Separation agreement - legal validity

You are under no obligation to sign any agreement.

Your FnF wages can not be blocked if you don’t sign

Are you a Medical Representative or doing the same job as of  MR?

Did you record the threats of HR (audio/visual/minuted/witnessed)?

Have you shown the clauses you have signed and that you are being asked to sign to your lawyer?

What is your lawyer’s opinion?

Dear sir,

  I am working in the capital equipment industry in healtcare and more over i am looking to join in a similar type of company.In the agreement it is metion that they will pay the F&F within 30 days of siging the agreement.

I would like to know how will get my F&F without signing and that to my reliving letter

Rgds

You have not replied to all points!

You should reply to all points pointwise mentioned both above and below for better response.

Have you shown the clauses you have signed and IT related plain paper and that you are being asked to sign to your lawyer?

What is your lawyer’s opinion?

Is the next employer (appointing authority,MD etc .................HR willing to get an approval from the Board for you) to absorb you on the strength of copy of resignation letter, proof of its dispatch/acknowledgment/acceptance ONLY? Your first priority is to settle the T&C properly with your next employer in writing and obtain the concurrence in writing.

You should have mentioned in writing in employment application and interview that you have signed the clauses on non-solicitation, non-compete and last employer is pressing you to sign a separation agreement and that last employer is unwilling to let you work with them (competitor) and won't issue the reliving letter, service certificate). Have you appraised them?

Relieving letter signifies the employee has resigned and nothing is pending at his/her end. ..........................and copy of resignation, proof of dispatch (email, Redg. Post), salary slip of each month, FnF statement, Form 16, PF a/c slips etc can suffice as good as Reliving letter.

What is this establishment registered as: Commercial,Industrial?

How many maximum persons are employed in it at any point of time, before and after your joining?

The Redg Office, Corporate Office of the company, and your reporting office was located in which state?

What was your designation and nature of duties?

Do you have appointment letter, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy that are mentioned in the appointment letter?

Is it stated in appointment letter or any policy that you shall have to sign this ‘‘Separation Agreement’ or any other agreement as and when asked to and at the time of separation?

Is the person designated as HR Manager your appointing authority? Did you address your resignation to him? Has he asked you to sign this so called ‘Separation Agreement’ in writing and attached the copy of the agreement?

Did you record the threats (audio/visual/minuted/witnessed)?

What was your monthly salary?

Was any, salary slip of each month, PF number with a/c slips, ESIC card,Form16 given to you?

Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge?

Has acknowledgment of notice of resignation/final resignation, supplied to you?

Are you a member of any employee’s/Trade Unions?

Sir - i already consult a lawyer where i am waiting for the opnion from his side.right now he told me  not to sign.

i already informed to my new organisation where i am waiting for their response.

i have my resignation copy and resignation acknowlegement copy via mail and also all sal slip.but i dnt have any F&F statement  where HR is insisiting they will provide only after my last day after signing the doc.Do let know how will i get my F16 with out proper reliving.

its a commercial establishment and around 180 employees are there. 

i was working in sales dept and the company office resides in the same state where my jursdication of sales (Karnataka)

i have my proper appointment and all terms and policy doc.which i duly signed during my appointment. In terms and policy they mention regarding the non-solicitation, non-compete, confidentiality clauses.but doesn't mention anything regarding the Sepration Agreement.

(Your employment may be terminated by you or the Company with two (2) months’ prior notice in writing. The Company may at its sole discretion waive all or part of the notice or allow you to pay in lieu thereof. Any resignation would have to be accepted by the Company to become effective.) 

i have put my resignation to HR and my reporting manager and all the formalities are initatied by HR only.They send out a mail also of accepatance of resignation and  exit formalities process and also enclosed separtion agreement enclosed in the mail. and in the mail below they put below sentence as note - 

(NOTE: Also One of the terms and conditions of appointment is with regard to non-compete clause. You have accepted the terms and conditions of appointment and joined the service of the company.  You have an obligation to comply with terms and conditions.)

- No threats audio,vedio visual is avilable.

- Current sal around 50 K per month.

- i can take my sal slip from my comapny website and in my sal slip pf a/c is mention and last year 2 months f16 is also in my hand (joined in FEb).

- i am not a member of any trade union and also handing over of my charges is in process and it will get over within 3 days time.

regards

You have not answered to all points e.g:

What was your designation and nature of duties?

You may also post did you have any power to sanction leave/increment/appoint/terminate?

You have posted that:

----“i already consult a lawyer where i am waiting for the opnion from his side.right now he told me  not to sign.”

You may update the response of your lawyer. Hope he has seen all of the docs (mentioned in previous posts) and examined your inputs. The counsel that examined each and everything can advise you the bets. Generically speaking, he is right in advising you to not ot sign.

----“i already informed to my new organisation where i am waiting for their response.”

You should preferably inform in writing and obtain written concurrence.

How you would do it is your call as you are closest to them.

-----“i have my resignation copy and resignation acknowlegement copy via mail and also all sal slip.but i dnt have any F&F statement  where HR is insisiting they will provide only after my last day after signing the doc.Do let know how will i get my F16 with out proper reliving.”

Is the HR insisting/declining in writing?

Form16: The company/employer (deductor) has to supply it or it can be penalized. You can lodge complaint (under proper acknowledgment, preferably thru Redg. Post) with ITO-TDS where you file ITR and CIT-TDS where company files ITR. It can not be blocked. If required you can pursue thru RTI or thru your I.Tax lawyer.

----“i have put my resignation to HR and my reporting manager and all the formalities are initatied by HR only.They send out a mail also of accepatance of resignation and  exit formalities process and also enclosed separtion agreement enclosed in the mail. and in the mail below they put below sentence as note”

“handing over of my charges is in process and it will get over within 3 days time.”

The notice of resignation/resignation should be addressed to good offices of appointing authority/MD,owner and they can forward to anyone under written  intimation to employee to coordinate.

Do you have hard copy of acceptance of resignation on letterhead with seal?

Has any statement in writing been made on signing the ‘separation agreement’ or it is just attached?

Download record of handover (daily basis), receipt of company’s assets, NOC from each div e.g.IT etc, all appreciations/rewards/awards/incentives……..etc, no charge of any kind leveled on you etc……

You may evaluate the option of writing to good offices (and attach copy of notice/resignation and its acknowledgment and acceptance) and ask to supply on the LWD::: the acceptance of resignation, service certificate, relieving letter, correct FnF statement showing computation of correct notice period applicable to you/leave encashment/bonus/OT/earned wages etc, PF number with a/c slips, NOC/NDC, acknowledgment of handover of charge, Form16, FnF payouts etc…………………………..and also mention that you do not understand why an attachment titled as ‘‘separation agreement’ been sent to you by Mr/Ms………………designation…………………with his email dated……………on subject……………(attach the copy) and it is neither required nor part of any clause in appointment letter dated………………issued to you………………..and is not to required to be signed by you. You may also add that on dated…………………….Mr/Ms designation…………………has stated to you in office that if you do not sign it your FnF settlement shall not be done and no service certificate, relieving letter shall be issued to you………………….and that as per appointment letter dated………………issued to you…………….also no such condition is applicable to you and the concerned personnel be advised in writing with a copy to you that you should not be pressed to sign and no such step be taken, against you. Highlight the character,integrity,loyalty,honesty,discipline,observance of T&C of the company including notice/handover, awards/rewards,contributions etc displayed by you.

OR you can address to this HR person the following part……………………….i.e. that you do not understand why an attachment titled as ‘‘separation agreement’ been sent to you by Mr/Ms…………………with his email dated……………on subject……………(attach the copy) and it is neither required nor part of any clause in appointment letter dated………………issued to you………………..and is not to be signed by you and is not applicable to you and you should not be pressed and these should be withdrawn by a communication to you in writing, and escalate it to good offices.

-----“ - No threats audio,vedio visual is avilable.”

You should endeavor and download all evidence for use at appropriate time in appropriate forum, if the need be.

-----“ - i am not a member of any trade union’

You should be. All employees should be.

The loners, unorganized employees are easy to exploit.

-----“  During my joining, In my offer terms and codition, they metion non-solicitation, non-compete,clauses (which is in company letter heads) and i signed a given as accepatance at that time.”

Does it contain any so called ‘IT related clause’?

----“but now during my exit formalities HR is insisting to sign a separtion agreement by again metioning non-solicitation, non-compete and some of the IT related clause (wihich they given in the plain paper).”

Does the appointment letter contain any so called ‘IT related clause’ or this ‘separation agreement’ only??

Although the proper opinion can be given on this ‘IT related clause’ only after examining it however from name itself it is felt that it can be really troublesome for you and may have a some criminal implications as well.

You may add to HR and good offices that this clause have never been part of your appointment letter and is a new insertion and it is not applicable to you at all and you don’t accept it this stage too…………………….and don’t give anything about in writing at all that can be construed as acceptance.

-----“they are also enclosed that after signing the agrreemnt only my F&F will be cleared.”

It is asked again from you:::::Is it stated in writing???

As you have also posted that::::: “also enclosed separtion agreement enclosed in the mail”……………….is this statement that “after signing the agrreemnt only my F&F will be cleared” made in ‘separation agreement’ only?

It is asked again from you:::: is it stated anywhere in writing that ‘separation agreement ‘ is attached…………………………Or you have to sign it?

Your counsel that has examined all docs and inputs can advice you the best and let your counsel draft your representations to your satisfaction. Discuss with your counsel and proceed under expert advice of your counsel.

 Designation and nature of duties?

         My designation is senoir sales position where their is no reporties to me.my job is to handle only sales to my assigned region.

Lawyer and new company - sir i already consult they told me to wait to sign the separation agrement as they will sutdy the case and will give the opinion.

Regarding F&F statement - Hr is insisiting that once my formalties over within two /three days they will provide the F&F statement and more over in the separtion agreement they clearly metion that my F&F will be cleared within 30 days after siging the agreement.

Do you have hard copy of acceptance of resignation on letterhead with seal? No sir i have recived only mail confirmation of my resignation,by marking CC to COO of the company.and enclosed the separtion agreement as a part of exit formality.("Exit Agreement- Please accept and return signed copy of Exit Agreement by which you’ll be confirming to abide by the Terms & Conditions.) - wordings in the mail

Regarding ‘IT related clause in the appointment letter

". CONFIDENTIAL INFORMATION - clauses in the appointment letter 
.1 You acknowledge that during your employment you will have access to confidential and proprietary information regarding the intellectual property, customers, suppliers, agents and employees which is confidential or is commercially sensitive to the business of the Company and therefore you will be required to sign the Employee Innovation and Proprietary Information Agreement (the “EIPIA”), attached to the Appointment Letter as Annexure C. Nothing in this clause or the EIPIA will prevent you from disclosing information that is already in, or comes into, the public domain other than through your unauthorized disclosure or to comply with a Court Order or to perform any statutory obligation.
.2 Please have the EIPIA signed in duplicate and witnessed by another at the time of your joining. A copy should be handed over back to HR for record and a copy retained by you. The EIPIA will form part of these Terms and Conditions of Employment.

As you will have access to confidential and proprietary information regarding the customers and business of the Company, you agree that:
.3.1. Non-compete
You will not be concerned, either directly or indirectly, in any business lines/divisions outside of the Company during your employment and for a period of six (6) months thereafter which compete with or are likely to compete with the business of the Company. For this purpose, you are concerned in a business if:
(a) You carry it on as principal or agent; or (b) You are a partner, director, employee, secondee, consultant or agent in, of or to any person who carries on the business; or (c) You have any direct or indirect financial interest (as shareholder or otherwise) in any person who carries on the business; or (d) You are a partner, director, employee, secondee, consultant or agent in, of or to any person who has a direct or indirect financial interest (as shareholder or otherwise) in any person who carries on the business.
.3.2. Non-solicit
You will not directly or indirectly on your own account or on behalf of or in conjunction with any person, firm or company (directly or indirectly) during your employment and for a period of twelve (12) months thereafter (except on behalf of the Company):
(a) Canvass or solicit business or custom from any customer for products of a similar type to those being manufactured or dealt in by the Company or services similar to those being provided by the Company; or induce or attempt to induce any potential customer not to establish a relationship with the Company, with whom the Company has had discussions or negotiations, or (b) Induce or attempt to induce any supplier of the Company to cease to supply, or to restrict or vary the terms of supply to, the Company or otherwise interfere with the relationship between such a supplier and the Company; (c) Deal with any such person referred to in sub-clause (a) to (c) above in any other manner whatsoever.
.3.3. Non-poach
You will not directly or indirectly on your own account or on behalf of or in conjunction with any person during your employment and for a period of twelve (12) months thereafter induce or attempt to induce (directly or indirectly) any employee to leave the employment of the Company (whether or not this would be a breach of contract by such employee) or induce or attempt to induce any marketing agent, distributor or consultant of the Company to terminate his/her agency, or consultancy with the Company.
.4 The covenants in sub-clauses 8.3.1, 8.3.2, and 8.3.3 above are for the benefit of the Company itself and as trustee for the Company. In the event of any breach of these covenants the Company reserves the right to seek specific performance of these covenants including (without limitation) damages and/or injunctive relief. You acknowledge and agree that the provisions of this clause are reasonable in their application to you and necessary but no more than sufficient to protect the interests of the Company."

Regards

After such a long discussion it could come out as clarified from your end that  this IT related clause is inserted in the appointment letter and not on plain paper!

Be clear in your communications to your lawyer or your lawyer may also not have full facts on record from you  for proper advise.

The Senior Sales Position designation as per info posted by you may be covered by the def. of

'Employee' as in (Name of the state) Shops and Commercial Establishments Act, 'Workman' as in the ID Act.

From your message that ......................................'The wording in the email as posted by you ............("Exit Agreement- Please accept and return signed copy of Exit Agreement by which you’ll be confirming to abide by the Terms & Conditions.) - wordings in the mail.....................i have recived only mail confirmation of my resignation,by marking CC to COO of the company.and enclosed the separtion agreement as a part of exit formality.......................................................Hr is insisiting that once my formalties over within two /three days they will provide the F&F statement and more over in the separtion agreement they clearly metion that my F&F will be cleared within 30 days after siging the agreement."..............................................it can be construed that there is an element of coercion,intimidation,force......................to sign an agreement or your earned wages/promised payouts won't be paid.

Earned wages are debt on employer and employee can approach the company as creditor to wind up the company.

HR person is evidently working as per private/inner.........................policies/rules(printed/verbal.......................os his/her masters in COO etc.

You are not under any obligation to sufill the job requirements of this HR person.

You may write to appointing authority/MD,Chairman.

Your lawyer may also advise you to approach good offices and exhaust the internal remedies.

You have grossly erred by not being a member of any employee's/trade unions.

Indian courts of law have consistently been declining to enforce clauses/agreements on Non-Compete as it hits the right to earn livelihood and clauses of Indian Contracts Act.

The Non Solicitation Clause also has the flavor of Non Compete.

Don't solicit and communicate anything on IT related clauses ever on record.

Let your lawyer finally opine on the points mentioned in this thread also.