Non compete clause
deepak
(Querist) 21 April 2015
This query is : Resolved
I was working as Associate Professor in a management college in Gurgaon for over 10 years. In Jaunary 2015, I resigned from the services and took up employment in a different management institute as Associate Prof from Feb 2015. Till date my FnF has not been done. Yesterday, I received attached e-mail saying that I have violated the non compete clause enshrined in the 'Employment Handbook'. My FnF is being withheld and I am threatened with termination and that my current employer will also be served with a copy of termination letter.
I never signed any non compete agreement/ contract with the institute, neither did I ask for my notice period to be waived off in my resignation letter. Even the no-compete clause has been surreptitiously inserted in the Handbook 2-3 years back. There has been no formal communication about it to the employees. Several employees have either quit voluntarily or been fired from the job over several years and they joined other institutes. As I understand, I am the only one who has been singled out for this treatment.
Please advise my next course of action.
Kumar Doab
(Expert) 21 April 2015
1. If you are in the possession of so called 'Employee handbook' then attach the copy and decline that any such clause was ever communicated to you and was never accepted by you.
2. Is it stated in appointment letter issued to you that your service conditions shall be governed by 'Employee handbook'?
If no make a mention.
3. Has the threat of termination been made in writing? Or do you have any evidence?
Since the threat has been made you may approach an able labor Law Consultant/Service matters lawyer/Law firm and spend quality time with your lawyer.
Your counsel may opine that you may move court to stay the termination...ASAP.
4. Do you have the copy, acknowledgment,acceptance,POD of resignation letter, handover of charge/NOC/NDC,service certificate etc?
If yes termination may be a bad order.
5. Indian Courts of Law have consistently been declining to enforce Non Compete clauses/agreement, post termination of employment.... as it hits the right to earn livelihood and clauses of Indian Contract Act.
6.The FnF wages should be paid max. within usual pay day.
You may approach various Teachers/Trade Unions, State Education Authority, Univ. with which the college is affiliated.
Don't waste time and discuss with an able lawyer in person ASAP.
Rajendra K Goyal
(Expert) 22 April 2015
Well advised, agrr with the expert Kumar Doab.
ajay sethi
(Expert) 22 April 2015
issue legal notice for payment of your dues . non compete clauses have been held to be void as it is restraint of trade under section 27 of indian contract act
deepak
(Querist) 22 April 2015
Thank you for the advice.
If I go for legal action in getting my dues, would this be a long drawn process or it can be resolved quickly?
Kumar Doab
(Expert) 22 April 2015
Your counsel that has examined all concerned/relevant documents,merits,remedies,forum can advice you further.
T. Kalaiselvan, Advocate
(Expert) 30 April 2015
The legal course of action may take its own time which cannot be predicted for obvious reasons. that does not means you will remain idle without claiming your rights. Initiate action as necessary.
