Executive Human Resource At Emcure Pharmaceuticals
Tax & Labor Law Advocate
Manager Human Resource
Asst.commissioner Of Labour..a.p.
Recruitment/talent Acquisition, Career Counselling
B K BHATIA
Director Of Company
Talent Acquisition / Consultant - Catalis
Start Up Consultant
Withholding of document of course CANNOT under any circumstances be legal - unless you are a government organisation who has the authority to do something like this to enact security or other enforcements on employees. This is pretty much holding employees to ransom with no way out - even in service bonds there are termination clauses where the employee can pay their way out. This is possibly a criminal offense if it can be proven in the court of law. Please allow some to the senior members to comment on this. However as with service bonds - this possibly falls in the same ambit.
Now there was this interesting discussion about legality of bonds - https://www.citehr.com/162292-legal-...on-policy.html - some said that it was theoretically possible to hold people to ransom for some bond they signed - Ankita a senior member suggested this in this post https://www.citehr.com/433978-legal-...ml#post2014674
I would suggest that your employer looks for possible reasons why employees are leaving rather than try to create abusive practices - I hope some of our senior members will be able to shed more light on this issue.
6th May 2013 From India, Gurgaon
But number of companies do practice it in return for a receipt.
Is there any law to prove that its illegality. I am sure my boss is not keen on doing anything illegal. All I have to do is show solid proof to stop this policy from been implemented.
6th May 2013 From India, Pune
Your quoting that a number of companies do it & offer a receipt in return is not a valid argument. You may not be aware that they return the original documents within a week.
CHR, the Super Moderator has guided you adequately. It may be in your own interest to follow his advice.
6th May 2013 From India, Delhi
6th May 2013 From India, Thiruvananthapuram
Asian Heart Institute faces a lot of flak from Nurses for this practice and they finally withdrew the same.
In a PIL, somewhere in July 2011, Delhi High Court came on heavily for witholding certificates and bonding nurses. Subsequently, even Indian Nursing Council specifically banned this practice.
As a professional, you may help your organization in finding out reasons of attrition and address them rather than help them create taller artificial and illegal walls! In any case they will not work. In case they do, you will be saddled with unwilling workforce!
You can google for the high court judgment. I was unable to paste the link.
7th May 2013
Amrita, if your employer is serious about plugging attrition, he should commission an independent audit of the companies policies and HR environment. In fact, the very fact that he thinks holding original papers is a method to deal with attrition is illustrative of bullying; and today's employees get wind of negativity at senior management level quickly, and leave. It is quite probable that people are leaving because of a poor work environment, low security, low compensations and a mix of all of these.
It is quite clear that withholding original papers is illegal - "artificial bond". And by doing so all you will end up doing is turning away the high potential human resources as no one worth his salt will join you under these circumstances. Your employer needs to look at the mid- and long-term and have a strategy to improve retention of employees in a positive environment.
7th May 2013 From India, Mumbai
7th May 2013 From India, Mumbai
It’s illegal to have your employees original certificates with you. (Literally you are locking your employee with a heavy chain and preventing him from moving anywhere). This is worst than slavery, because if he gets to escape from that particular environment he can manage to be free, but by getting the original certificates the employer is curbing the rights of the employee. If I am not mistaken this is an offense which comes with penalty from court along with imprisonment based on the case filed.
I clearly understand this situation of yours, as I had faced similar situation in my beginning days of my career as a HR.
It was my CEO who was insisting me to do this and they already had the system in place when I joined the company. I told them clearly that I will never hand over my original certificates beyond 7 working day with them. At the time of hiring me they were Ok with that only for me. But when I had to hire people they told me that I should collect the originals, initial I explained the consequences but my CEO was not read to listen. Finally I said I will collect all the originals on behalf of him and he will have to sign the document stating that the below listed docs will be kept in safe custody by the company and he would take entire responsibility of the original docs. After few days he said it was fine with him and we did not have to collect originals. I ensured that all the originals collected earlier where returned to the concerned employee later.
As a HR person you need to have ethics and make sure nothing unethical happens when you are part of the system.
Optional way out to retain sales persons, use half yearly or annual bonus, use variable pay, use commission on sales. This will work out well in retaining candidates.
7th May 2013 From India, Madras
Here is the legal position regarding keeping the original documents of the employees. It is totally illegal and falls under the catagory of Bonded Labour System. Which is illegal in India and punishable with jail term or fine or both. Please understand to get those document from an employer the employee need to lodge FIR with Police. After which the police will arrest the CEO or the person incharge for keeping the documents of an employee unlawfully (unlaful confinement). Even if the employer gets bail he will have to face charges which if prooved may land him in Jail.
My Opinion to you would be to discontinue the same without wasting any further time and return all the documents to all the employees.
I am surprised that some employer give receipt against the documents so unlafully detained. It is like a Kidnapper gives you receipt for keeping you unlawfully detained.
7th May 2013 From India, New Delhi
This practice of withholding documents during initial bond period is quite common in IT industry. Many of the Companies which recruit freshers and then train them hold their documents unless they complete two years service. It may looks harsh and may cause lots of problems to the employee but just think honestly a fresh graduate BE does not have much knowledge of work and the company which employ him / her as a fresher has to train the person, I have come across few companies where they impart real class room training for 6 months and that too without any work, then in next 6 months they provide on job training where productivity is just negligible. In this period they provide a stipend of Rs.20000/Pm and accommodation along with free lunch and some other benefits.
Once the training is finished they pay full market salary to the employee. But the employee has to work at least for one/two year and during this period they hold the certificates in their custody. Employee can leave them at will but has to pay training cost to the Company which is mentioned in the offer letter itself. After two years employee can get his papers back but still he has to serve the notice period in case of resignation or buy the notice period.
Dear friends you can't call this an illegal act as every thing is done as per contract. Which was offered to employee with having an option to accept or refuse. Once a person accept the terms and conditions he has to follow it. The Companies who hold documents are holding them legally and as per the contract where both the parties are signatories and proper consideration is mentioned. The documents are being kept as a security
The practice of holding original certificates is even used by most of the professional colleges. I remember long back the people employed by Private banks and Companies had to provide some cash security. So when law does not prohibit the Bond period. How will it object the holding documents. If Government Of India can recover Bond period Salary / Expanses from Aam Aadmi Party President Mr. Arvind Kejriwal, which law can stop the same action of companies against an ordinary individual.
So legally I am sure there is no problem although on moral grounds it may be something unwanted but again dear every one has the right to protect his interests. So if your Company too wish to hold documents ask them to get a proper offer letter drafted with clearly mentioning all the terms and conditions applicable to new employees and then they can hold the documents legally.
8th May 2013 From India, Delhi
If an employer gives training to an employee to raise his skill level, he may ask the employee to sign a bond to serve him for a certain time and that would be legal and enforceable. If that employee do not want to serve the bond period he have to pay for the training cost to the employer and if he does not pay that can be recovered through court. However to detain his document and forcing him to serve the bond period is illegal. Employer cannot force any employee to compulsorily serve him although he is entitled to receive the bond amount.
Whether you like it or not keeping somebody's documents with an intention to make him work for you comes under forced labour, which is illegal and punishable by law. There are ways to do it legally and we should not resort to such illegal things.
Also for you information Mr. Kejriwal had returned a loan, he took from the government and not the bond period amount. Every person has his legal rights and those are as important as that of some VIP's.
8th May 2013 From India, New Delhi
I, as an individual, can appreciate that IT companies spend a lot of funds on training the freshers with a view to utilize trained people for company's business. If after training, someone suddenly quits by breaking the agreement, the company has no means to trace the individual & recover the cost of training. Withholding the original certificates can at least ensure that an employee does not abscond. His/ her Certificates shall be returned immediately as the dues are settled as per the employment contract. To legal experts this argument may not be convincing, but would they have some solution to offer to the affected companies, who may be facing such problems repeatedly?
Surely, their solution can not be to file an FIR, engage an advocate & carry on with the legal battle. Such an approach may sound one sided, that is employee focused. How does law protect the interests of the employer?
8th May 2013 From India, Delhi
I have given the solution in the post above yours. Everybody has rights, employers also have right to get the bond signed if they spend considerable amount on some employees training and to get it enforced against the employee if he do honour the bond.
8th May 2013 From India, New Delhi
Your solution does not indicate how to trace an absconding employee to recover the amount spent on training (as per the employment agreement). And that, perhaps,is the problem of an employer today. Are you suggesting, by any chance, that the employer should now invest funds & feed the lawyers to extract the training cost? Are you sure that the legal process in our country will not entail double the expenditure of the training cost which the employer intends to recover? And how much time will it take to close each case?
Therefore, I would prefer a solution from the legal experts on how to protect the interests of the employer when an employee suddenly vanishes after completing his/ her training (in spite of having signed a bond to refund the training cost). I regret to say that my comments have not been read/ understood by you; you seem to have responded in haste.
8th May 2013 From India, Delhi
Which documents are you talking about?
Educational qualification certificates? birth/marriage certificates? passport? property documents? Driving license? Aadhar cards?
The employer companies DO NOT have any authority to withhold any of these documents, even by giving back written receipts. Actually companies do not have authority to give written receipts for these documents.
• The educational qualification certificates / Passports can be taken by some country consulates for visa validation purpose only, based on power given to them by the foreign ministry.
• The driving license can be taken by RTO officer, by the power given to him by RTO rules.
• The Passports can be taken by police authorities by power given to them by law & inforcement department.
• The Property documents can be taken by other financial institutes against loan (Mortgage only!), by the power given by RBI rules.
• Certificates issued by municipal corporations like birth certificates are given in multiple copies & you can ask for original to be kept with company forever; But this will not solve your problems..
• Identity documents like Aadhar cards / PAN Cards / Ration cards cannot be withheld by any organization, for whatsoever reason.
Which of these powers does your company exercise?
It is not only against the laws, but also a very bad practice towards good human resource management. Please do not fall for such temptations in rush of improving the retention.
I am sure you will come up with better reasoning for poor retention; & subsequently better plans to resolve it properly.
8th May 2013
I think i am not an expert in tracing an absconded employee.
But as far as the solution as to how to enforce the bond is concerned i may tell you and belive me there are no shortcuts to that. Keeping the documents of an employee is not an option. I may tell you this by vertiue of my day to day practice of Labour Laws itself.
In case you want to enforce the bond against any employee who is absconded. First you have to send a Demand letter to him on the address available with the management asking him to report to duty and honour the bond. If he does not respond you may take help from an advocate to file a recovery suit against such employee and do not worry about feeding a lawyer you may recover the expences so done from the opposite party. However if you resort to some illegal means that would not only weaken your position but also land you in legal trouble. We cannot opine anybody to do any illegal act.
Please fell free to revert in case of any specific doubt.
8th May 2013 From India, New Delhi
8th May 2013 From India, Delhi
Appreciate you supporting the 'other' view, this will actually help clarify any remaining doubts from the enquirer's mind.
I know of some companies, that keep a part of salary/stipend on hold during training period, to be paid later on confirmation. This is a valid/legal way to go with, if the contact says so clearly! There are also more other ways of doing this, than to venture into the illegal activities.
I work with service/IT type of industry as well, & know of very few companies that actually provide training that is worth more than bond value + earnings from employee's work during on-job training. Most of them don't even do training cost analysis, for the on-job training period. The bond values are set based on salary structure, generally very high than the actual training costs. The bond periods are set looking at what other peer companies are doing. Many of the posts on this forum indicate this fact!
Only companies that want the cheapest employees, with minimum training, to provide maximum efficiency, opt for such options to increase retention. There is nothing wrong in it, but if the employee expects maximum salary, with minimum skills/training, & the market is allowing growth to the employee elsewhere, then they cannot really expect long term association with employees.
The companies with good environment, ethical policies, transparency, and at-par salary structure, rarely face the attrition problems. And even during the period of market upsets, I have seen employees returning to these companies, after they left for short duration.
Unfortunately, one can easily bend the laws & take advantage of lengthy legal processes to justify these methods; But is it the kind of advice we want to give to the enquirer on this forum?
8th May 2013
It appears you are an advocate by profession but it's not clear if you have actual industry experience and if yes at what levels. Dear friend holding educational qualification certificates as security is a well accepted practice and prevalent in Indian industry for many many years.here i tell you one more fact that this practice is generally followed for freshers and for employees who have just started career. Any way it my request that this form is to express opinions and why you felt so bad that you have to use such harsh words like half knowledge etc. Gentlemen what ever I have written is the reality and being an advocate I hope you understand the validity or enforce-ability of any contract. So plse understand there is no law in India which prohibit any employer from entering any conditional employment contract. Or tell me the law which prohibit employer from asking for any type of surety or security from an employee. I know you wont be able to find any such law so just try to find few SC rulings if any on this subject or any ruling from Privy Council. I am sure there is nothing such and that's why this practice of holding Certificates is being followed by couple of top Indian IT companies. I can't put there names on records as it will be against law but if you do some home work you will find many such names.
Please go through the records and enlighten yourself and if you find some thing positive please provide the information in this form so many more people will get benefited. But if you don't mind please don't reply any comment by name.
With best wishes.
8th May 2013 From India, Delhi
Okay let's try to find any relevant cases related to such issues - I couldn't really find anything online and I wonder if any employer was ever taken to court over such an issue.
I think its a valid argument for the employers who withhold documents because they provide training - let me explain the incident where I have seen this happen - this was at a fairly well know CA firm - the person who got effected was a star performer doing her internship - she got selected to join E&Y and the previous employer held her hostage for 2 months. She had no pending projects and had even received commendation for her previous work.
Now, these people who come in for internships or freshers who are being trained are usually somewhat trained (which is why the employer choose them) but require process knowledge - perhaps in some cases the employer has to train a complete novice to a level of competence to work for them - I highly doubt anyone is doing that.
This I think somewhat boils down to the understanding of what goes on in the minds of these freshers - many times they realize the job is not exactly their calling, or they get a better offer.
The question is - is the employer within his rights to hold back documents and enslave the employee against his/her will to make them work just because they feel they have earned the right from the money they spent on the process training?
8th May 2013 From India, Gurgaon
The question your boss has asked you to hold documents for 1 year + notice period is having two aspects one is legal and other is ethical. Lots of our friends have given opinion and many of them says it's illegal. Here what I feel may be some of them think all unethical/immoral things are illegal but it's not so. This holding documents in various circumstances has legal sanity and can't be challenged in any court of law. I am sure that's why no one has challenged it in any Indian Superior Court ( High Court or Supreme Court).
The other aspect as said by our Super Moderator (CHR) "The question is - is the employer within his rights to hold back documents and enslave the employee against his/her will to make them work just because they feel they have earned the right from the money they spent on the process training?'
You can say the Law has nothing to say against holding of documents but one thing is there why this holding of documents started. I give you an example. An IT company recruits freshers (B.Tech / B.E) from hundreds of Colleges I feel NCR is having over 150 Engg colleges. Those having degree are just having some broad knowledge of IT/CS but they are not fit to perform or provide any output. So companies have to train them in real terms and most of the Companies provide 6 months to 1 year training to groom those graduates to become real Engineers and as per rough estimates it cost at least Rs.3 to 5 lac to train a person properly. Once a person is expert his worth is 5 to 7 lac p/a but here he is getting around Rs 3.5 lac/PA. Just think if Company lets him go as most of them may wishes there will be a net loss of 3 to 5 lac per employee to the Employer. So what is the answer is this moral or immoral.
Here in case of Amrita I don't feel her Company is providing any such training to employees and their only intention is to just hold employees. So we can term their action as immoral but still the law won't help any of those employees as if the Contract/Offer letter is drafted properly you can't take the company to court.
Here I would also like to tell you even this holding documents does not always help the companies as I know couple of cases where the young men were so smart and they procured duplicate Certificates from their respective universities by just giving an add in the some local new papers about loss of Certificates and vanished. So what a company can do in this case, just sack the missing employee and nothing more as good companies are not having time to pursue these minor matters.
Anyway Friends so please note holding certificates may be unethical or immoral but not illegal either in India or even in US or Europe forget Middle East, China or Russia.
With best wishes.
8th May 2013 From India, Delhi
Let's look at your calculations first:
In your view, a company spends 3-5 lacs on an employee for training. Also, it pays the same employee 3-5 lacs as remuneration. Does that mean, the gross profit earned by the company from services of that employee in the first whole year is zero?
Does it means, that the company provides a year full of dedicated training, & even the on-job training is not worth a rupee?
Also, after the training year, if the employee is worth 5-7 lacs, why does the company not raise him to that level then?
The answer is, the company does not spend even 1 lac worth on training, when you compensate it with the profits earned by the employee in that year. These factors are considered when deriving the “training curve” for the new employees. How many organizations even bother to calculate the realistic training curves for these new employees?
They just want to have a 'win-win' scenario in either case, even if for employee is left with 'loose-loose'. (If employee leaves, company gets more money than training cost. If he does not leave, company gets a long term trained employee. While if the employee leaves, he pays large amount just for the ‘experience gained’. If he does not leave, he is losing on upgrade in salary in a better place.)
In our country of large unemployment ration, I could not understand why companies have to struggle for retention. Are we not choosing the right people as employees…, OR are we not providing them good enough environment to work for us... OR Do we just want to take the advantage of the large competition for employment & squeeze what we can from them??
A company, if feels the candidate is not up to the mark, can deny the employment, but cannot complain for training requirements later. Training is a part of their curriculum & even experienced new employees have to go through training. The company cannot charge the employee for giving “experience”. They can only charge for “formal Training”.
"Experience" comes as part of services provided by the employee, & not as part of employment provided by employer.
Just to update you: my organization serves middle east clients, & even though some of them ask to surrender the passports for employees on deputation, our organization strictly declines it; at times even at stake of losing business. This is the kind of commitment that drives the organizations towards betterment of ethics; Where instead of thinking of quitting, employees can proudly say that, they are part of the organization & their organization stands for their personal development.
Holding the documents cannot be justified in any scenario. If the document is not provided by the company, it has no right to hold it. The documents provided by government authorities (including educational certificates), can not be withhold by private companies. Companies cannot trade these documents, hence they do not have right to write 'receipts' for these documents.
I said in my previous post, & I would like to repeat it; This forum should not be about how to find loopholes or find bypasses to the laws, but to share how we can help each other improve our organization HR ways.
In the race of survival, many company HR's face dilemma of what's legal/ethical/doable/preferable way to perform better. For this, many people come here (including myself) to seek help with good & genuine intensions. We ought to think what we provide them as answers!
9th May 2013
Greetings for the day.....
This topic is well dealt I appreciate one and all. In overseas jobs such kind of bonds are implemented but in India its not possible. Once i happened to work in Dubai where our Passport has to be kept with the employer for security purpose which is illegal but... no option. Even though there are laws governing such kind of matters but of no use when it comes to an individual employee.
Any way I concur with the views of all and thanks for sharing.....
9th May 2013 From United States, Chicago
Members may read the judgement in the following cases, and form their opinions,
Shamshad Ali vs Director(Police-Radio) UP Police and Others,
ITC Ltd Vs Gagandeep Singh Sodhi and Anr
High Polymer Labs Pvt Ltd vs RK Mutreja and Anr
R Babu vs TTK LIG Ltd
9th May 2013 From India, Thiruvananthapuram
One of our friend has quoted some cases on this thread and after going through all of them thoroughly I have observed none of these cases were regarding holding of documents and more over the courts had not even granted relief to the employees. Anyway our question is different. I too feel very much against this practice and many more other similar practices.but here the question is legality of Holding documents and law is silent on this and I doubt if anyone can obtain and help from law.
With best wishes.
9th May 2013 From India, Delhi
Article 19 (1)(g) of labour act provides a citizen right as follows:
"All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business."
Now this is a fundamental right.
This right can be restricted by Clause (6) of the article, by making a law in the interest of the GENERAL PUBLIC.
"nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause............"
If the impugned bye-law is a reasonable restriction on the exercise of the right conferred by Article 19(1)(g) then it is not invalid. But no by-law has been yet made either by the Parliament or any state assemblies empowering the employers to impound the originals of the employees. The employer is infringing the right of employee to practice the profession or occupation of his choice with some other employer by keeping the original documents with him.
Now, original documents are the property of the employee, the burden is on the employer to show the employee the existence of any law, bye-law, rules, notifications etc. allowing him to keep the original documents of the employee while issuing the appointment letter. As there is no such law, the employer cannot succeed.
Further, keeping the original documents by the employer changes the relationship of employer and employee into one of mortgagor and mortgagee and the original documents become mortgaged property and this is not permissible in service law.
Lawfully, the employer can protect his interest by appropriately framing the clauses in the appointment letter and detailing the damages if his interest is affected (for example, if the employee leaves the job during the lock-in period, he has to pay damages of certain quantity, 3 months notice or notice pay in lieu of notice, and not taking up any new job within prescribed period in any other organizations, where similar business is going on etc.).
But for achieving this end, forcing the employee to surrender originals is not permissible by law. Employee may give the originals to employer consensually, but it is only valid until he is lawfully employed by the contract. If the contract seizes by resignation or termination, the contract can be challenged by law, & law does not yet permit holding the employee property against it.
If an employee chooses to go to labour commissioner with complaint ‘during’ or ‘after’ employment, the employer will have to provide justification to frame such clause in the contract.
Furthermore, If any company challenges this dispute by finding such a by-law proving the power of ‘employment contract’ over ‘Article 19 (1)(g)’; Appeal can be made against the validity of the said sections of by-law itself, claiming that it is if found restricting the fundamental rights. If the applicant contends that the act does not lay down clear guidelines for the exercise of power by the company and so the decision of the company is bound to be discriminatory and arbitrary, against fundamental rights dotted down by Article 19 (1)(g), the by-law can be is declared ultra-vires by the court.
10th May 2013
1. Please understand Companies holding the Certificates are not violating this section strictly as per this law. as they keep the documents in custody as per the terms of Offer Letter & Contract of Employment duly signed and accepted by the Employee himself.
2. These Companies (genuine one) are not impounding the certificates of employee and they always return them within 3 days of either of completing the Bond period or settlement of Dues if employee has resigned. You can't take them to court under this section as if company has refused to return the documents as per the terms of employment no court will come in support the errant employee.
3. Employer does not require to do this as these terms along with Bond period, Notice period, Exit policy and all the other important terms of employments are clearly mentioned in the Offer Letter and any one who disagree with these terms can decline the Job, same way employer will also not issue Joining letter to those employees who have any reservations about the terms of Offer Letter or Companies HR policies.
4. I agree with you that once the contract of employment ceases to exist or completed Employer does not have any right to hold them but one important legal point is contract cannot be treated as finished just on the submission of resignation of employee. Here acceptance of the resignation is important and acceptance will only come once the terms of exit are fulfilled as per the Job Contract..
5.. Yes being an Citizen of India every one has the right to Go to the court and fight for Justice but Mr Amod you will agree that court will also instruct the employee to act as per the terms of his contract with the Company and settle the accounts.
Dear Sir, If India has to grow and become a real International Economy there is a need of discipline at all levels. Moreover our socialist Government is bringing a new Labour Law and there will be drastic changes in the Employee rights. We are heading towards a regime of Hire & Fire. Although there will be some safe guards to protect the interests of Employees but still dear terms of employments will become more harsh and moreover an Employee can't fight the big Company.
So I am of the view that although this practice may be immoral/unethical/harsh or what ever name we may give it but I have not come across any law which can effectively protect any employee specially an employee who does not care about the agreement/contract he signed without reading or understanding the terms of offer.and who himself is breaching the terms of Contract of Employment.
Anyway thanks for reading all this. may be all the HR forums/Chapters should submit a memorandum to the parliament to amend the Laws to protect employees from this problem.
With best wishes.
10th May 2013 From India, Delhi
I guess you have too much faith in contracts. Just let me tell you that not all contracts are Enforceable. Many contracts are Void ab initio means null and totally void. All the terms mentioned in the offer letter, even though acepted in its entirety may not be valid and enforceable. Have you come accross any of the below Clause it is called Severability Clause
"This contract is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this contract is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this contract shall remain in full force and effect"
This is used to safeguard the interest if any clause is termed void due to its contavention with any Law. Also please go through Section 27 of contract act which makes such contracts null and void which ristricts any body from practicing any trade or professions. No law can stop any employer to enter into any such contract with any employee but if entered and challanged in court, it would have no footing against the Law. Mr Navneet please understand contrats are governed by Law and no contracts are above Law. Even if you go through the High Polimer case shared by Mr. Varghese Mathew the Court has granted relief to the employee on this ground itself and dealt with the subject at length. I am attaching the text of the case with the post.
Now lets come to the holding of the documents. It is illegal by virtue of many Articles of the Apex Law which is Indian Contitution. Contitution is the Apex Law of the Land and even any Law passed by the government which comes in the contavention of Contitution becomes null and Void. Please read Article 23, 13, 14 and 21. You will come to know the very intention of the legislature as to how much the Law is concerned about the well being of common man. Article 23 specifically deals with forced labour. Please read some commentary on Article 23 for better clarity.
When we were studying Law one of our Teacher told us a basic rule which he asked us to always keep in our mind. Which is that the statutory rights of a person given by the contitution are above all and cannot be given awaywith. Even if the person himself wishes to give away them they cannot be given away with. The motive behind it is that if these rights can be givenaway with, the influential people will enslave the persons and will take away all the rights they have. These things comes under the personal rights which cannot be given away with under any circumstances.
As far as the working of top notch IT companies or any famous multinational company are concerned it is well known that when it comes to slaping of hafty fines and dicisions against them from courts they are onthe top of the list. So it is not a standard that if an IT company or a multinational Company is doing it is the right thing. I am well aware of the working of many giants as i have represented many of them. Also on daily basis we provide legal opinion to many of them on various HR related legal issues.
Beleive me most of them are concerned with profits only. As far as this forum is concerned we are here to provide our input for the betterment of the community and Employee welfare.
Further views are invited.
10th May 2013 From India, New Delhi
1.Co is giving training at its expense before putting the employee on job.
2 .Co spends for training /scholarship/projects of the employee wile in service.
But putting the employee straight away on work and getting its returns and ask them to refund the training cost is not reasonable. To make a contract enforcable it shoul have mutuality and the parties should be equal in bargaining.In many cases an unemployed person hungry for job and mighty Co is not equal.He has to agree for all conditions including surrender of certificates.We should solve attrition by HR ways.
10th May 2013 From India, Thiruvananthapuram
This is my fifth & last post for this thread.
Now the thread is going towards arguments just for the sake of arguments…. Some people may make their living based on these arguments… & luckily by law, there is no restrictions on that.
In recent times, the global markets are being much more dependent on the developing countries. The Arab countries or countries like India, China, Malaysia, Philippines, Latin American countries. India was always ahead of the curve than other countries, not just because of intellectual labor capacity, but mainly because of the democratic laws, which gives the labor freedom to develop themselves. This allowed the IT industry from developed world to merge easily with Indian work environment.
The other countries have now understood the importance of fair labor practices, if they want to keep up into global markets. In middle east, laws are changing towards it, & government urges employees not to surrender passports, & to fight for their rights. In china, minimum wedges laws are being implemented, & governments concern about the working condition of their labor force have increased a lot.
They understand now that we don’t need leash around employee necks, to make them work.
If India is really heading towards a regime of ‘Hire & Fire’ type of policies (As mentioned in one of earlier posts), then I am not sure for how long our IT industry can survive it, in competition with these countries….
To answer your original question, I personally would not submit the original documents to the company.
Surely you will find many candidates who are ready to submit the documents now…. Also, soon enough you will come across a few, who will contend against it. As long as we have lawyers who would try to find legal loopholes for that, you would be fine….
People may argue about the legality of the practices, but nobody will deny that there are better ways available…..
This forum has also provided you other ways to increase your commitment towards employees. This may seem like extra work for you now, but in turn it increases employee commitment towards the company as well.
Best of Luck & Very Best Regards,
10th May 2013
If yes, how can they justify the documents against training costs?
If no, on what grounds?
10th May 2013
10th May 2013 From India, Mumbai
Maybe it will serve Amrita better if you can dish-out any specific Court Orders/Verdicts vis-a-vis 'retaining of Originals' issue--going by her & others' remarks, ONLY something in-writing would seem to convince her boss that what's being planned is illegal or at least that it CAN put him into serious trouble.
Frankly, I get the feeling that what's being mentioned in this thread by the members seems more of 'arguments'--as if this were a Court rather than a knowledge-sharing Forum.
Since you have handled quite a few Labor/employee related cases, I guess it would be much easier for YOU to take the lead & present very specific Court Verdicts for the benefit of Amrita & all the members of CiteHR--I recollect your efforts in an earlier thread w.r.t. the legality of Employee Bonds in India--the Link referred by Sid.
Having said that, I agree with the members who mentioned that Amrita's company/boss better focus on the 'WHY' part of retention/attrition in the company. I guess, the same argument expressed by some members when the Service Bond issue was being discussed in an earlier thread would hold good here too: Focus & heal the Disease rather than focusing on the Symptoms.
From another perspective, I think the tendency of the Employers to go for such methods--Bonds, Holding certificates, etc--only betrays their basic nature: to go for the most convenient path. If they were to REALLY take steps to prevent attrition the right way, in all likelihood, they know that it's THEY who have to change, but are loath to. It's a sort of 'you carry the burden rather than me' mentality.
And such persons would realize the necessity to change ONLY IF they are presented with proof of the consequences of their actions.
10th May 2013 From India, Hyderabad
1. Holding employee's Original certificates is a bad HR practice & should not be encouraged by a professionally managed company.
2. If the employment agreement is violated by the employee, recovery of legitimate training costs can be done through legal means. As an internal measure,however, the employer may not issue a Relieving/ Experience letter to the defaulting employee (provided such a clause was clearly mentioned in the Appointment letter).
3. Retention of employees who have been imparted training will continue to be a big challenge for small IT companies & they have to device their own strategies to contain the migration of trained people to bigger companies. Offering competitive salaries only to valuable assets & getting rid of non performers is an obvious option. For example, you may recruit 30 trainees, paying them some stipend, but retain only the best ten at the market rates. And to make them compete with each other, make it clear well in advance (before they join as trainees) that retention shall be based on relative ranking. This may solve the problem of recovery of training cost (keeping in view that more than 50% training is on the job as mentioned by some experts).
4. It may be wasteful, counter productive & highly expensive to resort to legal means, particularly for small companies. Why not spend that much extra & retain the trained people as discussed in para 3 above?
Thanks to everyone for all the inputs. I know this topic can not be closed but I may hesitate to contribute more.
10th May 2013 From India, Delhi
Cases pertaining to Holding of documents are generally do not go upto high court levels. Yesterday i was having a chat with one of a very senior Lawyer he told me about one of his personal experience regarding it. One of his relatives grandson had this situation. His company got signed the bond and also kept his documents with them. He worked for them about 10 - 11 months and at that time he got an offer to work with a big company overseas. He was even ready to pay the bond money but they were not ready to releive him.
His relative contacted him and he suggusted to lodge an FIR. As soon as the FIR was lodged he got his releiving and documents within a day. If that would have been legal the FIR would not have been lodged. Being a criminal case and involving the higher authorities, it gets amicably settled most of the time just on complaint itself.
10th May 2013 From India, New Delhi
Here is no one authorized legally to take original education certificates from employees. If anyone is asking tell him straight way that I need an acknowledged copy that I have deposited Original documents in your company letter head for my future references along with the appointment letter.
Give example if unfortunately Fire burns your office then what is the proof that I have deposited the original certificates.
If the organization still asking for the original certificates then my friend look for good one because this type of Organization deal with unprofessional skills .
11th May 2013 From India, Mumbai
Bonded labour is prohibited in India by law vide Articles 21 and 23 of the Constitution. A specific law to prohibit the practice was legislated only in 1976 known as the Bonded Labour System(Abolition) Act. With the commencement of the Act the followingconsequences followed: bonded labourers stand freed and discharged from any obligation to render to bonded labour. All
customs, traditions, contracts, agreements or instruments by virtue of
which a person or any member of family dependent on such person is required to render bonded labour shall be void. Every obligation of bonded labourer to repay any bonded debt shall be deemed to have been extinguished. No suit or any other proceeding shall lie in any
Civil Court or any other authority for recovery of any bonded debt. Every decree or order for recovery of bonded debt not fully satisfied
before commencement of the Act shall be deemed to have been fully satisfied. Every attachment for the recovery of bonded debt shall stand vacated. [Any moveable property of boned labourer, if seized and removed form his custody shall be restored to him. Any property possession of which was forcibly taken over by the creditor shall be restored to the possession of the person form whom seized
. Any suit or proceedings of the enforcement of any obligation under the bonded labour system shall stand dismissed. Every bonded labourer who has been detained in Civil Prisons shall be released from detention forthwith. Any property of a bonded labourer under
mortgage, charge, lien or any other encumbrance, if related to public debt shall stand freed and discharged from such mortgage Freed bonded labourer shall not be evicted from the homestead land.
13th May 2013 From India, Mumbai
Just just in case you have no other alternative other than submitting your original certificates,
you can always submit the notary attested copies of your certificates,it is as good as original ones and you will have alternative to submitting your original certificate copies.
Since notary attested is legally considered as good as original document,no body can question you on that.
Hope it may help you.
13th May 2013
You seem to have got the situation WRONG.
Amrita is the HR in the company--NOT the Joinee.
@ Amrita--many suggestions have emanated from the members. Pl respond IF any of them 'seem' practical from YOUR perspective--meaning 'would that convince your boss'?
13th May 2013 From India, Hyderabad
After going through all the posts, I happen to have this query.
It was quite debate-able to know if or not keeping of original documents legal.
The legal and moral and ethical part of it secondary as to me, as employee, the concern would be -
"How will the company ensure the safety of my documents?"
If for the sake of job holding the company wishes to have my certificates in original, how would the company guarantee its safety in case of theft or fire or other calamities?
Obviously I have spent years to study and earn those certificates and will have to struggle to get duplicate of those for no fault of mine if the company loses it.
Second thing, how can the company ensure me that my certificates will not be misused or anything by any of the employees of the firm?
I recently happend to read a case here itself on citehr and have forgot the attribution. But it mentioned that the HR happend to take the passport in original of some employees and later was found guilty to misuse it.
Thirdly, when it comes to contract and agreement, Please correct me If I am wrong,
But as per my knowledge, a one-sided contract is null and void.
So in order to have a security that I will not run away from the company breaking the bond, if the company is asking me to submit my originals, Should I as well not seek a guarantee that they too would not terminate my employment for the said period?
If the company is allowed to terminate my employment if I am unable to perform to their expectation, Should I also not have the right to resign if the company fails to meet my expectations?
And by holding the documents, a company will stop a fresher to abscond (and they think they have saved money)
But what happens in the case where a person is hired, he submitted documents, signed bond, got training, is working but unable to perform. If you retain him, you are adding to your cost. If you are terminating him, you have anyway wasted the amount in training him. And why would any employee pay for a wrong hire? A wrong hire is the management's mistake to not identify. And if it is not management's mistake, I don't think it is the poor performer's mistake as well. Because we all have our limitations and we cannot just keep up to everyone's expectation.
Please note that I do not intend to provoke any debate or heated discussion but these were the points that came to my mind while going through the whole discussion.
Hope it didn't hurt anyone's feelings, didn't intend to.
24th May 2013 From India, Mumbai
All I wish to say is if the company is expecting us to perform, as employees, we too have some basic expectations.
Holding documents in original do not MOTIVATE an employee to perform. In such case what will happen is out of the obligation of bond and handing over of certificates, employees may drag the tenure. Wait for you to terminate them. But in this case also employee is affected as he has to go out and explain why was he terminated. And no company will say that we failed to motivate him to perform, they would simply said he was a poor performer in his BGV.
24th May 2013 From India, Mumbai
Please discuss deeply regarding this issue, and try to focus the point that, in any unfortunate circumstances (such as fire, steal, office politics) in office where these records kept. If anyone's / more original certificate lost, then the situation would be more difficult compare to the retention of employee.
I hope this point could work and your employer may understand the gravity of the situation.
28th May 2013