Dinesh Divekar
Business Mentor, Consultant And Trainer
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Srinath Sai Ram
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Riteshmaity
Labour Law Advocate

#Anonymous

Hi All,

I worked for almost @15 years with an Indian company having offices outside India also.

It was my first company and I joined a GET. With my hardwork and extraordinary performance, I could climb the ladders of my career in this company and enjoyed very good reputation with the company and customers.

After working for so many years, in Sept 2015 I decided to leave this company due to some family reasons (treatment needs for by Special Child) and submitted by resignation to the Company.

I was having a handsome leave balance due to so many years of my service and was promised by my Superior and HR that it would be adjusted with my Notice period. My senior forwarded my resignation to HR mentioning my last date in the company.

On the last day, after completion of my separation formalities and handing over all the company materials etc. when I approached the concerned HR personnel they showed me one format of the agreement termed as NDA (non disclosure agreement) however it mentioned everything about the Non-Compete clause which said I can not join the Competition of that company for 2 years (this company had many business lines and I was only working in one of these but still they wanted me to agree that I can not join the competition of the company in any of its current business lines), further it said I can not join any of the current of prospective customers of this company.

Since I was shown this document on the last day at the end of office hours of that day and I was not in agreement with the above clauses, I refused to sign the same. Then I was told that if I do not sign this then I will not get the settlement done and will not also get the relieving letter (incidentally it also mentions all these clauses ) and the experience letter and the dues will not be cleared. It was like getting a sign on a bond at the last day. Though in general the appointment letter (@15years old) still has the similar clauses.

Since I had to join another Multinational company (so called competitor to the first company) immediately and they accepted the email sent by my superior to HR as proof of my relieving they could allow me to join.

I then tried to contact the company HR personnel over phone and email and requested for the full and final settlement with my last month salary, PF, Gratuity and all other expenses like the payble annual bonus/Graciela. The company had a co-operative society of the employees and I had some shares worth @ INR 25000. This was also not paid. Further I was looking after the international marketing and my Expenses claims worth @INR 50,000 were also not paid to me.

After the second company where I worked @ 6 months, I joined another company and was paid all my dues and got a nice relieving letter from this second company (showed the difference between a professional Multinational company and the first Indian company for which I spent @15 years of very passionate service).

Now after @ 1.5 years still the dues are pending and I want to know what is the recourse to get this back. What happens with PF, Gratuity?

As I understand they can not hold this legally. Please suggest how to proceed in such matter.
5th April 2017 From India, Pune
Dear friend,
Companies prohibit joining their competitors when they quit their company. This problem has been discussed earlier in this forum. Anyway, you may refer the following link:
Freedom of contract must yield to freedom of occupation | Business Line
In addition to this, I have attached one court judgement also. Please go through it.
Thanks,
Dinesh Divekar
5th April 2017 From India, Bangalore

Attached Files
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File Type: pdf Judgement_On_Non-compete_Agreement[1].pdf (294.5 KB, 94 views)

I am sure Mr.Dinesh's reference to similar situation/case law amply clear to the queriest wrt his solution. I think it's high time he should move the matter of non-settlement legally. EPF & Gratuity Act, if applicable to him, answer to the interest claim when the settlement is delayed beyond one month. And therefore nothing is lost. However we are sadened by seeing how worst the employer could torture a person who worked with very good contribution for the sake of the employer. Pathetic to read the ill treatment meted out to a very senior employee. I don't agree only it could happen in an Indian Co. or a private sector. There are plenty of such cases every where. We cannot generalise and brand all Indian co's do like this. We had read a post in the forum by a learned member who narrated how much take care of their employees and how hard they try to retain with them. That apart my wish is he should get all his F & F settlement with due interest thereon uptodate and he shouldn't be demotivated by such a rare experience. He can thrive really well backed by his long experience gained so far.
5th April 2017 From India, Bangalore
Dear Anonymous,
you have to blame yourself for this pitiable situation.you could have contacted a Lawyer to initiate appropriate action at that point of time.Further, you had taken up an Employment with another Company though you try to Justify that it was for the sake of treatment of your child.
Nevertheless, approach Controlling Authority for Gratuity with your Papers.you are eligible for Gratuity together with interest @12%Per Annum
Similarly initiate action for transfer of P,F if you are in Employment. Please furnish details about your pending dues for further course of action.you have not mentioned about your Employment status.Come out of self pity, Grass is greener on the other side.
5th April 2017 From India, New Delhi
First, any agreement to disallow you to join a competitor company is illegal and does not have any legal validity, though you have in reality not signed such agreement. As per decisions of courts, employer cannot restrict you to join a competitor company after your resignation. So once you resign, you are technically free to join the competitor company the very next day.
Secondly, calculate all your full and final settlement. Make a demand before the company in writing under proper acknowledgment. For gratuity, send Form I immediately. Company cannot do much with PF but you may contact PF authority.
Please note that depending on the classification of your full and final settlement, you have to make demand before the appropriate authority. e.g. demand of salary and gratuity cannot be made before the same statutory authority.
6th April 2017 From India, Kolkata
Dear friend,
Pl.hand over, under ackmt., all your claim Form in the format prescribed in the Act/Rules without delay (if not done already) and await their response. After 15 days you should take it up strongly, if necessary with the help of an advocate.
13th April 2017 From India, Bangalore
#Anonymous
Dear All,
After sending the reminders, I got below reply,
"
This has refer to your below captioned mail regarding settlement of your dues which is subject to following:
"Our Company has filed a Suit for permanent injunction and damages in the Court of Hon’ble Civil Judge Senior Division, against you for the breach of terms of employment".
We are releasing these payments without prejudice to the Suit and other rights and remedies available to Our Company under law, equity or otherwise.
Please revert.
"
Please let me know what should be the action from my side.
The above explained situation holds true and I guess I can not be considered for the breach of terms of employement by joining competition. I have not received any notice from them and how to know if it is true?
5th May 2017 From India, Pune
It is time to contact a lawyer than to look for online suggestions. The matter seems to be getting complicated and your company is in no mood to let you go that easily too.
6th May 2017 From India, Kolkata
Dear Mr Anamika, you have not expressed in explicit terms whether your dues have been Paid or not? You have quit the company in September-2015? After careful Perusal of your latest Post" "Our Company has filed a Suit for permanent injunction and damages in the Court of Hon’ble Civil Judge Senior Division, Which Place? against you for the breach of terms of employment". Please collect Suit Number by reply mail. if the company fails to furnish Suit Number, it will be deemed that they are just threatening you with such statements. Stop worrying Start thinking?
7th May 2017 From India, New Delhi
#Anonymous
Furthermore, this Company deducts Gross salary for adjusting the Notice period from Employee but paying only Basic Salary when the Company has to pay to the Employee. Is there any rule for this? Can we force them to adjust the leaves for the Notice Period? In my case I have served 1 month of notice from the 3 months notice period and was told that the balance 2 months of Notice will be adjusted with my credit Leaves. However at the time of sharing the F&F settlement they have deducted the 2 months gross salary and credited only the basis salary for the leaves balance. This was I am at loss. Is there any law for this?
8th May 2017 From India, Pune
Dear Anamika,
Instead of replying to my Questions you are raising New Questions, this clearly reflects your attitude.Please do not take us for granted,We are all qualified & experienced professionals sharing our knowledge without expecting anything.This should not be construed that we are not aware of workmen psychology.
What company has done with regard to your Notice period & leave enmeshment is perfect, does not call for any review.
You should have sent mail to your Employer for furnishing Case number.?because you have apprehensions in your mind, you are not coming out with facts.
9th May 2017 From India, New Delhi
#Anonymous
Dear Sir, I have replied to your questions as a message to you.
9th May 2017 From India, Pune
Even in the message you have not disclosed factual information.In the message you have mentioned that you have not got the dues? what action you have initiated till date? what about your gratuity claim? The settlement will not come unless you make a claim? instead of wasting our precious time, Please do what t you deem fit.You are a matured person with 15 Years experience in an MNC?
10th May 2017 From India, New Delhi
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