Background Checks and Employment Laws in India

In today’s highly competitive business environment it is necessary to verify the antecedents of the employees in order to protect confidential information as well as maintain integrity of the organization. Certain instances have been noticed in the recent past, where employees have sought employment on the basis of fake educational qualifications or salary certificates. Even experience certificates are known to have been doctored.

In a recent incident, one employee questioned the right of his employer to verify his antecedents. His contention was that the employer had no right to peek into his past and look at what he was doing after work hours. The services of the employee were terminated for some reason. The employee approached the Police with a complaint that with verification of his antecedents, the company had committed certain offences under general law. The investigating officer of the Police Station questioned the authority of the employer to verify antecedents and closed the case as the application of employment of the Company provided for a clause of verification and the employment agreement also had a similar provision and the Company’s employment rules provided for authorization of verification by the employer.

On this background, the present write up puts forth various aspects of private investigation or antecedent verification. Law as to privacy in India is not as stringent as it is in the United States of America or other countries. Prosecution for antecedent verification by an employee is a remote possibility in India and employment laws in India are generally silent on this issue. However, the Indian legal system is sometimes so flexible anybody can be prosecuted for anything though ultimately the prosecution will end up in acquittal.

Every employer has the right to examine the correctness of statements made in the employment application. Therefore an employer can safely verify antecedents of an employee as long as such verification is for employment purposes. The employer should provide specific clauses in application for employment and there should be specific term providing for such verification in the employment agreement or letter of appointment. The employment policy also should have specific provision stating therein that the Company has right to verify antecedents in order to maintain confidentiality of information as well as from the point of integrity of the organization. The elaborate provisions will help Company in case employee decides to question such a right.

The verification of antecedents or qualifications should be conducted through a reputed agency. There are instances when the agency has given wrong information.

Common surnames or initials or even first names can cause confusions. In one particular case, the investigating agency committed a mistake and informed the Company that a person who was under investigation was not qualified. This was a mistake that took place due to confusion arising out of there being identical names.  an employer needs to be vigilant on this aspect as well.

Antecedent verification is now not confined to only software or such similar industries. This trend observed even in some of the manufacturing units while employing, workers have undertaken this verification exercise so as to avoid hiring employees with a criminal background.

What do investigating bodies do ?

The investigators often post themselves in different positions in order to seek information. The private investigators have no powers like Police to investigate. The investigating agency are required to operate within the framework of law. The investigating agencies sometimes pose as customers and a host of other disguises to collect information. Such an act may attract provisions of the Indian Penal Code and the Complainant can also try to connect the employer as a person having common intention in committing such an offence.

Disclaimer : This is a general note based on a real world incidents and should not be construed as law. Every such case needs to be examined separately and from their respective legal angles.