Not getting experience/relieving letter from last company

companies does ask their employees to sign the bond, nda in order to safeguard their interest. but asking employee not to work in the same field for 3 years are not valid and unconstitutional.

 

if required you may send them a legal notice, if they do not co-operate with you for providing reliving and work experience letter.

 

Regards,

Advocate Rohit Dalmia

09324538481

Mumbai

. Hello, I would like to know regarding following: 1)What is NDA? 2) There is term in my offer letter that 'you cannot work with company dealing with same product, for minimum two years after leaving company'', is this legaly valid? 3) I have 3 months notice period, but I have given 1 months notice, but boss is refusing to relieve because of the workload. But I have pressure to join new compay. I have conveyed it via emai that, I cannot stay more that month, because I have to join new company. Can they refuse relieving, in this case?

hi NDA means NON DISCLOSURE AGREEMENT it says that an employee want to work has certain rules and regulations to be bond by

the organisation spends lots of infrastructure to complete the project in time for employee who are working onthe project which they acquire from other company.  so the employee who joins the organisation has minimum knowledge to complete without any infrastructure to do that project.  the organisation says that the cost to incure, training, provide infrastructure includes our knowledge the peirod when we worked if we suddenly leaves say even after notice period the organisation has to incur additional expenditure again to appoint a new employee and triane him for the project.  if the employee who leaves and join the same competitior then the previous employer has to suffer a lot to change the project or do something already u know about the project. 

in the same way to avoid such untoward incident organisation recurites hr department with the help of legal persons and make this NDA

kmahesh

Hello, I have not signed any separate agreement, but on my offer letter it is mentioned.

 I have 3 months notice period, but I have given 1 months notice, but boss is refusing to relieve because of the workload. But I have pressure to join new compay. I have conveyed it via emai that, I cannot stay more that month, because I have to join new company. Can they refuse relieving, in this case?

Mayuresh,

 

if you have paid leaves then you can adjust the same aginst your notice period and ask the company to waive off the balance notice period. otherwise if the appointment letter states that you need to pay salary in leiu of notice, then you could do the same.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

@Kamlesh

Mr. Rohit has given valuable advice. Kindly follow it.

It is felt that:

1. The NDA was imposed upon you during the course of your employment and you had no alternative but to sign it without being granted an opportunity to dwell, discuss, modify the terms and draft of NDA.
2. The NDA is for period of 2 years after the separation.
3. You have not been terminated for any misconduct. You have resigned.
4. The employer is not seeking any reasonable or partial restraint.

The employer can claim exclusive rights on time of employee during the course of employment, but in your case it after separation. It is felt that although courts have delivered judgments that such an imposition shall be void still employers and advisors formulate and impose such agreements and impose on hapless employee.

It is felt that you may show the NDA, appointment letter, employee rule book, service rule book, HR policy to a competent and experienced labor consultant/service lawyer and seek expert advice.

Kindly check and confirm if Industrial Employment Standing Orders Act is applicable to your industry and if your company has Certified Standing orders. Company should display standing orders on Notice board and circulate to employees or make these available against nominal charges.

If certified orders are not applicable Model standing orders shall apply. The NDA may be against and in violation of Standing orders.

 You may find the attachments useful.

 

In a given situation employee can invoke the Industrial Employment standing orders Act, Payment of Wages Act, SE Act, and ID Act as per explanation of employee under these Enactments or approach civil court. Designation alone does not decide employee is a workman or not.

 

 

@KumarDoab

 

Thanks for your valuable advice.

 

Can you please tell me how can i check that my previous company is coming under the Industrial Employment Standing Orders Act or not. Its is US based IT company in ahmedabad.  In my offer letter its not mentioned about any NDA. They had signed me during my tenure and they didnt give any copy. and that was in simple paper of company, Now they are telling that its on stamp paper!! but they are not giving copy of that.

I am trying to get experience letter but they are not responding me.

Can i tell them that i am going to file a case or i am going in media, news papers etc.

Because they are not responding in any sense.

My current company dont need any experience letter from previous company. but for my future and for my rights should i fight or not?

 

Please assist me!!

@ Kamlesh,

Now you have stated that you were employed with IT company.

It is felt that state of Gujarat has also granted exemption from provisions of Industrial Employment Standing Orders Act, some provisions of SE Act,ID Act.

Dept. of Labor of the state govt. is the source to obtain information desired by you.You may look into IT/ITES policy, and any other policy e.g. SEZ policy,MSE depending upon type of your company.

Labor Consultants/Service Lawyers praticising in Gujarat may also have it.

Why would any employee sign any document without obtaining copy on the spot and certified copy later of the document signed by employee?

You should obtain experience/service certificate,relieving letter.

Hello,

Below is the brief of notice which i got from my company. and within 7 days it need to respond but i am very much confuse what to do it. Please suggest me. it has been 20 days now. Can we take action or not.

Company registered under company act 1956.

also in notice they mentioned below points.

1. you had also signed the insurance portability and accountability act (HIPPA) and accepted the confidentiality caluses contained therein.

2. ther proccess and the systems of my cliente are of a very confidential nature and cant be shared or disclosed directly or indirectly to any as otherwise my client will be put to heavy financial penalites.

3. During the employment with my client, you had signed a confidentiality agreement on 1st oct, 2010 with my client and as per the clause No. 9 of the said agreement you are under obligation not to join any competitor or not to do smilar business after leaving the employment of my client company for a period of one year. However, you have resigned/left my client company and have joined a company. which is in siimliar as of my client and you said action of joining the competitor of my client is in breach of agreement you have signed with my client dated 1st oct, 2010.



Under the above circumstance you are hereby call upon to make necesssary arrangement to compensate my client - xxxxxxxxx india pvt ltd. the financial losses which my client has suffered due to your joining the competitor company within 7 days from reciepit of this notics. falling which we shall be constrained to initiate legal proceedings against you.

Advocate!!!

 

 

Please suggest what to do ?

@ Kamlesh,

It is felt that you may show the NDA, appointment letter, employee rule book, service rule book, HR policy to a competent and experienced labor consultant/service lawyer having expertise in such matters and seek expert advice. Let your lawyer  examine each detail and arrange to issue fitting reply to the legal notice.

 

The attached article is informative.

Conclusion-

Negative covenant which restricts the employee beyond the period of employment are considered to be unreasonable. The exception being extended to confidential information and non-solicitation agreement to a reasonable period of time are valid and clauses like "garden leave" does not seem to protect the employer when it comes to Court of law; as they are considered to be agreement in restraint of trade and does not serve the purpose for which it was intended. Therefore, it requires the mind of an artist to draft a negative clause and the foresight of a prophet to view the consequences of such a clause which has now become absolutely imperative considering the decisions made by the India Courts.

You may go they the attachment:

 

 

Polaris Software Lab. Limited ... vs Suren Khiwadkar on 8 September, 2003

3. In all these applications, we are concerned with the common points:

Is the covenant embodied in the Appointment and Undertaking can be enforced during the post service period and after the termination of services of the defendants:

Since this common point for determination arises in all the. applications, all the applications were heard together and disposed of by this Common Order.

“In my view, the relief sought for by the plaintiff Company is obscure and unclear. What is the nature of information which the defendants have gained and what part of information that the defendants are attempting to divulge is unclear. The confidentiality and the information which a person has gained in his mind is purely subjective and cannot be decided by the objective assessment.”

 

19. The Agreement of Undertaking and the confidential Agreement, Non-disclosure Agreement is valid and could survive only during the subsistence of the contract and course of employment; The distinction between the restraints imposed by a contract operative during the subsistence of the contract of employment and those operative after the termination of service is of fundamental character. The purpose, incidents and consequences of the two types of restraints need to be borne in mind before proceeding to consider the submissions made by the counsel for the plaintiff who seeks for a restraint as claimed in the applications.

Thus the judgment of the Supreme Court is emphatic in its conclusion, that in India, the restraints are operative only during the subsistence of the contract and the restraints could be valid only during the period of contract.

https://www.lawyersclubindia.com/articles/Non-Compete-Clauses-and-The-Indian-Contract-Act-1972-4621.asp

The article at the above link at LCI by Apurva Thakur is very informative and contains reference of lots of court judgements.

 

Yu may go thru the attachment:

 

Bombay High Court

Vfs Global Services Private ... vs Mr. Suprit Roy on 10 December, 2007

 

 

The legal position was summarised as follows:

The legal position with regard to post-contractual covenants or restrictions has been consistent, unchanging and completely settled in our country. The legal position clearly crystallised in our country is that while construing the provisions of Section 27 of the Contract Act, neither the test of reasonableness nor the principle of restrain being partial is applicable, unless it falls within express exception engrafted in Section 27.

 

the prayer therein which seeks an injunction from soliciting customers and employees and from interacting with UK Visas or from using any contact made by the Defendant with embassies and consulates cannot be granted. The relief as claimed is vague and shall accordingly stand refused. The Defendant has agreed to complete all formalities for handover of duties.

Dear Kamlesh,

 

You need not worry about it. but the notice need to be responded at the earliest.

 

You may call me on the below given number.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Hi,

I am not getting the relieving letter from my last company.i worked with them for 4 years and due to health issues i was on leaves and later on i got the news of pregnany due to which i had to quit and i was not able to serve the notice period.but my salary for 37 days was not paid and when i approached them for relieving letter they are neither giving me the letter nor the salary.and when i send the email asking for full and final settlement letter i did not get any response.Please help what to do..

@ Vinayak,

 

Always initiate a new thread.

You were eligible for Maternity Benefit of 12 weeks + 1 month if you suffered sickness due to pregnancy delivery+ Maternity Bonus of Rs.3500, if you had not resigned.

If you have not served notice period company would be pleased to adjust notice pay in FNF statement.

It would compute payables to you e.g; salary for 37 days, Bonus (if eligible), leave encashment etc………………….and after adjustment of notice pay if any payables are still to be paid to you, it has to pay and if any amounts are to be paid by you it shall demand it from you.

Service certificate has to be issued to all employees.

Company is probably maintaining studied silence as it might have decided to show that you have offended it by causing abrupt termination.

For Notice period and notice pay only appointment letter should not be looked into.

If standing orders (certified/Model) are applicable to the establishment and extended to your designation then notice period stated in standing orders shall prevail upon appointment letter.

If standing orders are applicable but not certified then Model Standing Orders shall apply.

As per model standing Orders Notice period applicable during probation is NIL and after confirmation of service: 1 month.

You may refer to Model Standing Orders; 13, 14 16, 17, 18……………

You may find another thread relevant at:

 

https://www.lawyersclubindia.com/forum/Company-not-accepting-notice-period-97398.asp#.UvuGCEeBmXU

You may show job advertisement, job application, interview call letter, offer letter, standing orders applicable to the establishment (Certified/Model), appointment letter, HR policy, service rules, and your KRA’s, and detail of nature of duties etc……………….resignation to your labor consultant/service lawyer.

The lawyer that has analyzed the documents and inputs may opine that the employee is covered as ‘Workman’ as in ID Act, “Employee’ as in Shops and Commercial Establishments Act.

 

 

 

Hi,

So what should i be doing in order to get the relieving letter or the salary.either one of them.as they are not responding to my emails.as i have send a couple of emails and i did messaged the concern person on his mobile phone.still i havent got any reply.Kindly help.

And i just wanted to know am i eligible to get the relieving letter if they have taken my one months pay as the notice period.

Thanks.