Hello Seniors,
I'm presently working with a small web developing company as an HR Admin for 2.5 months. When I joined, my employer took my original documents for verification and had me sign an agreement stating that I must serve them for at least a year. If I leave before that, I'll have to pay them a stipend equal to six months' salary. Initially, the company claimed to have over 50 employees, but I later discovered this was false. They explained that many employees had left due to the company's small size, urging me to increase the workforce. However, the company lacks contacts with consultants or subscriptions to platforms like Naukri Resdex. Despite a promised salary of 8000 basic + 5000 performance-based (totaling 13000), I have only received 8000 for the past two months.
All employees, including myself, have submitted their original documents and are struggling to retrieve them. Management claims that returning the documents would lead to staff not showing up at the office. Additionally, my employer has erratic office hours, often arriving after 4 pm or not at all. Communication with the employer is challenging, as he rarely responds to calls and shifts blame onto employees for lack of work, often requiring weekend shifts despite the policy stating 2nd & 4th Saturdays and Sundays as holidays.
I seek your advice on this situation. Is there any action we employees can take to reclaim our certificates and leave this challenging environment? Notably, there are no established policies regarding salaries, incentives, bonuses, or leaves for employees.
Kindly advise on how to proceed.
From India, Chandigarh
2I'm presently working with a small web developing company as an HR Admin for 2.5 months. When I joined, my employer took my original documents for verification and had me sign an agreement stating that I must serve them for at least a year. If I leave before that, I'll have to pay them a stipend equal to six months' salary. Initially, the company claimed to have over 50 employees, but I later discovered this was false. They explained that many employees had left due to the company's small size, urging me to increase the workforce. However, the company lacks contacts with consultants or subscriptions to platforms like Naukri Resdex. Despite a promised salary of 8000 basic + 5000 performance-based (totaling 13000), I have only received 8000 for the past two months.
All employees, including myself, have submitted their original documents and are struggling to retrieve them. Management claims that returning the documents would lead to staff not showing up at the office. Additionally, my employer has erratic office hours, often arriving after 4 pm or not at all. Communication with the employer is challenging, as he rarely responds to calls and shifts blame onto employees for lack of work, often requiring weekend shifts despite the policy stating 2nd & 4th Saturdays and Sundays as holidays.
I seek your advice on this situation. Is there any action we employees can take to reclaim our certificates and leave this challenging environment? Notably, there are no established policies regarding salaries, incentives, bonuses, or leaves for employees.
Kindly advise on how to proceed.
From India, Chandigarh
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Dear Sonia,
I am surprised to hear this. How did you sign the agreement without reading it? If it is written for only 1 year, then you can ask them to return your original certificates as you have already completed the said period. Also, I just want to let you know that no organization in India can bind an employee with an agreement/bond that is void. It is only meant to scare fresh graduates so that they stop job hopping and learn things.
Always remember to do thorough research before joining any firm. Every organization follows certain policies, procedures, and principles that dictate the organization's functionality. Some follow them while some just claim to. You don't have to be scared. This is not the time for you to worry about all of this, as you have already worked for 2.5 years in that firm.
First, decide with an open mind whether you still want to continue with the firm or leave. If your decision is to leave, then go and tell the employer to return the certificates. If they agree and give them back, then fine; otherwise, tell them you will proceed legally. You can definitely get back your certificates with ease without getting into any hassles. As mentioned earlier, in India, no organization can bind an employee with bond terms. It is not valid in the court of law.
Hope this is clear.
Regards,
Prashanth
I am surprised to hear this. How did you sign the agreement without reading it? If it is written for only 1 year, then you can ask them to return your original certificates as you have already completed the said period. Also, I just want to let you know that no organization in India can bind an employee with an agreement/bond that is void. It is only meant to scare fresh graduates so that they stop job hopping and learn things.
Always remember to do thorough research before joining any firm. Every organization follows certain policies, procedures, and principles that dictate the organization's functionality. Some follow them while some just claim to. You don't have to be scared. This is not the time for you to worry about all of this, as you have already worked for 2.5 years in that firm.
First, decide with an open mind whether you still want to continue with the firm or leave. If your decision is to leave, then go and tell the employer to return the certificates. If they agree and give them back, then fine; otherwise, tell them you will proceed legally. You can definitely get back your certificates with ease without getting into any hassles. As mentioned earlier, in India, no organization can bind an employee with bond terms. It is not valid in the court of law.
Hope this is clear.
Regards,
Prashanth
Thank you for your valuable suggestion, Prashanth, but I would like to correct you that it's not 2.5 years that I have been working with this organization, it's only 2.5 months. My major concern is regarding the fact that I'm a fresher. Before this, I had worked with a recruiting agency for 3 months, but that was just to get the feel of working before actually joining any organization after my MBA. I don't have any type of learning being provided by this organization, and moreover, there seems to be no growth perspectives. I'm really concerned about my future now.
Please suggest what I should do...
From India, Chandigarh
Please suggest what I should do...
From India, Chandigarh
Dear Sonia,
Few organizations provide training, and few don't. Since you are an MBA graduate, you should be capable enough to identify your job roles. There is plenty of information available on the internet.
Firstly, you should decide whether you want to continue with the present organization or not. If you think you can, then think positively and continue. If not, then move on. Speak to the present employer and tell them the reason why you want to quit. You can even provide medical reasons as well. Request them to release you soon.
If they listen to you, great; otherwise, inform them that you may need to proceed legally by filing a case in the Labor court or through other means. Usually, this doesn't happen, but if they are reluctant, be firm.
As I said, first and foremost, are you really interested in the job? If yes, then go ahead. If not, then leave it and look for something else.
Regards,
Prashanth
Few organizations provide training, and few don't. Since you are an MBA graduate, you should be capable enough to identify your job roles. There is plenty of information available on the internet.
Firstly, you should decide whether you want to continue with the present organization or not. If you think you can, then think positively and continue. If not, then move on. Speak to the present employer and tell them the reason why you want to quit. You can even provide medical reasons as well. Request them to release you soon.
If they listen to you, great; otherwise, inform them that you may need to proceed legally by filing a case in the Labor court or through other means. Usually, this doesn't happen, but if they are reluctant, be firm.
As I said, first and foremost, are you really interested in the job? If yes, then go ahead. If not, then leave it and look for something else.
Regards,
Prashanth
Greetings,
I may sound a little down, but your first priority is to get your documents back. The agreement that you signed couldn't have mentioned anything about your documents. Make your best approach and ensure you get your documents back.
You have signed a bond, so you may not be able to change your job anytime soon. Since you are a fresher, working in a firm might add to your credibility. Initially, every role in HR requires hard work. More importantly, do you have an offer in your hand? The market is volatile. The offers for freshers are mostly from recruitment consultants. Companies are hiring experienced HR professionals. It may take some time for you to find a suitable role. Until then, continue in this organization.
I am sure you will do your own research before joining your next firm. Please stay away from handing over your documents ever in your life.
From India, Mumbai
I may sound a little down, but your first priority is to get your documents back. The agreement that you signed couldn't have mentioned anything about your documents. Make your best approach and ensure you get your documents back.
You have signed a bond, so you may not be able to change your job anytime soon. Since you are a fresher, working in a firm might add to your credibility. Initially, every role in HR requires hard work. More importantly, do you have an offer in your hand? The market is volatile. The offers for freshers are mostly from recruitment consultants. Companies are hiring experienced HR professionals. It may take some time for you to find a suitable role. Until then, continue in this organization.
I am sure you will do your own research before joining your next firm. Please stay away from handing over your documents ever in your life.
From India, Mumbai
Dear Sonia,
If the organizational culture is so poor, perhaps you won't be able to continue for long, so it's better to look for a fresh start. Is there any written document that can further prove that they are keeping your documents for some period? If not, then you may ask by stating that your family member needs a loan and you need to provide the documents for verification or find some other way to retrieve the documents. In the future, beware!
Thank you.
From India, Delhi
If the organizational culture is so poor, perhaps you won't be able to continue for long, so it's better to look for a fresh start. Is there any written document that can further prove that they are keeping your documents for some period? If not, then you may ask by stating that your family member needs a loan and you need to provide the documents for verification or find some other way to retrieve the documents. In the future, beware!
Thank you.
From India, Delhi
Thank you all for your valuable suggestions.
What I have decided is that I'll get my documents back first anyhow and then I'll quit this job because there's no actual HR work here, and no growth or learning that I could get. I had started positively, thinking of framing some policies in this organization, but every time my plans are in vain because my employers never feel satisfied with the actual concepts. They always have different philosophies that suit their interests only, giving the reason that they are the boss and the business is not being run on any charity fund. I have realized it is useless to work with this firm anymore now.
Last month, I was given the task of framing a bonus policy for the organization. I spent day and night creating a good policy that would be linked to the salary as usual and even provided other alternatives if they wanted it to be performance-based entirely. However, it was all in vain. They finally decided to nominally hold some cash as a bonus which will be calculated every 3 months and paid in the 4th month if they feel the employee's performance was good, without an accurate framework on how it would be linked or calculated. They even don't discuss my salary calculation and I am constantly being paid only 8000, which was decided to be 8000 + 5000 per month. It is really something very unethical.
I have planned to tell them that I have to move back to my hometown because my mother has not been well for some time, and being the only daughter, I should be with her at this time to help her.
From India, Chandigarh
What I have decided is that I'll get my documents back first anyhow and then I'll quit this job because there's no actual HR work here, and no growth or learning that I could get. I had started positively, thinking of framing some policies in this organization, but every time my plans are in vain because my employers never feel satisfied with the actual concepts. They always have different philosophies that suit their interests only, giving the reason that they are the boss and the business is not being run on any charity fund. I have realized it is useless to work with this firm anymore now.
Last month, I was given the task of framing a bonus policy for the organization. I spent day and night creating a good policy that would be linked to the salary as usual and even provided other alternatives if they wanted it to be performance-based entirely. However, it was all in vain. They finally decided to nominally hold some cash as a bonus which will be calculated every 3 months and paid in the 4th month if they feel the employee's performance was good, without an accurate framework on how it would be linked or calculated. They even don't discuss my salary calculation and I am constantly being paid only 8000, which was decided to be 8000 + 5000 per month. It is really something very unethical.
I have planned to tell them that I have to move back to my hometown because my mother has not been well for some time, and being the only daughter, I should be with her at this time to help her.
From India, Chandigarh
And they hadn’t mentioned any thing regarding documents in the offer that they had made to me.
From India, Chandigarh
From India, Chandigarh
Dear Sonia,
Your documents should be at the top of your priority list. Deal with this very sensitively. Remain stable and show no concern towards the job. However, you may require your documents for other legal purposes and reasons deemed fit to your situation. You are the best judge of your situation. Set your priorities right. No matter how bleak it may seem, find the best learning from your existing role. Remember, it's the reason why you would find your next job. Jump the boat, along with the incentives from the current environment. Too often, we get involved in activities and responsibilities that may not make any sense when we do them, but appear different at a later point in time.
Managing ambiguity and difficult leaders takes years to excel. You are lucky to have found this in your first job. Even when you may stand to feel lost, take my words, you will still have significant learning only if you keep an open mind.
Here are two discussions on managing a career through challenging situations. Every situation is unique, yet there are many learnings that we may take from each other.
Please advice on the career graph: [https://www.citehr.com/310306-please-advise-future-my-career-graph.html]
How to streamline messy functions: [https://www.citehr.com] (Link updated to site home) (Search On Cite | Search On Google)
The bottom line remains on how much you can maximize this situation. Give yourself a stopwatch and start counting your takeaways before you move out. This will help you stay focused.
From India, Mumbai
Your documents should be at the top of your priority list. Deal with this very sensitively. Remain stable and show no concern towards the job. However, you may require your documents for other legal purposes and reasons deemed fit to your situation. You are the best judge of your situation. Set your priorities right. No matter how bleak it may seem, find the best learning from your existing role. Remember, it's the reason why you would find your next job. Jump the boat, along with the incentives from the current environment. Too often, we get involved in activities and responsibilities that may not make any sense when we do them, but appear different at a later point in time.
Managing ambiguity and difficult leaders takes years to excel. You are lucky to have found this in your first job. Even when you may stand to feel lost, take my words, you will still have significant learning only if you keep an open mind.
Here are two discussions on managing a career through challenging situations. Every situation is unique, yet there are many learnings that we may take from each other.
Please advice on the career graph: [https://www.citehr.com/310306-please-advise-future-my-career-graph.html]
How to streamline messy functions: [https://www.citehr.com] (Link updated to site home) (Search On Cite | Search On Google)
The bottom line remains on how much you can maximize this situation. Give yourself a stopwatch and start counting your takeaways before you move out. This will help you stay focused.
From India, Mumbai
Good day,
The first Priority to get the Original�s Doc�s,
Its not easy to have from any Employers, its need a cleaver ideas to get it.
I don�t know either its work or not, but I have few points, try to follow, may be it will work out.
1, Don�t ask for immediate release for any documents (From this Employer will understand that you are running from Co.)
2, Let them know that you are planning for further studies or a Course in coming 2 -3 months, and need documents by that time (This point is just friendly alert for the doc�s for Employer)
3, Ask for one by one Documents. Example � Ask Employer to provide any one of the Original Doc�s which you need for some Govt work like license, ration, pan, etc.
If Employers give then well and good, later you can ask another by giving any more excuses.
4, If in your friend circle there is any legal advisor, then take some advice from him, just in friendly manner � (Don�t hire any, its waste of Money).
5, (This one is yours idea only) � Excuse of moving to hometown in an emergency due to health or domestic issue. (But its work rarely)
6, This is not a professional, but try in last, if anything not work � Ask assistance of your Male cousins and try to meet them to your employer and REQUEST for Documents due to emergency to leave hometown or etc � (By doing this your Employer can understand that you have full support and you can go beyond that )
But kindly consider first �(Cite Contribution) Madam� Advice, as you are the fresher so this job countable for you near in future and once you have more experience you can find job any were.
Respected Moderators, Admin, if any of my point found unproffesional, then please delete it.
Thank you,
Regards,
From Kuwait, Hawalli
The first Priority to get the Original�s Doc�s,
Its not easy to have from any Employers, its need a cleaver ideas to get it.
I don�t know either its work or not, but I have few points, try to follow, may be it will work out.
1, Don�t ask for immediate release for any documents (From this Employer will understand that you are running from Co.)
2, Let them know that you are planning for further studies or a Course in coming 2 -3 months, and need documents by that time (This point is just friendly alert for the doc�s for Employer)
3, Ask for one by one Documents. Example � Ask Employer to provide any one of the Original Doc�s which you need for some Govt work like license, ration, pan, etc.
If Employers give then well and good, later you can ask another by giving any more excuses.
4, If in your friend circle there is any legal advisor, then take some advice from him, just in friendly manner � (Don�t hire any, its waste of Money).
5, (This one is yours idea only) � Excuse of moving to hometown in an emergency due to health or domestic issue. (But its work rarely)
6, This is not a professional, but try in last, if anything not work � Ask assistance of your Male cousins and try to meet them to your employer and REQUEST for Documents due to emergency to leave hometown or etc � (By doing this your Employer can understand that you have full support and you can go beyond that )
But kindly consider first �(Cite Contribution) Madam� Advice, as you are the fresher so this job countable for you near in future and once you have more experience you can find job any were.
Respected Moderators, Admin, if any of my point found unproffesional, then please delete it.
Thank you,
Regards,
From Kuwait, Hawalli
Dear Sonia,
Original certificates are considered property. You had entrusted this property to the employer. He can retain them for verification purposes only and then must return them. If he fails to return them, he commits an offence under section 406 IPC. Your lawyer can send a notice for the return of these certificates, and if the employer still fails to return them, you can file an FIR or a complaint before a criminal court. Regarding being asked to work on holidays, the employer is required to pay overtime under the Shops and Establishment Act and the Industrial Disputes Act. You can file a complaint with the labor inspector, etc.
Thank you.
From India, New Delhi
Original certificates are considered property. You had entrusted this property to the employer. He can retain them for verification purposes only and then must return them. If he fails to return them, he commits an offence under section 406 IPC. Your lawyer can send a notice for the return of these certificates, and if the employer still fails to return them, you can file an FIR or a complaint before a criminal court. Regarding being asked to work on holidays, the employer is required to pay overtime under the Shops and Establishment Act and the Industrial Disputes Act. You can file a complaint with the labor inspector, etc.
Thank you.
From India, New Delhi
Dear Sonia,
The first task is how to get your original document from your employer. You may file a complaint at the DLC office (District Labour Commissioner-State Govt). Don't worry; they will definitely retrieve your original document from your employer. Give a copy of the letter to the LEO (Labour Enforcement Officer-Central Govt) and also send a CC to your employer through registered post. Since this case falls under the violation of the Industrial Disputes Act of 1947 and the Payment of Wages Act, if you wish to pursue further action, also submit a letter regarding unpaid wages. However, my personal suggestion is not to escalate the matter. Focus all your efforts on finding a good job.
Regards,
B.N. Dey
From India, Bokaro
The first task is how to get your original document from your employer. You may file a complaint at the DLC office (District Labour Commissioner-State Govt). Don't worry; they will definitely retrieve your original document from your employer. Give a copy of the letter to the LEO (Labour Enforcement Officer-Central Govt) and also send a CC to your employer through registered post. Since this case falls under the violation of the Industrial Disputes Act of 1947 and the Payment of Wages Act, if you wish to pursue further action, also submit a letter regarding unpaid wages. However, my personal suggestion is not to escalate the matter. Focus all your efforts on finding a good job.
Regards,
B.N. Dey
From India, Bokaro
An employer who does not want to return original certificates of an employee, is evidently having a nasty mind to exploit the employee or to cause deliberately loss to him. The original certificates should have been returned to an employee after comparison. Employer can retain photocopy copy of certificates of employee (self attested by employee). Even if employer wants to get verified from the university he can send a copy of the certificate to the university for confirmation. Yet if the employer retains the certificates of an employee in the garb of his rules, even though easiest and non-dilatory method should be adopted but it should be legally valid. The Inspectors under the Shops and Establishment Acts though seems to be dealing with certain work conditions of service of employee but in some arena they would be helpless. For example, regarding return of certificates, there is no register of certificates required to be maintained under these Acts and therefore no information can be sought regarding retention/return of certificates from the inspectors.
Thus an inspector under the Shops and Establishment Act may not invoke his jurisdiction on complaint of an aggrieved employee to get returned his certificates. Say even if inspector sends notice to such employer in this regard, then by merely saying that he has suspicion about genuinity of the certificate which he is getting verified, the inspector under the Shops and Establishment Act, will not be able to adjudicate the matter because of lack of jurisdiction in this regard.
It would be different if an employee is covered under the Industrial Disputes Act, 1947 as workman when he can approach the labour inspector contending unfair labour practice or victimization practiced by the employer by not returning his certificates. Thus an employee who is not a workman, will get himself enmeshed into deciding this issue firstly for long. For a non-workman, the inspector will have no jurisdiction to send a notice even to such employer.
Thus an employee cannot be left at the mercy of such nasty employer for long period. Filing a civil suit will be a dilatory proceeding because what is sought in main relief, interim relief cannot granted.
A practical justice oriented method which draws quick relief has to be invoked.
Upon lodging an FIR against such a stubborn employer, the criminal court can order delivery on superdari under section 451 of CrPC, of such original certificate to complainant. Thus it will be the quickest legal method of recovery of original certificates.
Section 451 is extracted below, it is oftenly resorted to by owners of vehicles involved in accidents.
Section 451 in The Code Of Criminal Procedure, 1973
451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence
So let us examine legality of the retention of original certificates in the context of various decisions of High Court.
An act which is prohibited by law is illegal. As per Section 6 of the Transfer of Property Act, there is a prohibition to transfer any right in respect of these certificates.
Thus, the agreement cannot be treated as a valuable security creating a legal right in favour of the Management to retain the certificates for ever despite the demand for return of the same.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The certificates of the candidates cannot be treated as transferable property so as to be retained by the Management under the guise of recovering the amount in terms of the agreement/bond. The so called agreement is not a valuable security creating rights in favour of the Management. It can be treated only as an entrustment as provided under Section 405 I.P.C. and non return of original certificate will be an offence under section 406 IPC.
If an employee raises allegation that he has demanded return of the certificates but employer is refusing to do so, entitles the employee to launch criminal prosecution against employer.
As regards certificates retention, it is relevant to refer to following decisions:
Justice K. Suguna in Madurai Bench held in 2008 said the academic certificates could not be termed �goods� to enable the educational institutions to withhold them.
Hon�ble High Court pointed out that the Supreme Court, in R.D. Saxena vs. Balram Prasad Sharma (2000) case, had taken a view that a lien (right to possess property of another person until a debt owned by the latter is discharged) could be exercised only on marketable goods.
Extract of the Supreme Court judgment:
Supreme Court of India
R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000
We would first examine whether an advocate has lien on the files entrusted to him by the client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the Indian Contract Act which reads thus:
Bankers, factors, wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
Files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to in the section. The advocate keeping the files cannot amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act as the delivery of goods by one person to another for some purpose, upon a contract that they shall be returned or otherwise disposed of according to the directions of the person delivering them, when the purpose is accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word goods mentioned in Section 171 is to be understood in the sense in which that word is defined in the Sale of Goods Act. It must be remembered that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly replaced by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of the Sales of Goods Act as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached, to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Thus goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party.
The Court held that the reliance placed on Section 171 of the Contract Act has no merit.
Thus send a legal notice through an Advocate to get return of your certificates immediately and upon failure to do so file FIR and after it is seized by the police and produced before court, then make an application before criminal court under section 451 CrPC to get you delivered your certificates on superdari. Of course, the court can be approached for early seizure of certificates.
Thanks
Sushil
From India, New Delhi
Thus an inspector under the Shops and Establishment Act may not invoke his jurisdiction on complaint of an aggrieved employee to get returned his certificates. Say even if inspector sends notice to such employer in this regard, then by merely saying that he has suspicion about genuinity of the certificate which he is getting verified, the inspector under the Shops and Establishment Act, will not be able to adjudicate the matter because of lack of jurisdiction in this regard.
It would be different if an employee is covered under the Industrial Disputes Act, 1947 as workman when he can approach the labour inspector contending unfair labour practice or victimization practiced by the employer by not returning his certificates. Thus an employee who is not a workman, will get himself enmeshed into deciding this issue firstly for long. For a non-workman, the inspector will have no jurisdiction to send a notice even to such employer.
Thus an employee cannot be left at the mercy of such nasty employer for long period. Filing a civil suit will be a dilatory proceeding because what is sought in main relief, interim relief cannot granted.
A practical justice oriented method which draws quick relief has to be invoked.
Upon lodging an FIR against such a stubborn employer, the criminal court can order delivery on superdari under section 451 of CrPC, of such original certificate to complainant. Thus it will be the quickest legal method of recovery of original certificates.
Section 451 is extracted below, it is oftenly resorted to by owners of vehicles involved in accidents.
Section 451 in The Code Of Criminal Procedure, 1973
451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence
So let us examine legality of the retention of original certificates in the context of various decisions of High Court.
An act which is prohibited by law is illegal. As per Section 6 of the Transfer of Property Act, there is a prohibition to transfer any right in respect of these certificates.
Thus, the agreement cannot be treated as a valuable security creating a legal right in favour of the Management to retain the certificates for ever despite the demand for return of the same.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The certificates of the candidates cannot be treated as transferable property so as to be retained by the Management under the guise of recovering the amount in terms of the agreement/bond. The so called agreement is not a valuable security creating rights in favour of the Management. It can be treated only as an entrustment as provided under Section 405 I.P.C. and non return of original certificate will be an offence under section 406 IPC.
If an employee raises allegation that he has demanded return of the certificates but employer is refusing to do so, entitles the employee to launch criminal prosecution against employer.
As regards certificates retention, it is relevant to refer to following decisions:
Justice K. Suguna in Madurai Bench held in 2008 said the academic certificates could not be termed �goods� to enable the educational institutions to withhold them.
Hon�ble High Court pointed out that the Supreme Court, in R.D. Saxena vs. Balram Prasad Sharma (2000) case, had taken a view that a lien (right to possess property of another person until a debt owned by the latter is discharged) could be exercised only on marketable goods.
Extract of the Supreme Court judgment:
Supreme Court of India
R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000
We would first examine whether an advocate has lien on the files entrusted to him by the client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the Indian Contract Act which reads thus:
Bankers, factors, wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
Files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to in the section. The advocate keeping the files cannot amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act as the delivery of goods by one person to another for some purpose, upon a contract that they shall be returned or otherwise disposed of according to the directions of the person delivering them, when the purpose is accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word goods mentioned in Section 171 is to be understood in the sense in which that word is defined in the Sale of Goods Act. It must be remembered that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly replaced by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of the Sales of Goods Act as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached, to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Thus goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party.
The Court held that the reliance placed on Section 171 of the Contract Act has no merit.
Thus send a legal notice through an Advocate to get return of your certificates immediately and upon failure to do so file FIR and after it is seized by the police and produced before court, then make an application before criminal court under section 451 CrPC to get you delivered your certificates on superdari. Of course, the court can be approached for early seizure of certificates.
Thanks
Sushil
From India, New Delhi
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