If you are stuck in such a situation, here is what to do.

Mr. Sameer had been a dedicated employee at “Apex Tech Solutions,” a software firm in Nagpur, for the past six years. Recently, his reporting manager, Mr. Verma, filed a complaint against him alleging several workplace irregularities. In response, the company’s management convened an internal inquiry committee to investigate the allegations and summoned Mr. Sameer to present his side of the story. During the inquiry, feeling immense pressure, Mr. Sameer submitted a written statement taking responsibility for the alleged issues and tendered his resignation, hoping to close the matter amicably. However, the company refused to accept his resignation. Instead, they placed him under suspension, stating that a formal investigation was ongoing. Subsequently, they withheld his salary for the period worked and are now refusing to return his original educational documents and experience certificates, leaving him in a precarious professional and financial situation.

Advice in such cases

Navigating such a dispute requires a calm and strategic approach. Here are the immediate steps you should consider:

• Review Your Employment Agreement: Carefully read your appointment letter and the company’s HR policy or employee handbook. These documents outline the terms of your employment, including procedures for disciplinary action, suspension, and resignation.
• Document Everything: Keep a record of all communication. This includes copies of the complaint, your written explanation, the resignation letter, the suspension order, and any emails or messages exchanged with HR or management. Create a timeline of events.
• Send a Formal Communication: Write a formal letter or email to the company’s HR department and senior management. In this communication, formally request the release of your withheld salary and the return of your original documents. State that holding onto original certificates is illegal.
• **Consult with Lawyer**: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Several Indian laws protect an employee’s rights in such circumstances. An employer’s actions can be challenged under the following statutes:

• The Payment of Wages Act, 1936: This Act governs the payment of wages to employees. Any unauthorised withholding or deduction of salary is illegal. An employee can file a complaint before the Labour Commissioner for the recovery of unpaid wages.
• The Industrial Disputes Act, 1947: This Act provides a mechanism for the resolution of disputes between employers and employees. The suspension must be conducted according to the principles of natural justice, and the employee is typically entitled to a subsistence allowance during the suspension period.
• The Indian Contract Act, 1872: An employment agreement is a contract. Withholding original documents after an employee wishes to leave can be construed as coercion and a breach of contract. These documents are the employee’s personal property, and the employer has no right to retain them.
• Bharatiya Nyaya Sanhita, 2023 (BNS): In certain situations, an employer’s refusal to return property (like original certificates) could potentially be viewed under criminal law. If the documents are retained with a dishonest intention to cause wrongful gain to the employer or wrongful loss to the employee, it could attract provisions related to criminal misappropriation of property (Section 318 of BNS). If the employer is holding the documents to compel the employee to act against their will, it could even border on extortion (Section 324 of BNS).

If you are the complainant

If you are the employer who has initiated disciplinary proceedings, it is crucial to act within the bounds of the law to avoid legal repercussions:

• Adhere to Due Process: Ensure that the internal inquiry is fair, unbiased, and transparent. The employee must be given a proper opportunity to be heard and defend themselves.
• Follow the Suspension Policy: If an employee is suspended, it must be done as per the company’s policy and the law. A subsistence allowance, as mandated by law or the employment contract, must be paid during the suspension period.
• Do Not Withhold Salary or Documents: Never withhold salary that is due to the employee for the period they have worked. Furthermore, retaining an employee’s original documents is illegal and can lead to civil and criminal liability. It is a bad practice that courts strongly disapprove of.
• **Consult with Lawyer**: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

As the employee facing this situation, you have several legal remedies available:

• Send a Legal Notice: The first formal step is to have your lawyer send a strong legal notice to the company. This notice will detail your grievances, demand the payment of outstanding salary and the immediate return of your original documents, and warn of legal action if the demands are not met within a specified timeframe.
• Approach the Labour Commissioner: You can file a complaint with the office of the Labour Commissioner in your jurisdiction for the illegal withholding of your salary.
• File a Civil Suit: A civil suit can be filed for the recovery of your salary, damages for mental harassment, and a mandatory injunction directing the company to return your original certificates.
• File a Police Complaint: If the company refuses to return your documents despite a legal notice, you can file a police complaint (FIR) for criminal breach of trust or extortion under the relevant sections of the Bharatiya Nyaya Sanhita (BNS).
• **Consult with Lawyer**: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Initially, the police may perceive the issue as a civil or labour dispute and might be reluctant to register an FIR. They often advise the parties to approach the labour court or file a civil case. However, if your complaint, drafted by a lawyer, clearly articulates the criminal elements—such as dishonest intention, misappropriation of property (your certificates), or extortion—the police are more likely to take cognizance and register an FIR under the appropriate sections of the BNS. The seriousness of the allegations and the manner in which they are presented are key to prompting police action.

FAQs people normally have

• Can an employer withhold my entire salary during suspension?
  No. An employer cannot withhold your entire salary. During a pending inquiry, you are entitled to a “subsistence allowance,” which is a percentage of your salary as specified in your company’s rules or the applicable state-level Industrial Employment (Standing Orders) Act.
• Is it legal for my company to keep my original mark sheets and degree certificates?
  Absolutely not. It is illegal for any employer to retain an employee’s original personal documents. They are entitled to keep self-attested copies for their records but must return the originals.
• The company suspended me after I submitted my resignation. Is this legal?
  This depends on the company’s service rules and the timing. If disciplinary proceedings were initiated before your resignation was formally accepted, the employer generally has the right to continue with the inquiry and place you under suspension rather than accepting the resignation. However, they cannot delay this process indefinitely.

What evidence is required?

To build a strong case, you must gather all relevant documents. Solid evidence is crucial for any legal action. You will need:

• Your appointment letter and employment contract.
• All salary slips and bank statements showing salary credit.
• The suspension letter issued by the company.
• A copy of your resignation letter and proof of its submission.
• Any written communication, including emails and official letters, exchanged with the company regarding the issue.
• A copy of the legal notice sent to the company and the postal receipt.

How long will the investigation take?

The duration of the process varies depending on the path you choose. An internal company inquiry should ideally be completed within a reasonable timeframe, often specified in the company’s policies (e.g., 90 days). A case before the Labour Commissioner for recovery of wages can take a few months to a year. A civil suit for recovery of documents and damages is a longer process and can take several years to reach a final verdict. A police investigation, if an FIR is registered, will proceed according to the procedures laid out in the Bharatiya Nagarik Suraksha Sanhita (BNSS), and its timeline can also vary significantly.

Advocate Sudhir Rao, Supreme Court of India