Not giving original certificate back to employee
Ajit kumar nair
(Querist) 24 September 2016
This query is : Resolved
Sir i am working in a shipping company for the last 3 years and now after coming from ship I had to undergo three courses which are very important to be done if I wish to sail again on any ships.For that I have to take a letter from my company stating that I have worked with them for the last 3 years and please issue him the certificate.This letter has to be given to me from the same company where I have sailed my last 2-3 contracts.Accordingly my company issued me the letter and I submitted the letter to the concerned authorities to obtain my certificates.Now my company has received my certificates which I had applied and it is in their custody.Now after three years of service in this company I am planning to switch over to some other company where I will be getting more salary than I was getting here in my previous company.Now when I called them and asked for my certificates they are saying that we gave you the letter to obtain these certificates and now when they are ready you want to back out from us.I told them that I am changing the company just for more salary because I have taken 2 loans and it is become very difficult for me to cope up with the old salary.But they are showing no interest in giving back my certificates without which I cannot sail in any other company.They are saying that u sail one more contract and then u go somewhere else.But next time when i come from ship again there will be some course or certificate to be obtained and again I will have to ask them for letter to obtain that certificate and again they will tell me to sail once again and I wont be able to quit the company for ever.Sir I would like to know whether can any employer hold back my certificates if i want to quit the company,and there is no bond between us in writing and I have not given anything in writing also that I will sail with you again after getting my certificates. Therefore I request you Sir to please advice me course of action in this matter so that my certificates can be obtained and I can sail back in some other company
Ms.Usha Kapoor
(Expert) 25 September 2016
If your employer asks you to stay back and send you for sailing again you come to terms with employer that what you've already done in that 3 years period is enough and you got certificates for your work. Now you got better prospects it is unreasonable and illegal for them to detain o restrain you in your current employment when you got greener pastures. You pay some reasonable compensation to your employer and quit. It all depends on negotiations between you and your current employer. If they refuse you go to a Labor court/tribunal and get the court decide what to do whether you need pay some reasonable compensation etc to your former employer on account of their training. If you get better prospects no employer would normally restrain you.
The employees are always free to decide their employment and they cannot be compelled to work for any employer by enforcing the employment bond. The court can; however, issue order restricting the employment of the employee only if the said action is deemed necessary to safeguard the trade secrets/proprietary interest of the employer. In the event of breach of contract by the employee, the only remedy available to the employer is to obtain a reasonable compensation amount. The compensation amount awarded shall be based upon the actual loss incurred by the employer by such breach.
Footnotes
1 Central Inland Water Transport Corporation v Brojonath Ganguly, (1986)IILLJ171SC
2 Niranjan Shankar Golikari v The Century Spinning and Manufacturing Company Ltd, AIR 1967 SC 1098
3 IBS Software Services Group v Leo Thomas, 2009 (4)KLT 797
4 Section 73 of the Contract Act, 1872
5 Section 74 of the Contract Act, 1872
6 Nandganj Sihori Sugar Company Ltd v Badrinath Dixit, & Ors, AIR1991 SC 1525
7 Gujarat Bottling Co Ltd v Coca Cola Company, AIR 1995 SC 2372
8 MANU/DE/6554/2011
9 MANU/AP/0416/2011
Ajit kumar nair
(Querist) 25 September 2016
Thank you Usha Kapoor Madam for your valuable advice
Kumar Doab
(Expert) 25 September 2016
Your certificates are your property and employer has no lien on it.
First: Apply your skills and handle the situation.
Next time if some course is required, complete and submit the copy. Employer can verify, if required.
Rajendra K Goyal
(Expert) 25 September 2016
Send registered AD / submit letter receiving acknowledgement asking back your documents / certificates.
Raj Kumar Makkad
(Expert) 25 September 2016
I do with the advice of expert Usha ji.
Kumar Doab
(Expert) 25 September 2016
Cherck if Sea-fairer's associations/Board can help you.
NANDKUMAR B SAWANT
(Expert) 25 September 2016
You may file a writ petition in high court for early results.
NANDKUMAR B SAWANT
(Expert) 25 September 2016
You may file a writ petition in high court for early results.
Ajit kumar nair
(Querist) 27 September 2016
Thank you Kumar Doab Sir,Rajendra Sir,Raj Kumar Sir,and Nandkumar Sir,for your advice and accordingly I approached Seafarers association to talk to them regarding handing over my certificates.But when we all went and spoke to the Company Captain he told that why did you not tell us that you are going to change the company and go to some other company before taking letter from us and applying for it.He told me to tell the companys name which i am planning to go and he wants to know how much more salary I am going to get from there compared to us.But I did not tell them the companys name because I fear that they might call that company and tell them that not to take him now as he has applied from here and backing out from our company in the last moment.Then that will become a problem for me.Now to join any other company i need those 3 certificates and now the captain is telling me to disclose the companys name and salary and if it is very much higher than ours then you take the certificates otherwise you have to sail with us again for one contract.In any case I dont want to sail with this company any more so Dear Sirs/Mam i would like to know that if I write a letter to them stating that I do not want to sail with you anymore and i want to resign and please handover my certificates,will they give it to me or can they keep it with them so that I should not be able to sail anywhere.Please advice Sir/Mam
Kumar Doab
(Expert) 27 September 2016
It is good that Seafarers association supported you.
You along with the Seafarers association could have conveyed then and there ( gentle words) that the establishment and captain has NO reason/right/business to impress upon you to disclose the next employer and wages offered to you.
Looking into the draft of your last post it is suggested that you may refrain from drafting your representations and approaching the establishment and captain alone.
Let your seasoned counsels advise you and support you and accompany you.
Resolve the matter applying joint skills and avoid tussle leading to litigation.
If it does not fetch you any relief then your counsels can certainly adopt legal route.
And a very able counsel specializing in service matters can advise you further.
Rajendra K Goyal
(Expert) 28 September 2016
Agree with the advice from expert Kumar Doab.
Raj Kumar Makkad
(Expert) 28 September 2016
Getting your certificates back as per your whims and wishes is your legal right and none can force you make contract for further period.
you are not bound to disclose the name of your subsequent company or would be employer.
File a civil suit against the company demanding your certificates and prior to that serve a legal notice.
