Madhu.T.K
Industrial Relations And Labour Laws
Psdhingra
Legal Analyst, Hrm
Pratheekshaa
Senior Manager - Human Resources
Malikjs
Gm (hr)

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I have got an offer from a consultant firm NDP Pvt Ltd.. They are hiring me for govt firm DFCCIL.
Now they are asking for an affidavit which looks illegal (specially the criminal proceeding part in affidavit below).
Please guide should I sign it or is it legal ?

exact contents are -

AFFIDAVIT

I, __________________, resident of _______________________________, (Copy of __________________ enclosed as mark of proof) do hereby solemnly affirm and declare that the details given & documents submitted in support of claim made in CV are true/ bonafide/ legally tenable to the best of my knowledge and belief.

I, unconditionally, without any demur hereby undertake that no wrong information/suppression of fact has been committed and incase same is found to be forged/suppression of facts/false claim, I am liable to any action, as deemed fit and proper by (NDP).

I also hereby agree that during the period of CV approval by client (DFCCIL) & subsequently after mobilization, upto the assignment period, I will not submit my candidature to any organization, without prior written notice to NDP. Any such notice period should be atleast 2 months from date of written intimation to NKI.

In case aforesaid is not complied off NDP and/or DFCCIL may take any or all but not limited to

1. Police complaint/FIR for initiating criminal proceedings for fraud against NDP Pvt. Ltd. & DFCCIL, with intent to disrupt the execution of project of national importance.

2. Debar undersigned from participating in any rail based projects & employment with NDP in any capacity.

3. Inform other Private, Government, Authorities & Public Sector Units for debarment of undersigned.
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Please guide me if this is a valid ask as it looks quite one sided . Should I sign it pls tell.
I don't think that there is anything illegal in it. There can be criminal proceedings if you have concealed any facts or if you have submitted false CV. What is wrong in it? If you have suppressed any material facts, you should be convicted, no doubt and if you are sure that whatever has been mentioned in the CV are true, why should you worry?

Now regarding the last declaration wherein you declare that you will not submit the CV for any other organisation, you need not worry because the law of the land says that nobody shall be compelled to work for anybody and just by undertaking that you will not submit the CV for others, you are not getting tied up but you can just forget it. Again, after mobilisation also, there is a clause that you can move by giving the DFCCIL two months' notice.

Coming to the consequences stated, it is okay that if you have suppressed any facts in the CV you should face criminal proceedings. You should also get debarred from similar projects and for employment with NDP. This should be like this only for all the cases. If I have hired a person and later on found that he had suppressed some facts in his CV, then I will certainly sent him out and will never consider him for any other employment in my organisation. I will also lodge criminal case if I have incurred any loss due to his employment. Though I cannot say other firms that you should not hire this employee, I can send a negative report when a background verification come to me. If I had committed any cheating, I should not expect to get employment.

Therefore, I do not find that the affidavit is one sided but I would say that you should accept it.

Madhu.T.K
Your prospective employer cannot bind you like this through an individual affidavit. Any agreement with mutually agreaable terms should be signed by both the employee and the employer.
A company has all right to demand for true and correct information from a candidate but it has no right and it can't force any one to give up his rights guaranteed under the Constitution like freedom of employment
Dear
i Absolutely agree with Madhu sir.this is not agreement this is declaration it has to be signed by employee only.
there is no harm to sign this declaration ,however no company can stop you to take employment anywhere else
when you fullfil the term and condition of appointment letter.
Madhu ji and Malik ji,

Sorry to differ with both of you. You may like to re-read a sort of agreement/ undertaking listed below the 2nd paragraph of declaration, where the text after 2nd paragraph that states, "I also hereby AGREE that during the period of CV approval by client (DFCCIL)." Every sentence of agreement/undertaking has to be examined with its legal implications.

By the agreement/ undertaling the candidate even before his employment tends to bind himself even during the period of approval of CV and employment, according to which he agrees for Police complaint/FIR against him also for criminal proceedings, where he no candidate is supposed to involve himself in any criminal activity against his prospective employer expecting to provide employment.

The very first terrm lays down for "Police complaint/FIR for initiating criminal proceedings for fraud against NDP Pvt. Ltd. & DFCCIL, with intent to disrupt the execution of project of national importance." So, when the candidate has not yet been taken in to employment, there can be two possibilities for including this term, such as, (1) the company would have been involved in certain illegal activities and if the candidate happens to know, he should be debarred from bringing that to the law enforcement agencies; or (2) if the candidate is not called for longer time, he be kept bound to wait for an indefinite period and not to apply anywhere else, or if on call he does not join the company, he may fraudulent be tried to be implicated in some hypothetical fraud against the company to compel him to join the company, if unwilling by that time.

Similarly, the 2nd and 3rd terms are also malicious in nature to debar the candidate from other employment or to get his name included in black list even before approval of his CV, what to say of employment in the company..

So, by such type of agreement/ undertaking the candidate becomes totally helpless to do anything before the company employs him and when FIR is lodged, even being innocent, he would be treated as a criminal and all his pleas are likely to be treated as afterthought even with the police after an FIR is lodged against him.

As regards the advice of Madhu that states, "you need not worry because the law of the land says that nobody shall be compelled to work for anybody and just by undertaking that you will not submit the CV for others, you are not getting tied up but you can just forget it," there is certinly a cause of worry. I hope Madhu may like to appreciate that law appears only after the damage is done on happening of an incident, i.e., the FIR lodged against him and action taken by the company and police. Law takes care for justice only after several years of such happenings after due trial in the courts of law. So, law does not recognise any plea until the prosecution is proved thoroughly wrong in its action and that takes several years, when the respondent happens to lose everything during a criminal trial that includes, opportunities, prime time, money, credibility and trustworthiness. Once a candidate is tainted, no company likes to take him in employment.

SO, PRECAUTION IS ALWAYS BETTER THAN CURE, particularly for a layman, who does not know the nitty-gritty of law and its processes..
Dear Friend

1.As this is a Govt undertaking , it will be a good opportunity if the job is in permanent nature. My understanding to the third paragraph is after submitting the CV if you change your mind then you should submit 2 months notice . Normally we will be desirous in getting Govt job. so just proceed.

2.Even though our law never accepts Bonded labour Nobody can hold you if you are willing to join another company provided proper notice should be given as per the company policy/standing order/agreement .

3. As per Sec 368 of Indian Penal Code if any person or institute holds back any document or any use any legal document or threatens any legal suits or actions and thus forces a person to perform any act against his wishes or which is illegal or wrong as per the statute of Law of the land.

4. The Supreme Court of India has clearly stated that no employee can be forcefully employed against his will, just because he has signed a contract with the employer. The court also has stated that the employer cannot hold back any personal document of the employees as they are earned by the employees and the company has no claim on the same.

5. But I agree with PS DHINGRA sir intention. If any legal action initiated against you it will spoil your career.

So Follow the RULES ( 2 month notice )... Best of luck
Legal action as per this agreement is limited to false information in the CV regarding qualification and experience. In such a case the employer can or should initiate legal action even if you have not signed an affidavit like this, because while entering into an employment contract you are expected to disclose your actual qualification etc and any false information will make the contract void.
Madhu.T.K
Dear Shri L.K. Saravanan,

Hope, you would like to review your reply, specifically that states, "As per Sec 368 of Indian Penal Code if any person or institute holds back any document or any use any legal document or threatens any legal suits or actions and thus forces a person to perform any act against his wishes or which is illegal or wrong as per the statute of Law of the land."

IPC/368 has no relation, whatsoever, with "any person or institute holds back any document or any use any legal document or threatens any legal suits" etc. The section relates to "wrongfully concealing or keeping in confinement, kidnapped or abducted person."



Section 368 states, as follows:


"Wrongfully concealing or keeping in confinement, kidnapped or abducted person.—Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.?
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