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Omendra Sachan (Consultant)     27 January 2014

Employement agreement issue

Hello!

I switched my job on the 16th December of last year. A couple of days back I I received a legal notice from my ex-employer stating that I have joined their direct competitor and I should disassociate from the current employment. I workd in my previuos company for around 7 years and these terms and conditions were laid down recently. In fact I signed the addendum to employment (that i cannot join a direct competitor for a period of one year)after putting down my papers. I also explained them briefly that how my new company is not a competitor to them and how different my role would be. But in the legal notice they have mentioned as if they were not aware that where I would be joining.

Being my first job, i tried to have a smooth switch and i served 2 months notice period.

I am planning to reply to their legal notice. Although I do not want to sour my relationship with my previous employer, but is it advisable to mention in the reply that:

1. The company had financial issues (my bank statement can show that i was not regularly paid, sometimes even for two months there were no salary)

2. After almost 50 day, till today i have recieved no full and final settlement, no PF, no Gratuity.

3. I was kind-of forced to sign the addendum to employment just before my relieving date

4. My salary for the month of December (15 days) has not been paid till date

Most importantly, shall i discuss all this with my current employer???

Can you all suggest the best lawyer (in Delhi or Gurgaon) for this kind of issue?

 

Regards,

Omendra



Learning

 3 Replies

Avadhesh Paliwal (advocate)     28 January 2014

you can look on this website for best advocate for labour..please dont reply above mention ......please hire a advocate for that

1 Like

Kumar Doab (FIN)     29 January 2014

Indian courts have consistently been declining to enforce 'Non Compete Clauses/agreements"  post termination of employment as is it violates the fundamental right to earn livelihood and hits clauses of Indian Contracts Act.

Moreover in your case the agreement was extracted by coercion/force as posted by you.

 

PF; 

It is always better to keep the PF a/regular and be eligible for pension and other benefits.

 

The declinature to attest PF forms is offence.

The company has to attest the PF forms and submit to concerned PF office and supply the acknowledgment issued by PF office to employee.

If you want to transfer you may submit PF transfer forms to next employer  under proper acknowledgment.

 

If you want to withdraw you may submit PF transfer forms to past employer  under proper acknowledgment, preferably by redg. post and demand to supply you the PF a/c slips/passbook of whole tenure of service and acknowledgment issued by PF office for employee to you by redg. post only.

 

PF can't be attached even by a decree from court.

 

If the company does not comply then you may lodge complaint with RPFC in nearest PF office under proper acknowledgment by attaching POD of submission of PF forms to company and request to depute PF Inspector and penalize the company. You can also submit PF forms to RPFC attested by any of the authorities specified by EPFO e.g; BM of your bank and RPFC shall help you to get you the payment of PF in your bank a/c.

 

 

Gratuity: The company is under obligation to supply the 'Notice of Determination of Gratuity' to employee and pay the Gratuity within 1 month from DOL.

You may submit FormI with covering letter stating that 'Notice of Determination of Gratuity' has not been supplied to you and same should be supplied alongwith acknowledgment of FormI attached herewith by redg. post only.

You may also demand certified copy of payment certificate and copy of cheque issued by Gratuity fund manager e.g LIC.

The company has to release the whole amount received from LIC without keeping a single penny from it even if the amount of Gratuity payable by calculation formulae is less than amount released by LIC.

 

You can cite all issues faced by your during employment to the company and demand to withdraw the notice.

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with all docs and records and let your lawyer structure your representations.

 

 

 

 

 

1 Like

Omendra Sachan (Consultant)     29 January 2014

Thanks Kumar!! That was really very helpful!


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