In this article, Akanksha Mathur of National Law University, Delhi discusses the impact of a past or ongoing civil or criminal case on your job.
The process of applying for a job is becoming more difficult by the day. Employers have become far more stringent in choosing employees from a large pool of applicants, conducting background checks to ensure that they employ the “right” kind of people, and to preserve the ‘culture’ in their offices.
The hiring process thus becomes disadvantageous for someone against whom a civil or a criminal case has been filed. This article aims at taking an exhaustive look at what to do at various stages of employment if a civil or a criminal case has been filed against you.
Charges Resulting In A Conviction Or Civil Judgement
When being accused of a crime, a person may be arrested and criminal proceedings may be instituted against them in a court of law. It is only when the person is held guilty by the decision of the judge that the criminal charge results in a conviction.
Past Cases and Convictions
While seeking employment, either in a private company or the public sector, certain steps have to be taken in terms of past or pending charges in a court of law.
All employers, whether belonging to the public sector or the private, perform background checks to verify the antecedents of their applicants.
What Is An Employee Background Verification?
An Employee Background Verification is a thorough screening of a candidate’s educational and academic qualifications, work history, legal and criminal records, address and credit scores.
This process usually takes anywhere from 3 to 10 days.
What Are The Details That Can Come Up In A Background Check?
Companies look for the following information while conducting a background check-
- Legal Records- Through these, an employer can check up on an applicant’s court records and criminal history.
- Employment History- Employers can contact past employers to verify the period of employment, the role played in each company, the salary, performance, conduct and so on.
- Educational Qualifications- Potential employers almost definitely will reach out to universities to verify the educational credentials.
Background Checks In India
Different companies collect the above-mentioned details in different ways-
- Large private companies- They hire external agencies to conduct background checks and verify the details of the applicants.
- Small and medium employers- They conduct employee background checks internally, through their own Human Resource departments.
- Government and Public Sector Undertakings- These usually have an extensive verification process for potential employees.
- They first request proof of residence where the applicant has lived for more than 6 months in the past 4 years, along with proof of current local address and permanent address.
- They also request the record of the applicant from District Magistrates or Police Commissioners of the area on the basis of the information provided on the residence.
- The police stations are then asked to run a check.
To aid employers in conducting background checks, the government has also introduced various initiatives-
- Aadhar verification – Companies can access the information stored in Aadhar, which includes residence, bank accounts and biometrics, among others.
- National Academics Depository- The NAD was launched by the government to digitally store education records, and can also issue reliable certificates to verified users. All education boards and institutions are planned to be introduced on this platform.
- National Skills Registry- The NSR, introduced by the government, is the largest database or working professionals. It currently lists more than 200 companies; 21,87,635 registered professionals and contains 14,77,518 submitted biometrics.
Employers most commonly resort to social media to map the affiliation, activities and interests of their potential employees. Since employers look to maintain the ‘culture’ of the workplace, they often reject applicants on the basis of their social media feeds.
Are Background Checks Legal In India?
The amount of information potential employers can gather about their potential employees raises concerns about the violation of an applicant’s right to privacy, which has been held to be a fundamental right by a 9-judge bench of the Supreme Court. Thus, the consent of an applicant is mandatory for potential employers to be able to conduct a background check.
While background checks are legal in India, there is no law regulating them.
- Background screening for employment is mandatory for Indian companies having an ISO 27001 certification.
- Employers cannot access an applicant’s medical information, financial background or biometric data without permission. However, practically speaking, there are no laws limiting the extent of a background check.
What Are You Required To Disclose?
The requirements for disclosure for applying for a job change according to the nature of the job. A non-disclosure of a trivial crime might not be seen as a big deal in certain kinds of jobs, but will be regarded with extreme disfavour in a job which requires transparency and the trust of the employer.
At times, it is also not required to disclose a past case that did not result in a conviction or a court judgement, while it might be necessary in other instances.
In any case, the best option would be to inform any potential employer about any pending case or past convictions, though such a voluntary declaration is not required or mandated.
Consequences Of Non-Disclosure Or Suppression Of Information
An employer can legally take action against someone who actively discloses incorrect or misleading information on their verification form.
A three-judge bench of the Supreme Court enumerated the principles to be followed by employers when dealing with the suppression of information or submission of false information by potential employees in the verification form with respect to prosecution, arrest or pendency of a criminal case in the case of Avtar Singh vs. Union of India. The following guidelines were laid down-
- Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
- While passing an order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
- The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
- In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to the knowledge of the employer, any of the following recourse appropriate to the case may be adopted :
- In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
- Where a conviction has been recorded in a case which is not trivial in nature, the employer may cancel candidature or terminate services of the employee.
- If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
- In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
- In the case when a fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to the decision of such case.
- In a case of deliberate suppression of fact with respect to multiple pending cases, such false information by itself will assume significance and an employer may pass an appropriate order cancelling candidature or terminating services as the appointment of a person against whom multiple criminal cases were pending may not be proper.
- If a criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take a decision after considering the seriousness of the crime.
- In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing an order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
- For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases, action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
Effect Of A Past Civil Or Criminal Case On Your Job
At the time of applying for a government job, a background check is conducted.
- In the case of State Of West Bengal & Ors. Vs. Nazrul Islam, the Supreme Court ruled that any person facing or convicted of a criminal offence cannot be considered suitable for a government appointment. To be considered eligible, a person should either have no charges pending against them, or have been acquitted of these charges by the court. However, this acquittal must not be out of a compromise between the accused and the victim, or due to the witnesses in the case turning hostile.
- Moreover, as per government regulations, any person who has spent more than 48 hours in police custody is barred from government employment.
- A government employee can only be terminated on the basis of unnecessary absence from work or on the grounds of proven misconduct under the Constitution of India.
- Generally, a civil case cannot form a basis for termination in the public sector until the case is one involving moral turpitude.
The effect of a criminal case on employment varies according to the kind of offence and job. Most employers have their own policies regarding employment of people with criminal records. However, jobs of a sensitive nature may refuse employment to a person convicted of an offence of moral turpitude.
A civil case generally has no effect on employment in the private sector, but it may result in a financial burden and affect a person’s credit score.
Ability to Work Abroad
Under Section 6(2) of the Passports Act, 1967, the passport authority can refuse a foreign visa to any applicant if-
- In the preceding 5 years, they have been convicted of an offence of moral turpitude and been sentenced to more than two years’ imprisonment
- Criminal proceedings are pending against them in India
- A summons to the court, warrant for arrest or order prohibiting departure from India has been issued against them.
Effect of FIR on Employment
Mere registration of an FIR will not result in any adverse effect on employment. Proceedings must have been started in a court, or the person must be convicted of the offence for any adverse effect on their job.
In case of a registered FIR, the best option is to institute proceedings to quash it in court under Section 482 of the Code of Criminal Procedure.
Termination Of Employment
Due Process In Termination
Asper Section 2(s) of the Industrial Disputes Act, 1947, a workman is defined as any person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. This does not include an employee employed in the managerial, administrative or supervisory capacity.
Section 25F further defines the conditions that must be fulfilled before the termination of a workman. An employer must-
- Provide a 30-90 day notice in writing, giving the reason for termination or wages in lieu of the period of notice.
- Fifteen days’ average pay for every completed year of continuous service.
- Notice to be served to the appropriate governmental authority.
The dismissal must follow the “last in, first out” principle wherein the person last to be employed is the first to be dismissed, in absence of any contract to the contrary.
Grounds For Termination
Under the Constitution of India, a government servant can only be terminated on the grounds for unnecessary absenteeism or for proven misconduct.
The grounds for termination of employment in the private sector are generally-
- Inefficiency or poor performance
- Disclosing confidential information of the company such as its trade secrets
- Breach of employment contract
- Proven misconduct of the employee, or acting outside the scope of authority
- Unnecessary absenteeism.
Rights Of Terminated Employees
- Under Section 79 of the Factories Act, 1948, a workman is entitled to the payment of all dues before the expiry of the second working day after the termination of employment.
- Under Sections 4 and 7(3) of the Payment of Gratuity Act, 1972, gratuity is payable to an employee who has served for 5 years or more within 30 days.
A terminated employee also has the right to appeal the termination on statutory or contractual grounds in front of the jurisdictional labour authorities. This may be done if the employer has failed to provide a reason for termination, the dismissal is unfair or if misconduct has not been established.
This was all about the impact of a past or ongoing civil or criminal case on your job. What are your views on the impact of a past or ongoing civil or criminal case on your job? Comment below and let us know.
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