Your
Advocate
This
week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Q:
Sometimes we see in the newspaper recruitment advertisement that if
any one would like to join their vacant post, then s/he must be signed
a bond to continue their job for next 2/3 or more year's minimum. Is
there any legal basis for the companies to enforce such rules? If any
one gets better chance to another place, then obviously s/he would like
to leave the previous job. Then will s/he be able to take any legal
action against the company? Please elaborate it in details.
Md. Zillur Rahaman
Gandaria, Dhaka.
Your
Advocate: Not all things in our official transactions are made
in a conscientious or well thought out way. Many things are done routinely
as per prevailing practices without bothering much about their legal
implications. And some times things are done, policy framed or actions
taken from an advantageous and dominant position in disregard of the
basic rights of citizens as job seekers, purchasers or users of any
necessities of life or subscriber to any consumer goods or item. In
these days of globalisation, open market economy and consumerism corporate
culture is gradually looming large shutting out state-control over the
affairs touching upon the lives of its citizens. As a consequence tendency
to take undue advantage over the weaker is growing particularly in the
private organisations formed either in the name of trading or welfare.
The reflections of the attitude are often found in advertisements for
jobs, terms and conditions imposed on the subscribers, price fixed for
necessities of life etc. The whole endeavour seems to centre round maximisation
of profit or making one-sided benefit turning a blind eye to our constitutional
quest for an welfare state through socialism meaning economic and social
justice.
Your question is
simple. But in our present day reality it is very pertinent and goes
deep into our lives as citizens of a modern state and thus calls for
a bit of analysis of the background so that you can take the bare technical
reply in its true perspective. With that end in view I have spent few
words in an attempt to give you an insight. Now let us revert to your
question.
The bond that the
job seekers are often, I should say, almost in all cases of fresh appointments
required to sign reflects the anxiety of an employer that he may suffer
loss in terms of investment made against a new employee if he/she leaves
his organisation all on a sudden. That again indicates that the employer
having realised the higher prospect of the candidates in job market
and that they are after a temporary landing space treats them as potential
deserters and tries to bound them down by embargo taking the advantage
of his position as an employer.
This is a contract
apparently signed between two legally competent persons. On the face
of the ocument it is difficult to say that it is illegal. One can agree
to the conditions given by others. But every agreement is not contract.
Law says-All agreements are contracts if they are made by the free consent
of parties competent to contract, for a lawful consideration and with
a lawful object, and are not expressly declared to be void. Consent
is said to be free when it is not caused by coercion, undue influence,
fraud, misrepresentation or mistake. A contract is said to be induced
by "undue influence" where the relations subsisting between
the parties are such that one of the parties is in a position to dominate
the will of the other and uses that position to obtain an unfair advantage
over the other. In the job market that you have indicated I don't think
there should be any bond of the kind to be signed by the appointee if
there is no special arrangements for higher training incurring expenses
of the employer or any kind of skill building program for the benefit
of he employer requiring special investment or the sudden desertion
brings about direct loss or injury of substantial kind. Mere leaving
the job for a better opportunity creating a vacancy in the organisation
is of no consequence, therefore, entails no action. Moreover law provides
that every agreement by which any one is restrained from exercising
a lawful profession, trade or business of any kind, is to that extent
void.
The party who has
suffered from the breach of contract can sue for compensation for loss
or damage sustained by such breach. But such compensation is not to
be given for any remote and indirect loss or damage sustained by reason
of the breach.
In the light of
the discussions made above I am in the opinion that the breach of contract
you have indicated is of no consequence if it cannot be shown that the
company/organisation has not sustained loss or damage by reason of the
breach.
