Ethical and Legal Concerns of Holding Original Certificates
Taking original certificates from employees and holding them is neither an ethical practice nor legal. Original documents are required only to scrutinize them and keep an attested photocopy for the official record.
Holding back any original documents by the employer violates the fundamental rights of the employee. Article 19 of the Constitution of India gives fundamental rights to every Indian to pursue their own career or business, and no one can infringe it. By retaining your original documents, the employer is violating this fundamental right of the employee.
Holding back any original document is also an offense under Section 368 of the Indian Penal Code.
There is also an Honorable Supreme Court ruling 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."
In one of its judgments, a court termed such illegal actions by the employer as 'ECONOMIC TERRORISM.'
Even if there is a clause in the employment contract (Appointment letter) that the employer would retain the original documents of the employee, such a clause will be declared illegal under Section 23 of the Indian Contract Act, which governs all types of employment contracts.
Such negative and restrictive covenants in the employment contracts amount to bonded labor system, which is prohibited in our country and is totally against the basic principles of our Constitution.
We, all HR professionals, need to educate ourselves and make the employers understand the importance of human resources in the true sense.
Regards