https://www.lawyersclubindia.com/forum/Help-me-please-73624.asp
You have posted that:
--“WHEREAS the Employee has approached the Company on <Date>-------------------- and offered himself/herself of his/her own free will and with the consent of the Sureties for appointment as Employee which has been accepted by the Company’
Do you have the copies of job advertisement, interview call letter, and offer letter etc…
Did the company declare in job advertisement, interview call letter, and offer letter even if by email that employee shall need to appear for interview with consent of sureties/with sureties sign service agreement etc and produce sureties or it was disclosed at the time of appointment? This gives an impression as if the sureties have been present with employee while job application was made, during interview, when offer was made and they in person checked the offer and accepted the same along with employee.
Did the sureties visit company during the days of interviews and issuance of offer letter?
Had the sureties and elders seen such conditions and visited the company they would have advised to stay away from such employer.
Apparently the employee has been blindly favored by sureties to get a job with such harsh and severe conditions, in current times when getting a job has become difficult.
1. “In the case of breach of the said Agreement, Liquidated damages of Rs.3,00000/- (Rupees Three Lakhs Only) will apply. This represents a genuine reasonable estimate of damages that would be caused to the business of Xxx Pvt Ltd. on account of the said breach of agreement.”
What is the reasonableness applied to arrive at a figure of Rs. 3,00000/- (Rupees Three Lakhs Only)? Has the employee been informed in writing on the rationale and itemized detail?
“At the time of joining, you are requested to bring the Service Agreement, Surety bond
Duly signed by you and your Sureties on all sheets in original, along with a copy of each.”
The employee has been left to influence the sureties and guarantors exercising his rapport/goodwill/relationship to sign on the bond. The sureties have not been met/appraised on the marvelous opportunity, prospects and emoluments being offered to employee and expenditure being incurred by company, worth of the employment being offered for which an amount of penalty of Rs.3/ Lac is to be treated as worth by sureties. After all docs of the property are being collected from employee and this implies that owners of the property can be called for to declare them possessing assets to pay the company. Then the sureties have to declare “Movable Assets,if any Market Value” “Bankers Name and Address and Account No.” too.
--“1.1.To serve the Company for a period of 30 months inclusive of training and extendable to a further period of 6 months if required as per the terms and conditions of the Appointment Letter dated ----------------- issued by the Company and duly accepted by the said Employee.”
The language and terms mentioned in appointment letter on period being extendable to 6 months should be carefully studied.
--“ 1.2.To obey and to abide by the rules and regulations, service conditions and standing orders of the Company as may be in force from time to time”
COMPNAY HAS ACCEPTED THAT IT HAS ITS STANDING ORDERS OF THE COMPNAY IMPLYING CERTIFIED STANDING ORDFERS OF THE COMPANY AND STANDING ORDERS ARE EXTENDED TO EMPLOYEE AND HIS DESIGNATION.
Has the company supplied/circulated its standing orders to employees or has it displayed on notice board??? Employer should supply the certified copy of the standing orders to employee against a nominal fee say rs.10/.
The employee may request the goods offices of appointing authority, competent employee who has signed on the service agreement, MD, Chairman, and Company Secretary in writing under acknowledgment requesting that the above stated standing orders of the company at clause number 1.2of the “Service Agreement “ dated ….were not attached with service agreement and not supplied to him till date and to supply him a copy of standing orders of the company applicable as on dated…..{ of service agreement} and as on current date…….by redg. post and inform him if any fee is to be paid. Employee may also mention that a postage prepaid { as purchased from post Office} self addressed envelope bearing postage stamps of Rs……is enclosed for sending the standing orders of the company to him by redg. post.
If certified standing orders have not been framed model standing orders shall apply.
You have consulted a labor consultant. Your lawyer may opine that service agreement is in violation of the standing orders of the company.
Do the standing orders have a clause on creating service conditions and bond/service agreement/non-compete/non disclosure clause even in case of employees who are recruited as trainee/apprentice and include conditions like obtaining property documents?
Or in case of the employees, on whom the company incurs some expenses for training?
Has the company provided any training to you and has it incurred some expense on your training?
Do the standing orders contain the formulae and its rationale for calculating liquidated damages, period of service agreement, period of non-compete clause,non-disclosure.
You may also go thru SE Act applicable to your state. Your lawyer may opine that SE Act does not permit recovery of liquidated damages or otherwise and the contract created by company is contrary to the provisions of the act.
---“Employee shall not directly or indirectly engage in or carry on or be a part of the process of Technology in which the Employee was trained/engaged in at present and is being carried on by the Company and the Employee shall not serve in any capacity whatsoever or be associated with any person, firm or company carrying on similar business as that of the company either in India or abroad, for the remaining period of the said mandatory service period of 3 years and one more year after that.’
Is the technology mentioned is a proprietary technology? Has the company indeed provided any training to the employee? Do you work in such stream that you are privy to some sensitive and confidential information?
The clause on demographical/geo graphical locations that include India and Abroad seem to be unreasonable………..
--“but my company md told me he ll not give reliving either i have to stay more than one year or he will terminate from job .”
You may avoid termination. Record some incidences proving misconduct on part of company which may help you later. Take help of elders in the family, competent and experienced well wishers to structure and draft some representations { to be submitted under acknowledgment } which can help you later.
--“Can my company terminate me from job after sending notice latter from lawyer ??’
Who can stop an adamant and recalcitrant employer?
You should have some evidence to prove the order of termination was back and to get the termination revoked.
--“I am having mail prove from client manager and my manager . so can the company say that I am in bond period ?”
Keep these mails safely.
--The company has kept you in the category of exempt or non exempt employees for payment of Over Time? Has the company been making you work for over time and has it ever issued a written communication on working for extended hours/off days/holidays etc? Do you have record of clocked hours? Have you ever asked for payment of OT?
Kindly discuss it with your lawyer: “A job title shall not be determinative of the applicability of this exemption.” “Furthermore, when it comes to job descripttions that do not match duties, in most cases, the labor lawyer can access the performance evaluations which indicate what the worker actually did, versus what the job descripttion states they were “supposed to be doing.” This is important in determining whether an employee is exempt or not and therefore entitled California overtime pay or not”
“Many computer companies such as IBM, Sun Microsystems, Cisco and Intel, among others, have successfully been sued by California labor attorneys, netting millions of dollars for workers who were misclassified as not entitled to overtime pay.”
“Overtime claims are rising considerably and are not just restricted to one country. Earlier this year, India’s largest information technology services provider, Tata Consultancy Services became the latest to face litigation heat. A complaint filed by two former employees of TCS over unpaid wages was accepted by a US court as a class action lawsuit.
Six years ago, IT bellwether Infosys Technologies was embroiled in a similar situation. In 2006, Infosys was accused of violating California’s labour laws for allegedly failing to pay overtime wages to its immigrant employees. A Californian law firm was said to have warned the company of filing a class-action suit against it. However, the IT company settled the issue amicably, by agreeing to pay USD 26 million in total, towards the overtime payment it had announced earlier.”
https://www.shrmindia.org/knowledge-center/industrial-relations/statutory-compliances/employees-around-world-believe-employers-are-violating-overtime-rules
It is felt that you may obtain copies of all record, data and docs which may be of any kind of help to you while in employment. Although company is custodian of records it may not provide you copies once you have separated and may even not produce in a court of law.
You may find the attachments useful and may go thru some of the very informative threads initiated by employees like:
Forum Home > Labour & Service Law > Service > Clarification regarding service bond agreement breach
https://www.lawyersclubindia.com/forum/Re-Clarification-regarding-service-bond-agreement-breach-50619.asp
