Rajender Taneja Guest
Asked July 21, 2016

procurement of original certificates

  • 2 Answers
  • 2524 Views

It is, hereby, brought to your kind notice that my Bhabhi has signed a legal agreement while joining a private school as a teacher in Kurukshetra, Haryana & also submitted Original Documents to them. The school hasn't given any copy of the agreement and also not given any receipt of receiving the original documents. Due to some family problem now she wants to leave the Job but school authorities are not giving Original Documents but also threatening her of legal action. Behavior of the School Principal and Management is not co-operative. In the light of above facts, kindly let us know what we do to get back our original documents. With Regards. Rajender Taneja

Answers 2

Retention of original certificates by any third party is not legal in India as it prevents other employment opportunities for the individual employee. Article 19(1)(g) of The Constitution of India, 1949[1] provides every citizen with the right to practice any profession, or to carry out any trade or business. Any such retention, preventing individuals from applying for other jobs, goes against the Indian Constitution and hence, is illegal in India.

Also, as per S. 23 of The Indian Contract Act, 1872[2], any contract which is ‘forbidden by law’ is a void contract. Moreover in your case, there is no bond between you and the school which can in any way justify the retention of your original certificates.

Now, to get your original certificates back, you can take the following steps-

  • You can send a legal notice[3] to the school. This would serve the purpose of indicating the school that you are willing to take legal action against it if your demand for return of your certificates is not fulfilled.
  • You can also file a police complaint against the school. If the school does not return your original certificates, you can take more severe step and file a police complaint against the wrongful retention of your certificates.
  • These steps should serve your purpose; however, if these steps fail to yield the desired result, you can approach the civil judges or the metropolitan magistrate court with a complaint. You can either pursue a civil case against the school for damages and can demand compensation or you can file criminal proceedings for the offences of Cheating and Criminal Breach of Trust under S. 420 of the Indian Penal Code[4]

    Moreover, since you do not possess any direct evidence to substantiate your claim, you may rely upon past, ordinary instances or cases where the original documents are taken by applicants for the purpose of employment. You may also take the assistance of any office staff or friend or any other person who can act as witness to establish your claim.

     

    [1] Available at: https://indiankanoon.org/doc/1142233/.

    [2] Available at: https://indiankanoon.org/doc/1625889/.

    [3] Format available at: http://www.affidavitformhub.com/legal-notice-format/.

    [4] Available at: https://indiankanoon.org/doc/1436241/.

    Agree Comment 0 Agrees 11 months ago

    Default avatar
    Rahul Singh

    Since your Bhabhi signed a contract with the concerned private school and now she wants to leave her workplace the school if they want may proceed against her for damages they will face for the early termination of contract.

    But they can’t withhold any of her original document. It is illegal to keep original document especially personal certificate. The school cannot do that even if she has resigned without adequate notice or before the time mentioned in her contract. While submitting the certificate the school was supposed to give an undertaking acknowledging the receipt of those documents. You need to get some record of any kind which will prove that the school is in possession of those certificate. You can lodge a police complaint seeking intervention to get back her certificate. You will need to show the police the proof of resignation and the letter from school authority or any kind of document which will show that the school authorities have the possession of those certificate. They must accept that they have those certificate otherwise your case will just be on a hearsay and will not have any basis.

    In a writ petition, filed by C. Shanthi against Vel Tech High Tech Dr Rangarajan Dr Sakunthala Engineering College, Chennai. The petitioner had alleged that even after she was terminated and asked to submit her resignation, the authorities refused to return her certificates. They wanted her to pay damages for leaving service without serving the notice period. The court hence demanded the return of certificates without affecting their right to take civil recourse for damages. The petitioner was employed as an assistant professor in the College and had submitted original certificates in the college at the time of joining service.

     

    So, the only thing you need to do is to get a copy of an undertaking by school in which they will acknowledge the possession of those certificates. After that you may file a case of criminal breach of trust against them under section 406 IPC for withholding your certificates which is a criminal offence. The act of withholding original documents to coerce one to work / remain in employment of the concerned person/company is not permissible and a non bailable warrant can be issued against the head of the institution.  

    As per Sec 368 of Indian Penal Code if any person or institute holds back any document or any use any legal document or threatens any legal suits or actions and thus forces a person to perform any act against his wishes or which is illegal or wrong as per the statute of Law of the land. Sec 368 of Indian Penal Code talks about extortion by the threatening to file a legal suit. The minimum punishment under this act is 2 two years.

    The Supreme Court of India has clearly stated that no employee can be forcefully employed against his will, just because he has signed a contract with the employer. The Supremes Court also has stated that the employer cannot hold back any personal document of the employees as they are earned by the employees and the company has no claim on the same.

    Any complain on the company would land the Directors and Managing Directors of the company in Jail or face the risk of Exemplary Damages, as the company is not an actual living entity but only a legal entity and the management are hands and heads of the company.

    Agree Comment 0 Agrees 11 months ago

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