Dear All, Urgently need your suggestions. One of my friends 's company's management wants to remove the employee who is under suspension due to criminal FIR. Organization is paying allowance since more than six months. What is the legal way / process to discontinue his service? If possible pls share draft of letter.
Thanks.
From India, Navsari
Thanks.
From India, Navsari
In one of the Two scenario, an Employer's Order of Suspension is Valid:
1. Suspension-Pending-Internal Enquiry in cases, 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 theSuspension Order was served on the Employee arisiing outof an FIR lodged, the Employer need to ascertain whether the Acts constituting "Offence" under IPC was related to relevant to an Act as pr the SR or CSO and thereby amounted to constituted any Act Unqorthy 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 Enquiry as per the Principles of Natural Justice.
Any Disciplinary Action other than abovementioned shall be Arbitrary, mala-fide and hence Unlawful/Invalid.
Kritarth Team
18.5.2019
From India, Delhi
2001. Suspension-Pending-Internal Enquiry in cases, 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 theSuspension Order was served on the Employee arisiing outof an FIR lodged, the Employer need to ascertain whether the Acts constituting "Offence" under IPC was related to relevant to an Act as pr the SR or CSO and thereby amounted to constituted any Act Unqorthy 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 Enquiry as per the Principles of Natural Justice.
Any Disciplinary Action other than abovementioned shall be Arbitrary, mala-fide and hence Unlawful/Invalid.
Kritarth Team
18.5.2019
From India, Delhi
Dear friend,
The FIR against anybody does not mean the person is guilty unless until been declared by the court. Management can not put any one under suspension if any 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 standing order.
At this juncture the employee just to watch what action management is going to take against him. The employee can only fights legally after his termination by the management.
From India, Mumbai
The FIR against anybody does not mean the person is guilty unless until been declared by the court. Management can not put any one under suspension if any 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 standing order.
At this juncture the employee just to watch what action management is going to take against him. The employee can only fights legally after his termination by the management.
From India, Mumbai
You can terminate an Employee on the ground of 'Loss of Confidence', provided the loss of confidence is bonafide. The Supreme Court in Indian Airlines Limited Vs. Prabha D. Kanan, held that the loss of confidence cannot be subjective but objective, which may lead to definite inference of apprehension in the mind of management regarding trustworthiness and reliability of the employee is alleged and is 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/faith of confidence between the two.
From India, Kolkata
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/faith of confidence between the two.
From India, Kolkata
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, any disciplinary action was 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?
From India, Salem
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, any disciplinary action was 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?
From India, Salem
Yes, no meaningful suggestion is possible unless the complete details are posted esp. as to whether the FIR registered is related to his employment.
From India, Kochi
From India, Kochi
Dear Pradipta Nath,
As submitted on the thread about loss of confidence citing 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, 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/faith of confidence between the two.
For academic interest of Cite Communities at large, kindly share the soft copy on the thread.
Regards
From India, Mumbai
As submitted on the thread about loss of confidence citing 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, 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/faith of confidence between the two.
For academic interest of Cite Communities at large, kindly share the soft copy on the thread.
Regards
From India, Mumbai
Dear Colleague,
If there is nexus between the criminal act and the company's business and the same also constitutes 'Misconduct' under the MSO/SR , then only legal way is to issue him the charge-sheet, place him under suspension pending enquiry, pay subsistence allowance during the period of suspension, hold and complete the domestic enquiry in accordance with well established procedure and if found him guilty, award
punishment proportionate with the gravity of the misconduct proved and his past record.
If dismissal is the appropriate punishment , then issue him Show cause notice for the proposed dismissal before executing the order of dismissal.
Regards,
Vinayak Nagarkar
HR- Consultant
From India, Mumbai
If there is nexus between the criminal act and the company's business and the same also constitutes 'Misconduct' under the MSO/SR , then only legal way is to issue him the charge-sheet, place him under suspension pending enquiry, pay subsistence allowance during the period of suspension, hold and complete the domestic enquiry in accordance with well established procedure and if found him guilty, award
punishment proportionate with the gravity of the misconduct proved and his past record.
If dismissal is the appropriate punishment , then issue him Show cause notice for the proposed dismissal before executing the order of dismissal.
Regards,
Vinayak Nagarkar
HR- Consultant
From India, Mumbai
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