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Ashutosh Mukherjee   26 December 2016

Can we take a criminal action against such an employee?

Dear Learned experts,

I don't know whether I should post this query here or in Labor section of this forum. I'm working as an HR professional in a US Based MNC. We follow very strict procedure as far as standard code of conduct is concerned. Even after a strong BGV process sometimes we find that somebody with fake exp slips through the process and then we take strong action like terminate him after due internal inquiry irrespective of the matter how many years he has been working with us.

Very recently a gentleman joined our organization in a middle management position. BGV was absolutely ok. He has been working us for the last 3 months. But a week back he resigned and now serving notice period.

The real problem starts here. He was supposed to join on 19th September, 2016. But before that he called us and sent a mail that his father in law had expired so requested to postpone his joining by a week which we mutually agreed. We have his mail stating this fact and then eventually he joined on 26th September, 2016.

Recently we came to know that he is fighting for his divorce since the last 2 years (No criminal case registered though) and his father in law is well and fit. And we have substantial proofs.

Now I'm not sure whether his false statement regarding the expiry of his father in law before joining our organization is a gross misconduct or minor one as far as our internal policy is concerned. I have never experienced such a thing.

My higher management is not willing to take let go this opportunity to send a massage across the employees that how stringent our policies could be. So they want a strong legal action against him for giving false statement before joining our organization. They basically want to file S 420 of IPC.

I am told to initiate the process along with our internal legal team. But prior to that I would like to know can we really file IPC 420.

I did some internet surfing today and understood that any cheat or dishonesty which induces someone to make, alter or destroy whole or any part of a valuable security. And Offer letter/ Appointment letter is obviously valuable security. So his dishonest/false statement lead us to alter a part of his offer and appointment letter (we changed only the date of joining).

My query is his intention was to deceive us and we were deceived. But after 7 days (Which was mutually accepted) he did join our organization. So he lived upto his promise of joining us.

I know just for the sake of sending lessons to everyone we shouldn't do that. This is brutally bad for the person concerned and perhaps unexpected also.

But even before getting an appointment letter only he received the offer letter when he made that false statement and induced us to alter the offer letter first and post joining appointment letter also. 

Can we really file IPC 420 against this person? 

Or we cant since he did eventually joined on the scheduled/promised date. So I understood that his intention to deceive us to postpone the joining date was there, but intention to not join us wasn't there.

Can we sue him with IPC 420?


 15 Replies

Ashutosh Mukherjee   26 December 2016

I'm sorry Offer Letter/Appointment Letter is not valuable security but "property"I guess.

And Section 420 is silent about altering a property. It says only about hand over a property from one person to another and in this case he indecued us to alter the date of joining(which was on or before 19th September earlier) and then make it to 26th September and them hand it over to him.

Looking forward to your invaluable suggestions.


G.L.N. Prasad (Retired employee.)     26 December 2016

Much ado about nothing.  Before joining, he has requested a week time more and he might have mentioned a false reason.  In India, such false reasons for applying leave or common, and in this case, he has just potponed joining date and not availed any type of leave with frivolous reasons.  As an employer, one should consideer the performance and how the employee delivers and his commitment, and not for such petty reasons.  If you want to demonstrate your commitment to discipline and wanted to make him a scape goat, to show such organization commitment, it may not be proper..

Ashutosh Mukherjee   26 December 2016

Sir, I am not the one to take such decisions. I'm just a facilitator. And I'm too little an employee in the organizational ladder to either take or rectify such absurd decisions. I myself have joined 5 months back only and after seeing this incident I might well have to think about other options in terms of my future career path. Anyways since I'm told to initiate and facilitate this process I guess I have to be a part of this episode. But I myself still can't believe it. Due to the above reason can we sue him with IPC 420 or may be IPC 415? Here I'm talking about legality. The offer letter or appointment letter is a property or a valuable security? And just inducing to change the date of joining by making a false statement makes that gentleman an offender of a serious crime like S. 420? Please advice. And if possible also tell me what should I tell to our legal department day after tomorrow when I'm meeting.

Kumar Doab (FIN)     26 December 2016

HR persons should avoid to meddle into legal matters.

Since Legal cell is involved let them opine.

Employers, Line Managers would love to fire from someone's shoulder, usually HR persons in such matters 

Agreed, He could have sent simple communication to postpone date of joining, than submitting false statement of death of a person.

 He can very well state that it was say some technical glitch, oversight etc etc.............

If the establishment can not keep him, sit across the table, point out the matter, give him some breathing time  and let him join somewhere else..................Or issue memeo, SCN,condcut deptt/domestic inquiry, and terminate...............


Thereafter he can go to his employee's/trade unions, Lawyers...................if he desires so.


The alterations in appointment letter made by your dept/employer may not matter at all, as enactments that apply to esatblishment/employer/employee shall prevail upon any private agreement drafted by employer and signed with employee e.g; offer letter, appointment letter, HR policy,Employee handbook etc etc ...


Ashutosh Mukherjee   26 December 2016

Sir, I couldn't understand the last paragraph of your post. Yes we will terminate him after having a domestic inquiry. At least that is what I came to understand from the discussions I had with my seniors in the organization. But my question was can we really sue with IPC 420 for this reason? I just wanted to have some opinions from the learned members of this community before seeing what actually happens next day after tomorrow.

darshana sawant (associate consultant)     26 December 2016

Dear Ashutosh,


I do not think the incidence cited by you would fall into cheating as per IPC.  It is advisable to approach a criminal lawyer if you want to take criminal action against him as a deterrent to others and frame your complaint in the appropriate clause of IPC say breach of trust or some other such section, so that you would be able to justify this action before the Court and it would not rebound against you. 

Kumar Doab (FIN)     26 December 2016

Before joining your establishment he was not your employee.

Your legal cell may place the matter before lawyer specializing in criminal matters.

Ashutosh Mukherjee   26 December 2016

Hi Sir,

Yes, we will talk to the team to have an idea. But just now I had a discussion with one of them. And he doesn't handle criminal cases, however he said that the intention is important. And in this case his intention was to postpone his joining date, not to get the "property"per se - Appointment letter, because that offer was already with him when he gave false representation.

So he deceived us fraudulently, but he deceived us not to get the appointment letter/offer letter, he deceived us to postpone the joining date. So as per the learned advocate I have talked to right now this should not come into purview of IPC 420.

He also said if this case comes under IPC 420 then in every case where an employer sends an offer letter to a prospective employee and where the employee doesn't join after promising to join on the scheduled day should come under IPC 420. But that's not the case because an employer cant force an employee to work in India.

So what I understood is that the intention of this gentleman was not to get the offer letter/appointment letter by deceiving us but to get the joining date postponed which shouldn't be a criminal case as per IPC.

I thought of sharing this interaction that I have had with the learned advocate a few mins back with the learned advocates of this community who gave me invalauable suggestions so far.

Thank you very much.

Democratic Indian (n/a)     26 December 2016

I do not know after reading why I am getting an impression that the management of your company are a bunch of sadists.

Offer letter or appointment letter once delivered to the employee is neither a security or property of the employer. Employment is a contract between employer and employee subject to the law. By accepting offer letter or appointment letter employee does not become a bonded labor, he may decline it anytime if there is any lawful reason.

As already stated it is much ado about nothing. No case of IPC 415 or 420 or criminal breach of trust or fraud can be made out. He did not cause any legal injury to anybody. On the contrary later on employee may file case against the concerned persons for abuse of due process of law and other legal injuries.

Since playing with someone's career out of vengefulness or abusing the due process of law is a serious matter, some strongly upset or misguided employee may choose to take law in his own hands and take some extremely violent step on himself or on those persons perceived as cause of creating trouble. These are just my thoughts.

Vivek H Bedarker (A)     27 December 2016

Sir is your company engaging detectives or something? Like if someone says his child is ill then they break into his house to find out? Or someone before even becoming yiur emoloyee says he is sick and needs extension then you send detectives to establish that he was on picnic? There is a filmy saying that 'आज से तुम मेरे लिए मर गए'. It does not literally mean that manytimes. This is where 'letter' and 'spirit' comes into play. But your company is free to do whatever it thinks. But this is mist frivolous reason that comes to mind.

Vivek H Bedarker (A)     27 December 2016

Tell company to use brain. I.e. difference between letter and spirit. 'आज से तुम मेरे लिए मर गए' does not mean literally. But do you engage detectives etc to check on employees when they say their child is sick or they are sick or they were late due to traffic etc especially if their otherwise performance/behaviour is ok?

Vivek H Bedarker (A)     27 December 2016

Also dont file any FIR. Just like a man having affair with married woman just has to tell court that he was not aware she was married, similarly this employee just has to tell that he heard his FIL was dead but turned out to be untrue. But question is not legal but moral. However such frivolous reason is unheard of especially for action against a prospective employee (he was not under your employment at the time)

Sudhir Kumar, Advocate (Advocate)     28 December 2016

Very long narrative

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     28 December 2016

Your American bosses may not be knowing Indian laws. If your organisation has any internal rules they can take action under them. But applying IPC would amount to using a sledge hammer for a swat fly. A court can repremand for using a sledge hammer against a swat fly also. Are your bosses Tuglaks? If a criminal case is filed against him what will he be doing in the meantime? Will he be suspended or will he be merrily serving you and simultaneously fighting the case. I suppose your legal department must be having Indian lawyers who can sensibly advise your bosses. Or in any way if you want to go to court you will be engaging a good Indian lawyer. In the first place have you sent him a show cause notice? What is his reply? As he is fighting a divorce it might have been his wish that his father-in-law was dead. As he has now declared his father-in- law dead he (his father-in-law) also can file a case under IPC 302 or at least 307. His father-in-law can also try IPC-499-500. You just obey your bosses. Let them face whatever that comes.

Once upon a time a person working in my Department came crying inconsolably to me. He said that his father was dead and wanted leave to go home urgently. He produced a telegram as evidence. It was sent by his brother-in-law. I accepted his leave application and advised him to go immediately. Next morning, to my surprise, he appeared again in front of me. It was not his father, but his fathe-in-law that was dead. He wanted to withdraw his leave application.

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