Dear Members,
My query is regarding the employment agreement that needs to be signed by each employee prior to joining the company. In most organizations, this agreement is provided at the time of joining when the employee has already resigned and is completing the joining formalities. Is this the correct timing? Applying the principles of natural justice, I feel that the employee does not have much choice at the time of joining except to sign whether they agree with the terms or not. Instead, this agreement should be provided with the offer letter so that the individual may decide to join or not when considering the offer itself.
Please suggest.
From India, Hyderabad
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1My query is regarding the employment agreement that needs to be signed by each employee prior to joining the company. In most organizations, this agreement is provided at the time of joining when the employee has already resigned and is completing the joining formalities. Is this the correct timing? Applying the principles of natural justice, I feel that the employee does not have much choice at the time of joining except to sign whether they agree with the terms or not. Instead, this agreement should be provided with the offer letter so that the individual may decide to join or not when considering the offer itself.
Please suggest.
From India, Hyderabad
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Dear friend,
You have raised the query; however, what is the nature of the agreement? What are the main contents? Do you want the selected job candidate to enter into a contract stating that he/she will not back off from joining your company? Occasionally, companies also back off and withdraw the offer letter. In such a case, will the condition of the offer be binding on you as well?
Please clarify in your post. Further suggestions can be given thereafter.
Thanks,
Dinesh Divekar
From India, Bangalore
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You have raised the query; however, what is the nature of the agreement? What are the main contents? Do you want the selected job candidate to enter into a contract stating that he/she will not back off from joining your company? Occasionally, companies also back off and withdraw the offer letter. In such a case, will the condition of the offer be binding on you as well?
Please clarify in your post. Further suggestions can be given thereafter.
Thanks,
Dinesh Divekar
From India, Bangalore
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Candidate is free to ask all his queries regarding the employment before accepting the offer letter. Even I also have the same opinion as yours; the offer letter should have general conditions of the employment. I think people are generally afraid to ask for general conditions such as working hours, weekly offs, leave policy, notice period, etc.
From India, Kochi
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From India, Kochi
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Dear Mr. Dinesh and Sr. Adv. Bhat,
I am a legal advisor to an IT consultancy firm. The present organization has a practice of having employees sign a confidentiality agreement and an Intellectual Property and non-compete agreement. The confidentiality agreement is signed at the time of joining, and the other agreement is signed upon being relieved. The confidentiality agreement includes a clause stating that confidentiality must be maintained for three years after the termination of the agreement, prohibiting the individual from joining any competing company in the same geographical area.
I have some objections to this practice:
1. This practice contradicts section 27 of the Indian Contract Act.
2. The organization presents this agreement at the time of joining, after the employee has left their prior employment and provided a relieving letter. This leaves the employee with no choice but to sign the agreement.
3. How can a person be bound post-employment?
Likewise, presenting an "Intellectual Property and Non-Compete agreement" to an employee at the time of relieving them, and informing them that a relieving letter will only be issued upon signing the agreement, can be seen as a form of indirect blackmail, which I do not condone.
Therefore, I propose that these documents be provided along with the offer letter, clearly stating that the acceptance of the employment offer by the Employer depends on the employee's expressed acceptance of the terms of the agreement. This will allow the employee to have the terms reviewed by external counsel.
I am unsure if other organizations follow this practice, but it seems fair to me. Additionally, some organizations do not provide employees with a copy of the signed agreement, which I believe may also be against the law.
I appreciate your suggestions in advance. Thank you.
From India, Hyderabad
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I am a legal advisor to an IT consultancy firm. The present organization has a practice of having employees sign a confidentiality agreement and an Intellectual Property and non-compete agreement. The confidentiality agreement is signed at the time of joining, and the other agreement is signed upon being relieved. The confidentiality agreement includes a clause stating that confidentiality must be maintained for three years after the termination of the agreement, prohibiting the individual from joining any competing company in the same geographical area.
I have some objections to this practice:
1. This practice contradicts section 27 of the Indian Contract Act.
2. The organization presents this agreement at the time of joining, after the employee has left their prior employment and provided a relieving letter. This leaves the employee with no choice but to sign the agreement.
3. How can a person be bound post-employment?
Likewise, presenting an "Intellectual Property and Non-Compete agreement" to an employee at the time of relieving them, and informing them that a relieving letter will only be issued upon signing the agreement, can be seen as a form of indirect blackmail, which I do not condone.
Therefore, I propose that these documents be provided along with the offer letter, clearly stating that the acceptance of the employment offer by the Employer depends on the employee's expressed acceptance of the terms of the agreement. This will allow the employee to have the terms reviewed by external counsel.
I am unsure if other organizations follow this practice, but it seems fair to me. Additionally, some organizations do not provide employees with a copy of the signed agreement, which I believe may also be against the law.
I appreciate your suggestions in advance. Thank you.
From India, Hyderabad
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Dear NKvs1975,
Please reefer the following:
In the case of R.Babu and Another Vs TTK LIG Limited, Formerly London Rubber Company (I) Limited, recently published in Labour Law Reporter (Jan-05; 71-73) the Division Bench of Madras High Court has refused to grant injunction against an employee restraining him from carrying on a competitive trade after the termination of his employment. The court stated that an agreement whereby an employee agrees not to join another competitive company for a specific period after cessation of his employment will be violative of public policy as stipulated in Section 27 of the Indian Contract Act, 1872. The referred Section says, “ Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void”.
While giving its judgment, the Madras High Court has referred to the cases of N.S.Golikari Vs Century Spinning & Manufacturing Co. Limited (AIR 1967 sc 1098); Rajan G.R.V. Vs Tube Investment of India Limited (1995 (1) LW 274) and Superintendence Company of India (P) Limited Vs Krishna Murgai (AIR 1980 SC 1717).
Explaining the same in detail, learned advocate Shri. H.L. Kumar has stated in the journal section of the Labour Law Reporter (Feb-05; 38-42) that such clause is legally impracticable and unrealistic.
In his article he has referred to the case of Pepsi Foods Limited & Others Vs. Bharat Coca-Cola Holdings Pvt. Limited & Others (LLR, 1999, 1027) wherein the Delhi High Court has said, “injunction cannot be granted to create a situation such as “Once a Pepsi employee, always a Pepsi employee”. It would almost be a situation of economic terrorism or a situation creating conditions of bonded labour”. It has also said that inter-changeability of service is an accepted norm of Service Jurisprudence that cannot be curtailed by a court injunction.
It is interesting to note that, the Court said that, in a free market economy, everyone concerned, must learn that the only way to retain employees is to provided them attractive salaries and better service conditions. The employees cannot be retained in the employment perpetually or by a Court injunction.
Read the following article: Freedom of contract must yield to freedom of occupation | Business Line
Thanks,
Dinesh Divekar
From India, Bangalore
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Please reefer the following:
In the case of R.Babu and Another Vs TTK LIG Limited, Formerly London Rubber Company (I) Limited, recently published in Labour Law Reporter (Jan-05; 71-73) the Division Bench of Madras High Court has refused to grant injunction against an employee restraining him from carrying on a competitive trade after the termination of his employment. The court stated that an agreement whereby an employee agrees not to join another competitive company for a specific period after cessation of his employment will be violative of public policy as stipulated in Section 27 of the Indian Contract Act, 1872. The referred Section says, “ Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void”.
While giving its judgment, the Madras High Court has referred to the cases of N.S.Golikari Vs Century Spinning & Manufacturing Co. Limited (AIR 1967 sc 1098); Rajan G.R.V. Vs Tube Investment of India Limited (1995 (1) LW 274) and Superintendence Company of India (P) Limited Vs Krishna Murgai (AIR 1980 SC 1717).
Explaining the same in detail, learned advocate Shri. H.L. Kumar has stated in the journal section of the Labour Law Reporter (Feb-05; 38-42) that such clause is legally impracticable and unrealistic.
In his article he has referred to the case of Pepsi Foods Limited & Others Vs. Bharat Coca-Cola Holdings Pvt. Limited & Others (LLR, 1999, 1027) wherein the Delhi High Court has said, “injunction cannot be granted to create a situation such as “Once a Pepsi employee, always a Pepsi employee”. It would almost be a situation of economic terrorism or a situation creating conditions of bonded labour”. It has also said that inter-changeability of service is an accepted norm of Service Jurisprudence that cannot be curtailed by a court injunction.
It is interesting to note that, the Court said that, in a free market economy, everyone concerned, must learn that the only way to retain employees is to provided them attractive salaries and better service conditions. The employees cannot be retained in the employment perpetually or by a Court injunction.
Read the following article: Freedom of contract must yield to freedom of occupation | Business Line
Thanks,
Dinesh Divekar
From India, Bangalore
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Employment Agreement.pdf
Employment Agreement.doc