Breaking the bond
Vishal
(Querist) 14 January 2014
This query is : Resolved
I was working for XYZ company. Company send me to UK for process training and signed a bond of 18months of 250000. After training i came and provided training to the company employees. After few months the process was running good. Just 5 month before expiring the bond i resigned the job due to family problems. Now the company has send recovery of amount 208000. All my gratutity/incentivies are deducted from the bond amount and the company is claiming the remaining amount. Also i was told by the HR that the you need to pay the remaining amount on prorate basis but after i left the company that HR person also left the company and now when i told the Hr manager for the things happened she says is there any return thing that you have to pay on prorate basis. Also i have not received my relieving letter. They have send me the recovery details after my bond has expired in decemeber 2013. They have provided me the details in january 2014. They have provided me the letter of relieving stating with subject to clearing of fund if any. I have emailed them told i am ready to join the company and fulfill the rest of the bond period but they have not yet replied. Please suggest a way to get out of this.
Devajyoti Barman
(Expert) 15 January 2014
If there is such Bond you have to comply its terms.
It would be better if you talk to them and go for a settlement.
Dr J C Vashista
(Expert) 15 January 2014
Settle the matter with the company, you are liable to deposit the amount
Raj Kumar Makkad
(Expert) 15 January 2014
None can be allowed by the courts to resile from his own undertaking. You shall have to fulfil your bond.
Adv. Chandrasekhar
(Expert) 15 January 2014
As experts suggested try to negotiate with the management. If still they insist of recovering 2.08 lakhs and the amount if appears to you absurd in view of rendering 13 months of training to their officers, you have no choice but to file a civil suit against them and also seeking relieving letter during the pendency of the suit.
ajay sethi
(Expert) 15 January 2014
you were aware about bond signed by you . company has incurred expenditure on your training in UK .company is justified in seeking to recover bond amount from you
Kumar Doab
(Expert) 15 January 2014
>> Employee should apply rapport, goodwill, exceptional levels of persuasion, negotiation, reasoning, and persistence skills.
This shall be the quickest and easiest way out.
>> You have posted that:
-----“Company send me to UK for process training and signed a bond of 18months of 250000”
Did you demand in writing and/or do you itemized detail of expenses incurred on you? Does it amount to 250000.
IN such cases even incidental expenses like Taxi, Bus fare, Laundry is paid against original vouchers.
Did you work in UK during training for the company and thus produced revenues for the company and do you have record of such revenue?
What was this training: something that added to your qualification or provided some extra ordinary skills or as it related to something that is required to handle the counters of the company?
----“signed a bond of 18months of 250000”
Do you have copy of this Bond and communications exchanged with you pertaining to this training and Bond for it ,before and after signing the bond?
“Just 5 month before expiring the bond i resigned’
Implying that you have worked for 13 months.
“Also i was told by the HR that the you need to pay the remaining amount on prorate basis “ This HR person was right the claim has to be reasonable and reasonableness of the matter and reasonable amounts are decided by the courts of law if employer is adamant.
{250000 ÷18}=13889
13889×5=69445
It is simple mathematics and by it this should be the amount to be claimed.
----“After training i came and provided training to the company employees.”
How many employees you have trained?
Implying the cost incurred on you has been divided by how much..............................in other words reduced by how much?
Assuming that if you have trained 200 guys and cost of such training is Rs250000/person then you have benefited the employer by a profit of
{250000×200}=50000,000
50000,000-250000=49750,000
Or
50000,000-208000=49792,000
Or
50000,000-69445=49930,555
Or
Did you provide the training on peace meal chapters of Training Taken by you and in such a case what should be the cost as per your estimate.
Let us assume that training that you had received 5 chapters and you trained 20 people in each batch on 2 chapters and 3 are still balance.....................
Apply your mind and arrive at some amounts in a manner that is simple and understandable but the figures arrived at are tangible and prudent and verifiable.
----“ Now the company has send recovery of amount 208000.
‘
Has the company provided you itemized detail and worksheet on how come it has arrived at this figure?
Did you ask in writing to supply an itemized explanation on how come this figure is arrived at?
Or is it just mentioned as ‘Liquidated Damages’, If yes ‘Liquidated Damages’ may not be paid just on Demand and may have to be proved.
-----“All my gratutity/incentivies are deducted from the bond amount and the company is claiming the remaining amount.’
You mean to say that even after adjustment of incentives and gratuity, payable wages etc the amount recoverable is still Rs.208000/ out of Rs250000/............................................???
Have you been working for peanuts or wages???????????????????
Another question arises that ‘Can Gratuity be adjusted or Forfeited in such a case”?????????????????
Did you serve for 5 years in totalk?
What was your last drawn Basic+DA?
The Gratuity is managed by company’s own trust or by LIC?
Did you demand the payment certificate, funds released from your Gratuity a/c including interest etc?
----“i resigned the job due to family problems. ‘
It is a valid reason for separation.
Family and self comes first and employer shall always be later or last.
Was there any other reason like exploitation etc during the employment that would render employer as unworthy of being employed with and if yes did you put up in writing and do you have some evidence?
------“Also i was told by the HR that the you need to pay the remaining amount on prorate basis but after i left the company that HR person also left the company and now when i told the Hr manager for the things happened she says is there any return thing that you have to pay on prorate basis.’
Verbal Transactions are difficult to prove.
If you decide to agitate record the statements of this HR and ask your lawyer to include her name in list of Noticees even if she has left.
-----“They have send me the recovery details after my bond has expired in decemeber 2013. They have provided me the details in january 2014.”
Is it an itemized detail or just a hypothetical amount as deemed fit by company is mentioned?
----“They have provided me the letter of relieving stating with subject to clearing of fund if any. “
Other than outstanding payment claimed by company there is no issue pertaining to your conduct in the company.
Hence if it is established that no amount is in fact pending at your end relieving letter as already issued to you stands good for you.
-----“I have emailed them told i am ready to join the company and fulfill the rest of the bond period but they have not yet replied.’
As already pointed out you may try for an amicable settlement.
----“Please suggest a way to get out of this. ‘
“but they have not yet replied.’
‘ You have already been relieved from company.
Now your case shall be reviewed as a case’ Can you be Trusted’ again?
Can the company take you back with continuity of service?
While the company is contemplating on its options you may also put all of your documents in order and also arrange the copy of appointment letter, Bond, and other relevant details, resignation, acceptance sent by company, FNF statement sent by company, recovery notice, appeal to let you join back, etc to a competent and experienced labor consultant/service lawyer specializing in such matters, and give inputs in person and understand the merits and remedies and proceed under the expert advise of your lawyer.
In a court of la the reasonableness of the matter and reasonable amounts only shall matter.
>> Litigation can be lengthy and stressful for some employees.
Make up your mind.
Either you shall be the first to approach court or your company.
Your lawyer may succeed in getting you off the hook.
Lawyers are trained in Mediation, Conciliation, and arbitration.
Or
Some employees by virtue of their position etc achieve some kind of handle on employer. If youi have any such handle apply it.
Some employees are members of unions, Trade Unions that are very active and effective and succeed thru their union.
Some communities of the employees are very influential, resourceful and may succeed in getting the matter resolved.
>> IN future do not jump and run to sign on the dotted line.
Consult elders in the family, competent and experienced well wishers, lawyer/law firm before hand.
If you consult in time you may not have to repent later.
>< If in your trade all employers demand to sign on BONDS/AGREEMENTS then you should keep access to and retain
a competent and experienced labor consultant/service lawyer specializing in such matters and negotiate the contract properly and must know how to escape without any adverse effect.
There is a class of employees that is not touched by employers..........................!!!
Even if it is a BOND then it should not be like those in Pre Independence Era when a ‘SAHOOKAR’ { Moneylender} would obtain ‘ANGOOTHA’ {Thumb Impression} of the hapless citizen in his ‘BAHIKHATA’ {Say ; Bond} and then the hapless citizens shall keep on paying the interest that shall never end and principle amounts still be standing..........................................................
Even if it is BOND there has to be some rationale........................sense in it.
The court might find it oppressive and hence repelling...........................and the action of employer may boomerang on him.
Please do not hesitate to consult your lawyer.
Vishal
(Querist) 15 January 2014
thanks a lot for your valuable advice. Really appreciate
T. Kalaiselvan, Advocate
(Expert) 15 January 2014
I think expert Mr. Kumar Doab has given you a complete picture of what you should have done or do, it is a wonderful piece of a very good suggestions/opinions, I endorse his opinions, please follow it for further relief.
Kumar Doab
(Expert) 15 January 2014
1.....>>>> GRATUITY;
Gratuity is property and fundamental right.
Pension Gratuity Retiral benefits can not be attached.
---- Code of Civil Procedure, 1908
60. Property liable to attachment and sale in execution of decree.- (1)
Provided that the following particulars shall not be liable to such attachment or sale, namely:—
(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pension;
{{ http://www.lawzonline.com/bareacts/civil-procedure-code/section60-code-of-civil-procedure.htm}}
--- Supreme Court of India
Radhey Shyam Gupta vs Punjab National Bank & Anr. on 4 November, 2008
http://indiankanoon.org/doc/1790038/?type=print
“………..amounts paid towards gratuity and pension could not be attached in view of the provisions of proviso (g) of Section 60(1) of the Code of Civil Procedure”
--- Supreme Court of India
State Of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr. on 14 August, 2013
http://indiankanoon.org/doc/186974830/?type=print
It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law…………………………..
. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law"…………………………………….
the appellant cannot withhold - even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation…………………..
>>>>Forfeiture of Gratuity: is explained in Payment of Gratuity Act 1972: Section: 4 (6):
Up to the best of understanding employee has not caused any loss to employer.
Payment of Gratuity Act 1972 is a Central Act: a Statue and no private agreement crafted by employer can overrule or supersede the Statue.
Therefore even if the employer claims the employee has authorized to adjust BOND AMOUNTS against Gratuity it may fail test of law.
Employer and its HR is expected to know it.
If they feign ignorance it may not amuse any one leave apart judiciary.
>> Payment of Gratuity Act 1972: Section: 9: Penalties:
PUT THE EMPHASIS ON WORD “WHOEVER “........................................( IMPLYING HR, LINE MANAGER, EMPLOYEE THAT HAS SIGNED ON THE BOND CRAFTED BY EMPLOYER, EMPLOYER HIMSELF).................AS STATED IN THIS CLAUSE AND CITE THE PROVISION OF PENALTY AND IMPRISIONMENT UPTO 1 YEAR.........................
You may also cite Section: 8: Recovery of gratuity: The offenders may loose ( Need not say but implied even their........................)
You are entitled for interest which was last noted as @10%pa.....................
Therefore it may be right to say that the Act of employer to freeze Gratuity is illegal.
As already pointed out..................
Do not forget to demand certified copy of the payment certificate issued by LIC and notice of Determination of Your Gratuity by the company as calculated by it..
The company can not keep a penny from the amounts disbursed by LIC from Gratuity a/c of employee even if the amounts calculated as per Formulae of calculation of Gratuity is lower than amounts disbursed by LIC.
2..........>>> Consulting a lawyer does not mean that you are running to file a case.
You can explore all options and opportunities under the wise counsel of your able lawyer.
Lawyers are trained in Mediation, Conciliation, and arbitration.
Many times just be engaging the opposite party in parleys the matter is resolved.
You may go thru:
http://www.lawyersclubindia.com/forum/Neither-resigned-nor-terminated-salary-unpaid--81683.asp
Discussion > Labour & Service Law > Disputes > Neither resigned nor terminated. salary unpaid.
There are merits and chances of your matter getting resolved.
3..........>>> You may find the following thread as relevant and useful and you can download the judgments too.
http://www.lawyersclubindia.com/forum/P-f-gratuity-90740.asp#.UqC5qdIW1MA
Discussion > Labour & Service Law > Gratuity > P.f & gratuity
http://www.lawyersclubindia.com/experts/Payment-of-indemnity-bond-419196.asp#.UiNgTNKAqWM
Payment of indemnity bond (Labour & Service Law)
http://www.lawyersclubindia.com/forum/Neither-resigned-nor-terminated-salary-unpaid--81683.asp
Discussion > Labour & Service Law > Disputes > Neither resigned nor terminated. salary unpaid.
>>> Trainers in all Industries/Trades are the first to come and last to go and even thereafter they are taking calls, and are engaged. Probably you may agree that the Trainers are kept on edges by the companies and their Managers.
The employers have realized that without Trainers ‘IT WOULD BE DIFFICULT’.
Therefore now Trainers are deployed in even Branches in many Trades. At the same time they are kept under the thumb, subdued.
Your able lawyer shall defend you.
Please do not hesitate to consult your lawyer.
prabhakar singh
(Expert) 15 January 2014
PLEASE ACCEPT MY THANKS AND WISHES KUMAR DOAB!
MY ONE HINT THAT A LAWYER MUST DEVELOP AND CONTINUE TO DEVELOP DETAILING POWER HAS MADE YOU A
GREAT LAWYER BEYOND MY DOMAIN.
THANKS GOD I AM SO HAPPY ON MY THIS SUCCESS.
YOU ARE GREAT DOAB!
GOD TUSSI GREAT!
THANK YOU GOD!
prabhakar singh
(Expert) 15 January 2014
MAY GOD ALLOW YOU DOAB TO SURPASS ALL LAWYERS IN THIS WORLD!
I AM SO HAPPY!
prabhakar singh
(Expert) 15 January 2014
GURU GUD HI RAH GAYA CHELA SHAKKAR HO GAYA PAR GURU TAU ISI BAAT KA INTEJAR KARATA HAI!
THE ONLY ACHIEVEMENT I GOT HERE IS 'YOU'DOAB! BUT IT IS MY GREAT SUCCESS.
I AM SO PROUD OF YOU DOAB!
prabhakar singh
(Expert) 15 January 2014
ASTONISHING CAPABILITIES YOU HAVE DEAR DOAB!
LOVE YOU MORE THAN MY SONS!
BUT KEEP IT UP SO THAT EVEN AFTER MY INEVITABLE DEATH I GETA SOLACE YOU ARE FAR AHEAD ME!
THANKS GOD!
Rajendra K Goyal
(Expert) 16 January 2014
Congratulations Doab ji, you have earned / won such great repeat great and truly deserved comments from so senior expert.
May god bring all success in your life in coming days.
Kumar Doab
(Expert) 16 January 2014
Shri Prabhakar Singh ji,
Sir,
Kindly accept my heartfelt thanks for your kindness and affection.
I have no words to express my feelings and gratitude.
Very able and very kind seniors like you are always source of inspiration for all of us.
We pray to lord almighty to keep us always under your wings and award us the humility to sit at the feet of masters and learn.
Seniors and mentors like you have made the world the good place to live.
You have made the LCI such an excellent forum that it is today.
May god keep you around us always.
May everyone benefit from your expertise and become a good human being too, always.
With warm regards
KumarDoab.
Kumar Doab
(Expert) 16 January 2014
Shri Rajendra K Goyal ji,
Kindly allow me to pour my heart and express gratitude for your good wishes.
In fact Shri Prabhakar Singh ji and learned experts and seniors deserve the appreciation for mentoring us, enriching this forum with their expertise, wisdom and kindness.
Words won’t be sufficient to express heartfelt thanks for our esteemed learned experts and seniors.
With warm regards
KumarDoab.
V R SHROFF
(Expert) 12 May 2014
KUMAR DOAB!, CONGRATES.
Kumar Doab
(Expert) 12 May 2014
Shroff Sir,
Many Thanks!
With Regards
KumarDoab.
Dr J C Vashista
(Expert) 12 May 2014
Exceptionally wonderful explaintory advise.
Very well done Mr. Kumar Doab. My heariest congratulation and best wishes
Kumar Doab
(Expert) 12 May 2014
DR. Vashista Sir,
My heartfelt thanks!
With Regards
KumarDoab.
