I worked in a company for 3 years and 9 months. I used to have day-in and day-out trouble with my immediate supervisor in my daily work. He basically harassed me with work. The company had an agreement that restricts me from joining any competition for a period of 24 months after resigning from the company.
Now, I have a good opportunity from a competitive company, which is definitely better for my career growth. I have given my resignation from my services with a notice period of one month, as per company policy. The GM-HR immediately provided me with a letter the next day, instructing me not to report to duties further after taking away all company belongings from me. The GM-HR threatened to ruin my career and withheld all my FnF settlement, including PF. My new employer HR is insisting on a relieving letter from my previous employer, which I am unable to produce.
Please help and suggest.
From India, Kolkata
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Now, I have a good opportunity from a competitive company, which is definitely better for my career growth. I have given my resignation from my services with a notice period of one month, as per company policy. The GM-HR immediately provided me with a letter the next day, instructing me not to report to duties further after taking away all company belongings from me. The GM-HR threatened to ruin my career and withheld all my FnF settlement, including PF. My new employer HR is insisting on a relieving letter from my previous employer, which I am unable to produce.
Please help and suggest.
From India, Kolkata
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My notice period ends on 16th May 2014. Should I write an email/letter now or after 16th May 2014? Is it possible to join the new company without a relieving letter after 16th May 2014? Please suggest.
From India, Kolkata
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From India, Kolkata
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Serve your notice period & keep mail communication with HR for everything. If things are not in your favour then you can approach the labour court
From India, Mumbai
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From India, Mumbai
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Understanding Your Rights for Relieving and Experience Letters
If the HR department has provided you with an official written communication mentioning your last date of work, it implies that your last date is "mutually accepted." In this case, there is nothing that can stop you from obtaining a relieving letter, as well as an experience letter.
Go for it; you will get it. They can't stop you.
From India, Mumbai
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If the HR department has provided you with an official written communication mentioning your last date of work, it implies that your last date is "mutually accepted." In this case, there is nothing that can stop you from obtaining a relieving letter, as well as an experience letter.
Go for it; you will get it. They can't stop you.
From India, Mumbai
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Dear Babudawn,
Let me address the issues you have raised in two separate parts:
Exit from the Current Organisation and Receiving Relieving Letter and F&F Dues
In terms of your letter of appointment, you are required to serve a one-month notice period OR (presumably) pay a month's salary in lieu of serving the notice period (this amount is usually the gross salary for the notice period not served). If you have served the notice period or are willing to pay the required amount, then your exit is a regular exit. The relieving letter, F&F, and other dues cannot be withheld except in cases where assets of the company given to you have not been returned to the company.
Regarding writing a letter to your organisation for your relieving letter, I would suggest that you send a letter BEFORE 16th May, i.e., the end of your notice period, stating that since your notice period, as stipulated in the employment letter, would end on 16th May 2014, by when could you expect your relieving letter and F&F settlement to be completed. This should just be a letter making an enquiry and seeking clarification—nothing else. This letter can be referred to later on (after 16th May 2014) when you send a reminder and undertake a follow-up.
Applicability of Non-Compete Agreement
Non-compete clauses in employment contracts are fairly common these days. They are intended to restrict employees from joining competition and hence giving the competing organisation an unfair advantage because of confidential information or proprietary business know-how that may be carried by the employee and disclosed to the new employer.
This aspect is governed by Section 27 of the Contract Act, which expressly states that "every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void."
For a non-compete clause to be held to be enforceable, two conditions must be satisfied:
1. It should be proven that the employee concerned was in possession of sensitive, confidential, or proprietary information, disclosure of which would be detrimental to the previous employer.
2. It should not infringe upon an individual’s fundamental right to earn a livelihood.
Various courts in India have passed judgements along these lines:
A. In the case of Desiccant Rotors International Pvt Ltd v. Bappaditya Sarkar & Ans (I. A. No. 5455/2008, I. A. No. 5454/2008 & I. A. No. 5453/2008 in CS(OS) No. 337/2008), the Delhi High Court ruled that in the clash between the attempt of employers to protect themselves from competition and the right of employees to seek employment wherever they choose, the right of livelihood of employees must prevail.
B. In the case of Percept D’Mark (India) Pvt. Ltd v. Zaheer Khan (AIR 2006 SC 3426), the Supreme Court of India summarised the principles of Section 27 of the Contract Act and observed that under Section 27 of the Act, a restrictive covenant extending beyond the term of the contract is void and not enforceable.
The summary of this long explanation is that while the inclusion of a non-compete clause in your employment contract can be used to harass you, it is not legally enforceable in India.
Regards,
Raju Bhatnagar
From India, Bangalore
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72Let me address the issues you have raised in two separate parts:
Exit from the Current Organisation and Receiving Relieving Letter and F&F Dues
In terms of your letter of appointment, you are required to serve a one-month notice period OR (presumably) pay a month's salary in lieu of serving the notice period (this amount is usually the gross salary for the notice period not served). If you have served the notice period or are willing to pay the required amount, then your exit is a regular exit. The relieving letter, F&F, and other dues cannot be withheld except in cases where assets of the company given to you have not been returned to the company.
Regarding writing a letter to your organisation for your relieving letter, I would suggest that you send a letter BEFORE 16th May, i.e., the end of your notice period, stating that since your notice period, as stipulated in the employment letter, would end on 16th May 2014, by when could you expect your relieving letter and F&F settlement to be completed. This should just be a letter making an enquiry and seeking clarification—nothing else. This letter can be referred to later on (after 16th May 2014) when you send a reminder and undertake a follow-up.
Applicability of Non-Compete Agreement
Non-compete clauses in employment contracts are fairly common these days. They are intended to restrict employees from joining competition and hence giving the competing organisation an unfair advantage because of confidential information or proprietary business know-how that may be carried by the employee and disclosed to the new employer.
This aspect is governed by Section 27 of the Contract Act, which expressly states that "every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void."
For a non-compete clause to be held to be enforceable, two conditions must be satisfied:
1. It should be proven that the employee concerned was in possession of sensitive, confidential, or proprietary information, disclosure of which would be detrimental to the previous employer.
2. It should not infringe upon an individual’s fundamental right to earn a livelihood.
Various courts in India have passed judgements along these lines:
A. In the case of Desiccant Rotors International Pvt Ltd v. Bappaditya Sarkar & Ans (I. A. No. 5455/2008, I. A. No. 5454/2008 & I. A. No. 5453/2008 in CS(OS) No. 337/2008), the Delhi High Court ruled that in the clash between the attempt of employers to protect themselves from competition and the right of employees to seek employment wherever they choose, the right of livelihood of employees must prevail.
B. In the case of Percept D’Mark (India) Pvt. Ltd v. Zaheer Khan (AIR 2006 SC 3426), the Supreme Court of India summarised the principles of Section 27 of the Contract Act and observed that under Section 27 of the Act, a restrictive covenant extending beyond the term of the contract is void and not enforceable.
The summary of this long explanation is that while the inclusion of a non-compete clause in your employment contract can be used to harass you, it is not legally enforceable in India.
Regards,
Raju Bhatnagar
From India, Bangalore
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The GM-HR seems to be quite vindictive. He refused to provide a relieving letter, experience certificate, and FnF. Should I write an email now (16th May 2014 is the last date of my notice period of one month as per company policy)?
Subject: Request for Guidance in Obtaining FnF Settlement
Based on my email of resignation dated 16th April 2014, I have already handed over company assets to my immediate supervisor on 17th April 2014, which were verified by my supervisor on the same day (i.e., 17th April 2014).
Since my notice period of one month ends on 16th May 2014, I would request your kind guidance and clarification in obtaining the following:
1. Pending salary for the month of April 2014 and until 16th May 2014.
2. Provident fund clearance.
3. Superannuation clearance.
4. Residual leave encashment.
5. Expense settlement incurred for the company for the month of April 2014.
6. Advance settlement.
7. Relieving Letter.
8. Experience certificate.
I am seeking your kind guidance as the above is important for the sustainability of my livelihood.
Thanks and regards,
Babudawn
Do I need to make any changes in the above content? Please suggest and guide.
From India, Kolkata
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Subject: Request for Guidance in Obtaining FnF Settlement
Based on my email of resignation dated 16th April 2014, I have already handed over company assets to my immediate supervisor on 17th April 2014, which were verified by my supervisor on the same day (i.e., 17th April 2014).
Since my notice period of one month ends on 16th May 2014, I would request your kind guidance and clarification in obtaining the following:
1. Pending salary for the month of April 2014 and until 16th May 2014.
2. Provident fund clearance.
3. Superannuation clearance.
4. Residual leave encashment.
5. Expense settlement incurred for the company for the month of April 2014.
6. Advance settlement.
7. Relieving Letter.
8. Experience certificate.
I am seeking your kind guidance as the above is important for the sustainability of my livelihood.
Thanks and regards,
Babudawn
Do I need to make any changes in the above content? Please suggest and guide.
From India, Kolkata
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NON-COMPETE AGREEMENT ADDENDUM.doc
Delhi High Court Ruling on Non-compete Agreement.pdf