Retention of Original Certificates by Employers
An employer who does not want to return the original certificates of an employee is evidently harboring malicious intent to exploit the employee or deliberately cause them loss. The original certificates should have been returned to the employee after comparison. Employers can retain a photocopy of the certificates (self-attested by the employee). Even if the employer wants verification from the university, they can send a copy of the certificate for confirmation. Yet, if the employer retains the certificates under the guise of their rules, even though the easiest and non-dilatory method should be adopted, it must be legally valid.
Inspectors under the Shops and Establishment Acts, though dealing with certain work conditions of service of employees, may be helpless in some areas. For example, regarding the return of certificates, there is no register of certificates required to be maintained under these Acts, and therefore no information can be sought regarding the retention/return of certificates from the inspectors.
Thus, an inspector under the Shops and Establishment Act may not invoke their jurisdiction on the complaint of an aggrieved employee to get their certificates returned. Even if an inspector sends a notice to such an employer, merely claiming suspicion about the genuineness of the certificate being verified will not allow the inspector to adjudicate the matter due to a lack of jurisdiction.
Legal Recourse for Employees
It would be different if an employee is covered under the Industrial Disputes Act, 1947 as a workman, as they can approach the labor inspector contending unfair labor practices or victimization by the employer for not returning their certificates. Thus, an employee who is not a workman will find themselves entangled in this issue for a long time. For a non-workman, the inspector will have no jurisdiction to send a notice to such an employer.
An employee cannot be left at the mercy of such a malicious employer for an extended period. Filing a civil suit will be a dilatory proceeding because what is sought in the main relief cannot be granted as interim relief.
A practical, justice-oriented method that provides quick relief must be invoked. Upon lodging an FIR against such a stubborn employer, the criminal court can order the delivery of the original certificate to the complainant under Section 451 of CrPC. This is the quickest legal method of recovering original certificates.
Section 451 in The Code Of Criminal Procedure, 1973
Section 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 an order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial. If the property is subject to speedy and natural decay, or if it is otherwise expedient, 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 produced before the Court or in its custody,
- (b) any property regarding which an offense appears to have been committed or which appears to have been used for the commission of any offense.
Legality of Retention of Certificates
Let's examine the legality of retaining original certificates in the context of various High Court decisions. An act prohibited by law is illegal. As per Section 6 of the Transfer of Property Act, there is a prohibition on transferring any right concerning these certificates.
Thus, the agreement cannot be treated as a valuable security creating a legal right in favor of the Management to retain the certificates forever despite the demand for their return. The definition of wrongful loss makes it clear that if a person legally entitled to a property is wrongfully deprived of it, it constitutes wrongful loss in terms of Section 23 of I.P.C., and the person causing the wrongful loss is deemed to have acted dishonestly under Sections 24 and 403 I.P.C.
The certificates of candidates cannot be treated as transferable property to be retained by Management under the guise of recovering amounts as per the agreement/bond. The so-called agreement is not a valuable security creating rights in favor of Management. It can only be treated as an entrustment under Section 405 I.P.C., and non-return of the original certificate will be an offense under Section 406 IPC.
If an employee alleges that they have demanded the return of the certificates but the employer refuses, the employee is entitled to launch criminal prosecution against the employer.
Judicial Decisions on Certificate Retention
Justice K. Suguna in the Madurai Bench held in 2008 that academic certificates could not be termed 'goods' to enable educational institutions to withhold them. The Hon’ble High Court pointed out that the Supreme Court, in the R.D. Saxena vs. Balram Prasad Sharma (2000) case, had taken the view that a lien 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 a lien on the files entrusted to them by the client. Learned counsel for the appellant endeavored to base their 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 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 of it 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 the return of your certificates immediately, and upon failure to do so, file an FIR. After the certificates are seized by the police and produced before the court, make an application before the criminal court under Section 451 CrPC to have your certificates delivered on superdari. Of course, the court can be approached for the early seizure of certificates.
Regards
Sushil