Dinesh Divekar
Business Mentor, Consultant And Trainer
Umakanthan53
Labour Law & Hr Consultant
Srinivasaraosura@gmail.com
General Manager - H.r & Admin
Aditi Jain, Delhi
Recruitment, Performance Appraisal, Training,
+2 Others

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Hi Team,
My Employer sent me legal notice asking 10 lakhs rupees against my resignation stating that they sponsored my H1B visa and invested lot of money based on me.
But now i am serving my notice period what ever they mentioned while replying for my resignation.Even though they sent me notice to pay 10 lakh.
And i am not signed any contract or bond and i am working as senior software engineer for past 2 years.
Is this legal even though i am serving notice period?
what is my next step to reply to this notice?
Thanks
Varathan

Dear Varathan,

To give proper reply, we still need additional information. Please reply the following questions:

a) What about the conditions of your employment? Has anything been mentioned in the appointment letter about H1B visa that your company had issued?

b) Company has sent you "legal" notice. Is this notice from the external lawyer? Is it by legal officer of your company or signed by HR or some other senior authority of the company?

c) Your designation is Sr Software Engineer. How many persons reported to you?

d) When your company acquired H1B visa for you? After this acquisition did you travel US for the company work? If yes, then how many times?

On receipt of the replies to the above question, senior members will give their opinions. In the meanwhile, you may find out the labour office of your area. You may not see labour officer but find out procedure to make complaint against the employer.

Thanks,

Dinesh Divekar


Hi,

If you have not signed any contract or bond, you should refer to the terms and conditions mentioned in your appointment letter, may be there is a clause in appointment letter which covers company's loss in this case. If appointment letter is also clear then check if your company asks for any annual sign off on something like values, beliefs, policy amendments which automatically gives them a benefit of getting an agreement from you on their terms and conditions. (We generally ignore reading stuff on official mails and say 'I accept' blindly to many things rolling out in our company.) If that is also clear then seek legal help to counter as your company has sent you a legal notice and you need to reply it with a legal reply and that too soon as there is a certain time frame in which you have to reply back to any legal notice.

P.S. - Hope you have tried speaking to your seniors/reporting manager/boss or company HR in this matter to resolve it peacefully. If you start a legal process, your reliving may get a delay.

Thanks
Aditi

Hi Dinesh,
Thanks for quick reply and here is the answers.
a) What about the conditions of your employment? Has anything been mentioned in the appointment letter about H1B visa that your company had issued?
No
b) Company has sent you "legal" notice. Is this notice from the external lawyer? Is it by legal officer of your company or signed by HR or some other senior authority of the company?
yes, i got legal notice from external lawyer signed by director.
c) Your designation is Sr Software Engineer. How many persons reported to you?
No one.
d) When your company acquired H1B visa for you? After this acquisition did you travel US for the company work? If yes, then how many times?
i got h1b visa by oct 2015 and i am not travelled to US.
Thanks
Varathan

Dear Varathan,

You have not signed any documents related to H1B visa. Neither there are provisions in your appointment letter. Secondly, though you are Senior Software Engineer, no junior reports to you. Therefore, provisions of Industrial Dispute Act, 1947 apply to you. Under these provisions, you can very well approach the Labour Officer of your area and give your representation. Carry with you the evidence of your employment with the company beginning from the appointment letter. Carry with you original copy and a photocopy of each document.

Once you make a formal application, Labour Officer (LO) will call both the parties and give the verdict. I anticipate it to be in your favour. I doubt whether your company will go against the recommendations of LO. Generally software companies develop cold feet in front of LO. Whatever the verdict of the LO, make a supplementary demand for providing the Relieving Letter or No Due Certificate at the time of leaving. This will clear the hurdle for joining the future company.

At this stage, whatever I have written is sufficient. Please come back on this forum and confirm what transpired in the meeting with the LO.

Thanks,

Dinesh Divekar

Mr. Varthan, If you have not signed any contract or any agreement with the organization, you may need not pay any compensation subject to proper serve of notice period as per the company norms.
Hi Dinesh,
Please find the reply for resignation
We are accepting your resignation and will be relieved on 18th February subject to the satisfactory transfer of all the company knowledge and information that you have accumulated as part of your job with XXXXX. I will sign your relieving letter upon reviewing the knowledge transfer process on above mentioned date.
I will try to approach LO.
even though they accepted my resignation,I dont know why they are sent me this Legal Notice to pay 10 Lakhs
Thanks
Varathan A

Dear Varathan,

For your smooth exit, I recommend you approaching the Labour Officer (LO) well in advance. Though your company has confirmed that you will be relieved on 18-02-2016, the authorities concerned might change their mind at the last moment and put on hold your issue of relieving letter. Dispute with the payment of Rs 10 Lakh need not be linked to the issue of relieving letter. What if the authorities leave you in lurch at the last moment?

What is the logic of issue of legal notice to a serving employee, one who reports for the duties regularly, is not understood. A simple letter on company's letterhead would have sufficed the purpose. Issue of legal notice is overkill. This action on the company's part shows that authorities in your company are not necessarily well-versed in the routine administrative procedure. One of the possibility is that they know that the case will not stand legal scrutiny but then they wanted to scare you to withdraw your resignation.

Anyway, approach LO tomorrow itself and find out what he says.

All the best!

Dinesh Divekar

Dear Varadhan,

I appreciate the logical questions covering your contract of employment raised and the useful suggestions put forth by Dinesh and Aditi in the wake of the inappropriate legal notice. I am in complete agreement with their views that you are a workman under the Industrial Disputes Act,1947 in spite of the high-sounding nomenclature of your designation and the monetary compensation attached to it. I also confirm their opinion that at this stage of notice period as well as even later after your relief, they have no locus standi to serve a legal notice demanding a sum of Rs.10 lakh towards H1B Visa expenses when you have not signed any bond nor actually treavelled abroad on the visa and it may be a tactical move of the employer to retain you under threat. However, I have my own reservations on the suggestion to approach the District Labour Office at this stage for the legal position that an individual employee/workman is precluded from directly raising a dispute under the ID Act regarding any of his employment grievances other than non-employment or recovery of monetary dues. Espousal of the cause by a Trade Union is a must. So what is important at this crucial moment as suggested by Dinesh is to get the relieving order on expiry of the notice period alredy begun without rubbing the management on the wrong side. First seek an appointment with the CEO or the person empowered to relieve you and try to convince them politely. Explain to them your hardship and inability to meet their monetary demand and show that you are even prepared to reimburse the expenses, if any incurred by the management towards the Visa obtained. If it is not fruitful, issue a reply to the legal notice through an advocate about its untenability and your taking recourse under the ID Act through a Trade Union apart from taking Civil remedy.

Dear Mr Umakanthan M,

Thanks for the detailed reply. In your reply you have written that Varathan can send the reply to the lawyer's notice through his own lawyer. But before doing this, he can very well approach Labour Officer (LO). Raising the Industrial Dispute is little away. Sometimes even a call from LO itself is sufficient. This is more true for software companies. Preliminary meetings do happen before full-fledged industrial dispute is raised. Hence my suggestion to approach the LO.

For Varathan: - As suggested by Mr Umakanthan M, you may approach CEO or any other higher authority and give your representation. Nothing substantive will emerge from this meeting ashave not received lawyer's notice without the countenance of the CEO,

Meeting is important as it is routine administrative procedure. However, do not reveal in the meeting that you could approach LO. Be polite but firmly tell that the claim of Rs 10 Lakh is not legally admissible. Before meeting him, write a proper business letter and and hand it over to his secretary in a sealed envelope. Take signature of the Secretary on the photocopy of the letter.

Thanks,

Dinesh Divekar


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