M.Sayeed
Procurements
Cite Contribution
Community Manager
Sushilkluthra@gmail.com
Consultant In Legal Matters
Badrinathdey
Account & Adnimistration
Sonia Basson
Hr Admin. In Recroitre Pvt. Ltd.
M_prashanth1
Employee
+1 Other

Hello Seniors,

I'm presently working with a small web developing company as HR Admin since 2.5 months. On my joining my employer had taken my original documents saying for some verification and had made me to sign an agreement that i'll have to serve them for at least an year and if i'll leave them before that then i'll have to pay them a stipend of my six months salary. Further according to their company's information available on net that time there were more than 50 employees working with them but soon i came to know that it was all wrong and the company is not having adequate no. of employees but then they told me that many employees had left their job being it a small organization and i should put up all my efforts to grow up the no. of employees. But they are not having any contact with any consultants nor they are subscribed to naukri resdex. Moreover they had fixed my salary as 8000-basic+5000-performance based total amounting to 13000 but i had been paid 8000 only for these 2 months. All the employees working with me have deposited them their original documents and wants them back but whenever i talk to them about our documents being HR they give me the reason that if they'll return the documents then they won't see anyone in office thereafter. And also my employer has no fixed timings for coming to office, mostly he comes after 4 in the evening or even doesn't comes at all and when we make calls to him to ask something he doesn't answers us and after that he puts the entire blame on us for not working and then makes us to work on saturdays and sundays even, though 2nd & 4th saturday and sundays are meant to holidays according to his organization's policies.

I want your suggestions on this matter is there anything we employees can do to get our certificates back and get out of this stupid situation and normally there's no fixed policies regarding employees till now whether relating to their salaries, incentives, bonus, leaves, nothing.





Kindly suggest us what to do......................

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15th September 2011 From India, Chandigarh
Dear Sonia,

I am surprised to hear this? How did you sign the agreement with out reading? If it is written as only 1 year, then you can ask them to return your original certificates as you have already complelted the said period. Also, just want to let you know that, no organization in India can bind an employee with the agreement/bond, which is void. It is only to scare the fresh graduates so that they stop job hopping & learn things.

Always remember to do a thorough research before joining any firm. Every organization follows certain policies & procedures/principles which tell us the organization functionality. Few follow & few tell that they follow, you don't have to get scared. This is not the time for you to worry about all this, as you already worked for 2.5 yrs in that firm.

First decide with an open mind, do 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 say yes and give it, then fine, otherwise tell them you would proceed legally. You can definitely get back your certificates with ease without getting into any hassles. As said 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
15th September 2011
Thanks for your valuable suggestion prashanth sir, but i would like to correct you that its not 2.5 yrs that i have been working with this organization its only 2.5 months. My major concern is regarding the matter that i'm a fresher, though 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; and i don't have any type of learning being provided by this organization and more over there seems to be no growth perspectives. I'm really concerned about my future now.
Please suggest me what should i do................
15th September 2011 From India, Chandigarh
Dear Sonia,
Few organizations give training and few dont. Since you are an MBA grad, you should be capable enough to identify your job roles. There is plenty of info. available on net.
Firstly you should decide whether you want to continue with the present organization or not. If you think you can then think positive and continue. If not, then move on..Speak to the present employer and tell him the reason why you want to quit.
You can even give medical reasons as well. Request them to relieve you soon.
If they listen to you, good, other wise tell them you have to proceed legally by filing a case in Labour court or some other means.
Usually this doesnt happen, but if they are reluctant then say to scare them.
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
15th September 2011
Greetings,
I may sound a little downer, but your first priority is to get your documents back. The agreement that you signed, couldn't have mentioned anything with your documents. Make your best approach and ensure you get your documents back.
You have signed a bond, 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 consultant. Companies are hiring experienced HR Professionals. It may take some time for you to find a suitable role. Till that time 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.
15th September 2011 From India, Mumbai
Dear Sonia,
If organizational culture is so poor, perhaps you wo'nt be able to continue long,
so it's better to look for a fresh start.
is there any written doc which can prove it further that they are keepin ur documents 4 sum period??
If not then u may Ask telling your need by sayin as ur family member need sum loan\
n u need to give them 4 verification or some other way to extract documents.
And in future beware!!!!!
16th September 2011 From India, Delhi
Thank you all for your valuable suggestions......................What i have decided is that i'll get my documents back first any how and then i'll quit this job for there's no actual HR work here and no growth or learning that i could get. I had started it positively thinking of framing some policies in this organization but every time my plans are in vain for my employers never feel satisfied with the actual concepts and 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 to be useless to work with this firm any more now. Last month i was given the task of framing bonus policy for the organization and i spend day-night in framing a good policy that will be linked to the salary as it is usually, and even other alternatives if they want it to be performance based entirely.........but it was all in vain..........they finally decided to hold nominally some cash as bonus which will be calculated every 3 months and paid in 4th month if they feel the performance of the employee was good, without an accurate framework as how it would be linked and how to calculate it nothing...............Even they don't talk about my salary on calculation and is constantly being paid 8000 only which was decided 8000+5000/ month........ it is really something very unethical........... I have planned that i'll tell them that i have to move back to my home town for my mother is not well for last some time and being the only daughter i should be with her at this time to help her..........
16th September 2011 From India, Chandigarh
And they hadn’t mentioned any thing regarding documents in the offer that they had made to me.
16th September 2011 From India, Chandigarh
Dear Sonia,

Your documents leads 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, its 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 which may not make any sense when we do it, but appear different at a later point of time.

Managing ambiguity and difficult leaders take years to excel. You are lucky to have found it in your first job. Even when you may stand to feel lost, take my words, you will still have big learning only if you keep an open mind.

Here are two discussions on managing career through challenging situations. Every situation is unique, yet there are many learning that we may take from each other.

Please advice on the career graph
How to streamline messy functions <link updated to site home> ( Search On Cite | Search On Google )

The bottom line remains on how much can you maximize on this situation. Give your self a stopwatch and start counting your takeaways before you move out. This will help you to stay focused.
16th September 2011 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,
16th September 2011 From Kuwait, Hawalli
Dear Sonia,
Original certificates are treated to be property. You had entrusted the property to the employer. He can retain for verification only and then require to return these. If fasils to return he committs offence under section 406 IPC. Your lawyer can give notice for return of these and if fasils to return, file FIR or complaint before criminal Court. As far as asking you to work on holidays, he is required to pay overtime undert shops and establishment Act and insert ID Act. You cvomplasint to lasbour inspector etc.
L
15th December 2014 From India, New Delhi
Dear Sonia,
The first task is how to get your original document from your employer. You may complain at DLC office (District Labour commissioner-State Govt). Don't worry they will definitely take your original document from your employer. Give a Copy of letter to LEO (Labour enforcement officer-Central Govt) and also give CC to your employer through registered post. As this case comes under violation of Industrial Dispute Act 1947 and payment of wages Act, if you want to go further then also give a letter against unpaid wages. But my personal suggestion is don't go further. Put your all effort in searching good Job.
Regards
B.N.Dey
21st February 2015 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
22nd February 2015 From India, New Delhi
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