Employment Bond Meaning and Definition with 3100 words Law Essay;
Employment Bond Meaning and Definition with 3100 words Law Essay; It is generally a settlement between the employer and employees and is as a result problem with the supply of the Indian Contract Act, 1872. It is an employment bond with a bad covenant. Employment agreements commonly allow and are legally enforceable in India underneath diverse Indian Laws; if both the events to the agreements supply their free consent to it without any fraud, coercion, mistake, undue impact, and misrepresentation. Also, the settlement has to be affordable and legally enforceable.
An employment bond usually consists of clauses that country the minimum duration wished for the worker to work for the company; and, if any worker violates this clause then this will bring about repayment; which must pay via the worker to the employer or employer. Also, they may additionally limit a worker to paintings for some other organization whilst; he/she is working for a selected company or organization.
With the system of civilization, the economic system and commercial process have modified plenty; and this resulted in extra business opposition within the market. To keep balance with the method and deal with the crowning glory inside the market industries; companies have adopted several strategies to promote their business effectively. On the other hand, personnel often depart their company after a positive length and after gaining their abilities; and expertise in a particular subject of a place to get higher benefits from other new groups. This technique leads groups to financial losses. For this reason, to defend the interest and goodwill of the organization, employment bonds have been needed to bring. But the employment bond does not best protect the hobby of the corporation but additionally those of the employees.
All of us are aware of the high attrition rate prevalent in knowledge industries particularly, Information Technology (IT). Wherein a company recruits fresh graduates and provides them intensive training for executing a particular project. After a few weeks or months, however, many of its recruits resign. The company had to recruit some more employees and repeat the training program to complete the project, incurring a lot of expense. This scenario is something everyone in the IT industry is familiar with. Employee bond a practice used by various companies to safeguard the interest it has in its employees, after expending time and training? In this article we cover what is an employee bond, to what extent it is enforceable, remedies companies can seek, and defense options before an employee.
The present write-up concerns one of the major employment issues in the contemporary world i.e. employment bonds. The signing of an employee bond is almost a norm nowadays in the present industry. The employment bonds levy certain restrictions on the employees be it not to join a particular company after leaving the job; or, the paying of monetary penalty for leaving the job before the stipulated period. The present attrition rate in the industry particularly IT means that the money garnered through this method (employment bond) is very huge. Also, the terms of the bond are a major issue with people in taking up a particular job or not. Thus we look at the various measures which make the bond enforceable or otherwise not.
The Employment Bond is an agreement which the company and the employee enter into; which among the other terms contained therein states that in consideration of the training given to the Employee; and the money spent by the company in imparting such training; the Employee will remain in the services of the company for a particular period. In case the Employee breaches the provisions of the Agreement; the Employee will be liable to pay a certain sum of money, be it the expense incurs by the company in the training of the Employee.
In the particular case where the company feels that the Employee may not be able to pay the amount; the company has a Guarantor who guarantees that; they would take responsibility to ensure that the Employee adheres to the terms of the Bond. In case of a breach, the Guarantor will be jointly liable to pay the Bond amount to the company. The Bond may also contain confidentiality and non-competition clauses. The legality of the Bond shall depend upon whether there was a consideration in the form of training or otherwise.
Our issue of contention is whether such bonds are legally enforceable or not. The contractual clause takes up in the Contracts Act, 1872. The Contract Act states that such a contract might be legal even; if it levies certain conditions and restrictions if the mentioned restrictions are valid and reasonable. Whether
As per the Act, a “contract” is an agreement enforceable by law. The agreements not enforceable by law are not contracts. An “agreement” means “a promise or a set of promises” forming consideration for each other. And a promise arises when a proposal accepts. By implication, an agreement is an accepted proposal. In other words, an agreement consists of an ‘offer’ and its ‘acceptance’.
An “offer” is the starting point in the process of agreeing. Every agreement begins with one party making an offer to sell something or to provide a service, etc. When one person who desires to create a legal obligation, communicates to another his willingness to do or not to do a thing, to obtain the consent of that other person towards such an act or abstinence, the person says to be making a proposal or offer.
An agreement emerges from the acceptance of the offer. “Acceptance” is thus, the second stage of completing a contract. An acceptance is an act of manifestation by the offeree of his assent to the terms of the offer. It signifies the offeree’s willingness to secure by the terms of the proposal communicate to him. To be valid an acceptance must correspond exactly with the terms of the offer; it must be unconditional and absolute and it must communicate to the offeror.
An “agreement” is a contract if “it made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and does not expressly declare to be void”. The contract must be definite and its purpose should be to create a legal relationship. The parties to a contract must have the legal capacity to make it. According to the Contract Act, “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of a sound mind, and is not disqualified from contracting by any law to which he is subject”. Thus, minors; persons of unsound mind, and Persons disqualified from contracting by any law are incompetent to contract.
Hence a case where the company has spent a lot of time and money in training the Employee in return for which the Employee signs a bond for 1 year would see as a reasonable restriction. The same however cannot say in a case where the company without giving any consideration requires the Employee to sign a bond period.
As stated above the Bond may also contain a stipulation that a certain amount has to pay in the case where there is a breach of the provisions of the Bond. This sum which fix under the contract called “liquidated damages”. However, under Indian law, the courts will not automatically grant the liquidated damages merely because it stipulate in the contract. The court will grant compensation only if the company has suffered a loss as a result of the Employee’s early termination of the contract.
Hence the company which goes to court should prove that it has suffered a loss to the extent of its claim to get that amount, though it has been fixed under the contract. This could be easier in cases where the company has records to show that; it has incurred expenses for providing training to the Employee and that the Employee has left in the middle of a project etc. However, the company cannot get an amount higher than that fixed under the contract.
Another issue at this stage is whether the company can seek any remedy; which seeks to prevent the Employee from taking up employment with a competing company. Generally, the courts will not grant an injunction that will force the Employee to either work for a particular employer or remain idle. However, a company to protect its trade secrets or confidential information may obtain an order from the courts to prevent its ex Employee from divulging such information to his/her new employer. Again, the company will have to prove that its ex Employee had access to such information and that there is a possibility of such information being leaked.
This brings us to the topic of what course of action a company must follow when an Employee breaches the condition of the Employment Bond. The first thing the company must do is issue a legal notice calling upon the Employee to report for duty immediately, failing which the notice should call upon the Employee to pay the sum agreed to in the Bond.
A demand notice for the bond amount should be issued to the Guarantor also. Should the Employee fail to pay the amount a suit may file in the Court of appropriate jurisdiction to recover the amount due. Remember that in case there is a Guarantor to the bond, the person can make a party to the suit.
Various defenses may take by the Employees when a case Institut against him/her. Some of the more common ones are that there was no training imparted to the Employee and therefore the company does not entitle to the bond amount. The Employee might also state that she/he was forced to sign the Agreement without being able to understand the contents of the Bond. The Employee may also state that the Bond violates the provisions of the Contract Act as it imposes unreasonable restrictions on a person’s trade or profession.
Compensation of breach of contract where penalty stipulated for:
When a contract has been broken, if a sum named in the contract as the amount be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach entitles, whether or not actual damage or loss or proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
Explanation: When any person enters into any bail bond, recognizance or another instrument of the same nature or, under the provisions of any law, or the orders of the Central Government or any State Government, gives any bond for the performance of any public duty or act in which the public interest, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Article 19 of the Indian Constitution talks of fundamental rights, as per Article 19 the Constitution the written work is a fundamental right, and under no circumstance do the Fundamental rights under Article 19 waive by any person nor can any person be forced to do something that amounts to the violation of the rights mentioned under Article 19.
As per the Indian Contract Act contracts entered between two parties are one-sided then such a contract would be null and void. Most of the Bonds are one-sided.
Again as per the Indian Contract Act, no contract can enforce on any person if the contract which is being so enforced causes any harm to the person on whom it is enforced and if performed would violate principles of natural justices.
As per Sec 368 of the 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 the Indian Penal Code talks about extortion by 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 forcefully employ against his will, just because he has signed a contract with the employer.
The court also has stated that the employer cannot hold back any personal documents of the employees as they earn by the employees and the company has no claim on the same.
Any complaint about the company would land the Directors and Managing Directors of the company in Jail, as the company is not an actual living entity but a legal entity and the management are hands and heads of the company.
Bonds are applicable only if the company has spent money on the personal grooving and enhancement of the employees, but not just training that helps employees perform better.
The effectiveness of these defenses varies from case to case. If the Employee can prove that there was no consideration for the Bond in the form of training etc. then in such cases s/he will not require to pay the Bond Amount.
Therefore a checklist when a company has an Employment Bond is:
Employers require to give employees written particulars of employment. These particulars should include all the legal requirements or consist of a letter of appointment with minimal information plus reference to additional material that defines the conditions of employment.
Many employment contracts contain only vague references to the “policies and procedures to which the employee will be bound”. The employer should provide the employee with all of the company policies and other documents that relate to the contract or refer to in the contract.
Does the contract/letter of your organization consist of the following details:
However, any action on the part of the company e.g. retaining the original educational certificates/ creating any kind of impediments for the concerned employee to join a job(i.e. to earn)/ manhandling with the concerned person, etc. will adversely mar the cause of the company. Also, the amount of compensation a company can claim must be commensurate with the loss caused, and not more. I don’t feel that asking for last year’s salary is one of them.
Any conditions which violate the fundamental rights as defined in the constitution / are not tenable in the eyes of law will again mar the validity of the bond. There are conditions that both parties need to fulfill while executing the contract. Contrary to that bond in question cannot say to exist as a legal contract.
References; Employment Bond: Enforceable Or Unenforceable in Indian Law?. Retrieved from https://www.lawteacher.net/free-law-essays/employment-law/employment-bond-enforceable-or-unenforceable.php?vref=1
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