Dear Navneet,
I guess you have too much faith in contracts. Just let me tell you that not all contracts are Enforceable. Many contracts are Void ab initio means null and totally void. All the terms mentioned in the offer letter, even though acepted in its entirety may not be valid and enforceable. Have you come accross any of the below Clause it is called Severability Clause
"This contract is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this contract is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this contract shall remain in full force and effect"
This is used to safeguard the interest if any clause is termed void due to its contavention with any Law. Also please go through Section 27 of contract act which makes such contracts null and void which ristricts any body from practicing any trade or professions. No law can stop any employer to enter into any such contract with any employee but if entered and challanged in court, it would have no footing against the Law. Mr Navneet please understand contrats are governed by Law and no contracts are above Law. Even if you go through the High Polimer case shared by Mr. Varghese Mathew the Court has granted relief to the employee on this ground itself and dealt with the subject at length. I am attaching the text of the case with the post.
Now lets come to the holding of the documents. It is illegal by virtue of many Articles of the Apex Law which is Indian Contitution. Contitution is the Apex Law of the Land and even any Law passed by the government which comes in the contavention of Contitution becomes null and Void. Please read Article 23, 13, 14 and 21. You will come to know the very intention of the legislature as to how much the Law is concerned about the well being of common man. Article 23 specifically deals with forced labour. Please read some commentary on Article 23 for better clarity.
When we were studying Law one of our Teacher told us a basic rule which he asked us to always keep in our mind. Which is that the statutory rights of a person given by the contitution are above all and cannot be given awaywith. Even if the person himself wishes to give away them they cannot be given away with. The motive behind it is that if these rights can be givenaway with, the influential people will enslave the persons and will take away all the rights they have. These things comes under the personal rights which cannot be given away with under any circumstances.
As far as the working of top notch IT companies or any famous multinational company are concerned it is well known that when it comes to slaping of hafty fines and dicisions against them from courts they are onthe top of the list. So it is not a standard that if an IT company or a multinational Company is doing it is the right thing. I am well aware of the working of many giants as i have represented many of them. Also on daily basis we provide legal opinion to many of them on various HR related legal issues.
Beleive me most of them are concerned with profits only. As far as this forum is concerned we are here to provide our input for the betterment of the community and Employee welfare.
Further views are invited.
From India, New Delhi
314I guess you have too much faith in contracts. Just let me tell you that not all contracts are Enforceable. Many contracts are Void ab initio means null and totally void. All the terms mentioned in the offer letter, even though acepted in its entirety may not be valid and enforceable. Have you come accross any of the below Clause it is called Severability Clause
"This contract is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this contract is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this contract shall remain in full force and effect"
This is used to safeguard the interest if any clause is termed void due to its contavention with any Law. Also please go through Section 27 of contract act which makes such contracts null and void which ristricts any body from practicing any trade or professions. No law can stop any employer to enter into any such contract with any employee but if entered and challanged in court, it would have no footing against the Law. Mr Navneet please understand contrats are governed by Law and no contracts are above Law. Even if you go through the High Polimer case shared by Mr. Varghese Mathew the Court has granted relief to the employee on this ground itself and dealt with the subject at length. I am attaching the text of the case with the post.
Now lets come to the holding of the documents. It is illegal by virtue of many Articles of the Apex Law which is Indian Contitution. Contitution is the Apex Law of the Land and even any Law passed by the government which comes in the contavention of Contitution becomes null and Void. Please read Article 23, 13, 14 and 21. You will come to know the very intention of the legislature as to how much the Law is concerned about the well being of common man. Article 23 specifically deals with forced labour. Please read some commentary on Article 23 for better clarity.
When we were studying Law one of our Teacher told us a basic rule which he asked us to always keep in our mind. Which is that the statutory rights of a person given by the contitution are above all and cannot be given awaywith. Even if the person himself wishes to give away them they cannot be given away with. The motive behind it is that if these rights can be givenaway with, the influential people will enslave the persons and will take away all the rights they have. These things comes under the personal rights which cannot be given away with under any circumstances.
As far as the working of top notch IT companies or any famous multinational company are concerned it is well known that when it comes to slaping of hafty fines and dicisions against them from courts they are onthe top of the list. So it is not a standard that if an IT company or a multinational Company is doing it is the right thing. I am well aware of the working of many giants as i have represented many of them. Also on daily basis we provide legal opinion to many of them on various HR related legal issues.
Beleive me most of them are concerned with profits only. As far as this forum is concerned we are here to provide our input for the betterment of the community and Employee welfare.
Further views are invited.
From India, New Delhi
Thank you Mr Kamal .I suggest the members to read an article by Adv .Dileep Goswami which is available in cite hr on' Employment Bond/Service bond it services.' The Cos are holding the originals because they know that many other conditions of employment contract which they dictate and got signed by employees ,will not stand in court.There are SC decisions against negative covenants in its applicability after employment.Non disclosure clauses and confidentiality while in service is legal.In the following instances the Companies can claim damages from employees;
1.Co is giving training at its expense before putting the employee on job.
2 .Co spends for training /scholarship/projects of the employee wile in service.
But putting the employee straight away on work and getting its returns and ask them to refund the training cost is not reasonable. To make a contract enforcable it shoul have mutuality and the parties should be equal in bargaining.In many cases an unemployed person hungry for job and mighty Co is not equal.He has to agree for all conditions including surrender of certificates.We should solve attrition by HR ways.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
1.Co is giving training at its expense before putting the employee on job.
2 .Co spends for training /scholarship/projects of the employee wile in service.
But putting the employee straight away on work and getting its returns and ask them to refund the training cost is not reasonable. To make a contract enforcable it shoul have mutuality and the parties should be equal in bargaining.In many cases an unemployed person hungry for job and mighty Co is not equal.He has to agree for all conditions including surrender of certificates.We should solve attrition by HR ways.
Varghese Mathew
9961266966
From India, Thiruvananthapuram
Dear Ms. Amrita,
This is my fifth & last post for this thread.
Now the thread is going towards arguments just for the sake of arguments…. Some people may make their living based on these arguments… & luckily by law, there is no restrictions on that.
In recent times, the global markets are being much more dependent on the developing countries. The Arab countries or countries like India, China, Malaysia, Philippines, Latin American countries. India was always ahead of the curve than other countries, not just because of intellectual labor capacity, but mainly because of the democratic laws, which gives the labor freedom to develop themselves. This allowed the IT industry from developed world to merge easily with Indian work environment.
The other countries have now understood the importance of fair labor practices, if they want to keep up into global markets. In middle east, laws are changing towards it, & government urges employees not to surrender passports, & to fight for their rights. In china, minimum wedges laws are being implemented, & governments concern about the working condition of their labor force have increased a lot.
They understand now that we don’t need leash around employee necks, to make them work.
If India is really heading towards a regime of ‘Hire & Fire’ type of policies (As mentioned in one of earlier posts), then I am not sure for how long our IT industry can survive it, in competition with these countries….
To answer your original question, I personally would not submit the original documents to the company.
Surely you will find many candidates who are ready to submit the documents now…. Also, soon enough you will come across a few, who will contend against it. As long as we have lawyers who would try to find legal loopholes for that, you would be fine….
People may argue about the legality of the practices, but nobody will deny that there are better ways available…..
This forum has also provided you other ways to increase your commitment towards employees. This may seem like extra work for you now, but in turn it increases employee commitment towards the company as well.
Best of Luck & Very Best Regards,
Amod Bobade
This is my fifth & last post for this thread.
Now the thread is going towards arguments just for the sake of arguments…. Some people may make their living based on these arguments… & luckily by law, there is no restrictions on that.
In recent times, the global markets are being much more dependent on the developing countries. The Arab countries or countries like India, China, Malaysia, Philippines, Latin American countries. India was always ahead of the curve than other countries, not just because of intellectual labor capacity, but mainly because of the democratic laws, which gives the labor freedom to develop themselves. This allowed the IT industry from developed world to merge easily with Indian work environment.
The other countries have now understood the importance of fair labor practices, if they want to keep up into global markets. In middle east, laws are changing towards it, & government urges employees not to surrender passports, & to fight for their rights. In china, minimum wedges laws are being implemented, & governments concern about the working condition of their labor force have increased a lot.
They understand now that we don’t need leash around employee necks, to make them work.
If India is really heading towards a regime of ‘Hire & Fire’ type of policies (As mentioned in one of earlier posts), then I am not sure for how long our IT industry can survive it, in competition with these countries….
To answer your original question, I personally would not submit the original documents to the company.
Surely you will find many candidates who are ready to submit the documents now…. Also, soon enough you will come across a few, who will contend against it. As long as we have lawyers who would try to find legal loopholes for that, you would be fine….
People may argue about the legality of the practices, but nobody will deny that there are better ways available…..
This forum has also provided you other ways to increase your commitment towards employees. This may seem like extra work for you now, but in turn it increases employee commitment towards the company as well.
Best of Luck & Very Best Regards,
Amod Bobade
On the other note, If you come across a candidate, who (being a fresher) does not have the kind of money mentioned in the bond, so denies to sign the bond, but agrees to keep his original documents (Say including passport, etc) with company for the period. Would the company accept him as an employee?
If yes, how can they justify the documents against training costs?
If no, on what grounds?
If yes, how can they justify the documents against training costs?
If no, on what grounds?
Many terms in most employment contracts are bad in law. They are just there to scare gullible employees into submission. But, apart from clear cases of people abusing corporate largese; most cases are where companies think they have done a lot for the personnel but has actually earned far more from just having them there. Companies should wake up to the fact that bonded labour creates unhappy atmosphere and that is far more counterproductive than letting go a person who wants to go. In any case, taking original documents from employees for verification is legal, but holding them for any period/reason after the employee has left; just to restrict further employment opportunities in immoral, unethical, malafide and probably even illegal.
From India, Mumbai
From India, Mumbai
Hello Kamal Kant Tyagi,
Maybe it will serve Amrita better if you can dish-out any specific Court Orders/Verdicts vis-a-vis 'retaining of Originals' issue--going by her & others' remarks, ONLY something in-writing would seem to convince her boss that what's being planned is illegal or at least that it CAN put him into serious trouble.
Frankly, I get the feeling that what's being mentioned in this thread by the members seems more of 'arguments'--as if this were a Court rather than a knowledge-sharing Forum.
Since you have handled quite a few Labor/employee related cases, I guess it would be much easier for YOU to take the lead & present very specific Court Verdicts for the benefit of Amrita & all the members of CiteHR--I recollect your efforts in an earlier thread w.r.t. the legality of Employee Bonds in India--the Link referred by Sid.
Having said that, I agree with the members who mentioned that Amrita's company/boss better focus on the 'WHY' part of retention/attrition in the company. I guess, the same argument expressed by some members when the Service Bond issue was being discussed in an earlier thread would hold good here too: Focus & heal the Disease rather than focusing on the Symptoms.
From another perspective, I think the tendency of the Employers to go for such methods--Bonds, Holding certificates, etc--only betrays their basic nature: to go for the most convenient path. If they were to REALLY take steps to prevent attrition the right way, in all likelihood, they know that it's THEY who have to change, but are loath to. It's a sort of 'you carry the burden rather than me' mentality.
And such persons would realize the necessity to change ONLY IF they are presented with proof of the consequences of their actions.
Rgds,
TS
From India, Hyderabad
Maybe it will serve Amrita better if you can dish-out any specific Court Orders/Verdicts vis-a-vis 'retaining of Originals' issue--going by her & others' remarks, ONLY something in-writing would seem to convince her boss that what's being planned is illegal or at least that it CAN put him into serious trouble.
Frankly, I get the feeling that what's being mentioned in this thread by the members seems more of 'arguments'--as if this were a Court rather than a knowledge-sharing Forum.
Since you have handled quite a few Labor/employee related cases, I guess it would be much easier for YOU to take the lead & present very specific Court Verdicts for the benefit of Amrita & all the members of CiteHR--I recollect your efforts in an earlier thread w.r.t. the legality of Employee Bonds in India--the Link referred by Sid.
Having said that, I agree with the members who mentioned that Amrita's company/boss better focus on the 'WHY' part of retention/attrition in the company. I guess, the same argument expressed by some members when the Service Bond issue was being discussed in an earlier thread would hold good here too: Focus & heal the Disease rather than focusing on the Symptoms.
From another perspective, I think the tendency of the Employers to go for such methods--Bonds, Holding certificates, etc--only betrays their basic nature: to go for the most convenient path. If they were to REALLY take steps to prevent attrition the right way, in all likelihood, they know that it's THEY who have to change, but are loath to. It's a sort of 'you carry the burden rather than me' mentality.
And such persons would realize the necessity to change ONLY IF they are presented with proof of the consequences of their actions.
Rgds,
TS
From India, Hyderabad
This will be my last post on this topic since views & counter views, even from the legal experts, have made us reach to the following understanding:
1. Holding employee's Original certificates is a bad HR practice & should not be encouraged by a professionally managed company.
2. If the employment agreement is violated by the employee, recovery of legitimate training costs can be done through legal means. As an internal measure,however, the employer may not issue a Relieving/ Experience letter to the defaulting employee (provided such a clause was clearly mentioned in the Appointment letter).
3. Retention of employees who have been imparted training will continue to be a big challenge for small IT companies & they have to device their own strategies to contain the migration of trained people to bigger companies. Offering competitive salaries only to valuable assets & getting rid of non performers is an obvious option. For example, you may recruit 30 trainees, paying them some stipend, but retain only the best ten at the market rates. And to make them compete with each other, make it clear well in advance (before they join as trainees) that retention shall be based on relative ranking. This may solve the problem of recovery of training cost (keeping in view that more than 50% training is on the job as mentioned by some experts).
4. It may be wasteful, counter productive & highly expensive to resort to legal means, particularly for small companies. Why not spend that much extra & retain the trained people as discussed in para 3 above?
Thanks to everyone for all the inputs. I know this topic can not be closed but I may hesitate to contribute more.
From India, Delhi
1. Holding employee's Original certificates is a bad HR practice & should not be encouraged by a professionally managed company.
2. If the employment agreement is violated by the employee, recovery of legitimate training costs can be done through legal means. As an internal measure,however, the employer may not issue a Relieving/ Experience letter to the defaulting employee (provided such a clause was clearly mentioned in the Appointment letter).
3. Retention of employees who have been imparted training will continue to be a big challenge for small IT companies & they have to device their own strategies to contain the migration of trained people to bigger companies. Offering competitive salaries only to valuable assets & getting rid of non performers is an obvious option. For example, you may recruit 30 trainees, paying them some stipend, but retain only the best ten at the market rates. And to make them compete with each other, make it clear well in advance (before they join as trainees) that retention shall be based on relative ranking. This may solve the problem of recovery of training cost (keeping in view that more than 50% training is on the job as mentioned by some experts).
4. It may be wasteful, counter productive & highly expensive to resort to legal means, particularly for small companies. Why not spend that much extra & retain the trained people as discussed in para 3 above?
Thanks to everyone for all the inputs. I know this topic can not be closed but I may hesitate to contribute more.
From India, Delhi
Dear Taj,
Cases pertaining to Holding of documents are generally do not go upto high court levels. Yesterday i was having a chat with one of a very senior Lawyer he told me about one of his personal experience regarding it. One of his relatives grandson had this situation. His company got signed the bond and also kept his documents with them. He worked for them about 10 - 11 months and at that time he got an offer to work with a big company overseas. He was even ready to pay the bond money but they were not ready to releive him.
His relative contacted him and he suggusted to lodge an FIR. As soon as the FIR was lodged he got his releiving and documents within a day. If that would have been legal the FIR would not have been lodged. Being a criminal case and involving the higher authorities, it gets amicably settled most of the time just on complaint itself.
From India, New Delhi
Cases pertaining to Holding of documents are generally do not go upto high court levels. Yesterday i was having a chat with one of a very senior Lawyer he told me about one of his personal experience regarding it. One of his relatives grandson had this situation. His company got signed the bond and also kept his documents with them. He worked for them about 10 - 11 months and at that time he got an offer to work with a big company overseas. He was even ready to pay the bond money but they were not ready to releive him.
His relative contacted him and he suggusted to lodge an FIR. As soon as the FIR was lodged he got his releiving and documents within a day. If that would have been legal the FIR would not have been lodged. Being a criminal case and involving the higher authorities, it gets amicably settled most of the time just on complaint itself.
From India, New Delhi
My Friend,
Here is no one authorized legally to take original education certificates from employees. If anyone is asking tell him straight way that I need an acknowledged copy that I have deposited Original documents in your company letter head for my future references along with the appointment letter.
Give example if unfortunately Fire burns your office then what is the proof that I have deposited the original certificates.
If the organization still asking for the original certificates then my friend look for good one because this type of Organization deal with unprofessional skills .
From India, Mumbai
Here is no one authorized legally to take original education certificates from employees. If anyone is asking tell him straight way that I need an acknowledged copy that I have deposited Original documents in your company letter head for my future references along with the appointment letter.
Give example if unfortunately Fire burns your office then what is the proof that I have deposited the original certificates.
If the organization still asking for the original certificates then my friend look for good one because this type of Organization deal with unprofessional skills .
From India, Mumbai
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