Can indian employees sue foreign director
Querist :
Anonymous
(Querist) 03 October 2011
This query is : Resolved
Is it possible and practically work out if a General Manager (Head of the operations but, just an employee) of the company file a case against the Foreign Director (Investor from USA) of the company(it is a foreign director's company in SEZ) if the Director stops funding for the company's working capital, not paying the salaries of workers and staff including the GM for 4 months and not visiting the company for 3 months and not meeting the vendors for payment of their HUGE dues, not replying to their emails and not telling anybody whether he will pay or not, whether he will run the company or not.
The company is under shut down status since August 1st 2011, due to non-availability of funds and inability to pay for electricity bill also.
Since the Investor cum Director has left the company just like that to its fate and natural death and staying in his own country USA, please advise whether the GM alone or all employees together can file a case against the Director of the company who is an American national and now living in USA and not coming to India. The Director's confidence is that Indian law cannot reach him in USA and punish him, is it true? Please thorough study and advice.
Thank you.
Advocate. Arunagiri
(Expert) 03 October 2011
You can sue him in American court, the American labour rules are very favorable for the employees.
Send the complaint to US Consulate Office, New Delhi.
You can send complaint to U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC 20210. Mail:- foiarequest@dol.gov
Sailesh Kumar Shah
(Expert) 03 October 2011
Shri Arunagiri
With due respects, I wish to know since all operation of the company in INDIA. No cause of action arise in America, So how can american court take action.
Thanks
with Regards,
Querist :
Anonymous
(Querist) 04 October 2011
Many thanks to Mr.Arun Kumar Bhagat, Mr. Arunagiri and Mr. Shailesh Kr. Shah for responding to my query.
Though the information given by Mr. Arunagiri is very useful, I would agree with the point raised by Mr. Sailesh Kr. Shah.
Since the company is incorporated by the foreign director as an "independent" company under the Indian companies act, i India, and all operations and trasactions are related to this company (PVT.LTD.) only, whether the trials and prosecution is to be done in Indian courts or in US courts?
Secondly, is there any act/law by which we can deport the foreign director from USA to India and attend the court?
Please advise.
Thank you.
Advocate. Arunagiri
(Expert) 04 October 2011
American courts are empowered to prosecute any American, who had committed offenses, even in other countries.
Crime is usually territorial. It is a matter of the law of the place where it occurs. Nevertheless, a surprising number of American criminal laws apply outside of the United States.
Although the crimes over which the United States has extraterritorial jurisdiction may be many, so are the obstacles to their enforcement.
You may cross check my opinion who are familiar with international laws.
Advocate. Arunagiri
(Expert) 04 October 2011
In additional to my previous reply, you may see the procedure for the offenses against the US citizen committed in foreign country.
Q: If I am the victim (US Citizen) of a crime committed in a foreign country, can the person who committed the crime be tried in US courts?
A: Traditionally, the US has resisted the idea that foreign nationals could be tried in US courts for a crime committed abroad against a US national (called "passive nationality jurisdiction"). In recent years, some US criminal laws, especially those that relate to terrorism or terrorist acts, have been changed to allow US authorities to prosecute some violent crimes against US citizens wherever the crime was committed.
Sailesh Kumar Shah
(Expert) 04 October 2011
Shri Arunagiri
Thanks a lot to enhancing my knowledge.
Querist :
Anonymous
(Querist) 05 October 2011
Shri Arunagiri,
Thanks for the elaborate information.
1) I would also like to know about any act/law by which we can deport the director from USA. Please advice about it.
2) Since going to USA and fighting case against the director there costs me too high, is it possible to file a case in Indian courts and summon the director to come to India and attend the court?
3) Shall I Send the complaint to US Consulate Office, New Delhi & also to U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC 20210. Mail:- foiarequest@dol.gov ? Is it really helpful to me?
4)In case, the director is really out of cash and bankrupt in business as well as "personal front" also, how the court cases and complaints to US Consulate and US Dept., of Labour are going to help me?
Kindly advise for all the above four points, separately for each one.
Thanks a lot for all your expert advises.
Advocate. Arunagiri
(Expert) 05 October 2011
1. Yes, extradition can be done.
2. Yes, indian court can send summon.
3. It will be useful some times, it depends upon your proofs.
4. If he is bankrupt, you can recover a prorata money from him, if there is any IP is pending. This situation is very common in all the countries.
I have suggested you to initiate complaint on him through post only. Any how that is not the only solution.
I am enclosing a article on US Extradition Law, it may be useful for updating your knowledge, on this topic.
Guest
(Expert) 05 October 2011
I endorse the views of Shri Arunagiri.
Querist :
Anonymous
(Querist) 06 October 2011
Shri Arunagiri,
Thanks very much for all your advices.
On the other side, can the land lord (government body) issue a legal notice to the foreign director, for NOT paying lease rents for almost one year and vacate the leased space as the director is neigther paying the lease rents not running the plant also now?
The plant is shut down and thus the leased space is blocked and causing revenue loss to the government. So, under what law and section a legal notice can be sent to the foregin director?
Incase, the director does not respond to the legal notice, whether the land lord (govt body) has right to auction/sell the company property and clear the occupied space? Pl advice with law and section is applicable here, if possible.
Thank you very much.
Querist :
Anonymous
(Querist) 06 October 2011
Dear Shri Arunagiri,
Please let me know your contact address for meeting you in person if necessary.
thank you.
Advocate. Arunagiri
(Expert) 06 October 2011
If any body had occupied the property, the landlord can file a eviction petition and take the possession.
You may contact me:
V.Arunagiri
Advocate
69 Additional Law Chambers,
High Court Buildings, Chennai-6000104.
Querist :
Anonymous
(Querist) 06 October 2011
Dear Shri Arunagiri,
Thanks very much for the contact address.
with this, I am closing this query as resolved.
Querist :
Anonymous
(Querist) 08 October 2011
Shri Arunagiri,
In continuation to the above discussions, I would like to have your opinion on below situation:
What happens to the Head of the Indian operations, who was authorised by the director to deal with all local governmental and other offices/departments to carry out business operations, "in case, the foreign director himself declares bankruptsy and ask the local government to auction the assests and pay to the creditors?" Is there any risk for the Head of plant for any of the issues/matters?
Pl advise.
