"I think it could serve as some kind of deterrent to mention in the job offer that after accepting the offer if the candidate fails to join, s/he will be liable to pay the employer damages of Rs...."
Amount which is quoted should be reasonable and backed by how the figure is worked out - time spent on recruitment,ads,interviews etc(these figures should be kept as a back up if candidate challenges damages levied by employer and produced as evidence of reasonable costs)
No wonder companies keep two or three candidates as back up.
From India, Pune
3124Amount which is quoted should be reasonable and backed by how the figure is worked out - time spent on recruitment,ads,interviews etc(these figures should be kept as a back up if candidate challenges damages levied by employer and produced as evidence of reasonable costs)
No wonder companies keep two or three candidates as back up.
From India, Pune
If an employer makes an offer to a prospective candidate deeming him fit for the position, and candidate provides his acceptance with the offer, this leads to the candidate resigning from his present capacity.
Revoking the offer, without the mutual consent of the candidate and employer from either side is a breach of contract and either party can sue each other for the damages they might incur because of the same.
Employers rarely sue candidates for not fulfiling their part of the deal in case they back out at the last moment because of the sheer reason of increasing the workload on their legal team, but in certain cases they do.
It is important that the candidate should take this up legally in case the higher authorities fail to provide a solution.
The employer here, however, can also look at the option of paying the salary in lieu of not letting the candidate serve the notice period, had the candidate joined the services and was asked to leave on the very first day of his employment.
From India, Kochi
Revoking the offer, without the mutual consent of the candidate and employer from either side is a breach of contract and either party can sue each other for the damages they might incur because of the same.
Employers rarely sue candidates for not fulfiling their part of the deal in case they back out at the last moment because of the sheer reason of increasing the workload on their legal team, but in certain cases they do.
It is important that the candidate should take this up legally in case the higher authorities fail to provide a solution.
The employer here, however, can also look at the option of paying the salary in lieu of not letting the candidate serve the notice period, had the candidate joined the services and was asked to leave on the very first day of his employment.
From India, Kochi
Thanks to all the members for helping. Now the situation has an update. I had send them legal notice and asked for compensation. The chief Hr of that company called back and said that the project is back on track and they want to have me on board. Previously she has mailed me that due to adverse reference check they are withdrawing their offer. When i asked her about my adverse reference check, she said that since she was not in position of commenting on exact time the project will restart so she had no other option.
What i assume that they will get me on board and after few days will sack me citing non performance as reason. In that case i will not have any option left.
Should i simply ask for compensation as their act has resulted in my job loss and i am not yet employed again? Should i ask for new offer letter with No termination Bond of minimum 6 month? Please guide...
From India, New Delhi
What i assume that they will get me on board and after few days will sack me citing non performance as reason. In that case i will not have any option left.
Should i simply ask for compensation as their act has resulted in my job loss and i am not yet employed again? Should i ask for new offer letter with No termination Bond of minimum 6 month? Please guide...
From India, New Delhi
It is neither ethical nor the company can do it. Based on the offer, the prospect would have resigned/planned to join the organization which would be an unforeseen loss to him against which he can refer to court proceedings, if desires to.
Rgds
Piyush
From India, Varanasi
Rgds
Piyush
From India, Varanasi
You will have to take a call.
They have again offered a position to you and you need to seek clarifications on the longevity of the position.
Verbal discussions will help you to judge whether it is a smokescreen to avoid legal action.
Ask them the nature of project and whether it suits yor qualification and field of expertise.You would be in position to judge by few strategic questions.
Take care and decide.
From India, Pune
They have again offered a position to you and you need to seek clarifications on the longevity of the position.
Verbal discussions will help you to judge whether it is a smokescreen to avoid legal action.
Ask them the nature of project and whether it suits yor qualification and field of expertise.You would be in position to judge by few strategic questions.
Take care and decide.
From India, Pune
Under the Indian Contract Act, 1872, a valid contract has three components i.e. (1) offer, (2) acceptance and (3) consideration. I think the third part (consideration) is missing in this case. So if the offer is withdrawn by employer, the party who accepted the offer (employee) might suffer losses and may feel like knocking the door of the court.
Now, take the other side also. After entering into this contract - which is devoid of consideration i.e. the 3rd element - if the employee does not join, will the employer not suffer losses? Definitely he will. Will he also not feel like knocking the door of the court.
Therefore, to my mind, the real contract would be clinched when the employee joins the employer. Further terms and conditions of service are signed between the parties.
From India, Chandigarh
Now, take the other side also. After entering into this contract - which is devoid of consideration i.e. the 3rd element - if the employee does not join, will the employer not suffer losses? Definitely he will. Will he also not feel like knocking the door of the court.
Therefore, to my mind, the real contract would be clinched when the employee joins the employer. Further terms and conditions of service are signed between the parties.
From India, Chandigarh
Dear Mr. Jacob Pratap,
You have raised very interesting point. In continuation of this thread, a question comes to my mind. Suppose 'A' makes an offer to buy property from 'B' for consideration of Rs. 50 Lakhs. 'B' accepts the offer. The parties agree to carry out the transaction/registration one month later. Do we have all 3 essential elements of a valid contract here? Money transaction has not actually taken place, but offer & its acceptance is there, as also there is clear understanding on consideration. Now suppose 'A' withdraws the offer after 29 days. In the meanwhile 'B' has turned down several lucrative offers from other parties. Withdrawal of offer by 'A' is going to cause financial loss to 'B'. Will 'B' be entitled to sue 'A' in this case?
Is it a condition precedent that the 'consideration' should actually be passed on before the contract is deemed to be valid? (Or the mention of consideration is made with the intent to distinguish commercial deals from promises of charity? Obviously charity would not come under the purview of Contracts Act since there is no consideration, and so a promise to make charity would not be contractually enforceable.) If a contract were to be considered as valid only after the consideration amount is paid, most of the contracts would become defunct because the consideration is generally parted with in stages as the execution of the contractual terms progresses. Does the Contracts Act say how much (percentage) of the consideration should change hands before the contract is considered as valid and enforceable? In the absence of such provision, it should (logically) be sufficient if the consideration amount (reasonable) is agreed upon by the parties although no amount may have actually been paid. (So long as the offer and acceptance fall in 'commercial' transaction category, I would like to believe that a clear mention of the consideration amount should be sufficient to give it the shape of a valid contract. In the absence of a clause giving a right to either or both the parties to revoke the contract midway, I believe it should be considered as an irrevocable contract). I would like to be corrected if this opinion is not in line with what the law says/intends.
Similarly, in the case of a job appointment also there are three elements. Offer, acceptance, and mention of salary (consideration). Based on this confirmed (duly offered and accepted) appointment letter, the prospective employee leaves his current job. Subsequently if the offer is withdrawn, the employee would have already left his existing job and therefore he would be subjected to a tangible loss till he finds an alternative, comparable occupation. It would be mockery of justice if the law becomes helpless in such circumstances. Specific relief must be given to the affected party.
Of course, very rarely an employer would do such breach of contract, while the prospective employees seem to do this more often and blatantly. In either of such cases, justice should be done by making the defaulter pay liquidated damages. Unfortunately our judicial system is so sluggish, that people don't even think of knocking the doors of court. If the 'Durbar' system of dispensing quick justice were still in place, perhaps the situation would have been different!
Regards
Ravindra Pandit
From India, Mumbai
You have raised very interesting point. In continuation of this thread, a question comes to my mind. Suppose 'A' makes an offer to buy property from 'B' for consideration of Rs. 50 Lakhs. 'B' accepts the offer. The parties agree to carry out the transaction/registration one month later. Do we have all 3 essential elements of a valid contract here? Money transaction has not actually taken place, but offer & its acceptance is there, as also there is clear understanding on consideration. Now suppose 'A' withdraws the offer after 29 days. In the meanwhile 'B' has turned down several lucrative offers from other parties. Withdrawal of offer by 'A' is going to cause financial loss to 'B'. Will 'B' be entitled to sue 'A' in this case?
Is it a condition precedent that the 'consideration' should actually be passed on before the contract is deemed to be valid? (Or the mention of consideration is made with the intent to distinguish commercial deals from promises of charity? Obviously charity would not come under the purview of Contracts Act since there is no consideration, and so a promise to make charity would not be contractually enforceable.) If a contract were to be considered as valid only after the consideration amount is paid, most of the contracts would become defunct because the consideration is generally parted with in stages as the execution of the contractual terms progresses. Does the Contracts Act say how much (percentage) of the consideration should change hands before the contract is considered as valid and enforceable? In the absence of such provision, it should (logically) be sufficient if the consideration amount (reasonable) is agreed upon by the parties although no amount may have actually been paid. (So long as the offer and acceptance fall in 'commercial' transaction category, I would like to believe that a clear mention of the consideration amount should be sufficient to give it the shape of a valid contract. In the absence of a clause giving a right to either or both the parties to revoke the contract midway, I believe it should be considered as an irrevocable contract). I would like to be corrected if this opinion is not in line with what the law says/intends.
Similarly, in the case of a job appointment also there are three elements. Offer, acceptance, and mention of salary (consideration). Based on this confirmed (duly offered and accepted) appointment letter, the prospective employee leaves his current job. Subsequently if the offer is withdrawn, the employee would have already left his existing job and therefore he would be subjected to a tangible loss till he finds an alternative, comparable occupation. It would be mockery of justice if the law becomes helpless in such circumstances. Specific relief must be given to the affected party.
Of course, very rarely an employer would do such breach of contract, while the prospective employees seem to do this more often and blatantly. In either of such cases, justice should be done by making the defaulter pay liquidated damages. Unfortunately our judicial system is so sluggish, that people don't even think of knocking the doors of court. If the 'Durbar' system of dispensing quick justice were still in place, perhaps the situation would have been different!
Regards
Ravindra Pandit
From India, Mumbai
I agreed Mr.Pratap point, consideration is important the contract. Now employee can go and knock the court.
But before that we need to ensure the following points:
1.If you go to court then another employer can be not hire you
2.Our future may spoil
my view is when you go to join the company, you have to verify the management culture, every management have a own culture, we need to find their character of the management.
I strongly record my point, even though if you joining you never survival there.
Better leave it...and broadcast their company name and cheating to the outside world.
From India, Chennai
But before that we need to ensure the following points:
1.If you go to court then another employer can be not hire you
2.Our future may spoil
my view is when you go to join the company, you have to verify the management culture, every management have a own culture, we need to find their character of the management.
I strongly record my point, even though if you joining you never survival there.
Better leave it...and broadcast their company name and cheating to the outside world.
From India, Chennai
Dear Mr. Pandit,
Although I am not a practicing lawyer, yet I feel that the legal position would be somewhat like this:-
If you ever witnessed a sale-purchase transaction of a property, like the example you have quoted, you may be knowing that simultaneously the parties also enter into an ‘Agreement to Sell’ and the purchaser also makes part payment (consideration) of the agreed amount to the seller. In such agreements the total consideration price (total cost) is written which the purchaser would pay to the seller. And usually it is also agreed between the parties that the seller will sell to the purchaser on the agreed amount but in case he fails to do so, he will return double the amount (consideration) which has been advanced to him, and also, if the purchaser fails to pay the balance amount within the stipulated time, his partial payment made would be forfeited by the seller.
Now under this sale-purchase agreement the following situations may emerge:-
(1) if the seller revokes agreement or fails to appear before Register for transfer of property when the seller marks his presence there along with the balance amount, the seller would be liable to pay double the amount he has already received from the purchaser. And if the seller fails to pay back, the purchaser will file a suit for recovery as per terms of agreement. He will claim this amount under the Indian Contract Act, 1872.
(2) If the seller marks his presence before the Registrar for transfer of property but the purchaser does not appear, or the purchaser revokes agreement, the seller will keep the money advanced to him by the purchaser and the purchaser cannot claim it as per terms of agreement.
(3) If the seller, after receiving the full amount of money (consideration), does not appear before Register for transfer of property, the Purchaser can file a suit for specific performance under the Specific Relief Act, 1963 and force him to transfer the property to him.
Hence, in these kind of agreements, the part-payment or full payment is the ‘consideration’. As per law, consideration could even be paltry sums say one penny or one rupee. And also, such kind of agreements can be legally forced to be performed specifically by the erring party through the court of law in India i.e. under the provisions of Specific Relief Act, 1963.
But this is not the situation in the cases of contract of service i.e. contracts between employer and employee. These kind of agreements cannot got enforced through courts in view of section 14(1)(b) of the Specific Relief Act, 1963 according to which a contract, the performance of which involves continuous duty which the court cannot supervise, cannot be enforced.
However, if the employer still forces an employee to work, it will amount to ‘bonded labour’ under the Bonded Labour System (Abolition) Act, 1976.
Therefore, it seems that an employment contract is that form of contract for personal service which the courts recognize as expressing the social relationship of employer and employee, as opposed to the other relationships i.e. commercial or any other kind.
In the case at hand, it can be presumed that it is simply an ‘Offer Letter’ as the terms and conditions of service have not been specified. It cannot be termed as ‘Employment Agreement’. It is also presumed that the Employer has not yet opened all the ‘terms and conditions of employment’ to the employee in this ‘Offer Letter’ as the person who seeks this clarification has not given any such description.
Hope I have been able to clarify my view point.
Best wishes and regards.
From India, Chandigarh
Although I am not a practicing lawyer, yet I feel that the legal position would be somewhat like this:-
If you ever witnessed a sale-purchase transaction of a property, like the example you have quoted, you may be knowing that simultaneously the parties also enter into an ‘Agreement to Sell’ and the purchaser also makes part payment (consideration) of the agreed amount to the seller. In such agreements the total consideration price (total cost) is written which the purchaser would pay to the seller. And usually it is also agreed between the parties that the seller will sell to the purchaser on the agreed amount but in case he fails to do so, he will return double the amount (consideration) which has been advanced to him, and also, if the purchaser fails to pay the balance amount within the stipulated time, his partial payment made would be forfeited by the seller.
Now under this sale-purchase agreement the following situations may emerge:-
(1) if the seller revokes agreement or fails to appear before Register for transfer of property when the seller marks his presence there along with the balance amount, the seller would be liable to pay double the amount he has already received from the purchaser. And if the seller fails to pay back, the purchaser will file a suit for recovery as per terms of agreement. He will claim this amount under the Indian Contract Act, 1872.
(2) If the seller marks his presence before the Registrar for transfer of property but the purchaser does not appear, or the purchaser revokes agreement, the seller will keep the money advanced to him by the purchaser and the purchaser cannot claim it as per terms of agreement.
(3) If the seller, after receiving the full amount of money (consideration), does not appear before Register for transfer of property, the Purchaser can file a suit for specific performance under the Specific Relief Act, 1963 and force him to transfer the property to him.
Hence, in these kind of agreements, the part-payment or full payment is the ‘consideration’. As per law, consideration could even be paltry sums say one penny or one rupee. And also, such kind of agreements can be legally forced to be performed specifically by the erring party through the court of law in India i.e. under the provisions of Specific Relief Act, 1963.
But this is not the situation in the cases of contract of service i.e. contracts between employer and employee. These kind of agreements cannot got enforced through courts in view of section 14(1)(b) of the Specific Relief Act, 1963 according to which a contract, the performance of which involves continuous duty which the court cannot supervise, cannot be enforced.
However, if the employer still forces an employee to work, it will amount to ‘bonded labour’ under the Bonded Labour System (Abolition) Act, 1976.
Therefore, it seems that an employment contract is that form of contract for personal service which the courts recognize as expressing the social relationship of employer and employee, as opposed to the other relationships i.e. commercial or any other kind.
In the case at hand, it can be presumed that it is simply an ‘Offer Letter’ as the terms and conditions of service have not been specified. It cannot be termed as ‘Employment Agreement’. It is also presumed that the Employer has not yet opened all the ‘terms and conditions of employment’ to the employee in this ‘Offer Letter’ as the person who seeks this clarification has not given any such description.
Hope I have been able to clarify my view point.
Best wishes and regards.
From India, Chandigarh
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