True it is that for Government or semi government organisation, the DOPT has issued instructions to place an employee charged with dowry death but in private organisations where if 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, is the company ready to bear the burden of paying salary for uncertain period. Unfortunately, if few more employees accidently happen to be involved in criminal cases.
Then further observations of the Apex Court in BABU LAL case below, will further hit on economic health of the company without getting any work 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 proceeding was 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 proceeding 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 pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service."
These perspectives have to be borne in mind.
Thanks
Sushil
From India, New Delhi
221Then further observations of the Apex Court in BABU LAL case below, will further hit on economic health of the company without getting any work 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 proceeding was 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 proceeding 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 pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service."
These perspectives have to be borne in mind.
Thanks
Sushil
From India, New Delhi
Mr. Saibhakta, I refer to your last sentence. MPs / MLAs are a class apart, they are demi-gods, they can go scot-free through money / muscle-power... We are just ordinary mortals. Even a few years ago, there was an amendment to the criminal acts, the interpretation was that, unless and until an elected representative is convicted, he can still contest ...... So, they try to avoid getting convicted by delay tactics... like Mr. Lalu Yadav, still going scot free...
From India
From India
Going by the basic principles of Administrative Law a Company cannot terminate an employeee without giving him or her a chance to give representation. If it does so, then the termination is illegal and liable to be set aside. Further the company can only terminate only on ground of non-attendance and not on the basis of the pending Police enquiry or a trial.
From India, Delhi
From India, Delhi
In view of latest law laid down by Apex court as followed in Ex Constable kishore kumar singh decision by Punjab and Haryana HC that absence has to be willful beyond compelling circumstances like accident, illness etc If an employee is able to show that he was implicated in a false criminal case and arrested for the period of absence, then he cannot be said to have committed misconduct of lack of devotion to duty or on unauthorized absence. It is thus better to treat him on leave without pay whereas if you suspend him, he will be required to be paid subsistence allowance or full wages, as per rules as discussed earlier. The suspension cannot be prolonged very much. If the criminal case ultimately results into conviction then he can be terminated on the basis of moral turpitude involved in the criminal case.The above line of approach is subject to what explanation the employee gives for his absence.
Thanks
Sushil
From India, New Delhi
Thanks
Sushil
From India, New Delhi
In continuation, the correct citation is Ex Constable Shri Awadh Kishore Singh v State of Jharkhand and decided by Jharkhand HC on 23.9.2013. Thanks Sushil
From India, New Delhi
From India, New Delhi
In a case known to me an employee of a central PSU was arrested on charges of gold smuggling.He was immediate;y placed under suspension.Later he got 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 if the employee is finally acquitted ? He has ten years of service left.What if the court decision comes after that ?
From India, New Delhi
From India, New Delhi
Dear SaiBhakta Ji,
In PSU the conduct rules are on the lines as prevalent in government. These are very wide and even the words unbecoming of a public servant cover many misconducts involving moral turpitude. As it is well settled that where a government servant commits a misconduct contrary to conduct rules, he can be prosecuted in criminal courts and disciplinary proceedings can also be simultaneously held on same cause of ąction because the extent of proof required in criminal proceedings is beyond reasonable doubt whereas in disciplinary proceedings it is preponderance of probabilities. Thus the delinquent could have been terminated for misconduct and the later acquittal from criminal courts will have no impact upon termination. However if the termination was based on conviction which was later set aside then delinquent is entitled to be reinstated. Pl refer to Apex court decision in Babulal case cited above. Should you want citations for permissibility of simultaneous criminal and disciplinary proceedings, these can be given.
In the case private employer, generally they are governed by misconduct rules defined under shops and establishment Acts and thus governed by Glaxo decision of Apex court whereby misconduct has to be specified. In that case an act committed outside establishment was held as not covered under misconduct. In PSU it will be misconduct.
Thanks
Sushil
From India, New Delhi
In PSU the conduct rules are on the lines as prevalent in government. These are very wide and even the words unbecoming of a public servant cover many misconducts involving moral turpitude. As it is well settled that where a government servant commits a misconduct contrary to conduct rules, he can be prosecuted in criminal courts and disciplinary proceedings can also be simultaneously held on same cause of ąction because the extent of proof required in criminal proceedings is beyond reasonable doubt whereas in disciplinary proceedings it is preponderance of probabilities. Thus the delinquent could have been terminated for misconduct and the later acquittal from criminal courts will have no impact upon termination. However if the termination was based on conviction which was later set aside then delinquent is entitled to be reinstated. Pl refer to Apex court decision in Babulal case cited above. Should you want citations for permissibility of simultaneous criminal and disciplinary proceedings, these can be given.
In the case private employer, generally they are governed by misconduct rules defined under shops and establishment Acts and thus governed by Glaxo decision of Apex court whereby misconduct has to be specified. In that case an act committed outside establishment was held as not covered under misconduct. In PSU it will be misconduct.
Thanks
Sushil
From India, New Delhi
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