Original certificates

MOHIT THAREJA (Querist) 01 October 2014 This query is : Resolved
Hi,

My employer has retained my Original Certificates in lieu of serving 2 months notice while leaving the job with my consent on Company's Letter Head.

In case, i leave job without serving notice then please provide me remedy to get my certificates back.

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Kumar Doab (Expert) 01 October 2014

>>> You can withdraw your consent anytime.

Original Educational Certificates are your property and employer can't have any lien on it.

It is so unfair practice then it can be termed illegal even in case employer or any attorney of employer in line management, HR, legal cell has done it as a shrewd strategy.....................obtaining consent of employee............

The employer might request to submit original certificates for some verification, however such verification can be conducted on the strength of self attested/notary attested copies too.........

The employer pay salary/earned wages after employer has worked for agreed period say month....................and notice pay can be adjusted in FnF statement/settlement...................
hence there is no legitimate need for any collateral for notice pay..............................and certainly original education certificates can not be kept a collateral..................

Does this employer by virtue of 'EQUITABLE DISCRETION' that should exist in 'employment contracts' agree to submit by his own consent his original testimonials/licences etc......................as a guarantee that all payouts to employee shall be paid……………???????

>>> Let us come to the point of applicability of 2 months notice period in your case!
The 2 months long notice period may not be applicable to you at all!!!!!
The notice period is part of service conditions that are governed by various enactments/statue/instrument of law to establishment……………………….and ‘EMPLOYER PERSONALLY’ CAN HE HELD RESPONSIBLE FOR VIOLATION OF SUCH ENACTMENTS!
If clause of notice period of 60 days is not applicable to you but has been inserted in any private agreement that has been drafted by employer and signed with employee then it shall not survive………………………
YOU SHALL BE WITHIN YOUR RIGHTS TO LODGE A COMPLAINT AGAINST THIS EMPLOYER.
BELIEVE IT THE LINE MANAGERS/HE PERSONNEL/LEGAL CELL PERSONNEL ARE ALSO COERCED/FORCED TO INDULGE IN SUCH PRACTCISES……………………..AND MANY OF THEM ALSO SEEK ADVISE…………………..AND THERE ARE SOME THAT DEVISE SUCH TACTICS TO PLEASE THEIR MASTERS AND MAKE A PLACE FOR THEM IN THE COMPANY.
THE TREATMENT SHALL BE DIFFERENT FOR DIFERENT INDIVISUALS.
YOU MAY GO THRU FOLLOWIN HREAD AND MANY OTHER THRAEDS MENTIONED IN IT AND PCIK UP RELEVANT POINST BE PROPERLY INFORMED……………

HTTP://WWW.LAWYERSCLUBINDIA.COM/FORUM/NOT-SERVING-NOTICE-PERIOD-109779.ASP#.VCWGDMESWB8

>>> Employee should understand the hardship faced by parents in raising a child……………………..and that the time and efforts put in by one person to get educated....are precious and invaluable.

Employee should defend his interest…………………….consult elders in the family, employee’s union/Trade union leaders…………………….and retain access to Labor Law Consultant/service lawyer………………………………
OR atleast to the family lawyer OR a lawyer in neighborhood……..
If in your trade you have to face such situations and come across employers that shall ask to deposit original certificates,, sign BOND etc…………………… for no reason/for some reason that suits their interest but is detrimental to your (EMPLOYEE’S) interest then you should inculcate the habit of consulting in time and be properly informed so that you can take an informed decision and calculated risk.

>>> What is this establishment; Commercial, Industrial, Small Enterprise?
What is its line of business: e.g.: IT, Banking,etc?

How many people are employed in it?
The Redg. office of the company and your reporting office is located in which state?

What is your designation and nature of duties and how many persons are reporting to you?

Do you have any power to sanction leave, pass increment, conduct appraisal, recruit/appoint/terminate?

Who has drafted the appointment letter : You or HR Head or Legal cell or some Law firm of employer?
Who has signed the appointment letter?

Who has signed the acknowledgment of having submitted the original educational certificates?

Are you under probation period or a confirmed employee?

Reply point wise to each point.

MOHIT THAREJA (Querist) 01 October 2014
Please find the below point wise answers:-

What is this establishment; Commercial, Industrial, Small Enterprise?
Small Enterprise

What is its line of business: e.g.: IT, Banking,etc?
IT

How many people are employed in it?
25

The Redg. office of the company and your reporting office is located in which state?
Both are in Delhi

What is your designation and nature of duties and how many persons are reporting to you?
Designation-Assistant Manager (Finance)
No one is reporting to me.

Do you have any power to sanction leave, pass increment, conduct appraisal, recruit/appoint/terminate?
No

Who has drafted the appointment letter : You or HR Head or Legal cell or some Law firm of employer?
HR Head and Directors

Who has signed the appointment letter?
Chief Commercial Officer (One of the Director)

Who has signed the acknowledgment of having submitted the original educational certificates?
Chief Commercial Officer (One of the Director)

Are you under probation period or a confirmed employee?
Confirmed employee

Kumar Doab (Expert) 02 October 2014
>>> At Delhi you can access lawyers par excellence and your lawyer would know how to handle the matter and defend your interest.

It is in your interest to retain access to a good lawyer and be member of various employees/IT employees/Trade unions.............

>>> It is almost certain that some of the counsel/adviser of the employer has suggested that consent from employee be obtained so that in case there is a raid by police, Labor Inspectors there is some document to show………………………………..however this can’t convert the illegality to legality.
It is upto you and your lawyer how you would like to agitate.
It is felt that the employer without throwing tantrums shall return the certificates………………….once you demand these back.
After your demand/withdrawal of so called consent if this COO does not return these within the date/time given by you in absolutely clean/crisp condition/without soiling/mutilating these ……………………….then it would amount to withholding your property with dishonest intention.

>>> You have stated that it is Small Enterprise and may go thru:
SMALL ENTERPRISES (EMPLOYMENT RELATIONS) ACT:
2(a,e,f,g,)
CHAPTER VI:17:Separations/Removals from Service

1. An employer may dispense with the services of a worker who has been in his employment for five years or more by giving one months notice or wages in lieu of the same and by paying separation compensation calculated @ 20 days wages for each completed year of service and a worker who has not completed five years of service shall be entitled to one-month notice or notice pay in lieu and separation compensation of 15 days wages for each completed year of service.
18:Collective Disputes

2. Any collective dispute between the workers and an employer or employers arising out of employment, non-employment, terms of employment or conditions of labour of the workers may be settled between the workers and the employer by negotiations between the employer and the trade union if there is a union in existence in the establishment failing which the employer or union may take the help of conciliation officer of the state government for resolution of their collective dispute.

CHAPTER VII:MISCELLANEOUS : 22:Self Inspection / Inspection

1. Every employer, within 30 days after the end of the calendar year shall certify confirming in form 'F' that all requirements of safety, health, welfare and payment of wages have been complied with by him and the certificate will be sent by the employer to the Dy. Chief Inspector with a copy to the Inspector of the area by registered post and where the employer fails to send the self certificate the Deputy Chief Inspector shall direct the Inspector concerned to carry out the inspection of the enterprise and the inspector shall after carrying out the inspection furnish a report of the violations committed by the employer to the Chief Inspector who shall issue a show cause notice to the employer to rectify the same specifying the period for carrying out rectification.
23(2): If the Shops & Establishment Act of a State confers better benefits than provided under this Act, the State may make amendments in this Act.

22. Penalties

>>> If it is not Small Enterprise then IT/ITeS/BPO/KPO companies are covered by ( Name of the state) Shops and Commercial Establishments Act.

Delhi Shops and Commercial Establishments Act:

Sec:2:(7) “employee” means a person wholly or principally employed, whether directly or otherwise, and whether for wages

30:NOTICE OF DISMISSAL: (Max. 30 days)

(a) Applicability of section 30
The protection of the provisions of the section is available to all persons who fall within the
definition of the term “employee” as given in section 2(7) of the Act and who have put in three
months’ continuous services. In the absence of any standing orders or any contract between the
employer and the contesting respondent containing any particular terms or conditions, the
conditions of service of the employee relating to his employment in an establishment at Delhi are
covered by section 30(1) of Delhi Shops and Establishments Act,

37. Powers and duties of the Inspector:
(b) Duties of the Inspector:(i) that in dispensing with the services of an employee the provision of the Act and Rules
have been complied with and no dues payable under the Act or Rules have been
withheld;

>>> Employees have posted that they got the original certificates with the help of police:
http://www.lawyersclubindia.com/forum/details.asp?mod_id=88472&offset=1#.Unu2RPuo1oo

>>> There are many threads on retention of certificates that you may find relevant e.g;

http://www.lawyersclubindia.com/forum/Help-Service-bond-causing-unemployment--85093.asp#.UjbNaNKAqWM

>>> Hope this shall suffice.