Can Employee Faceing Crimnal Case Can Be Terminatied

Dear Colleague,
In our organization one of our employee has been arrested on the basis of suspect of murdering his wife. and he is in police custody.
On this basis can we terminate him from our employment.
waiting for your valuable suggestion.
yours HR Subordinate.

Hi Lokeshyl,

The employer needs to have a valid and fair reason for termination. According to the Indian law, an employee can be terminated based on 4 valid reason/situation. They are,

1. Misconduct

2. Incapacity

3. Incompatibility

4. Employer’s operational requirements/retrenchment.

Apart to the above mentioned reasons, an employer can also terminate an employee due to any legal case for which an employee is convicted and sentenced to a period of punishment. An employer should always have a genuine reason to support the course of action.

According to the law, under the Employment and Labour Relations Act, 2004 and The Employment and Labour Relations Rules, 2007. The procedures for termination are different depending on the reason for termination but they all have a common item - the right of an employee to be heard before a termination decision is taken against an employee.

Also no employer can can terminate or take disciplinary action against an employee who is facing criminal charges before a court of law, unless the same has been proved against him/her or they have been convicted for the criminal case filed against them.

Hi Lokeshyl,
On an individual level, fair law states that one is innocent until proven guilty, therefore, should your employee be punished now, (by you) before being proven guilty?
Unfortunately the answer is YES.
This is because you have a duty to the company and the rest of the employees, known as a Duty of Care.
You cannot upset the employees, you cannot create a worrying situation by allowing the employees to think that this person will be back, and you must take action now to prevent rumors.
However, you must also write to this person and inform them that their employment is being terminated with immediate effect and give the reasons why including the above. He probably knows that he has lost his job, but you must act responsibly and ensure that all his dues are paid up to the date of arrest.
I hope the above helps.
Regards,
Harsh

Termination on the ground of conviction by court is not just automatic but the employer is under an obligation to follow the same procedures as are required in the case of an employee charged with offence or misconduct during the course of employment. It is true that a convicted employee may not be able to accept show cause notice/ charge sheet or attend to the departmental enquiries. If he/she does not turn up for departmental enquiries, certainly, you can take a call to terminate the employee. Law also says that even if he is convicted the employer should wait till order of the appeal court comes and if he is not filing any appeal against the order of the lower court, wait till time of appeal expires.

To add one more thing, though he/ she is terminated on the ground of conviction and following the procedures in the standing orders of the company, you can not deny his gratuity, if he is otherwise eligible for gratuity. Because gratuity is some thing that can be forfeited only on ground of a serious misconduct which has taken place DURING THE COURSE OF EMPLOYMENT.

Madhu.T.K

The employee is in Police custody. What is the official paper/communication that you have from him/his relations, about his absentiseem.
If, at all, there is any intimation, whether true or false, you have to handle the situation, according to the reason mentioned in such communication.
If there is no communication from him about his absentiseem, you send him letter of absconding from duties, which will certainly remain unreplied, and then you can take further steps.
If Police dept has informed you that this employee is in their custody, then I don’t think you can do anything, tlll the court verdict is announced.

follow enquiries and then u can terminate the employee on the basis of his incapicity to come to the duty for considerable time, if he can join duty with in 3 months , then u must wait and if not u can terminate him after enquiry and yes all dues incl. Gratuiy must be paid on last date of termination.

Dear Group,
I think, it will be unfair to remove him for the above reason, until the person is found guilty, we cannot say that he has committed a serious offence. There are many cases, where the people have lost the jobs, due to such cases and then they were found not guilty. Therefore, unless the same is proved in the court of law, it will be improper to remove him from the job.
Also his behavior in the company, needs to be taken into consideration. So before taking any action, kindly check if the laws of natural justice are not ignored.

you can not terminate him based on his criminal case, because his case pending before criminal court and its not cleared, law treated him as a accused not convict person.
If court Judgement will not comes infavor of Employee, than you can discuss the same with your management for further legal action.
And also you have to refer your company certified standing order regarding the class of termination or disciplinary procure and follow the same.
Thanks & Regard
Kanthraj