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Are criminal charges justified for disciplinary hearing?

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An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.

Where it is thought the conduct warrants disciplinary action, the following guidance should be considered: (1) the employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure; (2) where the conduct requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action. This is because an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings. The standard of proof in both cases is different and the proceedings operate in different fields and with different objectives.

Where the police are called in, they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting. The police must do their part on criminal investigations and the employer on disciplinary investigations.

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Where an employee, charged with or convicted of a criminal offence, refuses or is unable to cooperate with the employer’s disciplinary investigations and proceedings, this should not deter an employer from taking action. The employee should be advised in writing that, unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal.

Where it is unlikely that an employee will return to employment, although there might be an argument that the employment contract comes to an end automatically, it is normally better for the employer to take disciplinary action.

An employee who has been charged with, or convicted of, a criminal offence may become unacceptable to colleagues, resulting in workforce pressure to dismiss and threats of industrial action. Employers should bear in mind that they may have to justify the reasonableness of any decision to dismiss an individual, more so because it is possible that a relevant court of law may ignore threats of, and actual, industrial action when determining the fairness of a decision. They should consider all relevant factors, not just disruption to production, before reaching a reasonable decision.

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Nevertheless, disciplinary enquiry cannot be and should not be delayed unduly. The following five parameters can help people make a decision regarding the conduct of both proceedings: (1) disciplinary proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately; (2) if the departmental proceedings and the criminal case are based on an identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case; (3) whether the nature of a charge in a criminal case is grave, and whether complicated questions of fact and law are involved in that case, will depend upon the nature of the offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during the investigation or as reflected in the charge sheet; (4) the factors mentioned at (2) and (3) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed; (5) if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings, even if they were stayed on account of pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd and Anr (1999) 3 SCC 679).

The burden of proof and the focus of an internal disciplinary process are very different to the focus of criminal proceedings. Criminal proceedings are concerned with guilt beyond reasonable doubt, whereas in a disciplinary process, when determining the facts as to whether or not the relevant conduct occurred, the standard of proof is generally the “balance of probabilities”. The same “balance of probabilities” legal test applies when the misconduct alleged is the commission of a serious criminal offence.

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