• Non-poaching and non-solicitation clause

I am a Managing Director of a company who has no shares in the organization. I have been with the company for 13 yrs & now have resigned & which has been accepted by the Chairman. My last day of working is 27th Feb 2020. Today my Chairman says that I have to sign a Non Solitication clause & cannot approach the current customers of my company nor hire from the organization once I go to the competitor company. I do not have any such clause in my contract when I joined. But he says he can force me to sign this & will releive me from the post of Managing Director only if I sign this agreement. I do not wish to sign this agreement.

What do I do if he does not releive me from the Board even though my Resignation has been accepted. Please help me as I am in a dilema now & have committed to join the new company in March.
Asked 6 years ago in Labour

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11 Answers

You cannot be forced to sign non solicitation agreement 

 

2) since your resignation has been accepted serve the notice period and join another organisation 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

After the company having accepted your resignation , it cannot dictate any terms on you to issue the relieving you from the company.

Even though you were a managing director of the company, you too were considered as an employee on the rolls of the company hence the rules for an employee shall be applicable to you also.

In India, Section 27 of the (Indian) Contract Act, 1872 makes a restrictive provision void, such as 'non-compete' in an employment contract, between an employer and its employee, after the termination of an employment contract / employee engagement.

No poaching agreement does not have any legal binding effect in India as all agreement in restraint of trade is void.

The enforceability of non solicitation clauses in India is very subjective. Indian Courts have consistently refused to enforce post termination non compete clauses in employment agreement. These clauses imply a “restraint of trade” which is clearly barred under Indian Contract Act.

Hence even if the employer is forcing you to sign any such agreement, you may do it under pressure but you can violate the same at a later stage at your convenience becasue the same is not enforceable in law and he cannot take any legal action against you in this regard.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

If he has accepted your resignation tgen leave the company. An agreement made in restraint of trade or business is illegal and void. They cannot force you to sign the agreement. 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

See if the registration is accepted and reliving date is given he cannot forcefully ask you to sign any such clause. 

See you are director of company if resignation is accepted by board and ROC intimation is given then in said case reliving as such from chairman is not required.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

- As per Specific Relief Act, if any employee quits before the notice period, the Employer can only recover the Notice pay, and the Company cannot force to serve the entire notice period.

- Further, the resignation decision is the employee’s decision, and the employer cannot sue for breach of contract, if the employee leaves without serving contractual notice. 

- Except, recovery of the said amount, company cannot harm you for the same

- Further, no employer can refused to return the original certificates or to issue relieving letter .If they are doing so, their act is illegal, unjustified and against the fundamental rights of the employee.

- Further, the employment bond with the negative covenant is valid and legally enforceable, if the parties agree with their free consent i.e. without force, coercion, undue influence, misrepresentation and mistake, but it is not enforceable, if it is either one sided, unconscionable or unreasonable.

- Further, section 27 of the Indian Contract Act prohibits any agreement in restraint of trade and profession.

- Since, you have already tendered your resignation , then the company cannot force you to sign any agreement , specially which are not as per clauses of contract signed at the time of joining the company. 

- Send a legal notice /written notice to the higher management of the company , after narrating that you have already resigned and your last working date is 27 Feb 2020, and further  from this date you will not be accountable for any services etc. and thereby ask to release Relieving letter as earliest . 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Sec.27 of Indian Contract  Act comes to your rescue.

The Chairman cannot force you to sign the same, more particularly, when your resignation is accepted, as per the T&C of your appointment serve your notice period and you are at liberty to proceed.

Your Ex-employer cannot restrain / restrict you in any way more particularly with non-solicitation clause etc.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

Your appointment in your company was purely contractual, therefore in this case if at the time of signing the contract of employment you must have agreed to certain terms and conditions and you are bound by it. In case, your contract of employment do not have these terms and conditions then the company cannot compel you to sign any further contract with them when you want to leave the company and you can even send them a legal notice so that they relieve you from the company. Please check the terms and conditions of your contract of employment and then take a stand.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

Sign it. Not valid in India. Non-solicitation clause cannot be enforce agasint employee.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

1. He cannot force you to sign the agreement by blackmailing you for relieving letter. 

2. Even if he make you sign the agreement it will be null and void due to contract for restrain of trade. 

3. If your new employer is ready to take you without relieving letter then you can leave without signing that agreement. They cannot hold your relieving letter.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Dear Sir,

Such clause itself against the spirit of section 27 of Contract Act. Please see.

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Section 27 in The Indian Contract Act, 1872

27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. —Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void." Exception 1.—Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

Then dont worry resign and join other company. If there is no such clause he can't compel you

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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