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Sandhya (PM)     01 August 2013

Need help to nullify the bond signed with my company reg h1b

Hi,

I work for a software organization and I have signed an agreement with them starting March 22, 2013 that I will serve their US office by travelling in H1B visa for 2 years continuously & any kind of violation or disagreement will end in paying the expenses incurred by the company for visa processing, relocation charges etc.

I have not yet attended the visa interview & have not got the visa stamping yet. I'm currently pregnant & cannot travel in the coming months. I'm not willing to travel in the near future also since I will have a new born in addition to a 3 yr old.

Please help me get out of this situation without having to pay the expenses.



 11 Replies

Adv. Nikhil Seth (legal consultant (9867264707))     01 August 2013

in your agreement kindly see clause where it states commencing of this agreement as well as if  somewhere its staing that you are to travel at date as mentioned and if that date has lapse you have not travelled or your travelling has not commenced in such scenarios you shall be at liberty to terminate the agreement . Further kindly see termination  clause in your agreement . it shall give you better picture . if possible throw more details of your agreement about termination clause and commencing clause . 

Regards ,

Adv. NIKHIL SETH 

Mumbai 

1 Like

Kumar Doab (FIN)     01 August 2013

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

 You are on family way and have a genuine reason. Cite family responsibilities.

It shall be appropriate to show the agreement signed by you to a competent and experienced labor consultant/service lawyer, give inputs in person, and proceed under expert advice of your lawyer.

 

If company has not parted the certified copy with you, raise a demand with good offices clearly stating that your signatures were obtained on the agreement but the certified copy has not been supplied to you till date and same be supplied immediately by redg. post.

 

Do not remain entangled with line managers/HR only.

 

You may submit as ap the information and copies of the doctor’s Rx confirming your pregnancy and expected date of delivery to good offices of appointing authority, MD, company personnel that has signed on the agreement, and ask to supply you the requisite forms by redg. post, if any to be submitted by you.

 

If there are medical issues/complications due to pregnancy e.g. low back pain etc request your doctor to narrate these on Rx and advice medication/bed rest etc………………

 Keep all the lab tests, diagnostic reports Rx …………………..carefully and keep on submitting ht e copies to good offices…………………

 

Fine tune your representations as advised by your lawyer and as deemed fit at your end.

 

There are many threads on Maternity Benefit Act, you may go thru these e.g;

 

https://www.lawyersclubindia.com/forum/Resignation-after-maternity-leave-79271.asp#.UahsGdKAqWN

 

https://www.lawyersclubindia.com/forum/Maternity-act-74586.asp#.UXPE3qKAqWM

 

https://www.lawyersclubindia.com/forum/Forced-to-resign-when-enquired-about-maternity-leaves-75754.asp#.UXPC0qKAqWM

https://www.lawyersclubindia.com/forum/Maternity-leave-salary-76258.asp#.UXPDG6KAqWM

https://www.lawyersclubindia.com/forum/Meternity-leave-75127.asp#.UXPEpaKAqWM

 

 

https://www.lawyersclubindia.com/forum/Voluntary-abadonment-from-employment-82097.asp#.Ua8iV9KAqWO

1 Like

Sandhya (PM)     05 August 2013

Thank you for the valuable responses.

Have included below the clauses that might help. There is no termination clause as such in the agreement.

This AGREEMENT is made as of this 22-Mar-13.

Term: This Agreement shall commence on the date first written above and shall continue until such time as 

the employee completes 24 months of continued service from the date of joining.

 

Invalidity: The terms of this Agreement shall be severable so that if any term, clause, or provision hereof 

shall be deemed invalid or unenforceable for any reason by a court of 

competent jurisdiction, such invalidity or unenforceability shall not affect the remaining terms, clauses and 

provisions hereof, the parties intending that if any such term, clause or provision were held to be invalid 

prior to the execution hereof, they would have executed an agreement containing the remaining terms, 

clauses and provisions of this Agreement.

 

Waiver of Breach: The waiver by either party hereto of any breach of the terms and conditions hereof will 

not be considered a modification of any provision, nor shall such a waiver act to bar the enforcement of any 

subsequent breach.

 

Hope this helps.

Sandhya (PM)     05 August 2013

Recently, my company's name and logo was changed but the contract carries the old name and logo. Is it still valid then?

I have 2 other questions.

1.What will happen if I decide to quit the company post delivery to take care of my children? i.e 2 years bond period will not be served in this case neither onsite or offshore. Will I be asked for repayment of expenses? If I'm not willing to pay the sum, what kind of actions/consequences will I face?

2.What if I continue working in India post maternity leave but do not travel on H1B until the bond period? Is there a chance I still require to repay the expenses given that I did not travel as per the agreement. 

Please clarify.

Adv k . mahesh (advocate)     05 August 2013

ms be happy you can opt leave and then take permission to extend leave and even though you want to leave the job then go to office and talk to higher authorities about the medical leave and leave the job

as you are not went to immigration check so no problem the agreement says only to serve for h1b visa not here and the process yet not started 

go thruogh the agreement once or consult a local lawyer and take his advice 

Kumar Doab (FIN)     05 August 2013

Such matters are best resolved by applying goodwill, rapport, exceptional levels of persuasion, persistence, reasoning, negotiation skills. Employee should develop these skills. These skills can be acquired.

 

Employee should also be tactful.

 

 

You have posted that:

 

----------“I'm currently pregnant & cannot travel in the coming months.” “I'm not willing to travel in the near future also since I will have a new born in addition to a 3 yr old.”

 

It is a valid reason. You may approach good offices. Good offices can apply discretion and grant waiver. The grant of waiver is also incorporated in the agreement posted by you.

The waiver can be granted by good offices at their pleasure or by your persuasion from the total agreement, part of it, expenses, traveling and you may be allowed to remain onshore after delivery……………………….

 

 

At the same time take care and do not drop hints that you are contemplating to go on long leave and separate later.

 

You may get any disease/disorder, its reports, treatment due to pregnancy and delivery…..etc recorded on the Rx of the doctor, also in your file and keep on submitting the info and copies along with leave application by redg. post, under acknowledgment to good offices.

 

Does your company allow to club parental leave or any other kind of leave with Maternity Leave? If yes you may apply for it and get the sanction.

 

 

 

There are enough publications to indicate that employer and its line managers, HR personnel get apprehensive that pregnant women employee may proceed on long leave and separate and they can apply many tactics to ease the employee out without any adverse effect on employer although employee may get affected adversely.

 

There are certain situations and termination which are viewed as ‘Beneficial Termination’ by employer.

 

Termination during sickness and pregnancy may get termed as bad order…………………

 

 

--------You have signed the agreement by your free will. Contracts are valid.

 

 

 

A question arises: What is the ground and consideration for signing this service agreement?

 

Apparently you had signed the agreement when you were short listed for the Visa………………..?

 

 

If the agreement was signed in consideration for the expenses to be incurred for this Visa then if the company agrees to keep you Onsite the agreement may also loose its sanctity and reasonableness, although the company may still scream that it has incurred some expenses and it has to look for alternatives/replacement, alternatives are not available………………….it has suffered loss. If the matter lands up in court of law, court shall decide the reasonableness and reasonable amounts……………………….

 

 

However may implore the good offices to tender payment of expenses (logically actual expenses against original bills) incurred by company if any, to date from the date of signing the agreement……………………………………..If the matter lands up in the court of law the court may take such a view………………………………….This is only hypothetical and can not be ascertained as a definite possibility for the views of the court of law.

 

Invalidity: The company has used words and phrases to imply that everything stated in the agreement is legal and lawful until it  is declared illegal and unlawful by a court of law…………………….

 

 

The court of law may feel it to be pleased to term such contentions unconscionable………………..

 

 

 

Such language does succeed in exerting pressure on employee as employees are usually fearsome, ill informed, apprehensive and unwilling to seek legal opinion as they conceive that they may get branded as litigant…………………………………….

 

Employer do take advantage of the situation………………..

 

 

 

 

You may go thru the Maternity Benefit Act thoroughly and its provision……………………………..like……………mentioned below

 

 

Fine tune your representations as advised by your lawyer and as deemed fit at your end.

 

 

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer in person, show all docs and records, give inputs, under stand the merits, and proceed under expert advice of your lawyer. Let your lawyer that has examined the merits, structure and draft your representations and let his opinion be final on all points raised by you.

 

 

 

A pregnant woman can also request her employer not to give her any work which is of an arduous nature or which involves long hours of standing, etc. during the period of one month immediately preceding the period of six weeks, before the date of her expected delivery or any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence, under the Act. On such a request being made by her, the employer shall not give her such work during such period. {Section 4}

 

 

A woman suffering from illness arising out of pregnancy delivery, premature birth of child or miscarriage shall be entitled, in addition to the period of absence allowed to her under the provisions of the Act, to leave with wages at the rate of maternity benefit for a maximum period of one month. {Section 10}


Attached File : 957561213 maternity benefit act 1961.pdf downloaded: 66 times

Kumar Doab (FIN)     06 August 2013

You may find the following useful:

 

https://www.indiankanoon.org/doc/56169730/

Madras High Court

The Management vs The Plantation Officer on 30 January, 2012

 

The State should make provision for maternity relief to women workers as it was one of directive principles of State policy enshrined in the Constitution, the Madras High Court has held.

Dismissing a writ petition by management of Glem Brook Estate, Yercaud, Salem district challenging an order dated May 31, 2007, of Inspector of Plantations, Salem, Mr Justice K. Chandru observed that special care and assistance for motherhood was one of the basic human rights contained in the Universal Declaration of Human Rights. Provision for maternity protection was one of the programmes, which was being furthered by ILO on a worldwide basis. In pursuance of this objective, ILO had adopted 2 Conventions No 3 and No 103 and recommendation No 95 concerning maternity. “

 

 

https://www.vvgnli.org/sites/default/files/publication_files/099-2012_Shashi_Bala.pdf

Implementation of Maternity Act in private sector would help in more meaningful participation of female labour force in the labour market which would be a stepping stone towards adopting ILO convention No. 156 — Workers with Family Responsibilities Convention, 1981.

 

Most importantly, the duration of leave must be extended in order to allow a mother to fully recover and recuperate as well as efficiently nurse her new born child.

AK (personal)     04 May 2015

This is the agreement which i have signed:

 Service Agreement

 XXXXXXX Page 1 of 5

 This SERVICE AGREEMENT is made on this the __ day of _________ 201_

BETWEEN

M/s XXXXXXX Ltd., a company incorporated under the Companies Act 1956 and having their registered office at ______________________________________ and hereinafter referred to as "Employer” (which expression shall unless it be repugnant to the subject and context thereof, be to include its successors and assigns).

AND

Mr\Ms _______________________________ son/daughter of Mr._________________________ residing at ________________________________________________________________________ and having permanent address at _____________________________________________________________

________________________________________________________________________ (Hereinafter referred to as the "Employee")

Whereas, on the confirmation of Employee that he/she shall serve the Company for a total period of 24 months from the date entering into this agreement, Employer has agreed to invest substantially in the latest technology and advanced courses of Information Technology,

And whereas, to enable Employee to gain substantially from such investments of the Employer, Employer has agreed to invest substantially in the form of time and money, by itself or through its other known sources or through its subsidiary/affiliate companies abroad. The aforesaid investments, which are to be incurred by the Employer on the Employee, on the assurance and representation of the Employee that he/she undertakes to abide by the terms of this agreement.

NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:

1. In consideration of the said investments to be made by the Employer and also the fixed compensation received by the Employee, the Employee, hereby, voluntarily and without there being any force, coercion and undue influence, agrees to abide by the terms of this Service Agreement and conditions herein contained, as agreed upon, by the Employee, in the offer letter of the Employer. The Employer Company, at its discretion, based on performance, and other relevant factors, may revise the fixed compensation, from time to time. The fixed compensation payable and computed in accordance with the terms and conditions stated herein are agreed to be paid to the Employee, in view of the Employee agreeing to the following terms and conditions.

 

i. The Employee shall engage himself/herself, exclusively for the benefit of the company, and shall not take up any independent or individual assignments.

ii. The Employee, hereby, agrees to a covenant of secrecy and confidentiality and agrees to be bound to maintain, as secret and confidential, without limitation of duration or time, any trade information/trade secrets, client’s confidential and privileged information, client details & strategies, and any other information made available by the Employer Company or its clients to the Employee, during the term of this agreement and engagement with the Employer/its Client.

XXXXXXX Page 2 of 5

iii. The Employee agrees that he/she shall at no point of time divulge or part with or leak out any privileged Employer/client information, received in the course of his/her employment, with the Employer/client, to any third party.

iv. The Employee agrees that he/she shall diligently, faithfully and to the best of his/her ability, undergo necessary training and thereon render services for the Employer and its clients, so as to efficiently discharge duties, in accordance with the standards of the industry, which Employer owes to its clients.

2. In view of the investments made by the Employer, the Employee agrees that the services of the Employee shall be utilized purely and solely, for the benefit of the Employer, and as an exercise for skills up-gradation and no part of services, training or training materials or information shall be divulged, to any other competitor or person whatsoever.

3. The Employee agrees that under the provisions of this agreement and any other expenses lawfully incurred by the Employer in connection with the specialized training in the advanced courses of Information Technology together with all allowances during the period are being spent on the Employee with a view that his/her services would be utilized by the Employer after he/she has received the aforesaid training and the same is being imparted to him/her on this faith, assumption and belief that his/her work experience would be utilized for the business of the Employer against the investments made by the Company on the assurances of the Employee. The Employee agrees that in case the Employee fails to serve the Employer for the mandatory period of 24 months from the date of acceptance to the terms of this agreement, he/she shall be bound to pay to the Employer i.e., XXXXXXX Ltd liquidated damages as stated in Annexure ‘A’ to this Agreement. Employer agrees and understands that, against the investments made by the Employer as stated above, the claim for liquidated damages as stated in Annexure are genuine and the Company may retain any amount payable to the Employee against the said liability, should Employee breach any of the terms of this Agreement. It is commonly understood between the parties to the instant agreement, that the failure to abide by the terms and conditions of this agreement would cause substantial damage to the business of the Employer and or its client, which is incapable of estimation, however, for the purpose of the instant agreement, are estimated as stated in Annexure, and the same shall constitute a debt owing to the Employer and shall be recoverable by the Employer from the Employee with interest thereon @ 18% per annum (from the date of breach of any of the conditions till repayment) immediately upon the Employee committing a breach of any of the conditions contained in this agreement and in particular :-

 

i. If the Employee:

(a) Abandons or deserts the Employer during the period as agreed herein.

(b) Neglects or fails to report to the Employer.

(c) Fails or neglects to serve the Employer for the complete period of 24 months from the date of entering into this agreement.

(d) Fails to complete the knowledge transfer to the respective team at offshore on returning back from abroad or at Onsite, as per the request of the Employer.

ii. If the Employer:

(a) Terminates this agreement during the term on account of the failure of the Employee to show satisfactory performance during the term of the agreement.

Service Agreement

XXXXXXX Page 3 of 5

(b) Terminates the employment before the completion of the term as agreed herein on account of failure of the Employee to provide adequate results expected of him/her as per the Service Levels provided to him/her for the Work Order assigned to him/her or for breach of any of the terms of this Agreement.

4. XXXXXXX and the Employee agree that, the liability to pay liquidated damages would arise as in accordance with the terms of Annexure A and agree that, Annexure ‘A’ forms part and parcel of this Agreement.

5. If the Employee is Physically Based (defined below) in India at the time of termination, this Agreement shall be governed in all respects by the laws of state of Karnataka, India. The courts at Bangalore, India will have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts.

6. However, if the Employee is Physically Based in the United States at the time of termination, this Agreement shall be governed in all respects by the laws of the State of Florida without regard to conflicts of law principles. The Florida state courts of Orange County (or, if there is exclusive federal jurisdiction, the United States District Court for the Middle District of Florida) shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction and venue of such courts. For purposes herein, “Physically Based” means such Employee is undergoing training/working and living in the United States and reports to an office in the United States at least once a week for two or more consecutive weeks.

 

7. This Agreement contains the sole and entire agreement between the Parties regarding this subject and shall supersede any and all other agreements between the Parties regarding this subject except for, if applicable, any covenant not to compete, covenant not to solicit, confidentiality agreement, or amended compensation agreement signed by both Parties. The Parties acknowledge that they have read this Agreement in its entirety and that any oral or written statements to the contrary are void and that neither Party has relied on any such representation in connection with this Agreement.

8. The Parties agree that no waiver or modification of this Agreement or of any covenant, condition, or limitation contained within it is valid unless it is in writing, clearly identified as a modification or waiver of this Agreement, or one of the clauses of this Agreement, and duly executed by both Parties. The Parties further agree that neither shall submit or attempt to submit any waiver or modification into evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement, or the rights or obligations of any Party under it, unless such waiver or modification is in writing, clearly identified as a modification or waiver of this Agreement or one of the clauses of this Agreement, and duly executed by both Parties.

9. If one or more provisions in this Agreement are held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

10. Any waiver or modification of any breach of one or several provisions contained in this Agreement shall not be considered as a waiver of any subsequent breach of the same or other provisions of this Agreement.

Service Agreement

XXXXXXX Page 4 of 5

11. The headings and titles used in this Agreement are for the reference and convenience of the Parties and do not serve to limit or change the meaning of any provision contained in this Agreement. All personal pronouns used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular.

12. Any Party required providing notice to the other Party pursuant to this Agreement may affect such notice by personal delivery in writing or by certified mail, postage prepaid, return receipt requested. A Party mailing a notice shall address it to the relevant Parties at the addresses appearing in the introductory paragraph of this Agreement, but any Party may change its notice address in accordance with this paragraph. The Parties deem any personally delivered notice as delivered on the date of actual receipt, provided the notice is signed by the person named in the notice or if the receipt refuses to sign such notice, then by the date of a notation as the delivering Party may show that communicates an attempted, but unclaimed or refused, delivery.

13. Failure to insist upon strict compliance with any of the terms, covenants or conditions; shall not be deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.

14. This Agreement shall be binding on, and inure to the benefit of, the successors and assigns of the Employer. Employee shall have no right to assign this Agreement, but the Employer, at its sole discretion, shall have the right to assign it.

15. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.

16. No provision of this Agreement shall be construed against, or interpreted to the disadvantage of, any Party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have drafted, structured, dictated or required such provision.

17. EMPLOYEE CERTIFIES THAT EMPLOYEE HAS READ THE ENTIRE CONTENTS OF THIS AGREEMENT BEFORE EXECUTING SAME; THAT EMPLOYEE FULLY UNDERSTANDS ALL THE TERMS, CONDITIONS AND PROVISIONS SET FORTH IN THIS AGREEMENT, PARTICULARLY INCLUDING, BUT NOT LIMITED TO, EMPLOYEE’S FIDUCIARY AND CONFIDENTIAL RELATIONSHIP WITH XXXXXXX AND EMPLOYEE’S PROTECTIVE COVENANTS AND AGREEMENTS; THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT AS SIGNED BY EMPLOYEE; AND THAT EMPLOYEE BEING BOUND BY THIS AGREEMENT IS A CONDITION PRECEDENT TO XXXXXXX’ ENGAGEMENT OF EMPLOYEE’S SERVICES AND XXXXXXX’ EXECUTION OF THIS AGREEMENT.

IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THIS AGREEMENT ON THIS THE ____ day of ________ 201_.

EMPLOYER EMPLOYEE

Name :  1. Witness

Signature : ……………………… 2. Witness Service Agreement

XXXXXXX Page 5 of 5

ANNEXURE ‘A’

Stages of Recovery and Amount to be paid:

It is mandatory that the employee serves the company for the complete term of 24 months from the date of acceptance to the terms of this agreement.

If the employee resigns or the employment of the employee is terminated for willful breach committed, the employee will be liable to pay a pro-rated amount as stated below.

However, if employee resigns after the decision of the company to waive the terms of this agreement, the employee would not be liable to make any payment.

Note: The applicable dues to be settled with the company in the form of cheques during the notice period and any exits will be cleared only on completion of full and final settlement of accounts with the company.

* If employee leaves:

Within 6 months of signing the agreement: entire Rs.3 lakhs if in India or the equivalent amount in local currency will be recovered.

Between 6 months and 12 months: Rs.2.25 lakhs if in India or the equivalent amount in local currency will be recovered.

Between 12 months and 18 months: Rs.1.5 lakhs if in India or the equivalent amount in local currency will be recovered.

Between 18 months and 24 months: Rs.75K if in India or the equivalent amount in local currency will be recovered.

Beyond 24 months: NIL.

Employee No : …………………………. Company

Date : …………………………. Name :

Name : …………………………. Signature : ………………………

Signature : ………………………….

####################

I have resigned, after 1 year from dtae of signing of agreement and serving 2 months notice period. Company wants me to repay INR 150000 for the H1B that they have sponsored. Does this agreement make it complusory for me to pay the amount for H1B Visa that is with me.

Please guide.

Thanks

 

AK (personal)     06 May 2015

Please guide. Thanks

Kumar Doab (FIN)     07 May 2015

@AK,

How the demand of payment has been made? Verbally or in writing?

Has any reference to any clause of the gareement been made in demand?

Most Imp: The agreement is founded on advanced courses of IT!

Has any such course been conducted?

Kumar Doab (FIN)     22 May 2015

Repeated Query: https://www.lawyersclubindia.com/forum/details.asp?mod_id=121406&offset=0

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