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Indresh Mishra (Manager)     19 December 2011

Legal notice & full and final settlement

Hi,

I joined a telecom company in Jul'09, and left it in Feb'10. Before joining I was given a offer letter with nominal details on it including Designation, Salary, DOJ etc, and a Appointment Letter was given after joining with detailed T&C, in addition they got me signed a confidentially agreement, of which they shared no copy with me. I read it once it was related to not sharing any confidential/business info/assets etc to compettitors etc. Now once I left that company one find day I received a legal notice claiming that  "I have violated the terms and conditions of Letter of Appointment & Confidentiality Agreement signed with the company and I have been involved in the unethical act."

I have responded to this letter giving the background and stating that I have not done any of them. Company's HR is not completing my full and final process, not giving my due money, while contacted they say you shall get in touch with the legal firm (representing company) , and while I contact the legal firm they say you shall get in touch with legal responsible person in the company itself. 

My problem - F&F not getting clear, they aint even sharing my form-16, pf account details, and not withdrawing the leagl notice/closing the case, nor responding to my calls/emails.

I have my relieving letter, resignation letter, appointment letter, offer letter, reply to leagl notice, and an apology letter (which they wanted me to send to them).

Pls suggest and guide in the legal context how this can be dealt with.

Rgds, IM

 



Learning

 11 Replies

Kumar Doab (FIN)     19 December 2011

You have made a blunder by signing a document and not keeping a copy of it, and then submitting an apology letter. You must have consulted elders in the family, competent and experienced well wishers, trained legal mind/lawyer/law firm in advance.

What was your designation and nature of duties in this telecom company? Were you guardian of some sensitive information and records in this company? Have you been charged for having taken out some sensitive documents, files? Which companies you have joined after leaving this company, and is it a near competitor? What is your current designation etc? Company can not restrict you to earn your livelihood.

It shall be appropriate to consult a competent and experienced service lawyer with all records, and communicate under expert guidance only.

Many a time’s companies flaunt such agreements to block the payment of wages to employees and/or extort the hard earned monies from employees. An ill informed employee falls into the legal traps and commits blunder. The employee should exercise enough caution and must consult before jumping to sign on the dotted line, and must keep copy of all docs on which he /she has signed.

Now you should build favorable record.

You have rightly observed that company did not declare that you shall be required to sign a confidentiality agreement. Moreover confidentiality was not part of the appointment letter and hence becomes an additional document, as company mentioned in offer letter that appointment letter shall be issued later. Having resigned from the previous job candidate has no option but to sign loads of all docs company put up to sign. However employee has the right to examine the docs, and can ask for a few days even. Company can circulate additional terms and conditions later after joining also but the employee has the option to submit humble dissent or decline to accept.

In your case you should submit that despite the fact you have been clamoring to get the certified copy of this confidentiality agreement by in person representations, but the same was never supplied to you.

You may submit a gentle representation in writing under proper acknowledgment addressed to good offices of your appointing authority, MD, CEO, Head-HR, Company Secretary and mention that company got confidentiality agreement, in addition to appointment letter, signed from you without granting an opportunity to get these examined properly and narrate the incidents in detail mentioning date, phone numbers, name/designation/dept. of concerned personnel/company name/address to whom you represented and their response that neither company nor their legal representative has supplied you the so called confidentiality agreement and the proofs confirming how you have violated the so called agreement and on the pretext of some imaginary violation payment of your earned wages has been willfully blocked by the company causing you financial and personal hardships. Company forced you to sign a drafted and printed apology letter. You may request the good offices to grant an appointment to you within next 2 days and meet you in person to clear your position, and provide you relief and supply by regd. post the payment of earned wages at once along with F&F statement, form-16, pf account details etc so as to reach you within say 7 days or you shall be constrained to lodge a complaint with lawful authority at the cost and consequences of the company. If the company is not supplying you, your PF number, and if you have demanded it in writing, company is committing an offence. You must demand PF accumulation reports in original. You must mention that you have not affected the business interest of the company and you are simply earning your livelihood by your education and experience.

If you are not able to resolve the situation on your own, you may have to proceed legally.

You are within your rights to lodge a complaint with o/o wages inspector.

amit kapoor (proprietor)     20 December 2011

What can be done to get relieved early if company is adamant to make you serve notice period.

Kumar Doab (FIN)     20 December 2011

In today’s business environment employee needs to develop and apply exceptional reasoning, negotiation, persistence, persuasion, rapport building skills.

Tender the notice pay and seperate.

Kindly check

https://www.lawyersclubindia.com/forum/details.asp?mod_id=48742&offset=1

Indresh Mishra (Manager)     20 December 2011

I was employed as Senior Manager - Services with this company having access to no sensative information. I was an important resource who joined them from a MNC and had a lot of inputs to give them while they setup / evolve their business, and while I saw that things are not moving as it wa shown / discussed with me, and I am failing to have any learnings, I decided to quit, which was not liked by the owner of the company itself, for sure I shared personal / domestic reason while moving, however his any offer (tengible/intengible) couldnt stop me. Looking at this scenario in my view the owner's (who is also MD/CEO to company) ego got hurt, and he had only one option to further trouble me is with this legal notice, stop my due payments. Legal Notice Broadly says -

As per the T&C of appointment letter I was suppose to adhere to "Anti Competitive Clause" and Also My action of leaving this organization constitute to breach of "Confidentially Undertaking and NDA". They say it has come to our knowldege that after my resignation from the client company - 

 

1.I have joined a competitor company carrying on the same or similar business of the company.
2.I have engaged, either directly or indirectly, in the same and similar business of the company.
3.I am disclosing / shared / used confidential information and data for the benefit of other organization, my present employment & business.
4. I have poached employees of VNL to join with me or to work in my current company. 

None of the above is true, and they can never prove it. Apology letter I sent was very generic and in my own format. 

Now , my F&F is pending at their end (salary of the notice period served, medical/LTA claims, leave enchashments, one time payout for KRA achivements), and form-16 and PF related details. I have marked my request for F&F clearance to HR Head, CEO, COO and MD of the company and also to the Legal Firm who sent me the notice on their behalf. 

I left them in Feb-10, they sent me notice in Jul'10, I replied back in Dec'10 (there was no time limit mentioned in notice to respond back).

Pls guide further. 

Rgds,IM

 

Kumar Doab (FIN)     20 December 2011

You could have mentioned the actual reasons of your discomfort due to lapses at the end of the company to the superiors before separating, and thus built a record.

You have posted "owner's (who is also MD/CEO to company) ego got hurt, and he had only one option to further trouble me is with this legal notice, stop my due payments." and "None of the above is true, and they can never prove it. Apology letter I sent was very generic and in my own format. "

You have also mentioned that you deserve “one time payout for KRA achievements” implying you have been a performer.

But the treatment given by company is shabby and below standards of ethics.

You may meet the wages inspector and file a complaint, for unpaid wages and surprise the company. You may make this MD/CEO/COO a party. You should match their wits now.

You may approach a competent and experienced service lawyer with all records, and give inputs and leave the matter with your able lawyer and focus on your current and future ventures. Legal recourse shall take some time.

Indresh Mishra (Manager)     20 December 2011

If I would have mentioned my actual reasons, knowing the MD's approach/ past track records, I would have not been allowed to go out, and my relieving letter would have not been issued. 

Can u thro some light on legal applicability of "Anti Competitive Clause", it said - I am prohibited for a period fo three years, from joining employement or otherwise asscoaiting myself in any capacity whatsoever, inlcuding but not limited to contractual relationship, with the companies in the areas of business substaintially in competition with this company or dealing in product/services similar to the ones dealt by this company. 

They direct me to resign from my current company, stop disclosing properietery info, and tender an unconditional apology letter to the company, failing which company may take legal actions.

So that I have sent a generic apology letter, which says - 

"Dear Sir (MD & CEO),
How are you? Hope you are in the best of your health and doing great in all your ventures.
I have worked for your company under your kind guidance and support, for the better part of my working years and I know you can vouch for my professionalism and work attitude. But I feel the incident of my leaving your company and later not contacting you in due time has tarnished my good image and reputation in your eyes.
In this regard, I want to convey my sincerest apology to you. I know that it might have badly shaken the immense faith you had in me. But at this juncture I wish to convey the fact that it was not intentional.  I am writing this letter to you as a sign of my pure intentions and the kind of regard and respect I have for you.
Being fully aware of how busy you might be with the various business endeavors, I still request and look forward to for a small meeting with you in order to tie the loose ends.
Thank you very much."

Can u pls comment on this letter as well as on the anti comp cluase as mentioned above. 

Indresh Mishra (Manager)     20 December 2011

Also, pls comment a case like this can be taken up legally against the employer in which act ?

Kumar Doab (FIN)     20 December 2011

You had joined from a MNC and were selected because you could benefit the company with your qualification, experience, knowledge, skill and you seem to have done it, and probably have record of achieving your KRA's.

Thus you have generated revenues and profit with your services. You have not caused loss.

This company does not incorporate any clause or any rule that they shall not hire from competitor companies, but incorporate the clause in the appointment letter, confidentiality agreement of all employees hired by them. What do they expect the outgoing employee to do for a living: "sell bhajiya" which they do not manufacture and sell and then for a period 3 long years. Do you think that contention of the company is sustainable?

Your lawyer can slap SC judgments on the company.

The apology letter demanded from you was a calculated move to keep in your personnel file and burden you with it and flaunt it in case you take a legal recourse. Your lawyer shall have a strategy to counter this also.

You have sought an appointment and probably it has not been granted to you by this MD.

There demand that you resign from your venture is unethical and illegal. It is believed all these demand are verbal.. If you are able to record all representations (audio/visual) it may help you at appropriate time in appropriate forum. If you can apply your rapport, and reasoning, negotiation, persuasion, persistence skills to the exceptional levels and resolve the matter in your favor and for your benefit without losing any further this shall be the quickest and easiest solution. You should not prolong it for infinite time since there may be a limitation period of three years.

It shall be appropriate to consult a competent and experienced lawyer/law firm and draw a strategy and proceed further under expert advice

Kumar Doab (FIN)     20 December 2011

You may visit the link:

https://www.lawyersclubindia.com/forum/Re-Bondbreakage-in-it-company-44955.asp

 

and look into the attchment.


Attached File : 60926 235657 15 negative covenant in contract of employment.pdf downloaded: 220 times

Indresh Mishra (Manager)     20 December 2011

Leagl notice direct me to resign from my current company, stop disclosing properietery info, and tender an unconditional apology letter to the company, failing which company may take legal actions. Can u share which Labour Act covers such type of cases? 

Kumar Doab (FIN)     20 December 2011

Company seems to be stepping on your toes. How can they ask you to give up your employment and source of livelihood? Are you willing to leave this current job and be out of your trade of expertise for next 3 years?

Demand that company should supply you this confidentiality agreement which has not been supplied to you, say within next 7 days by regd. Post only.

Designation alone does not determine an employee is a workman or not.

Instead of delaying any more approach a competent and experienced service lawyer, with all records and let your lawyer draft and structure all communications, to be sent to the company. If despite all your efforts the matter is not resolved amicably, let your lawyer take up and then you can focus on your current venture.  

Which was your last location in this company?


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