Hi, I am writing here as well as under a reply to a post by a fellow facing a similar problem. He had no responses hence I also am starting a new thread in hopes that those of you with the legal know-how will be able to hear my plea and advise me promptly. :confused:
I have just had a job change and am looking for advice regarding the same issue.
I was with an MNC for one year. I was NOT given any non compete clause by that employer at the time that I signed my job contract. In fact, it was not mentioned at the time that negotiations were under way before my joining. I found the job favourable and hence submitted my resignation to the company I was with before that... This all happened in June of 2007.
Upon joining the new company I worked contentedly up till September when they suddenly shoved a non-compete clause document (not on stamp paper, not on the company letter head) and told us to sign. What could we do but sign?
I have finally left that job now in July this year ( 2008 ) after one year of faithful and hard-working service, that company is threatening to sue me for joining a competitor.
Can someone please clarify if that non-compete has any legal standing at all. I reiterate, they did NOT inform me of a non-compete clause at the time of negotiations, nor at the signing of my job contract and asked me to sign it mid-term of my employment.
Is this not signing under duress?
Please write to me as soon as possible, I am very worried and do not know if I should withdraw from my current employment or not. As far as I can tell, the whole situation is very dirty as they do not offer me any recompense either for not joining a competitor. Where am I too work if not for a competitor? No other market would find me worth taking on in regards to my experience in my current work experience... :confused:
From India, Mumbai
I have just had a job change and am looking for advice regarding the same issue.
I was with an MNC for one year. I was NOT given any non compete clause by that employer at the time that I signed my job contract. In fact, it was not mentioned at the time that negotiations were under way before my joining. I found the job favourable and hence submitted my resignation to the company I was with before that... This all happened in June of 2007.
Upon joining the new company I worked contentedly up till September when they suddenly shoved a non-compete clause document (not on stamp paper, not on the company letter head) and told us to sign. What could we do but sign?
I have finally left that job now in July this year ( 2008 ) after one year of faithful and hard-working service, that company is threatening to sue me for joining a competitor.
Can someone please clarify if that non-compete has any legal standing at all. I reiterate, they did NOT inform me of a non-compete clause at the time of negotiations, nor at the signing of my job contract and asked me to sign it mid-term of my employment.
Is this not signing under duress?
Please write to me as soon as possible, I am very worried and do not know if I should withdraw from my current employment or not. As far as I can tell, the whole situation is very dirty as they do not offer me any recompense either for not joining a competitor. Where am I too work if not for a competitor? No other market would find me worth taking on in regards to my experience in my current work experience... :confused:
From India, Mumbai
Thank you for responding to my plea so quickly. I tried to open the pdf files you have uploaded but none of them would open. Please re-post them. Once again, many thanks for your time and effort :)
From India, Mumbai
From India, Mumbai
1444
mumbaindude
i have gone through your case and noted the issue in the subject matter. Any clause as imposed by an employer which is in violation of the articles under the constitution of india and which against the principals of natural justice is not tenable and cannot stand before the courts.
According to your version, at the time of your joining the employer did not include the clause of non- compete in your contract agreement. After your joining in to their service and working for some months, how can they insist you to sign on white paper by incorporating the said clause which is in subject matter under the reference.
What i feel that they want to get a signature from you on white paper which contains the non-compete clause and they want to attach the said paper to your contract of service by stating that you have further agreed to an amend made to your service contract for the incorporation said new clause.
Even if you signed on white paper with the forcible attitude and coercion of your employer, you need not worry about it, since it violative of principals of natural justice. The Supreme Court also held in one of its judgment, that any negative covenant contains in any agreement which restrains an employee to join in new employer is not tenable and violative of articles of constitution of india. i have seen this judgment of supreme court very recently.
For the reasons as stated above, you need not worry for the threatens of your employer and you can face them with out any fear in the light of the judgment of apex court.What i feel that the clause of non- compete is also comes under the negative covenant as defined by SC, your case will also squarely applies and covers the judgment of SC.
NVRao
Hyderabad
From India, Hyderabad
i have gone through your case and noted the issue in the subject matter. Any clause as imposed by an employer which is in violation of the articles under the constitution of india and which against the principals of natural justice is not tenable and cannot stand before the courts.
According to your version, at the time of your joining the employer did not include the clause of non- compete in your contract agreement. After your joining in to their service and working for some months, how can they insist you to sign on white paper by incorporating the said clause which is in subject matter under the reference.
What i feel that they want to get a signature from you on white paper which contains the non-compete clause and they want to attach the said paper to your contract of service by stating that you have further agreed to an amend made to your service contract for the incorporation said new clause.
Even if you signed on white paper with the forcible attitude and coercion of your employer, you need not worry about it, since it violative of principals of natural justice. The Supreme Court also held in one of its judgment, that any negative covenant contains in any agreement which restrains an employee to join in new employer is not tenable and violative of articles of constitution of india. i have seen this judgment of supreme court very recently.
For the reasons as stated above, you need not worry for the threatens of your employer and you can face them with out any fear in the light of the judgment of apex court.What i feel that the clause of non- compete is also comes under the negative covenant as defined by SC, your case will also squarely applies and covers the judgment of SC.
NVRao
Hyderabad
From India, Hyderabad
Dear Sir, I wish to thank you very warmly for your response to my query. I feel more confident now and will, as you said "face them without fear". Thanks once again.
From India, Mumbai
From India, Mumbai
I have received another email from HR and they have brought to my attention the MENTION of a Non Compete Agreement in my Appointment Letter. Because of this, by reference, it seems that I DID sign their Non Compete Agreement.
As it stands today, they have withheld my Full & Final Settlement payment amounting to Rs. 50000+ and have declared that they have recovered losses sustained by them due to my joining a competitor. I quote from their email to me:
*Quote*
(v) That the violation of "employment contract" by you has caused loss and damage to the Company. The complete and full extent of the damages suffered by the Company is still under assessment.
(vi) That in view of the loss suffered by the Company on account of your illegal action the Company has decided to recover its losses from the payments payable to you.
(vii) That therefore after making adjustments no amount is due and payable to you by the Company.
(viii) That partial recovery of losses by the Company is without prejuidce to its other rights and contentions including right to recover full losses suffered by it, as and when the full and complete extent of losses is ascertained, in appropriate legal proceedings."
*End Quote*
Now what do I do? Is it legal for them to just refuse to pay me my F&F without having gone through a court??? I am in desperate need of that money for various family obligation (ill parents et al.).
I have come to the point where I feel I should sue them. I would like to litigate against them for 1) Withholding lawfully earned salaries 2) Delaying payment and causing financial distress and 3) Mental harassment over the span of a full 4 months.
Can you help me on this matter? It is really very urgent!
From India, Mumbai
As it stands today, they have withheld my Full & Final Settlement payment amounting to Rs. 50000+ and have declared that they have recovered losses sustained by them due to my joining a competitor. I quote from their email to me:
*Quote*
(v) That the violation of "employment contract" by you has caused loss and damage to the Company. The complete and full extent of the damages suffered by the Company is still under assessment.
(vi) That in view of the loss suffered by the Company on account of your illegal action the Company has decided to recover its losses from the payments payable to you.
(vii) That therefore after making adjustments no amount is due and payable to you by the Company.
(viii) That partial recovery of losses by the Company is without prejuidce to its other rights and contentions including right to recover full losses suffered by it, as and when the full and complete extent of losses is ascertained, in appropriate legal proceedings."
*End Quote*
Now what do I do? Is it legal for them to just refuse to pay me my F&F without having gone through a court??? I am in desperate need of that money for various family obligation (ill parents et al.).
I have come to the point where I feel I should sue them. I would like to litigate against them for 1) Withholding lawfully earned salaries 2) Delaying payment and causing financial distress and 3) Mental harassment over the span of a full 4 months.
Can you help me on this matter? It is really very urgent!
From India, Mumbai
Dear
Without seeing the full text of the Non compete Clause sound legal advice is not possible,in your case already they have initiated action,firstly you must defend their action & then make a counter claim,looks like you need local specialist legal advice,pls go for it without loss of time.
With Regards
E-mail :
From India, Bangalore
Without seeing the full text of the Non compete Clause sound legal advice is not possible,in your case already they have initiated action,firstly you must defend their action & then make a counter claim,looks like you need local specialist legal advice,pls go for it without loss of time.
With Regards
E-mail :
From India, Bangalore
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Non-compete clause in service contracts.pdf
Non-compete Clause of Infy.jpg
Non compete.doc