions. One of my friend's company's management wants to remove the employee who is under suspension due to a criminal FIR. The organization has been paying an allowance for more than six months. What is the legal way/process to discontinue his service? If possible, please share a draft of the letter.

Thanks.

Scenarios for Valid Suspension Orders

In one of the two scenarios, an employer's order of suspension is valid:

1. Suspension pending internal inquiry in cases where a charge sheet/show cause notice was served for grave/serious acts of misconduct as per the service rules or certified standing orders applicable to that concerned employee; or

2. Suspension from duty by way of disciplinary action/punishment proportionate to the proven acts of misconduct.

In the case quoted, before the suspension order was served on the employee arising out of an FIR lodged, the employer needs to ascertain whether the acts constituting an "offence" under IPC were related to or relevant to an act as per the SR or CSO and thereby amounted to or constituted any act unworthy of employment.

As per our settled law in our nation, no employed person should be or can be punished without first informing him/her of the acts of misconduct alleged and after adhering to due process of law in such cases, i.e., proper impartial inquiry as per the principles of natural justice.

Any disciplinary action other than the abovementioned shall be arbitrary, mala-fide, and hence unlawful/invalid.

Regards, Kritarth Team

18.5.2019

Dear friend,

The FIR against anybody does not mean the person is guilty unless declared by the court. Management cannot put anyone under suspension if an FIR stands in one's name, but when the FIR is made by the management for any misconduct, the management should have the provision in the standing order.

At this juncture, the employee just needs to watch what action management is going to take against him. The employee can only fight legally after his termination by the management.

Termination on the Grounds of 'Loss of Confidence'

You can terminate an employee on the grounds of 'Loss of Confidence', provided the loss of confidence is bona fide. The Supreme Court in Indian Airlines Limited vs. Prabha D. Kanan held that the loss of confidence cannot be subjective but must be objective, which may lead to a definite inference of apprehension in the mind of management regarding the trustworthiness and reliability of the employee alleged and proved.

Again, in Binny Limited vs. Their Workmen and another, the Supreme Court held that the employer is not bound to keep the employee in service with whom relations have reached the point of complete loss of faith or confidence between the two.

Dear Hardik, your question needs elaboration. Better, answer the following queries:

1) Whether the FIR registered by the police was based on any work-related complaint lodged by the management or in connection with any other criminal act of the employee outside the zone of his employment?

2) If the criminal act mentioned in the FIR is one relating to his employment, was any disciplinary action initiated by the management against the employee before or after his suspension as per the Standing Orders or Service Regulations applicable?

3) In either case, whether the employee was arrested and kept in judicial custody or enlarged on bail?

Yes, no meaningful suggestion is possible unless the complete details are posted, especially regarding whether the FIR registered is related to his employment.

Supreme Court Rulings on Loss of Confidence

As submitted on the thread about the loss of confidence citing the Apex Court ruling, namely, The Supreme Court in Indian Airlines Limited Vs. Prabha D. Kanan, held that the loss of confidence cannot be subjective but objective.

Again, in Binny Limited Vs. Their Workmen and another case, the Supreme Court held that the employer is not bound to keep the employee in service with whom relations have reached the point of complete loss of faith or confidence between the two.

For the academic interest of Cite Communities at large, kindly share the soft copy on the thread.

Regards

Dear Colleague, if there is a nexus between the criminal act and the company's business and it also constitutes 'Misconduct' under the MSO/SR, then the only legal way is to issue him the charge-sheet, place him under suspension pending enquiry, pay subsistence allowance during the period of suspension, and hold and complete the domestic enquiry in accordance with the well-established procedure. If found guilty, award punishment proportionate with the gravity of the misconduct proved and his past record. If dismissal is the appropriate punishment, then issue him a show cause notice for the proposed dismissal before executing the order of dismissal.

Regards, Vinayak Nagarkar HR-Consultant