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Harish Kumar (Owner)     11 November 2012

Dispute with employer

hello,

i was working with a pvt ltd company in which i had signed an ageement (not registered with any competent authority) at the time of joining on 01.09.2008 which was valid for three years till 31.8.2011. i resigned on 30.11.2011 after expiry of such greement and got releiving on 19.12.2011. In that agreement there was a condition to not to join the competition after three years of termination of that agreement. After eight months, company has filed a criminal case directly in the court (complaint case) against me under section 420, 408 ipc and 66, 72 it act as i am doing consultancy to its competitor. They have alleged that i have stolen data from the computer given to me. Now by the help of illegal money, they want to issue NBW against me so that i can be detained by police. I have not received any summon till date but got an information from my resources that case has been filed.

Please advise in this situation what can i do?

Regards

Harish Bajaj



Learning

 3 Replies

H. S. Thukral (Lawyer)     11 November 2012

since it is a complaint case, the Magistrate has to take cognizance of the offence and then issue a process. NBW can not be issued straightway. When you are summoned, apply for bail.  

Kumar Doab (FIN)     11 November 2012

Learned Mr. Thukral has given valuable advice. Kindly follow it.

First of all apply your resources and obtain the copy of the private complaint and get it examined by your lawyer as ap. You should not take a chance with such employer.

Your lawyer shall handle the case and defend you.

It is believed that you have not downloaded/stolen any data and what you have posted is truthful and correct. You need to successfully counter the charge of this employer. You should express full facts to your lawyer and provide all docs, details, records. If you are able to prove that the employer and individuals in the company have filed a false complaint as courts in India from High courts to Supreme Court have delivered judgments time and again to decline to impose such unreasonable restraint as written by employers in agreements this employer of wicked mindset has conceived to implicate the hapless employee in false criminal complaint and finish him and his employability. Thus you can catch them by their nose and plead to the court to award exemplary punishment.

 

The bone of contention may be that you have joined a competitor.

Some companies have the programmes by which the download, forwarded, copied, printed information can be found and some companies have CCTV coverage. Be sure that there is no foolproof evidence against you and you can successfully counter the contentions of this employer.

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

Has this employer issued any communication to you verbally or any notice/legal notice to you mentioning that you have taken away data from the computers of the company?

You have resigned by tendering and serving notice of resignation to the company, and company has relieved you.

Did you handover the charge under acknowledgment and do you have acknowledgment of submission of company property? Has the company issued FNF statement and paid FNF dues?

When did the company block access to computers and records after tendering notice of resignation?

The point is that from the date of notice of resignation how much time was taken by the company to conclude the exit process and after how much time company realized that you have stolen the data from the computers of the company. Professionally managed companies may block access to terminals during the exit process. There are employers who ask the employee not to attend the office regularly during notice period and give logic that it is to avoid the stress during the notice period. The idea is to block the access to sensitive information and records.

The employer can claim exclusive rights on time of employee during the course of employment, but in your case it is 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.

In your case the zealous and vindictive employer has crossed all limits and has proceeded to file criminal charges and get the employee arrested, and separate him from next employer and block the source of livelihood. This employer can scoop down to such low levels. It is felt that such employer {individuals} are not fit to be left to loose around in a civilized society.

In the agreement which may be a NDA/service agreement/bond etc, employer has not seeking any reasonable or partial restraint, as the employer has got the employee sign on the dotted line for a period of 3 long years. 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. You have not been terminated for any misconduct. You have resigned. 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 carefully go thru the attachments, and you may find these informative. However your lawyer shall choose the judgements to be quoted.

----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.

----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.

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.

 

 

 

 

 


Attached File : 843801858 vfs global services private ... vs mr. suprit roy on 10 december, 2007.pdf, 843801858 polaris software lab. limited ... vs suren khiwadkar on 8 september, 2003.pdf, 843801858 background paper.pdf downloaded: 185 times

Kumar Doab (FIN)     11 November 2012

Attached.


Attached File : 843801858 417759075 validity of employment bonds.pdf downloaded: 89 times

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