Can We Legally Terminate an Absent Worker Arrested for Theft Using an Ex-Parte Inquiry?

One of our permanent workers was long absent, and when we inquired about his whereabouts, his colleagues told us that he went to Mumbai for personal reasons. Despite this explanation, we issued a show-cause notice and initiated a domestic inquiry due to his extended absence. After a month's time, we received a message informing us that he had been arrested in a theft case in Andhra Pradesh, where he was incarcerated, and a criminal case was in the hearing stage.

Termination Process for Absent Worker

My question is whether we can terminate this worker by conducting an ex-parte inquiry and how an employer can be legally protected by taking this step.

Was the employee issued a show-cause notice for his long absence? Has he responded? If not, please issue a show-cause notice and, based on his response or non-response, you may proceed with an inquiry. It is not for us to say there will be an ex parte inquiry. If the employee does not appear for the inquiry, the inquiry officer may decide to conduct an ex parte inquiry.

In my view, we should issue a show-cause notice to the employee for his prolonged absenteeism. Based on his reply or lack of response, the information we have gathered regarding his arrest in a criminal case can be addressed at the appropriate time.

Dear Mr. Kumar,

How long has the employee been absent?

Was the employee unauthorizedly absent from the first day of his absence, or did he initially take authorized leave for a certain number of days but then continued his absence without extension or notification, remaining incommunicado?

What is the source of the information regarding his imprisonment as an undertrial involved in a theft case in Andhra?

Has there been any official communication from the Andhra Police to your management about his arrest and continued detention?

Is prolonged lock-up in police custody a valid reason for suspending the employee under your standing orders or service regulations?

Can it be assumed that the knowledge of his arrest and detention is based on informal, verbal information from acquaintances of the absent worker?

In my opinion, in the absence of formal notification from the police or his family regarding his arrest and detention, you can take action against the employee for the misconduct of unauthorized absence. You can formulate charges, send the charge sheet and all subsequent communications to the last known residential address of the employee through registered post, and conduct a domestic inquiry with proper notice. As a final step, if there is no response, consider publishing a notice in a popular vernacular newspaper.

After following due process and not receiving any response, you may proceed ex parte and terminate the employee's services based on proven misconduct of unauthorized absence.

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. Considering the pandemic conditions, courts have become more lenient in granting bail. Therefore, it seems there is more to it than just a case of theft, and you may need to ascertain more facts as you proceed along the lines suggested by Learned Umakanthan Sir.

You can terminate the employee on the grounds of long absence without information (absconding) and failure to participate in the domestic inquiry.

Yes, you have every right to proceed with proper disciplinary action—chargesheet and domestic inquiry—independently and in parallel to the criminal case.

A lot of care has to be taken to ensure that all communications are sent to the last known address on record, as the charged individual may not be able to be present for the inquiry. It must be seen on record that all fair and reasonable opportunities are given.

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

Regards,

Vinayak Nagarkar HR and Employee Relations Consultant