An employer who does not want to return original certificates of an employee, is evidently having a nasty mind to exploit the employee or to cause deliberately loss to him. The original certificates should have been returned to an employee after comparison. Employer can retain photocopy copy of certificates of employee (self attested by employee). Even if employer wants to get verified from the university he can send a copy of the certificate to the university for confirmation. Yet if the employer retains the certificates of an employee in the garb of his rules, even though easiest and non-dilatory method should be adopted but it should be legally valid. The Inspectors under the Shops and Establishment Acts though seems to be dealing with certain work conditions of service of employee but in some arena they would be helpless. For example, regarding return of certificates, there is no register of certificates required to be maintained under these Acts and therefore no information can be sought regarding retention/return of certificates from the inspectors.
Thus an inspector under the Shops and Establishment Act may not invoke his jurisdiction on complaint of an aggrieved employee to get returned his certificates. Say even if inspector sends notice to such employer in this regard, then by merely saying that he has suspicion about genuinity of the certificate which he is getting verified, the inspector under the Shops and Establishment Act, will not be able to adjudicate the matter because of lack of jurisdiction in this regard.
It would be different if an employee is covered under the Industrial Disputes Act, 1947 as workman when he can approach the labour inspector contending unfair labour practice or victimization practiced by the employer by not returning his certificates. Thus an employee who is not a workman, will get himself enmeshed into deciding this issue firstly for long. For a non-workman, the inspector will have no jurisdiction to send a notice even to such employer.
Thus an employee cannot be left at the mercy of such nasty employer for long period. Filing a civil suit will be a dilatory proceeding because what is sought in main relief, interim relief cannot granted.
A practical justice oriented method which draws quick relief has to be invoked.
Upon lodging an FIR against such a stubborn employer, the criminal court can order delivery on superdari under section 451 of CrPC, of such original certificate to complainant. Thus it will be the quickest legal method of recovery of original certificates.
Section 451 is extracted below, it is oftenly resorted to by owners of vehicles involved in accidents.
Section 451 in The Code Of Criminal Procedure, 1973
451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence
So let us examine legality of the retention of original certificates in the context of various decisions of High Court.
An act which is prohibited by law is illegal. As per Section 6 of the Transfer of Property Act, there is a prohibition to transfer any right in respect of these certificates.
Thus, the agreement cannot be treated as a valuable security creating a legal right in favour of the Management to retain the certificates for ever despite the demand for return of the same.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The definition of the term wrongful loss would make it clear that if a person who is legally entitled to a property is wrongfully deprived of the same, it will be a wrongful loss in terms of Section 23 of I.P.C., and the person who caused the wrongful loss is deemed to have acted dishonestly in terms of Sections 24 and 403 I.P.C.
The certificates of the candidates cannot be treated as transferable property so as to be retained by the Management under the guise of recovering the amount in terms of the agreement/bond. The so called agreement is not a valuable security creating rights in favour of the Management. It can be treated only as an entrustment as provided under Section 405 I.P.C. and non return of original certificate will be an offence under section 406 IPC.
If an employee raises allegation that he has demanded return of the certificates but employer is refusing to do so, entitles the employee to launch criminal prosecution against employer.
As regards certificates retention, it is relevant to refer to following decisions:
Justice K. Suguna in Madurai Bench held in 2008 said the academic certificates could not be termed ‘goods’ to enable the educational institutions to withhold them.
Hon’ble High Court pointed out that the Supreme Court, in R.D. Saxena vs. Balram Prasad Sharma (2000) case, had taken a view that a lien (right to possess property of another person until a debt owned by the latter is discharged) could be exercised only on marketable goods.
Extract of the Supreme Court judgment:
Supreme Court of India
R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000
We would first examine whether an advocate has lien on the files entrusted to him by the client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the Indian Contract Act which reads thus:
Bankers, factors, wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
Files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to in the section. The advocate keeping the files cannot amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act as the delivery of goods by one person to another for some purpose, upon a contract that they shall be returned or otherwise disposed of according to the directions of the person delivering them, when the purpose is accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word goods mentioned in Section 171 is to be understood in the sense in which that word is defined in the Sale of Goods Act. It must be remembered that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly replaced by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of the Sales of Goods Act as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached, to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Thus goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party.
The Court held that the reliance placed on Section 171 of the Contract Act has no merit.
Thus send a legal notice through an Advocate to get return of your certificates immediately and upon failure to do so file FIR and after it is seized by the police and produced before court, then make an application before criminal court under section 451 CrPC to get you delivered your certificates on superdari. Of course, the court can be approached for early seizure of certificates.
Thanks
Sushil