Background Check Dilemma: How Does a Quashed FIR Affect Promotion Prospects?

Implications of a Quashed FIR in Background Verification

An employee who works in an MNC had a case filed against him for immoral trafficking. He went to the high court and quashed the case. They did not inform the company of the case. Now, he is being considered for a higher role in the same company, which may require background verification. What will happen?

Dear member,

There is a discrepancy in the first and second paragraphs of your post. The first paragraph says, "Employee has a FIR that was quashed found in BGV," whereas the second sentence of the second paragraph says, "He went to the high court and quashed the case." Please note that while an FIR can be quashed, the case itself cannot be quashed. Did the Hon'ble High Court acquit the employee? Please state the facts clearly in chronological sequence.

The case must have come to the Hon'ble High Court after the ruling by the lower court. What was the ruling of the lower court? Was it in favor of or against the employee? Anyway, when the court awards punishment or acquits the accused, the FIR does not hold relevance. Moreover, if the Hon'ble High Court has acquitted the accused, then where is the problem?

In the BGV, companies ask about ongoing cases. Does the company have the right to delve into an employee's past?

Thanks,

Dinesh Divekar

Thank you for the reply, Dinesh ji. I have added more details.

Sequence of events as told by Ee:

Ee was visiting his hometown in 2021 as his mother had passed away. He found a spa number on the internet, contacted the spa due to body pain, and the spa called him back with offers. Ee went to the spa but was detained by the police, claiming a violation of the COVID lockdown. He spent one day at the government hospital in quarantine. From there, he applied for leave expecting some quarantine. The next day, he was expecting to be all clear and go home, but he was booked under the ITP Act and was in judicial custody for 14 days. He didn't inform the organization of this as he had already applied for leave. Ee was bailed with no conditions, and the case was stayed within 3 months. The FIR was quashed in 8 months by the High Court. Ee stayed with the same organization for 3 years. Now, he is being considered for a higher role or relocation, which may involve Background Verification (BGV).

What's next?

Dear member,

Thanks for the clarification. The following interpretations emerge from your post:

Incomplete Work by BGV Agency

a) The cause of your post is the incomplete work done by the BGV agency. They were able to find out that the FIR was lodged against the employee but not that the Honorable High Court quashed it! If they had done a complete job, then possibly, they would not have informed you about the FIR at all or would have informed a complete sequence of events!

Police Actions and Employee Disclosure

b) If the police booked the employee under the provisions of The Immoral Traffic (Prevention) Act, 1956, then there is more to it than meets the eye. However, it remains to be seen whether the police did this for their vested interest. As the police failed to provide material evidence, the FIR could not withstand the scrutiny of the Honorable High Court and it was quashed.

c) Whether the police demonstrated impeachable integrity while booking the employee under the said act or not, should he have declared happenings voluntarily to the organization? This is a delicate issue. This is because if the organization does not have any policy or the industrial standing orders of the organization do not mandate the employee to disclose what happens outside the purview of the organization, then on what grounds can the organization question him for failure to make the disclosure?

Organizational Policy on FIR Disclosure

d) If the organization has an explicit policy that states that whenever the police lodge an FIR against the employees, it is incumbent upon them to keep the authorities informed, then and then only the organization can question the employee for failing to do so. Nevertheless, enforcement of this policy warrants consultation with a lawyer because we do not know whether it violates the employee's privacy.

Personal Feedback

It appears that you are a junior in the HR Department and have yet to master business writing skills. I wish you had provided complete information in your first post itself. Secondly, generally, the term BGV is associated with the newly joined employees. But on reading your second post, it emerged that you were referring to it regarding internal placement. Well, gentleman, take this as a wake-up call to improve your communication skills. How to provide information and how to ask for the information is an art. The sooner you master it, the better. While raising the query on the public forum, this slipshod job may not invite rebuke, but it could from a no-nonsense MD or even a senior HR professional!

Thanks,

Dinesh Divekar

All points well taken, sir. The organization doesn't have a policy in this regard. Shouldn't the background verification company have asked for more documents before flagging the employee?

Dear member, In my second post, I pointed out that the BGV agency should have investigated the details of the case. They did not do their complete job. Secondly, now the Hon'ble High Court has quashed the FIR. The courts are the constitutional authorities. When the constitutional authority invalidates the FIR filed by the police, it validates the innocence of the employee.

How did you come to know that the Hon'ble High Court quashed the FIR? Did you ask for clarification from the employee?

Anyway, based on the exchanges of posts above, for future reference, make an office note and file it in the employee's file. The office note need not be sent to anyone and it can be filed with preceding correspondence with the BGV agency and the employee concerned.

Thanks,

Dinesh Divekar

Thank you, sir, for appreciating the inputs. Do you have any advice for the employee regarding this situation?

Dear member,

What advice can I give to the employee? The police filed an FIR against him when he was mourning the death of his mother. The filing of the FIR is linked to his visit to the spa. Whatever body pain he may have had, was it advisable to visit the spa during the mourning period? The death of his mother warranted his travel to his hometown. His travel violated the COVID-19 protocol, and he ended up in police custody. Up to this point, everything seems okay. But while grieving, his pursuit of pleasure-seeking activities like a visit to the spa is unintelligible. Please note that the visit to a spa carries different connotations in one's mind.

For violation of lockdown rules, the police caught him and forcibly quarantined him. But what prompted the police to file an FIR against him under the provisions of a stringent act like The Immoral Traffic (Prevention) Act, 1956? Generally, the police are reluctant to file an FIR, but if they did so, then they might have had compelling grounds. Can there be smoke without fire? Perhaps the police did a poor job, and because of their shoddy work, the employee could challenge the FIR and exonerate himself at the High Court level.

Well, if one analyzes this person's personality, then it can be said that he is shrewd and knows how to serve his interests well. This person is unemotional and good at looking at the situation in an analytical manner. But he cannot rely on these qualities forever. Possibly, he never thought that the matter buried in his past could resurface after a few years. He should take this episode as a forewarning and walk on the path of righteousness. Abundant religious texts are available that preach the importance of morality. It is high time for him to read a verse or two and further live by them!

Thanks,

Dinesh Divekar

Based on the above, he is in violation of the anti-trafficking policy and can be terminated.

Dear member,

What proof do you have to say that he violated the anti-trafficking policy? If the police could not provide sufficient evidence to the Hon'ble High Court, and if the court has quashed the FIR, then over and above the court's action, what justification will you have to terminate the employee?

Specific misconduct must be defined in the approved and certified standing orders of your company. The employee can be terminated only if the employee's misconduct is proved in the domestic enquiry. Otherwise, the employee's termination will become illegal.

Thanks,

Dinesh Divekar

Promotion to an Important Position

The matter is basically about promotion to an important position. Promotion is not a matter of right, and the company may have its own criteria for who it will put in a particular position. If it wants someone of unimpeachable standing, the fact that he was caught by the police going to a prostitution joint (apparently pretending to be a spa) is definitely going to raise red flags.

Does the BVG Company Need to Investigate It?

According to me, no. They are only required to flag that they found such an incident, probably stating it was stayed or quashed. Then it is for the company to ask (or not ask) for an explanation and for the employee to give a satisfactory reply.

In either case, the company is free not to give that particular position or not to even consider him for further promotion. It is not compulsory for him to have disclosed his 14 days in jail, but I don't think any company feels the need to actually put that clause. It may not be able to terminate him as it does not have evidence, but whether to give a particular promotion is a different story and discretionary.

Going by the narrative, there is some material on record of the employee concerned which cannot be erased. In the circumstances, it's good for him to submit voluntarily a recital of the case and copies of all relevant documents, flagging the High Court's certified copy to clear the air.

All said and done, if he's in good standing, he may as well be favored for the post; otherwise, it's very easy for the management to highlight the episode and bypass him in the promotion. Fingers crossed.

Dear Mr. Saswata Banerjee and Mr. Kumar S,

Both of you have either alluded to or said that the employee in question may not be considered for promotion or may not be sent for the project.

Why should the company deny career advancement opportunities to the employee?

What is his fault? We don't know, but the police might have falsely implicated him. Why the police filed the FIR against him is anyone's guess. However, administrative decisions cannot be taken on guesses. Every decision must be backed by evidence. The quashing of the FIR by the Hon'ble High Court establishes his innocence. The persons involved in making administrative decisions should not try to project their superiority over the Hon'ble High Court itself.

Thanks,

Dinesh Divekar

It's a very tricky situation to be in, for sure. The reality is somewhat similar to what Mr. Divekar points out. Upon looking at the case details, the police have registered that the person (Ee) was the owner/renter of the building and received money as a spa owner. Both scenarios seem highly unlikely.

Mr. Dinesh,

I have only shared my thoughts on the possibilities, which you are also aware of. I'm sure you would agree that it's not my wish either. My concern is that there have been criminal proceedings that have been recorded, at least in part. Given this, do you think such a remark, regardless of whether it should be judged on the case's merits, can be ignored? Shouldn't the competent authorities or HR document what has been revealed by the BGV? It's not our place to judge the matter. However, is it possible for HR to disregard the remarks from a BGV reported by an independent agency? At the very least, they should note this internally and conclude by stating that the Hon'ble High Court cleared him and he emerged positively.

I'm not inclined to delve into the 'spa' episode, as that's a separate issue. I have no intention of portraying him as innocent or questioning his integrity. However, the fact remains that he did not adequately and voluntarily report such an important instance to the employer. What happens now is that many things have come to light through a BGV, not from the employee himself. A preemptive, proactive, voluntary report could have greatly benefited the employee, which is my point here. Still, I don't deny that the High Court ruled in his favor, which he kept to himself. If you believe this is personal and the employer has no stake in the matter, that's a different perception, and there's nothing wrong with it.

That aside, the employer is not in a position to delve into the details, investigate the case further, or question why the police registered an FIR, why they falsely implicated him, or why they didn't investigate thoroughly. What concerns them is the BGV report and how to address it. There's no issue if they choose to ignore it initially, but imagine the defense for HR if someone questions why it was ignored when there is a BGV report. Isn't it HR's duty to document it?