Hi,
I faced very different problem. Is there any solution to face this problem? Candidates accept the offer letter and they do join. But within week or so they get another offer letter and they just disappear without giving resignation letter.
Regards,
Priyanka
From India, Pune
I faced very different problem. Is there any solution to face this problem? Candidates accept the offer letter and they do join. But within week or so they get another offer letter and they just disappear without giving resignation letter.
Regards,
Priyanka
From India, Pune
Legally speaking an unequivocal offer when accepted binds both parties and any of them can take action as specified in the offer. How the courts would view it would depend upon the terms. Whether you would want to pursue it via the Indian legal system is your choice. Of course suggestions as already made could be followed, and, as also said, you are not alone! Long ago I recall some discussions on "blacklisting" such candidates. But don't think anything came of it.
From United States, New York
55From United States, New York
An offer of appointment will not bind the other, however, never give an offer for more than a week, when the time is more they use this as a key point in getting the other job.. Certainly offer of appointment is given to the big posts and not at the subordinate or below them, thus, better an offer of appointment should not be more than a week and confirmation should be with the period. Also, ensure, the commitment of the offered, simple offer have no meaning in reality all the HR will suffer. Let them give a letter of confirmation with date of joining so that the HR may be in a position to deal the issue amiably. A chain loosen never bind ....
From India, Arcot
From India, Arcot
Hi Mallathy,
Your query is basically whether you can take any action for such declining to join by a person. Once the offer has been accepted by him and he has submitted documents, it becomes a contract under the contract Act. The employer can file suit for recovery of damages sustained by it but it cannot enforce specific performance.Now a days under IT Act, contracts become enforceable through e mails even through which he accepted the offer.
Thanks
From India, New Delhi
Your query is basically whether you can take any action for such declining to join by a person. Once the offer has been accepted by him and he has submitted documents, it becomes a contract under the contract Act. The employer can file suit for recovery of damages sustained by it but it cannot enforce specific performance.Now a days under IT Act, contracts become enforceable through e mails even through which he accepted the offer.
Thanks
From India, New Delhi
Hello all respected members,
After reading all the posts, one suggestion I would like to make which may appear little indefinite but practically may have an impact.
At least for the critical positions, once an offer is sent to a candidate and he accepts it, ask him or make it a rule that after acceptance he should submit his last and latest degree certificate in original. As rightly suggested by Jyoti and Vineet Deshmukh, give them a certain time limit to accept the offer. Those who are serious and have made up their minds to join, will accept the offer and condition. Also state in the same clause, in case the person does not join, his original certificate will be returned to him after next 3 months (Don't make it much complicated) The job hoppers may not juggle with this and take the trouble of long process of submitting and regaining their certificate and naturally keep themselves out of this.
Similarly, this could be more effective by asking to submit the original resignation acceptance copy as indicated in one of the responses above.
The reason, even at senior levels I have seen people do not join and back out at the eleventh hour. Nevertheless, I also came across few people who honestly intimate about other offers in pipeline thereby request for an early decision to enable them make a firm choice.
This may not work 100% but at least stimulate for a similar way out.
With regards,
Vaishalee Parkhi
https://www.linkedin.com/pub/vaishal...khi/62/9ab/6b0
From India, Pune
After reading all the posts, one suggestion I would like to make which may appear little indefinite but practically may have an impact.
At least for the critical positions, once an offer is sent to a candidate and he accepts it, ask him or make it a rule that after acceptance he should submit his last and latest degree certificate in original. As rightly suggested by Jyoti and Vineet Deshmukh, give them a certain time limit to accept the offer. Those who are serious and have made up their minds to join, will accept the offer and condition. Also state in the same clause, in case the person does not join, his original certificate will be returned to him after next 3 months (Don't make it much complicated) The job hoppers may not juggle with this and take the trouble of long process of submitting and regaining their certificate and naturally keep themselves out of this.
Similarly, this could be more effective by asking to submit the original resignation acceptance copy as indicated in one of the responses above.
The reason, even at senior levels I have seen people do not join and back out at the eleventh hour. Nevertheless, I also came across few people who honestly intimate about other offers in pipeline thereby request for an early decision to enable them make a firm choice.
This may not work 100% but at least stimulate for a similar way out.
With regards,
Vaishalee Parkhi
https://www.linkedin.com/pub/vaishal...khi/62/9ab/6b0
From India, Pune
Hello friends,
Madam Jyoti's point is also implemented in upsc or staff selection appointments but here the issue is the employer suffers because of last moment shirking away by candidate to join because of various reasons eg he may be higgling with his present boss or he may have simultaneous offers at hand. In order to curb the problem at hand especially for middle or senior level positions which really affects the non joining of a person, it is better to enclose with offer an informative note for the awareness of candidate that declining to join after acceptance, may entail causing damages to the employer because the position will have to be kept vacant for some more time to select and appoint new person. The employer may then resort to suitable action available to it.
But asking for copy of acceptance of resignation letter from his existing employer may not ensure his joining at your organization. He may join elsewhere. I feel you are not insisting for resignation letter of your organization because that is irrelevant.
Thus insertion of above note in offer letter for such positions may solve your problem because many candidates may not know the legal position of their declining the offer.
Thanks
From India, New Delhi
Madam Jyoti's point is also implemented in upsc or staff selection appointments but here the issue is the employer suffers because of last moment shirking away by candidate to join because of various reasons eg he may be higgling with his present boss or he may have simultaneous offers at hand. In order to curb the problem at hand especially for middle or senior level positions which really affects the non joining of a person, it is better to enclose with offer an informative note for the awareness of candidate that declining to join after acceptance, may entail causing damages to the employer because the position will have to be kept vacant for some more time to select and appoint new person. The employer may then resort to suitable action available to it.
But asking for copy of acceptance of resignation letter from his existing employer may not ensure his joining at your organization. He may join elsewhere. I feel you are not insisting for resignation letter of your organization because that is irrelevant.
Thus insertion of above note in offer letter for such positions may solve your problem because many candidates may not know the legal position of their declining the offer.
Thanks
From India, New Delhi
Hi i face an issue that a company gave me offer ,and i dropped my papaer due to that now after a month they are saying that they are withdrawing the offer since they are planning to layyofff..
what can be done for this case. is there any legal action can be taken ???
please anyone help in this.
From India, Bangalore
what can be done for this case. is there any legal action can be taken ???
please anyone help in this.
From India, Bangalore
Civil remedies exist for such breaches. I have already given the following view in one of earlier threads. The new company having offered you the job and after that if you have communicated acceptance thereof to the employer then that offer cannot be revoked under section 5 of the Contract Act. You can seek damages in civil court against the company for revoking the contract
Since it is settled that general principles of contract are applicable to master and servant relations (vide Shriram Piston and Rings vs TS Mogha case) decided by Delhi HC in 2012 extracted below the breach of contract committed by employer by not allowing prospective employee to join renders him liable for damages under sections 73 and 74 of the contract Act.
Delhi High Court
Shriram Pistons & Rings Ltd. & Anr. vs Shri T.S.Mokha on 25 January, 2012
21. ….observation made by Justice Bhagwati (as his Lordship then was) in the concurring judgment in Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain (Supra) in para 31, which is extracted below :-
"31. ............... The law in such a case, therefore, adopts a more realistic posture and holds that the repudiation effectively terminates the contract and the employee can only claim damages for wrongful breach of the contract.”
If agreement was for specific period, one can recover damages of salary for that period (SS Shetty case decided by the Apex court) or it depends upon relevant statutory enactment e.g. Industrial Disputes Act or Shops and Establishment Act of specific State and terms and conditions of appointment..
Extracts of relevant judgments are given below:
In SS Shetty’s case the Supreme Court held that if the contract of employment was for a specific term, the servant would in that event be entitled to damages, the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him and that servant would then be entitled to whole of the salary benefits etc. which he would have earned had he continued in the employment of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. It was held that the position as it obtained in the ordinary law of master and servant was quite clear and that the master, who wrongfully dismissed his servant, was bound to pay him such damages as would compensate him for the wrong that he had sustained.
a) Delhi High Court
S.M. Murray vs Fenner (India) Ltd. on 27 February, 1986: AIR 1986 Delhi 427
“(21) In S.S. Shetty v. Bharat Nidhi Ltd. , the Supreme Court held that if the contract of employment was for a specific term, the servant would in that event be entitled to damages, the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him and that servant would then be entitled to whole of the salary benefits etc. which he would have earned had he continued in the employment of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. It was held that the position as it obtained in the ordinary law of master and servant was quite clear and that the master, who wrongfully dismissed his servant, was bound to pay him such damages as would compensate him for the wrong that he had sustained. The Supreme Court referred, with approval, to Chitty on Contracts, 21st Edition, Vol. (2), p. 559, para 1040, and to Collier v. Sunday Referee Publishing Co. Ltd., (1940-4 All. E.R. 234 at p. 237(A)).
(28) In the present case before me, the term of the service agreement was to expire on 16-2-1986. The plaintiff stated that he did not take up any alternative employment though he had been making attempts and no suitable employment was being offered to him. In these circumstances, I am of the view that the plaintiff is entitled to damages calculated in terms of his salary and other perquisites for whole of the period of his employment from the date of wrongful termination of the service agreement, i.e. 21-4-1984, till it was to expire in its normal course, i.e. 16-2-1986. This comes to Rs. 2,56,776.64.”
In public employment, the appellant was paid a lumpsum amount of Rs. 2 lac by the respondent-ISM towards cost of litigation as well as to secure ends of justice as admittedly the appellant was wrongly denied appointment as Registrar, ISM:
b) Delhi High Court
Dr. Samarendra Mohan Mukherjee vs Indian School Of Mines on 20 December, 2007
15. In view of above, we feel that the appellant should be paid a lumpsum amount of Rs. 2 lac by the respondent-ISM towards cost of litigation as well as to secure ends of justice as admittedly the appellant was wrongly denied appointment as Registrar, ISM. This will be also in accord with the Order dated 17th April, 1995 passed by the learned Single Judge that in the interest of justice the appellant would be compensated and granted necessary relief in case he was to succeed in the writ petition. Restricting relief to the difference in pay scales for a period of one year would be unfair and unjust to the appellant. Even if it is presumed that the appellant would have been on probation for a period of two years, it does not necessarily follow that he would not have been confirmed and appointed regularly after the expiry of the probation period. The impugned order passed by the learned Single Judge is accordingly modified and respondent-ISM is directed to pay compensation of Rs. 2 lacs to the appellant. The aforesaid amount will be paid to the appellant within a period of 2 months, failing which the respondent shall be liable to interest @ 10% per annum from the date of this order.
c) The right under section 5 of the Contract Act as extracted below is statutory right:
Section 5 in The Indian Contract Act, 1872
5. Revocation of Proposals and acceptance.—A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. —A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards." An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards….."
According to the apex court statutory right under Section 5 of the Contract Act is conferred. Section 5 says a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer.
d) Supreme Court of India
State Of Haryana & Ors vs M/S Malik Traders on 17 August, 2011
10…It is true that as per Section 5 of the Indian Contract Act, 1872 (hereinafter referred to as "the Act"), a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer. It is also true that before receipt of the letter of acceptance dated 26.11.2008, the respondent had sent a letter dated 15.11.2008 withdrawing its offer. However, admittedly, in paragraph 8 of the written offer/bid, the respondent had agreed to keep the bid open for acceptance upto 90 days after the last date of receipt of bid. The respondent had also agreed that it shall be bound by the communication of acceptance of the bid dispatched within the aforesaid period of 90 days. Hence, the respondent could not have withdrawn the bid before the expiry of the period of 90 days. It is not disputed that the acceptance of the respondent's bid was communicated to the respondent within the said period of 90 days. Therefore, the respondent was bound by the said acceptance of the bid, despite its withdrawal by the respondent in the meanwhile…..
Under the cover of the provisions contained in Section 5 of the Act, the respondent cannot escape from the obligations and liabilities under the agreements contained in its offer/bid. The right to withdraw an offer before its acceptance cannot nullify the agreement to suffer any penalty for the withdrawal of the offer against the terms of agreement. A person may have a right to withdraw his offer, but if he has made his offer on a condition that the Bid Security amount can be forfeited in case he withdraws the offer during the period of bid validity, he has no right to claim that the Bid Security should not be forfeited and it should be returned to him. Forfeiture of such Bid Security amount does not, in any way, affect any statutory right under Section 5 of the Act. The Bid Security was given by the respondent and taken by the appellants to ensure that the offer is not withdrawn during the bid validity period of 90 days and a contract comes into existence. Such conditions are included to ensure that only genuine parties make the bids. In the absence of such conditions, persons who do not have the capacity or have no intention of entering into the contract will make bids. The very purpose of such a condition in the offer/bid will be defeated, if forfeiture is not permitted when the offer is withdrawn in violation of the agreement.
e) Supreme Court of India
The Union Of India vs Kishorilal Gupta And Bros on 21 May, 1959: 1959 AIR 1362
“…..though such repudiation ends the liability of the parties to perform the contract, it does not put an end to their liability to pay damages for any breach of the contract. The contract is still in existence for certain purposes.
It may be argued on the basis of the following Apex Court decision that salary for three years on account of damages, may be paid by the company. Rest the decision of the court depends upon various other factors:
Supreme Court of India
Kayastha Pathshala, Allahabad ... vs Rajendra Prasad And Anr on 8 December, 1989
Equivalent citations: 1990 AIR 415, 1989 SCR Supl. (2) 450
“In the light of all these facts and circumstances and the authorities to which we have called attention, it seems to us that it would be sufficient if the respondent is given salary for three years on account of damages.”
As stated earlier, the right under section 5 of the Contract Act as extracted below is statutory right:
Section 5 in The Indian Contract Act, 1872
5. Revocation of Proposals and acceptance.—A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. —A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards." An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards….."
According to the apex court statutory right under Section 5 of the Contract Act is conferred. Section 5 says a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer.
Thus the company cannot say contrary to statute that "The company has the right to withdraw the offer without assigning any reasons anytime till the candidate joins".
Criterion here is not notice period of 1 or 2 months. Instead if the employee falls within the ourview of "workman" of ID Act, then after 240 days, these notice periods of 1 or 2 month carry no meaning. Similarly there are other statutory rights conferred with passage of time.
A corporate business cannot decline joining of an employee so lightly by getting away with meagre one or two months salary. Look at from the angle of employee who might have had rights to enjoy the previous job upto superannuation which he left on false promise of the new company. It can be argued that it amounts to mischief by causing wronful loss to the employee.
Section 425 in The Indian Penal Code
425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrong¬ful loss or damage to any person by injuring any property, wheth¬er it belongs to that person or not. Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. Illustrations
(a) A voluntarily burns a valuable security belonging to Z in¬tending to cause wrongful loss to Z. A has committed mischief.
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has com¬mitted mischief.
(d) A, knowing that his effects are about to be taken in execu¬tion in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtain¬ing satisfaction of the debt, and of thus causing damage to Z. A has committed mischief.
(e) A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the under-writers. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.
(h) A causes cattle to enter upon a field belonging to Z, intend¬ing to cause and knowing that he is likely to cause damage to Z’s crop. A has committed mischief.
A good company is having number of opening for persons where they could have adjusted the person whom they had selected and in course of time transferred to the desired post but persons are not having what to say of number of offers but even a single offer
Thanks
Sushil
From India, New Delhi
Since it is settled that general principles of contract are applicable to master and servant relations (vide Shriram Piston and Rings vs TS Mogha case) decided by Delhi HC in 2012 extracted below the breach of contract committed by employer by not allowing prospective employee to join renders him liable for damages under sections 73 and 74 of the contract Act.
Delhi High Court
Shriram Pistons & Rings Ltd. & Anr. vs Shri T.S.Mokha on 25 January, 2012
21. ….observation made by Justice Bhagwati (as his Lordship then was) in the concurring judgment in Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain (Supra) in para 31, which is extracted below :-
"31. ............... The law in such a case, therefore, adopts a more realistic posture and holds that the repudiation effectively terminates the contract and the employee can only claim damages for wrongful breach of the contract.”
If agreement was for specific period, one can recover damages of salary for that period (SS Shetty case decided by the Apex court) or it depends upon relevant statutory enactment e.g. Industrial Disputes Act or Shops and Establishment Act of specific State and terms and conditions of appointment..
Extracts of relevant judgments are given below:
In SS Shetty’s case the Supreme Court held that if the contract of employment was for a specific term, the servant would in that event be entitled to damages, the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him and that servant would then be entitled to whole of the salary benefits etc. which he would have earned had he continued in the employment of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. It was held that the position as it obtained in the ordinary law of master and servant was quite clear and that the master, who wrongfully dismissed his servant, was bound to pay him such damages as would compensate him for the wrong that he had sustained.
a) Delhi High Court
S.M. Murray vs Fenner (India) Ltd. on 27 February, 1986: AIR 1986 Delhi 427
“(21) In S.S. Shetty v. Bharat Nidhi Ltd. , the Supreme Court held that if the contract of employment was for a specific term, the servant would in that event be entitled to damages, the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him and that servant would then be entitled to whole of the salary benefits etc. which he would have earned had he continued in the employment of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. It was held that the position as it obtained in the ordinary law of master and servant was quite clear and that the master, who wrongfully dismissed his servant, was bound to pay him such damages as would compensate him for the wrong that he had sustained. The Supreme Court referred, with approval, to Chitty on Contracts, 21st Edition, Vol. (2), p. 559, para 1040, and to Collier v. Sunday Referee Publishing Co. Ltd., (1940-4 All. E.R. 234 at p. 237(A)).
(28) In the present case before me, the term of the service agreement was to expire on 16-2-1986. The plaintiff stated that he did not take up any alternative employment though he had been making attempts and no suitable employment was being offered to him. In these circumstances, I am of the view that the plaintiff is entitled to damages calculated in terms of his salary and other perquisites for whole of the period of his employment from the date of wrongful termination of the service agreement, i.e. 21-4-1984, till it was to expire in its normal course, i.e. 16-2-1986. This comes to Rs. 2,56,776.64.”
In public employment, the appellant was paid a lumpsum amount of Rs. 2 lac by the respondent-ISM towards cost of litigation as well as to secure ends of justice as admittedly the appellant was wrongly denied appointment as Registrar, ISM:
b) Delhi High Court
Dr. Samarendra Mohan Mukherjee vs Indian School Of Mines on 20 December, 2007
15. In view of above, we feel that the appellant should be paid a lumpsum amount of Rs. 2 lac by the respondent-ISM towards cost of litigation as well as to secure ends of justice as admittedly the appellant was wrongly denied appointment as Registrar, ISM. This will be also in accord with the Order dated 17th April, 1995 passed by the learned Single Judge that in the interest of justice the appellant would be compensated and granted necessary relief in case he was to succeed in the writ petition. Restricting relief to the difference in pay scales for a period of one year would be unfair and unjust to the appellant. Even if it is presumed that the appellant would have been on probation for a period of two years, it does not necessarily follow that he would not have been confirmed and appointed regularly after the expiry of the probation period. The impugned order passed by the learned Single Judge is accordingly modified and respondent-ISM is directed to pay compensation of Rs. 2 lacs to the appellant. The aforesaid amount will be paid to the appellant within a period of 2 months, failing which the respondent shall be liable to interest @ 10% per annum from the date of this order.
c) The right under section 5 of the Contract Act as extracted below is statutory right:
Section 5 in The Indian Contract Act, 1872
5. Revocation of Proposals and acceptance.—A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. —A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards." An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards….."
According to the apex court statutory right under Section 5 of the Contract Act is conferred. Section 5 says a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer.
d) Supreme Court of India
State Of Haryana & Ors vs M/S Malik Traders on 17 August, 2011
10…It is true that as per Section 5 of the Indian Contract Act, 1872 (hereinafter referred to as "the Act"), a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer. It is also true that before receipt of the letter of acceptance dated 26.11.2008, the respondent had sent a letter dated 15.11.2008 withdrawing its offer. However, admittedly, in paragraph 8 of the written offer/bid, the respondent had agreed to keep the bid open for acceptance upto 90 days after the last date of receipt of bid. The respondent had also agreed that it shall be bound by the communication of acceptance of the bid dispatched within the aforesaid period of 90 days. Hence, the respondent could not have withdrawn the bid before the expiry of the period of 90 days. It is not disputed that the acceptance of the respondent's bid was communicated to the respondent within the said period of 90 days. Therefore, the respondent was bound by the said acceptance of the bid, despite its withdrawal by the respondent in the meanwhile…..
Under the cover of the provisions contained in Section 5 of the Act, the respondent cannot escape from the obligations and liabilities under the agreements contained in its offer/bid. The right to withdraw an offer before its acceptance cannot nullify the agreement to suffer any penalty for the withdrawal of the offer against the terms of agreement. A person may have a right to withdraw his offer, but if he has made his offer on a condition that the Bid Security amount can be forfeited in case he withdraws the offer during the period of bid validity, he has no right to claim that the Bid Security should not be forfeited and it should be returned to him. Forfeiture of such Bid Security amount does not, in any way, affect any statutory right under Section 5 of the Act. The Bid Security was given by the respondent and taken by the appellants to ensure that the offer is not withdrawn during the bid validity period of 90 days and a contract comes into existence. Such conditions are included to ensure that only genuine parties make the bids. In the absence of such conditions, persons who do not have the capacity or have no intention of entering into the contract will make bids. The very purpose of such a condition in the offer/bid will be defeated, if forfeiture is not permitted when the offer is withdrawn in violation of the agreement.
e) Supreme Court of India
The Union Of India vs Kishorilal Gupta And Bros on 21 May, 1959: 1959 AIR 1362
“…..though such repudiation ends the liability of the parties to perform the contract, it does not put an end to their liability to pay damages for any breach of the contract. The contract is still in existence for certain purposes.
It may be argued on the basis of the following Apex Court decision that salary for three years on account of damages, may be paid by the company. Rest the decision of the court depends upon various other factors:
Supreme Court of India
Kayastha Pathshala, Allahabad ... vs Rajendra Prasad And Anr on 8 December, 1989
Equivalent citations: 1990 AIR 415, 1989 SCR Supl. (2) 450
“In the light of all these facts and circumstances and the authorities to which we have called attention, it seems to us that it would be sufficient if the respondent is given salary for three years on account of damages.”
As stated earlier, the right under section 5 of the Contract Act as extracted below is statutory right:
Section 5 in The Indian Contract Act, 1872
5. Revocation of Proposals and acceptance.—A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. —A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards." An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards….."
According to the apex court statutory right under Section 5 of the Contract Act is conferred. Section 5 says a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer.
Thus the company cannot say contrary to statute that "The company has the right to withdraw the offer without assigning any reasons anytime till the candidate joins".
Criterion here is not notice period of 1 or 2 months. Instead if the employee falls within the ourview of "workman" of ID Act, then after 240 days, these notice periods of 1 or 2 month carry no meaning. Similarly there are other statutory rights conferred with passage of time.
A corporate business cannot decline joining of an employee so lightly by getting away with meagre one or two months salary. Look at from the angle of employee who might have had rights to enjoy the previous job upto superannuation which he left on false promise of the new company. It can be argued that it amounts to mischief by causing wronful loss to the employee.
Section 425 in The Indian Penal Code
425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrong¬ful loss or damage to any person by injuring any property, wheth¬er it belongs to that person or not. Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. Illustrations
(a) A voluntarily burns a valuable security belonging to Z in¬tending to cause wrongful loss to Z. A has committed mischief.
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has com¬mitted mischief.
(d) A, knowing that his effects are about to be taken in execu¬tion in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtain¬ing satisfaction of the debt, and of thus causing damage to Z. A has committed mischief.
(e) A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the under-writers. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.
(h) A causes cattle to enter upon a field belonging to Z, intend¬ing to cause and knowing that he is likely to cause damage to Z’s crop. A has committed mischief.
A good company is having number of opening for persons where they could have adjusted the person whom they had selected and in course of time transferred to the desired post but persons are not having what to say of number of offers but even a single offer
Thanks
Sushil
From India, New Delhi
In case of not joining of candidate after written acceptance of offer letter. Can we use Section 73 of Indian Contracts Act (1872). as follows .
This position is very crucial for XYZ company and the same has been communicated to you during the hiring process. If you do not join XYZ company after accepting the offer, the same shall be considered as breach of this offer letter/contract covered under Section 73 of Indian Contracts Act (1872) In that case you will be liable to pay 10% of the offered compensation to XYZ company within 30 days of breaking the contract. In case the company withdraws the offer accepted by you before your joining, the company is also liable to pay the same amount to you as penalty within 30 days of withdrawing this offer”.
From India, New Delhi
This position is very crucial for XYZ company and the same has been communicated to you during the hiring process. If you do not join XYZ company after accepting the offer, the same shall be considered as breach of this offer letter/contract covered under Section 73 of Indian Contracts Act (1872) In that case you will be liable to pay 10% of the offered compensation to XYZ company within 30 days of breaking the contract. In case the company withdraws the offer accepted by you before your joining, the company is also liable to pay the same amount to you as penalty within 30 days of withdrawing this offer”.
From India, New Delhi
To All The HR's here,
Its not just the candidates who put the employer in tough situation but what about when the employer discussed the offer letter with the candidate, took all the documents from the candidate and later never released the offer letter. After following up, HR's even stopped picking up the call to have basic sense to give an update to the candidate. And do the HR even realize the pain a candidate face from the complete unprofessional behaviour from the HR's when they dont even bother to give the feedback to the candidate. So Blaming candidate only is not the right thing. HR's are not saint either.
From United States
Its not just the candidates who put the employer in tough situation but what about when the employer discussed the offer letter with the candidate, took all the documents from the candidate and later never released the offer letter. After following up, HR's even stopped picking up the call to have basic sense to give an update to the candidate. And do the HR even realize the pain a candidate face from the complete unprofessional behaviour from the HR's when they dont even bother to give the feedback to the candidate. So Blaming candidate only is not the right thing. HR's are not saint either.
From United States
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Offer letter.pdf
Sample Internship Offer Letter.doc