Malpractices of Recruitment agencies in relation to overseas recruitment

 

 “Aaramco coordinations posted advertisement on naukri.com and indded.co.in regarding overseas recruitment. I had applied for the same on naukri.com. After applying I had received call from aaramco coordination, Bangalore to send hard copies of my CV and educational certificates Xerox which I had couriered to them. within 3 days of courier I had again received a call from them saying I have selected for the post of store keeper in shell super market, new jersey, usa (pl note I was selected without interview)and I will have to go to Bangalore for medical test. Since I am staying in Mumbai, I had requested them to send me first offer letter or appointment letter on the letter head of employer and also to send a list of medical test required so that I can do medical test from any reputed hospitals of Mumbai.

When I reached there I saw that there was two receptionist type girls was available in the office, when I asked for the owner of the company I was told that he is out of station. The asked me to pay Rs 3150/= cash for medical test which I had paid but no receipt was provided to me.

 Today is 17th Aug 09.i made no of calls and send no of emails but no response. Last answer I was given that it will take 40 t0 45 days now to get the report. My request of providing address, tel no and email address of concerning person of employer in New Jersey is rejected by aaramco coordinations. Now I am feeling that I have been cheated by this company called aaramco coordinations.” – Bhavesh Manek.[2] This is not the one case which has happened. There was a recent survey where these recruitment agencies dupe the job seekers going to the Middle East and they were left to bare existence.

Before going to the arena of law let us ponder into the very essence of RECRUTING AGENCY and its need.  Recruitment agency [3]is an organization which matches employers to employees. The Emigration Act, 1983 defines a recruiting agent[4] as a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter relating to such recruitment including dealings with persons so recruited or desired to be recruited. Recruitment, according to the Act, includes the issuing of any advertisement for the purpose of recruitment, the offering through advertisements to secure or assist in securing any employment in any country or place outside India and entering into correspondence, negotiation, agreement or arrangement with any individual in any country of place outside India. Emigration[5] means the departure of any person from India for employment (whether or not under an agreement, with or without the assistance of a registered Recruiting Agent or employer) in any country or place outside India. Nowadays the recruiting agents[6] play an important role as intermediary to overseas employer and Indian emigrant.

A major share of India’s foreign currency earnings is coming from NRIs[7] working abroad. Indian workforce is one of the most preferred in many countries. Technical grasp of Indian working people, knowledge of English language, adaptability with the strange environments, etc. are few of the reasons for this success.

To find a job abroad[8] and for relocation you need to take the assistance of Overseas Recruitment Agents in India. There are many Foreign Recruitment Agents in the major cities of India who help you to find jobs in countries like USA, United Kingdom and Middle Eastern (Gulf) countries who help you to secure Work and Employment Permit and visa in different countries.

These Foreign Recruitment Agents[9] mainly concentrate on jobs on which Indians are very familiar, i.e., Information technology Jobs, Technical Jobs, Construction Jobs, and Employment in Hospitals like Doctors jobs, Nurse Jobs, Designer Jobs, Jewellery maker jobs, etc.

The recruitment agent with the increase in demand has been engaging itself in many unscrupulous activities. The project is effort to throw some light on the unscrupulous activities by these recruiting agencies and the response of law towards it.

 

2. Various practices and procedures followed by the recruitment agencies for overseas appointment

2.1 Need for overseas recruitment agent:

 A major share of India’s foreign currency earnings is coming from NRIs working abroad[10]. Indian workforce is one of the most preferred in many countries. Technical grasp of Indian working people, knowledge of English language, adaptability with the strange environments, etc. are few of the reasons for this success. To find a job abroad and for relocation you need to take the assistance of Overseas Recruitment Agents in India.

The price of Indian labour is cheap so its demand is high in the market. And price the Indian Labour gets in the foreign market is high as compared to the domestic market, so the supply in the foreign market is high. As the labour gains awareness, it tries to claim for more prices and thus thereby decreasing the demand in the foreign market. Thus the overseas employer tries to engage the recruiting agent as an intermediary to find as cheap labour as possible so that it take more number of labour for a particular service. On the other hand the labours engage the recruiting agents to gain more price in the foreign market than the industry in the Indian counterpart.

2.2 PRACTICE AND PROCEDURES OF RECRUITMENT AGENCIES IN INDIA

The practice and procedure [11]of the recruitment agency can be analyzed through four dimensions of the functionality of these recruitment agencies. The four functional aspects are; a) Procedural, b) Informational, c) Economic and d) Guarantee.

 

2.2.1 Procedural Functions  [12]

PRA (Private Recruitment Agents)   and the Employer

The procedural functions of PRAs begin with the receipt of the demand letter(s) from the potential employers in the Middle East.  Currently this takes place in two ways:

a) The PRA either advertises through the mass media among the potential employers as a suitable professional agency or the PRA, their representatives, commission agents, or friends directly approach the potential employers.  In order to obtain contracts from the potential employers, the PRA or their representatives may employ various strategies. This could range from offering the most competitive price, to establishing personal relationships and offering money to obtain the placement order etc.  

The Employer and the PRAs [13]

Acceptance of demand order for placement by the PRAs is followed by the employer issuing the Power of Attorney to him simultaneously with entrusting the responsibility of finding the suitable candidates for him in the required number either fully or partially.  In some instances, the employer would demand PRA to only short-list suitable candidates for his personal evaluation.  In such cases, the PRA also arranges the venue for personal interviews. 

The PRAs and the Employees  [14]

The next stage in the procedural function involves the PRA and the intending emigrant.  As per the rules laid down in this regard by the Government of India, an intending emigrant is liable to fulfill certain pre-requisites before leaving the country for employment purposes.  The list of these pre-requisites include: passport, emigration clearance, employment contract, visa or work permit, medical examination certificate, police clearance certificate, return air tickets etc.

Once the candidates are screened and selected, usually it is the PRA who assists the candidates to fulfill the required procedural formalities which have to be met as per the rules.  During the field work it was found that the help provided in obtaining emigration clearance by the PRA was largely sought by the intending emigrants.

 

The Employer, PRAs and the Employee[15]  

The employment contract contains the terms and conditions of employment offered by the employer and acceptance of the same by the employee.  Usually, the PRA receives this certificate from the employer and obtains the signature of the employee either in his presence or through post. 

Upon the execution of the employment contract, the employer seeks the approval from his government and once it is received it is forwarded to the PRA.  This permission is generally called Visa/NOC/Work Permit/Entry Permit etc., and is the most important document in the external migration system.  This document is a pre-requisite to obtain emigration clearance, police clearance certificate, air-tickets etc. – and for most of the central documents concerning overseas labour mobility. 

Besides acting as a functionary within the external migration system, the PRA also performs certain functions other than his normal functions.  For instance, as an agent he arranges passport for the intending emigrants under certain contingencies. 

2.2.2 Informational Functions[16]  

Since the country of origin and the country employment is spatially separated (in the geographical sense, which is not controllable) and the controllable variable, time (the span between the placing of demand order and the supply of the required manpower) has to be minimized, there arises the need for an efficient communication network.  In this section an analysis is made to understand how the PRAs perform the role of information channeling network.  For instance, Indians and Pakistanis are caricatured as hard-working.  An employer may thus turn to India or Pakistan to meet his requirements of labour.  Again, the employer may already have adequate knowledge about certain reputed PRAs in either of the countries. 

 

The PRAs and the Employer  

An attempt is now made to describe the various modes of communication between the PRAs and the employer and to highlight their role in the dynamics of migration process.  Brief mention has been made earlier about the modus operandi adopted by the PRAs in communicating with the employer and vice-versa.  It takes place through two modes: a) Direct Mode; and b) Indirect Mode.  

The direct mode includes print media, i.e. newspaper, the Government Gazettes of the labour receiving countries and advertisements that appear in audio and videotapes.  The indirect mode includes personal meetings either by the PRA, his representatives, commission agents, friends or relatives with the potential employers.

 

The PRAs and the Employee  

In the communication network between the PRA and the employer, the PRA is more of an information gatherer than a supplier, but in the communication network between the PRA and the employee, the roles are reversed with the PRA performing the role more of an information supplier. 

The Times of India is clearly the National daily that devotes maximum advertising space for Overseas Appointments.  An analysis of the Times of India, published between August, 1999 and December, 1999, shows that most of the advertisements for ‘Overseas Appointments’ pertained to skilled and professional job categories.  However, when advertisements were made for multiple posts of various categories in one company, they also included the posts belonging to the semi-skilled and unskilled job categories.  

The PRA, the Employer and the Employee  

Information about the employee has to be passed on to the potential employers for assessment, choice and selection of the suitable employees by the employer.  This takes place in two ways: a) the PRA arranges for interviews in the home country and along with the employer or his representative selects the suitable employees.  Personal interviews generally take place for the selection of skilled/professional categories of the work force.  While in the earlier days, these interviews were mainly held at Mumbai (where majority of the PRAs are located), presently these interviews are conducted at several regional centres; b) interviews are generally not required for the selection of unskilled/semi-skilled categories of labour.  In these cases the employer tends to rely on the discretion of the PRAs.

 

2.2.3 Economic Functions[17]  

There are several activities that centre on the economic imperatives prior to the transportation of migrant workers from the country of origin to the country of employment.  An analysis is made, now of these activities and the different stakes, of the participants in the migration system.  A ‘free-market’ economic relation exists between the PRAs and the employers whereas the economic relation between the PRAs and the employers is ‘State regulated’.  In other words, the PRAs economic relation within the home country is ‘controlled’ while his external economic relation is ‘uncontrolled’.  

2.2.4 Guarantee Functions [18] 

PRAs are legally obliged to be a guarantor to both the employer and the employee. The guarantee that the PRA owes to the employer is that the employees recruited by him possesses all the required skills to take up employment.  However, the need of this guarantee does not arise in cases where the selection of the candidates has been made either by the employer or by his representatives.  The PRA also gives the guarantee that the employees recruited by him abide by all the terms and conditions spelt out in the employment contract.  The guarantee that a PRA gives to the employee is that he would not face any adversity in the country of employment which may arise on account of the breach of contract by the employer.

There are many instances when employees violate the terms spelt out in the employment contract during the period of their employment.  Violations of the terms of the contract by the workers are frequent absence, insubordination, violation of the local labour laws and disrespect local religious or social practices.  

Chapter 3: Laws regulating and controlling the functioning of recruiting agents

1. Emigration act, 1983

 

(a) Registration of recruiting agents[19]

• Only the Recruiting Agents registered with the Ministry of Labour[20] can conduct the business of recruitment for overseas employment after obtaining a Registration Certificate (RC) from the Protector General of Emigrants.
• The Certificate is granted after taking into account Recruiting Agent’s financial soundness, trustworthiness, adequacy of premises, experience in the field of handling manpower export etc., and after obtaining security ranging from Rs.3 lakh to Rs.10 in the form of Bank guarantee depending on the number of workers to be deployed.
• The scale of security is as follows:[21]

(i) Upto 300 workers – Rs. 3 lakh   (ii) 301 to 1000 workers – Rs. 5 lakh   (iii) 1001 workers and above – Rs. 10 lakh        

• The security is intended to secure due performance[22] of the terms and conditions of the Registration Certificate and to meet the cost of repatriation of any recruited worker in the event of his being stranded abroad.
• Under Section 16 [23]of the Emigration Act, 1983 an employer can recruit any citizen of India for employment in any country or place outside India either through a Recruiting Agent competent under the Act to make such recruitment or directly accordance with valid permit issued by the Central government under Section 15 of the Emigration Act.
• The recruiting agents are authorised[24] to charge as service charges from each workers at the following rates: –

Category	Maximum service charges
Unskilled workers	Rs. 2,000/-
Semi-skilled workers	Rs. 3,000/-
Skilled Workers	Rs. 5,000/-
Other than the above	Rs. 10,000/-

 

(b)  Rejection of the application for emigration clearance [25]:

The Protector of Emigrants shall, after satisfying himself about the accuracy of the particulars mentioned in the application and in the other documents submitted along with the application authorise in the prescribed manner and from the emigration of the applicant or intimate by order in writing the applicants or, as the case may be, the recruiting agent or employer, through whom the applications have been made about the deficiencies and require him to make good such deficiencies within such time as may be specified in the order or reject the application.

Subject to the other provisions of this Act[26], the competent authority may reject an application under sub-section (1) on any or more of the following grounds and on no other ground, namely –

(a)    that the application is not complete in all respects or that any of the  material particulars furnished in the application are not true;

(b)    that the terms and conditions of employment which the applicant  proposes to offer to persons recruited or proposed to be recruited by him are  discriminatory or exploitative;

(c)      that the employment which the applicant proposes to offer involves work  of a nature which is unlawful according to the laws of India or offends against the public policy of India or is violative of norms of human dignity and decency;

(d)    that having regard to the antecedents of the applicant, his financial standing, the facilities at this disposal, the working and living conditions of persons employed by him in the past, it would not be in the public interests or in the interests of the persons who may be recruited by him to issue a permit to him;

  (e) that having regard to the prevailing circumstances in the country or in the place where the applicant proposes to employ the persons recruited by him, it would  not be in the interests of any citizens of India to emigrate of taking up such  employment.

  (4) Where the competent authority makes an order under sub-section (2) rejecting an application, he shall record in writing a brief statement of his reasons for  making such order and furnish the applicant, on demand, a copy of the same;   Provided that if the competent authority, is of the opinion that it is necessary  or expedient in the interests of the general public so to do, he may refuse to provide  such copy or, as the case may be furnish a copy of only such parts of the statements as he may deem fit.

C) MANDATORY ATTESTATION OF EMPLOYMENT DOCUMENTS

Keeping in view reports about submission of fake/forged documents by some unscrupulous

Recruiting Agents to the Protector of Emigrants, it was decided to introduce mandatory attestation of employment in case of “unskilled workers” and “house maids. In addition, attested employment documents are required to be submitted for all categories of workers if the recruitment is for Yemen, Lebanon, Libya, Jordan, Kuwait, Sudan and Brunei. 

D) Job Advertisement by Recruiting Agents

It is mandatory on the part of the Recruiting Agents to quote the Registration Certificate number while advertising for overseas job.  Before issue of the advertisement the Recruiting Agent must obtain three employment documents – Demand Letter, Specimen Contract and Power of Attorney – from the foreign employer. The emigrant can confirm the genuineness of the agent from the nearest Protector of Emigrant’s office located in Mumbai, Delhi, Chennai, Thiruvananthapuram, Cochin, Kolkata, Hyderabad and Chandigarh or from the official website of the Ministry (https://www.moia.gov.in). He can also ask the Recruiting Agent to show the registration certificate and the three documents mentioned above.

  e) Offences and penalties:

 Offences and Penalties – (1) Whoever – Except[27] in conformity with the provisions of this act emigrates: Or Contravenes the provisions of Sec. 16: or By intentionally furnishing any false information or suppressing any material information obtains a certificate or a permit or an emigration clearance under this Act: or Without lawful authority makes or causes to be made any alteration in any certificate or permit or in any document or endorsement by way of emigration clearance issued or made under this Act ; or Disobeys or neglects to comply with any order of the Protector of Emigrants under this Act ; or  Collects form an emigrant any charges in excess of the limits prescribed under this Act;  or  Cheats any emigrant ; Shall be punishable with imprisonment for a term which may extend to two years  and with fine which extend to two thousand rupees: 

1. Consumer protection Act, 1986

To be a ‘consumer’[28] under the Act:

(i) the goods or services must have been purchased or hired or availed of for consideration which has been paid in full or in part or under a system of deferred payment, i.e., in respect of hire-purchase transactions;

(ii) Goods purchased[29] or services hired/availed of should not be meant for re-sale or for a commercial purpose. Thus, where a vehicle has been purchased for the purpose of running it as a taxi (except where purchased by a person to earn his liveli-hood), the purpose being commercial, and the buyer shall not be a ‘consumer’ under the Act [Western India State Motors v. Subhag Mal Meena and Others (1989).

• · The Recruiting Agent[30] seeking Emigration Clearance would have to Give an affidavit confirming the following:-

1. That employment visa(s) attached/endorsed on the passports of the workers, issued by respective Foreign Mission/Competent Authority in respect of foreign employer as per the details given against each name is/are genuine and valid for the period mentioned.
2. Details of workers.
3. That the workers have been recruited by the RA on receipt of Demand Letter, Power of Attorney from the foreign employer and the same is being submitted.
4. That the worker will be deployed to the same foreign employer for whom he is recruited and that he will be received by the foreign employer on reaching the country of employment.
5. That the worker has been trade tested and found fit for the job for which he is being employed.
6. That the worker will be paid minimum salary and shall be governed by minimum standard of condition of employment as specified in the Specimen employment contract whose copy is enclosed.
7. That the worker will be deployed on the same job for which he has been recruited.
8. That the female worker will not be deployed as maidservant/domestic worker.
9. That the RA shall be responsible if persons sent by him are found to be unfit on reaching the country of employment. The cost of repatriation in such case(s) will be borne by him.

10.  That the RA is maintaining a register for the above mentioned details of the workers.

11.  That all the workers mentioned in point (ii) above are actually skilled and semi skilled and none of them is unskilled worker, agricultural labor, farm worker or housemaid, etc. It is further certified that the cook(s) included in the above list are not going for domestic employment.

12.  That the RA has gone through the provisions of sub Section (1) and (2) of Section 37 of the Emigration Act, 1983 and provisions of Section 193 of the Indian Penal Code, 1860 (45 of 1860) relating to punishment for false evidence and have understood the contents thereof and undertake that in event of any of the documents filed along with or referred to in this affidavit being found to be false, incorrect, fabricated ,tampered with or changed, he shall be liable under section 37 of the Emigration Act and Section 193 of the Indian Penal Code.

13.  That the intending emigrants have been apprised of the ground realities of the country of emigration including Maldives. The problems they are likely to face, the lifestyle, customs, religion, practices, dos and don’ts in the country of emigration have been communicated to the intending emigrants.

14.  That the RA undertakes to arrange thorough medical check up of all workers being deployed abroad before their travel from India.

15.  That the worker has signed the employment contract, which contains the seal and signature of the foreign employer in his presence and that the same employment contract has been countersigned by him with the seal of the RA and same has been handed to him and receipt obtained.

16.    No female below the age of 30 years should be granted Emigration Clearance for any type of work in any foreign country

Lapses at any stage and in any element and including non-availability of the proper documents to the workers or the employees will be treated as deficiency in service according to the consumer protection. 

1. Fraud and cheating

 

Suddenly a mail props up in your inbox and states that they have shortlisted your resume for an overseas client and you have to clear all the formalities within a fortnight.

This is one of the recent spamming phenomenon in the web age where fraud is being carried very easily. People get lured by these advertisements and they are easy victims. Though under the INDIAN PENAL CODE And INDIAN CONTRACT ACT, fraud has been defined very clearly, yet it takes a long legal hassle to prove that the fraud has actually happened. The defrauding agency runs away with money or the prospective employee lands into the unhealthy conditions of work.

However INDIAN PENAL CODE defines cheating as:

Section 415. Cheating[31]

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation. A dishonest concealment of facts is deception within the meaning of this section.

Illustration: A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

Indian Contract Act, 1872 defines Fraud in Section 17[32]

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto his agent, or to induce him to enter into the contract;

(1) The suggestion as a fact, of that which is not true, by one who does not believe it to be true;

(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;

(4) Any other act fitted to deceive;

(5) Any such act or omission as the law specially declares to be fraudulent.

 

As far as the malpractices by the recruiting Agents are concerned they can also be booked under these two statutes if the victim has proper documents showing the intention of cheat and defrauding of the recruiting agents. These are the remedies available apart from the Emigration laws and the Consumer protection laws.

various malpractices furthered by the recruitment agencies and the response of Law

The government of India has blacklisted 310 [33]companies in foreign countries out of which 122 are from Malaysia, 54 from Saudi Arabia and 49 are from Bahrain. However, these companies register in some other names and continue to carry out their illegal practices without any check in their exploitative practices. Indian missions in these 17 countries, where employers have been blacklisted, have no mechanism to control such malpractices as a result of which workers continue to suffer. Recent Malaysian agitations by workers of Indian origin have clearly highlighted our mission’s failure in the matter.

The number must[34] have increased during the last decade due to a large exodus of Indian workers and educated personnel to foreign countries. Though the living conditions of industrialists, businessmen and technical persons may be good, the vast strata of unskilled and semi-skilled workers are facing bad working and living conditions. In advanced capitalist countries Indian are victims of racial discrimination and are paid lower wages than their counterparts in advanced countries. Trade union movement in these countries does not pay sufficient attention to the problems of migrant workers.

SHOCKING WORKING CONDITIONS

The Report[35] of the High Level Committee on the Indian Diaspora (2001) had collected some information about the working conditions of the Indian migrants in gulf region. This is continuing uptil now but at a decreased frequency after the campaign against it was started. Similar conditions are prevailing in other countries due to non-availability of proper labour protection machinery. The following are glaring examples.

• Employment agreements[36] are sometimes ignored on arrival of labour in the gulf and skilled workers are forced to work as unskilled persons. Employers sponsoring visas for labour sometimes do not receive them on arrival and leave them to fend for themselves. Several months of work may have to be devoted initially to the settlement of debt incurred in meeting the fee extorted by their recruiting agents in India, salaries are often not paid when due; some times not paid at all for several months towards the end of the contractual period resulting in workers being repatriated without full payment of their dues. Work permit fees are often deducted from their salaries.
• Workers[37] have to work more than eight hours a day without any overtime payment. Medical facilities are inadequate or in some cases almost non-existent. The domestic workers are excluded from the purviews of the labour laws. Many women workers are sent to Gulf with false promises and made domestic servants. Quite often they have to face sexual harassment, molestation and rape by their employers.
• The Report has further noted[38], “Naïve, vulnerable and gullible migrants have sometimes had to encounter dangers of a serious character. According to a report in India Today of March 9, 2001, as many as 24 persons from Kerala had been publicly beheaded on charges of narcotic smuggling, an offence that attracts execution under local law”. This happened because of lack of proper information provided by the recruitment agencies.

CHEATING OF WORKERS

• Without stringent action against the culprits[39], the phenomenon of clandestine recruitment cannot be checked. There are thousands of unregistered employment agencies whose addresses cannot be traced when complaints are made against them. Many such recruiting agencies have made crores of rupees and withered away without any punishment by the authorities. During May 2007, 3846 migrant workers were in jails in 16 countries.
• Equal numbers of workers[40] are migrating illegally from India without emigration clearance from the government of India. Various spurious recruiting agencies are operating who are charging a high amount from the workers and giving the false employment assurance and good salary, who later on find that they were cheated by the Indian recruiting agencies and their counterparts in foreign countries. Several workers who were promised well paid jobs ultimately had to work as domestic servants.

Law per say under the emigration laws and various complimentary laws such as Consumer Protection gives a wide scope of remedies available for these emigrants who are victim of malpractices by the recruiting agencies and the associated employer.

Remedies available for emigrants:

Even the Ministry of Overseas[41] has provided ongoing guidelines and remedies to the emigrants such as

• The complaints[42] made by the emigrants/intending emigrants are thoroughly examined and if necessary, in consultation with the concerned Indian Mission abroad.  Action is taken, as appropriate in each case in accordance with the provisions of the Emigration Act, 1983 and Rules framed thereunder.  Section 10[43] of the Emigration Act, 1983 provides for compulsory registration of Recruiting Agents with the Registering Authority, i.e, Protector General of Emigrants, Government of India for carrying on the business of recruitment for employment abroad. Contravention of provisions of Section 10 is a cognizable offence and Section 24 of the Act prescribes penalties for those who commit or attempt to commit such offences.
• All unregistered Recruiting Agents[44] are proceeded against under this provision. Complaints against them are referred to the concerned police authorities for investigation and filing F.I.R.  State Governments have been also requested to advise the District Authorities, in particular the Police Authorities, to ensure that preventive, strict and exemplary action is taken against illegal recruiting agents.  
• As regards registered Recruiting Agents[45], action is taken by PGE against erring agents by way of suspension and cancellation of Registration Certificate. In cases where the conduct of the Recruiting Agent is found to be dubious he is placed in the internal Watch List. Whenever major error is committed by any agents, the Bank Guarantees submitted by the Recruiting Agents are forfeited apart from cancellation of their Registration Certificate. 
• Complaints[46] against foreign employers are taken up with the Indian Mission abroad. Complaints mostly relate to change of employment contract, non-payment and deduction of salaries, unhygienic working conditions, etc. As and when the foreign companies are found involved in breach of contract and non-payment of salaries etc, the same companies are placed in the Blacklist. The recruiting agency who put the emigrants under such a situation are equally held liable for it
• The Protector General of Emigrants holds public hearings[47] on every Tuesday at the office of POE, Delhi from 11.30 AM to 12.30 PM. An aggrieved person can meet the PGE during a public hearing for redressal of their grievances without any prior appointment. 

Response of Law:

In a statement issued in Lok Sabha on 08/07/2007[48] , minister for overseas Indian affairs Vayalar Ravi admitted that the scheme and the whole Act is retrograde and was a cause of harassment and corruption.

He was very true in remarking as still existed a wide racket of unauthorized recruiting agents who either did a large fraud with money or made the person land in pitiable situation. The law on this matter is very stringent but the penalty imposed is very low as a result the recruiting agencies walk away gloriously without any glitch. On the contrary the people suffer as many Keralites[49] who are in jails in the gulf countries are the victims of illegal recruiters and visa racketeers.

After huge ethical and dilemma and seeing the Indian labour forces wasted in the Gulf countries and Malaysia an amendment was proposed in Emigration Rules in 2009 which made the registration process of these recruiting agents more tight.

 

Then there is demand to amend the Emigration Act. The amendment, which will tighten the noose on human trafficking, is being carried out in the wake of frequent reports about Indian workers facing problems abroad.

In a recent incident, Indian[50] workers struck work at a US shipyard over alleged non-fulfillment of employment commitments to get a green card. Two recruiting agents were penalized when their registration certificate was suspended. The amended act’s aim is to “transform immigration into a humane, orderly and efficient process”, besides discouraging illegal migration practices.

“We have[51] to now wait for the state governments to take action against any recruiting agent for violating rules. Under the new act, we will have our own enforcement wing under the protector general of emigrants,” he said.

The 2002 amendment bill to the Emigration Act 1983 was presented to parliament in November 2002 but then had been referred to the standing committee of labour and welfare in December 2002. The committee brought out a report in December 2003 suggesting changes in the bill.[52]

Ministry of overseas and external AFFAIRS

In order to make the recruiting system more professional[53], responsible, accountable and transparent, the Ministry of Overseas Indian Affairs laid stress on its various objectives at various intervals of time including revamping of the recruitment system, training of recruiting agencies (RAs), rating system for RAs and self regulation by the RAs through a national level apex body of the RAs. 

conclusion and major findings

I am against more laws coming into force. Rather brining more and more amendments to the existing legislations, the implementation authority should be made strong. They should be given such a power that a tight noose can be put around the neck of these recruiting agents.  The single most  important dimension of emigration  that must engage your attention  is  the  poor  enforcement  of  the  Emigration  Act  in  the  states.  There has been a mushrooming of recruiting agents all over the country with no accountability. 

Many of these agents are fraudulent and unscrupulous middlemen who exploit and cheat gullible emigrants. Unfortunately,  the  law  enforcement  agencies  at  the  state  level responsible  for  investigation and prosecution action have not been effective  in  enforcement of the law.

Women Emigrant workers particularly those in the household service sector should be at the centre of all our policy initiatives. They are the most vulnerable. They suffer gender bias, economic bias and do not have the protection of labour laws. Women emigrants are often subjected to harsh living and working conditions and in several cases to sexual abuse. We need to make special efforts to address their concerns and problems. 

Indian emigrants (other than white collar workers) have, so far, been typically less educated,  low-skilled  and  ignorant  about  the  relevant  laws,  procedures,  culture  and language  of  the  destination  countries.  That  makes  them  vulnerable  cheating  by unscrupulous Recruiting  agents  and  exploitation  by  overseas  employers  and many  of them  become  illegal migrants while  opting  to work  in  foreign  countries without  proper  documentations or overstaying after the expiry of the work visa.

MINISTRY OF OVERSEAS ANNUAL REPORT-2008-2009(recent trend analysis to curb the malpractices)[54]

One  of  the  problems  faced  by  the  intending  emigrants  is  difficulty  in  accessing authentic and  timely  information  relating  to overseas employment,  recruiting agencies and emigration  procedures  etc.  Non availability of such information makes the emigrants dependent on intermediaries and vulnerable for exploitation. The ignorance of the intending emigrants is exploited by unscrupulous intermediaries.[55]

The Ministry is implementing a comprehensive e-governance project on migration. The ultimate benefit of the project would be greater convenience, effective protection and better welfare of the emigrant.  The  subsidiary  benefits  would  include  greater  levels  of  efficiency,  transparency and accountability  in  the  functioning of  the offices of  the Protector  General of Emigrants (PGE) and the Protectors of Emigrants (POE), real-time updation and  quick access to reliable emigrant data, management information system to support decision making,  computerized  management  of  recruiting  agent  system,  performance  rating  of  protectors of emigrants,  recruiting  agents &  employers,  effective monitoring  of  emigration offences,  interlinking  of  stakeholders  and  online  validation  of  information  across  stakeholders.  The  project  is  expected  to  mitigate  individual  discretion,  harassment  of  emigrants and  corruption. 

To  overcome [56] this  difficulty of lack of information and communication about the foreign country,   the Ministry  of Overseas  Indian Affairs  launched an Overseas  Workers  Resource  Centre  (OWRC)  to  provide  information  and  assistance  to  intending emigrants and  the  family members of overseas workers  relating  to all aspects of overseas employment.  The  OWRC  was  inaugurated  by  the  Prime  Minister  of  India  during  the  6^th Pravasi Bharatiya Divas in New Delhi in January 2008. The OWRC at present is operating a 12/7 helpline to provide need based information to emigrants and their families through a toll free number.  The  complaints  or  grievances  received  on  the  toll  free  helpline  are promptly attended to and feed back provided to the complainant.

Complaints [57] are received about exploitation of overseas Indian workers.    Such complaints often pertain to non-payment/ delayed payment of wages, unilateral changes in the contract of workers, changing the jobs arbitrarily etc.  In extreme cases, the workers are not  given  any  employment  at  all  and  are  left  in  the  lurch  in  the  foreign  country.    Such workers, besides suffering untold misery, also become a burden on our Missions.    In such instances,  the  Protector  General  of  Emigrants  (PGE)  steps  in  and  asks  the  concerned Recruiting Agent (RA)  to get the workers repatriated on his expense.  If the RA fails to do, action is taken to suspend/cancel his registration and forfeit his Bank Guarantee to pay for the repatriation expenses. Complaints [58]against Recruiting Agents are enquired into with the help of POEs and the concerned Indian Missions.  Complaints against un-registered agents are referred to the concerned Police authorities for investigation and action under the law of the land. 

• All  State  Governments [59] and  UT  Administration  have  been  advised  to  instruct  all Police Station  to  keep  a  strict  vigil  on  the  activities  of  unscrupulous  agents.   Complaints against foreign employers are taken up with the Indian Mission and if need be the employer is blacklisted.
• During 2008 [60]registration certificates of 06 recruiting agents were cancelled.   As on 31.3.2009, 351 foreign employers are on the blacklist.    During 2008 we received 93 complaints of illegal recruitment.   Prosecution sanctions were issued in 56 cases in 2008 based on police report.  During  2009 [61] up to  31.3.2009,  six  Prosecution  sanctions  have  been  issued  and  26  cases  relating  to  unregistered  agencies  have  been  referred  to  State Governments/POEs  concerned for appropriate action. Still there is a long way to go to tighten this malicious recruiting agencies. As long as the corruption continues, as long as the faulty implementation continues and as long there is inefficient law and practice by the government and the legislature the effort to curb it will always meet a failure.

 

 Suggestions

Big picture:

• Amendment to the Emigration Rules as a corollary to the amendment to the Emigration Act, 1983.    
• Establishment of an Apex Professional Institution in the line of ICAI, ICWAI, etc.  Such an Institution will play a role for enabling capacity building, developing and following good practices, setting standards and representation of RAs at International conferences. 
• Training Programme for the RAs which should be proposed.
•  Introducing a rating system for the RAs.  The rating system will have a clear cut objective, criteria and standards of performance.
• The level of the penalty for the recruiting agent who is engaged in the malpractices. The penalty should graded according to the graveness of the malpractices.
• There is enough law to check these recruiting agents. Implementation should be done by a central regulating authority administered by the Minister of overseas and external affairs.

For Prospective employees:

• They do not provide false information in their resume.
• Have nothing to do with fake documents.
• Avoid responding to job offers that are not relevant to their field or skill sets.
• Avoid putting in personal information such as addresses and mobile numbers on resumes as they are mined by hackers who then sell them to an underground economy.
• Do not pay money as a fee or a security deposit as a guarantee for employment or admission to an educational institute.
• Avoid agents. The sheer profitability of cross-border education or employment enrollment encourages agents with charging different people with recruiting, orienting and creating false documents.
• Check the reliability of overseas employer.
• No placement firm can market you. Ultimately, it is the candidate who markets himself and clinches the job.
• Many placement agencies claim to have a direct access to a hidden job market. Do not be carried away by their claims. Avoid them.
• Be skeptical if they promise you a work visa without a job interview and an offer letter.
• Avoid them if they contact you after getting your resume online.
• Avoid them if they ask for money in advance. Chances are that you will never see them again.
• Ask for names of those who have been placed along with their contact details.
• Investigate how long the employment company has been in business by getting hold of a detailed financial report on a specific company through third party web sites such as www.credit.net
• Use the website to check if any complaints have been filed against the firm. Begin by requesting reviews on the company through online company review sites such as www.goolti.com and www.desicrunch.com.
• If looking for the authenticity of the company’s website, visit the web archives (https://web.archive.org/collections/web/advanced.html), to view the age as well as all the past updates made on the companies’ website.
• Research any information the firm provides to you before you make a commitment. Getting all promises in writing.
• Before you pay for anything, request and obtain a written contract that describes the services the firm intends to provide.
• Determine whether the firm is simply going to forward your resume to a company that publicly advertised a listing, or if it will actually seek to place you with an employer.
• Make sure that any promise you receive in writing is the same as what was stated in the initial sales pitch.
• Ask for an employment contract and read the contract very carefully again and again. Have an attorney look over any documents before you sign them.
• Keep a copy of all agreements you sign, as well as copies of all email communication with the company.
• Beware of any agency that is unwilling to give you a written contract.
• Do not hesitate to ask questions. You have a right to know what services to expect and the costs involved.
• Never make a hasty decision. Instead, take time to weigh all the pros and cons of the situation. Be wary of demands that “you must act now to miss the visa filing deadline.”
• If you are already working overseas, and feel your employer is in violation of his contract, do not hesitate to contact the labour department in the country you are in. Every country seeking foreign labor has laws to protect their guest workers.
• Build a strong online reputable identity.

REFERENCES 

1. MINISTRY OF OVERSEAS INDIAN AFFAIRS- ANNUAL REPORT 2008-09
2. https://www.consumercomplaints.in/complaints/aaramco-coordinationsbangaloreindia-c234404.html as retrieved on 9 th March, 2010
3. https://en.wikipedia.org/wiki/Employment_agency as retrieved on 13^th April, 2010
4. https://www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13^th April, 2010
5. www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13^th April, 2010
6. www.overseasindian.in/pdf/2006/aug/Eng-Aug06.pdf as retrieved on 13^th April, 2010
7. www.phoneixcallcenterrecruitment.com/manpower-employment.html as retrieved on 13^th April, 2010
8. https://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13^th April, 2010
9. https://www.namasthenri.com/passport/emigrationclearance.html#1983 as retrieved on 13^th April, 2010

10.  www.moia.gov.in/faq.aspx?cf=11&id1=193&idp=193…73 – as retrieved on 13^th April, 2010

11.  https://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13^th April, 2010

12.  obs-kuwait.com/jobseekers_emigration.html – as retrieved on 13^th April, 2010

13.  https://www.indiaid.com/news/2008/03/26/article_20080326 as retrieved on 13^th April, 2010

14.  https://igovernment.in/site/emigration-check-norms-eased-in-india?page=2 as retrieved on 13^th April, 2010

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[1] authored by- Parikshit –MBA, LLM  NATIONAL LAW UNIVERSITY, JODHPUR

[2] https://www.consumercomplaints.in/complaints/aaramco-coordinationsbangaloreindia-c234404.html as retrieved on 9 th March, 2010

[3] https://en.wikipedia.org/wiki/Employment_agency as retrieved on 13^th April, 2010

[4] https://www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13^th April, 2010

[5] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13^th April, 2010

[6] www.overseasindian.in/pdf/2006/aug/Eng-Aug06.pdf as retrieved on 13^th April, 2010

[7] www.phoneixcallcenterrecruitment.com/manpower-employment.html as retrieved on 13^th April, 2010

[8] https://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13^th April, 2010

[9] www.phoenix-hrd.co.in/manpower-employment.html as retrieved on 13^th April, 2010

[10] https://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13^th April, 2010

[11] www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13^th April, 2010

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] https://www.namasthenri.com/passport/emigrationclearance.html#1983 as retrieved on 13^th April, 2010

[20] www.moia.gov.in/faq.aspx?cf=11&id1=193&idp=193…73 – as retrieved on 13^th April, 2010

[21] https://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13^th April, 2010

[22] obs-kuwait.com/jobseekers_emigration.html – as retrieved on 13^th April, 2010

[23] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13^th April, 2010

[24] https://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13^th April, 2010

[25] www.moia.gov.in/pdf/permits_for_recruitment_by_employee.pdf as retrieved on 13^th April, 2010

[26] https://jobs-kuwait.com/jobseekers_emigration.html as retrieved on 13^th April, 2010

[27] www.moia.gov.in/pdf/offences_and_penalties.pdf as retrieved on 13^th April, 2010

[28] www.egyankosh.ac.in/bitstream/123456789/33153/1/Unit18.pdf

[29] consumereducation.in/defectivegood.pdf as retrieved on 13^th April, 2010

[30] https://www.ipcsi.org/ecssystem.php as retrieved on 13^th April, 2010

[31] https://www.vakilno1.com/bareacts/IndianPenalCode/S415.htm as retrieved on 13^th April, 2010

[32] https://www.vakilno1.com/bareacts/indiancontractact/s17.html as retrieved on 13^th April, 2010

[33] 164.100.24.208/ls/CommitteeR/External/14rep.pdf as retrieved on 13^th April, 2010

[34] pd.cpim.org/2008/0525_pd/05252008_17.htm as retrieved on 13^th April, 2010

[35] www.overseasindian.in/pbd_2006/annual_report.pdf – as retrieved on 13^th April, 2010

[36] www.indiandiaspora.nic.in/diasporapdf/chapter3.pdf as retrieved on 13^th April, 2010

[37] pd.cpim.org/2008/0525_pd/05252008_17.htm as retrieved on 13^th April, 2010

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13^th April, 2010

[42] Ibid.

[43] www.indiapolice.in/ as retrieved on 13^th April, 2010

[44] www. moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13^th April, 2010

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] https://igovernment.in/site/emigration-check-norms-eased-in-india?page=2 as retrieved on 13^th April, 2010

[49] https://www.prd.kerala.gov.in/tfest/norka_roots.html as retrieved on 13^th April, 2010

[50] https://www.indiaid.com/news/2008/03/26/article_20080326 as retrieved on 13^th April, 2010

[51] Ibid.

[52] https://www.thaindian.com/newsportal/uncategorized/coming-soon-amendment-to-emigration as retrieved on 13^th April, 2010

[53] www.moia.gov.in/…/Consultations_with_the_Recruting_Agencies_and_NGOs.pdf as retrieved on 13^th April, 2010

[54] www.moia.gov.in/writereaddata/pdf/Annual_Report_2008-09.pdf as retrieved on 13^th April, 2010

[55] Ibid.

[56] Ibid.

[57] ibid

[58] ibid

[59] ibid

[60] ibid

[61] ibid