Umakanthan53
Labour Law & Hr Consultant
Saswatabanerjee
Partner - Risk Management
V.Raghunathan
Process Industry Consultant / Soft Skill
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Mkandukuri
Director - Hr
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Ashutosh Thakre
Hr Professional
Ashe
Pms,t&d,legal Compliances , Labour Handling
+2 Others

Thread Started by #ashe

Dear Seniors,
In a company, A HR Manager has completed his 58 yrs and rtd but retained by company as consultant (3rd party) , can he sign Compliance related document , is it correct
In other words , A HR Manager hired on 3rd party roll ( outsourced ) legally eligible to sign compliance related doc of 1st part ie. principle comp
21st August 2015 From India, Dehra Dun
From a contract point of you, any document can be signed by any two parties within the legal domain. For example you can not sign a document for an antisocial cause.
When some one becomes a consultant, he is no longer the company employee but a person who works for the betterment of the company.
Please bear in mind that responsibilities for legal or internal administrative matters will be only with those who are on the permanent rolls of the company.
To protect your company's interests, you can retain the essence of the compliance document suitably modified and have a seperate contract signed between your company and consultant.
V.Raghunathan
21st August 2015 From India
Generally companies will not designate a consultant as a manager with statutory responsibility. So as such it's a bad idea. There is nothing in law preventing a consultant from signing a compliance. But when some problem arises, this fact may be an issue.
Probably he should then be hired as Fixed Term Employee instead
22nd August 2015 From India, Mumbai
Hello Ashe,
Saswats Banerjee's suggested is BOTH implementable & practical.
You can hire him as a Fixed Term Employee....meaning on Contract directly by the Principal Company. And his Contract should contain the appropriate clauses that clearly define the powers you wish him to have. The Contract can be extended periodically as per needs.
I know of a person with age of >60 yrs hired this way @ a senior level who also signs Int'nal Documents.
Rgds,
TS
23rd August 2015 From India, Hyderabad
Respected Seniors,
It is a good question by the initiator of this thread.
Can any third party / out source employee be authorised to sign any documents on behalf of Principal? This is the question the initiator has asked.
We may be seeing any body is signing any thing. But is it legal?
I have another questions to you with due respect to you all, as under:
What is Fix Term Employment?
Under what law the term "Fix Term Employment" is written?
How you can appoint an employee on his retirement or on his resignation as Fix Term Employee?
How you can take any senior level person on out source?
What is the legal validity to out source?
Answers to above questions in the parameter of Indian Laws will be enlightening to all who will be reading it.
23rd August 2015 From India, Mumbai
The "Fix Term Employment" essentially comes under the Contracts Act Korgaonkar.
At least that was the case in the example I mentioned & it's been working fine since 2012--and I was told it's perfectly legal by the MD of the Company [a Public Limited one].
Rgds,
TS
23rd August 2015 From India, Hyderabad
The concept of fixed term employee is defined in ID act, as already stated by others.

Even otherwise, there is nothing in Indian law to prevent any person from working under a specific contract of employment that clearly states his terms of employment and includes a termination clause. The only requirement is that he can not contract away any of his rights under the labour law. The only one he can contract away is his retrenchment compensation because the ID act says this is not retrenchment if the contract is not renewed.

On the other part of the question you have posted, law does not prevent the company from designating any person as authorised to sign any document of the company. And he does not have to be an employee. He can be any person. It is the right of the owner of the business to decide whom he will trust to best represent him. The only place where the option is not available is the position of occupier of a factory. That has to be a director of the company.

So, it is actually legally correct for the company to designate an employee, a FTE, off roll / contract employee or even a non employee (say a family member). Such a person can be given any designation also, other than an occupier. I think even for manager of a factory there is no such restriction.


24th August 2015 From India, Mumbai
1. Sir,the initiator of this thread has mentioned the words "legally eligible to sign compliance related doc of 1st part ie. principle", whereas learned senior expert Sh. Banerjee ji has mentioned the term "There is nothing in law preventing a consultant from signing a compliance" I could not understand as to which of the documents are called "compliance related documents". Whether such documents are to be submitted to the principal employer or owners of the unit by the so called CONSULTANT or to any other authority.
2. I request the initiator of this thread or to seniors to kindly elaborate following aspects for my knowledge:-
(a) which of the documents are called "compliance related documents" and under which laws or Acts.
(b) whether such "compliance related documents" are submitted by the consultant to the employer or to any government authorities like Factory Inspector, Labour Court, PF Office etc. etc.
24th August 2015 From India, Noida
Hello Harsh Kumar Mehta,
'Compliance related documents' essentially mean those Docs that need to be submitted to either begin or continue the compliance of any aspect vis-a-vis the Company/factory.......for eg., ISO or AS9100 or CMM Certifications, etc.
There is a whole bunch of Docs that are needed to be prepared for getting such certifications OR once the Company has such certifications, to renew periodically....and these Docs are based on the Practices/Processes/Systems followed in that Company.
What's related to Govt Bodies are predominantly 'statutory' in nature. So they wouldn't form a part of this definition.
Rgds,
TS
25th August 2015 From India, Hyderabad
1. Dear Sh. Tajsateesh ji, thanks for advising me as to what is the meaning of "compliance related documents". But the initiator of this thread has not mentioned specifically as to which of the documents the said CONSULTANT is signing ? Therefore, it becomes difficult to examine the issue in right perspective. Whether the said ex-HR Manager, now a CONSULTANT is signing all the correspondence sent to the offices of govt. departments viz. the Chief Inspector of Factories, EPF Commissioner, Regional Director ESIC, Fire Brigade Office, Estate Office, Police Department etc. etc. If so, whether the said consultant is signing the said documents as Consultant or as an EMPLOYER or for EMPLOYER.

2. Whether , the returns, reports etc. to be sent to various departments under various labour laws, revenue laws etc.are not "COMPLIANCE RELATED DOCUMENTS" ? Whether there are different type of compliances viz-statutory compliance, ISO or AS9100 or CMM Certifications compliance etc. The discussion on the issues whether the said CONSULTANT is in full time employment, or part-time employment etc. appears to me of no importance. I hope, seniors will guide me on the issues as above.

3. So far as I understand to make the compliance for various requirements of obtaining ISO certification etc. are the internal matters of any organisation and in such matters employer/owner of any unit can delegate his authority or functions to any person even if he is a CONSULTANT. But in respect of statutory compliance matters, I am doubtful if the employer can delegate his authority to any so called consultant to sign the documents under various laws including revenue laws.
25th August 2015 From India, Noida
If the employer has been given signing authority under for various listed compliance under terms of agreement with Consultant, then I think there is no issue for any legal complication. Because employer may assign signing authority which he thinks suitable. But it should be in writing.
26th August 2015 From India, Mumbai
Harsh, TS, let me clarify.
I was referring to documents submitted to the government agencies / authorities or documents that need to authenticated and kept in the file as documents required under any statute. My reference to compliance is statutory compliance and not to ISO or other certifications.
So, the question is that whether or not the consultant can sign it, I am of the opinion that there is no specific bar. The only thing I am not sure is whether he can hold a position of officer in default (occupier, factory manager).
But most owners are not comfortable with the idea of a consultant signing the documents going to a third party, so in general they get the consultant to approve but have the new HR manager actually sign the documents.
27th August 2015 From India, Mumbai
NO, consultant cannot sign any documents whether compliance or otherwise on behalf of the company as he is not legal representative of the company. In the event of any issues, consultant cannot be held responsible for acts of violation by the company.
27th August 2015 From India, Hyderabad
The debate is indeed taking interesting twists and turns.As the learned member Sh.Harsh Kumar Mehta pointed out, it is not possible to give a specific reply from a legal perspective to the member's query which is whether a consultant is legally eligible to sign a compliance document., without knowing the nature of the compliance document and the context of the query.Cautioning the readers that what I say here is not a reply to the query but an examination of the scope of compliance management in order to find a way to connect the dots in this compliance puzzle, I may be permitted to say that the one line query .stirred up several lines of thoughts in me to grapple with the issue.

Having said that, I do not see any problem if an establishment engages a consultant to advise them on compliances and assist them in preparing the returns registers and records etc required under various labour laws.and issue a certificate to the employer that they are complied in full.This is only an internal arrangement between the employer and the consultant.

Though the labour laws pin the responsibility on the employer/principal employer for fulfilling all compliances under various labour laws as seen from various/returns and registers, they do not restrain him from delegating this responsibility to a representative of his (with the exception of occupiers or owners with regard to some under Factories Act).The question is whether the employer can choose a consultant or a fixed term employee to delegate this responsibility.

Now coming to signing compliance documents purported to be submitted to government authorities under various Acts.The responsibility for compliance , in my view, does not begin and end with signing a compliance document, certifying that all is well. It is not a responsibility merely limited to submitting returns and maintaining registers but extending to actually implementing the obligations under various labour laws in day to day administration of labour welfare like adhering to working hours, muster roll management, over time, leave management,payment of wages, remittance of statutory contributions on time,displaying various notices, First Aid Boxes, cleanliness,fire equipment, amenities like water facilities,crech,canteen, accident reporting and a plethora of compliances on safety and health under Factories Act.Therefore any one who certifies to government that all these obligations are complied , must be some one who is involved with it directly on regular and day to day basis. If a consultant is directly involved with it on day to day basis, he must be stepping into the shoes of a regular employee. Compliances like deduction of statutory contributions from wages can be made by the officers of the company who are authorized to pay wages but not consultants.

A look at penal provisions of various laws also offers some clues to the tangle.Co-existing with the responsibility for compliance is also the accountability for breach of them. For any breach, first a complaint has to be filed and the complaint shall name the person who is responsible for the breach and such person shall be one who is actually in charge of the responsibility and involved in day to day affairs of labour administration . If the consultant by signing any compliance document to be submitted to government authorities or any correspondence there of, presents himself before the government authorities as some who has control and knowledge of the affairs and is likely to attract the accountability for breach of the provisions under various Acts. In such case it is doubtful whether a consultant agrees to accept this responsibility.If so, he is acting more like an employee than a consultant.

Though an employer can authorize a consultant to sign compliance document as there does not seem to be a legal bar, the member by his query probably hints at its seeming incompatibility with penal provisions of the Acts, apart from the risk of receiving demands from such consultants for a status of permanent employee

B.Saikumar

HR & Labour relations Consulatant


28th August 2015 From India, Mumbai
Well-said Mr.Saikumar.

Firstly, reporting of the firm's/ the employer's statutory compliance to any Public Authority is not a mere verbal communication but a declaration of statutory observance to the extent either prescribed or possible. In either case it carries with itself the risk of scrutiny by the concerned authority as well as accountability for penal consequences in the event of any subjective short-fall as rightly pointed out by Saikumar.

Secondly, certain specific statutory reports do not permit their authentication by any other person authorised by a general and internal delegation of power to sign. Thirdly, even viewed from a general perception, signing of any document on other's behalf in an institutional context is a delegated responsibility arising out of administrative exegencies. Normally, it would be restricted to internal communications. In such case also, the authority to sign on other's behalf co-exists with the responsibility to vouchsafe.

Fourthly, coming to Fixed-Term-Contract Employees signing documents, though their appointment being adhoc and lasting for a relatively lesser period of employment, it does not alter their employment relationship with the employer other than its fixed duration in the contract of their employment. Therefore, for all practical purposes including statutory compliance reporting, their authority to sign on behalf of the employer depends upon their designated role-play in the subject-matter.

Finally, a consultant by virtue of the very nomenclature is just an advisor specialised in a particular aspect or activity. His responsibility is restricted to tender advice on a particular issue referred to him. His advice may, at times, if not always, comprise of alternatives. Ultimate discretion remains with the contractee to choose the most appropriate suggestion or to reject them all in toto thus making the relationship a mere contract for service. Therefore, no consultant would be asked to sign statutory compliance reports for the same could be rejected for want of proper authentication. Instead, his advice could be sought in the matter of drafting compliance reports as suggested by Saswata Banerjee.
28th August 2015 From India, Salem
Thanks Mr.Umakantan for bringing more clarity to the issue as you always do.My comments were based on summary understanding of the schemes under various labour enactments without diving deep into them to test where the query stands when pitted against the provisions of the Acts.For example, Sec.2(e) (ii) of the EPF Act 1952 defines 'Employer' for establishments other than a factory as the person or the authority which has ultimate control over the affairs of the establishment or the manager,managing director or managing agent to whom such control has been entrusted to by the employer.In my view, a logical inference that can follow from this definition is that either the employer shall comply with the obligations imposed by the Act and the various Schemes there under or the manager or the managing director or managing agent authorized by him in this behalf , can be held accountable for compliances .Here there is no use of any phrase in the definition of 'Employer' where you can fit a consultant as he does not fall under any of the authorities to whom the employer can entrust his powers and responsibilities.May be , we can come across such provisions as we wade through the Acts.Thanks once again.

B.Saikumar

HR & Labour Relations Consultant


28th August 2015 From India, Mumbai
Dear All,
I myself, was working with organisations as Head HR as consultant. I have myself drafted and signed the statuoty and the complaince documents and none of the govt. bodies have objected to the same. There was an internal delegation letter created to give me the rights to decide and sign the same on behalf of the company.
This was replecated by me in 2 states, Maharashtra and Gujarat. There is no law that says that only a permenant employee needs to sign any papers. The law states that proper authorized person needs to sign the documents, so that the company is liable for their actions.
Regards,
Ashutosh Thakre
2nd September 2015 From India, Mumbai
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