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Tony   27 July 2015

Employer not returning educational certificate

Hello,

I am employed in Hyderabad. During the time of joining , my employer convinced me to hand over one of my educational certificates so that I do not abscond. The employer is doing so with all the employees.

I handed over the certificate and I was given a letter confirming that the certificate is with the employer and that it shall returned to me at the time of my exit.

I was also asked to sign a letter stating that I need to serve a notice period of 90 days ( if I resign ) and if I cannot serve 90 days of notice period , then a monetary compensation is to be "mutually" decided.

Recently I have resigned and do not intend to serve a notice period  of 90 days due to personal constraints. I am ready to pay a month's salary to my employer as a compensation.

In such a situation if there is a dispute about the compensation value, then -

1. Can my employer legally keep my certificate until the dispute is resolved ?

2. If I expect/demand that my certificate is returned before the monetary dispute is resolved, then would such an expection/demand be illegal or it would be justified ?

3. Is keeping someone's certificate for employment legal in general ?

4. What action can I take if my employer is not willing to return the certificate ( as I am not willing to pay more money to compensate for the shorter notice period ) ?

Please help/advise.

Thanks.



Learning

 4 Replies

Kumar Doab (FIN)     27 July 2015

 

  1. NO
  2. Justified
  3. NO
  4. Notice period/pay shall be governed by enactments applicable to establishment/employer/employee.

 

You can approach:

Employee’s/Trade Union leaders e.g. CITU/INTUC/AITUC/BMS etc

Able Labor Law Consultant/Service Matters Lawyer/Law Firm

And you counsels may opine that you are covered by the def. of ‘Employee’ as in Shops and Commercial Establishments Act, ‘Workman’ as in ID Act and can approach:

Inspector appointed under Andhra Pradesh Shops and Commercial Establishments Act, Payment of Wages Act, O/o Labor Commissioner, civil court

Andhra Pradesh Shops and Commercial Establishments Act is so employee friendly.

Sec;47 covers notice period and notice pay in lieu of it.

It is as per length of service and not more than 30 days.

If standing orders are applicable but are not certified then Model Standing Orders shall apply and as per Sec:13 notice period during probation period is NIL and 30 days after confirmation.

NO labor Law Official can accept notice period for an employee covered by the def. of ‘Employee’ as in the Act that was enacted to govern the service conditions of employees working in establishment covered by these enactments.

You can also: 

lodge complaint u/s406,420

file complaint with police or direct with the magistrate

file winding up petition as unpaid payouts are debt on employer

The employer may respond to demand notice by unions/legal notice by lawyer or shall have to appear before lawful authority, court of law

 

 

1 Like

ADVOCATE DIMPLE JINDAL (Advocate)     27 July 2015

only 30 days notice required or you have to compensate one month's salary.

Employer can not restrain your certificates with himself. Since he is doing the same, you can file criminal complaint for the incident. 

1 Like

Tony   27 July 2015

Thanks Mr. Kumar and Mr. Jindal.

One last question - 

I have joined this company just 2 months back and like I wrote, even though I have signed a letter ( company letter head, not stamp paper ) which says the notice period = 90 days, the applicable notice period will still be overriden to : 30 days ONLY ?

Please confirm/comment.

Kumar Doab (FIN)     27 July 2015

 

Your  counsels may ask you set of simple structured questions and may opine that opine that the establishment is covered by Andhra Pradesh Shops and Commercial Establishments Act and you are covered by the def. of ‘Employee’ as Andhra Pradesh Shops and Commercial Establishments Act, ‘Workman’ as in ID Act.

As per Andhra Pradesh Shops and Commercial Establishments Act :Sec;47: Notice Period for service period<6months is NIL.

If standing orders are applicable but are not certified then Model Standing Orders shall apply and as per Sec:13 notice period during probation period is NIL and 30 days after confirmation……………….and as per Sec;18 employer is personally held responsible for faithful observance of standing orders and can be penalized for violation.

 

These are Acts of law/enactments/statue/instrument of law and shall prevail upon any private agreement/rule/policy…………. that employer has drafted and signed with employee e.g. appointment letter/contract of employment/HR policy etc etc…………….anything.

 

Employer and establishment is subordinate/servant/inferior to the law of the land and rights of its citizens and employees……………….

 


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