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July 11, 2004 

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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.

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