If they are not providing you the experience letter you need to file a complaint before labour commissioner office or approach court
Company is refusing to provide experience letter even after paying them for buy out policy Rs 58,264
Hi all, I worked for the organization from 2016 to 2020 and I resigned from the company during lock-down due to COVID-19 as company was asking us to work for more than 15 hours a day and even to work on Sunday and Saturdays. Company has offered me buy out policy for which I had to pay them Rs 58,264 to company's CEO personal account . Just after paying them I have also received the relieving email from the HR that your resignation has been accepted and they have received the amount I have sent to CEO's account. After resignation I tried calling HR many times but I did not get any response for 2 months and now suddenly company is putting allegations that I have breached the services due to which they will not provide me my experience letter for 3.5 years . All I have with me right now:- 1:- Joining Letters 2:- Increment lettes 3:- Awards from the company 4:- Best employee of the year 2019 5:- Bank statements (Not Salary slips (They never provided us during 3.5 years)) I am seeking for help that what needs to be done to get my experience certificate and also they are blackmailing me for the Legal notice that they sent me 20 days ago . Thanks
Asked 3 years ago in Labour
33 Answers
Send legal notice for release of experience letter. No case made out agasint you. Also demand payment made in CEO`s account as same is extorted under pressure. Because if any account was to be paid in lieu of notice period, than the same have to be paid in the name of organization.
- 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 paid the buy out policy , hence their acts of not issuing the Experience letter is against the law , and also Supreme Court judgement, and further black mailing is an offence .
- You should reply the said legal notice or send a legal notice , and thereby ask the company to provide the said certificate within a week.
- If no response , then file a petition before the court.
Legal notice that I received from the company on 18th July :- EVEN CEO CALLED ME AND SAID HE WILL FILE CASE UNDER 420 & BLOCKED ME . Subject: Final Notice before legal action against Breach of Employment Contract. We are hereby sending you a notice to breach of employment contact executed by you in favor of claim of the company. Our Claim You were appointed as Abc Role vide appointment letter dated 2016 - -. You assured that you will abide all terms and conditions of the Company. You have breached the policy of Non-compete and other NDA terms and contact clients outside business and also stolen the intellectual assets including project's source code and tools. That on 2020- - you resigned and refused to serve notice period as mentioned in the agreement. Hence, now you become liable to pay damage up to Rs.10,00,000 to the company. Legal Proceedings In order to protect our company’s interests we are considering proceedings against you in the Civil Court. These proceedings would seek remedies including but not limited to the following: Damage claim up to Rs.10 Lakh. Prohibition of using our property, brand names including source code in any form in the future. That you are directed to agree to the remedies in written within 14 Days against the violation of the terms and conditions. Jurisdiction The jurisdiction shall be at Civil Court, City, Punjab and its subordinate courts located in the circle concerned. Next steps At this stage neither we nor our COMPANY have any desire to issue legal proceedings against you and we are keen to do all we can to avoid litigation wherever possible. However, in accordance with the pre-action protocol for breaching of bond, we will desist from issuing legal proceedings provided within 14 days of the date of this letter you agree to do the remedies given above. We await your response. In the meantime we reserve our rights, in particular the right to produce this letter to the Court.
Asked 3 years ago
The company seems to be very vindictive and they probably can not be in terms of the fact that you have quit early.
Anyway you have acted in compliance of the terms of the job contract and you have nether violated any of this conditions or are expected to commit anything further.
if you have not received the Relieving Letter then after sending legal notice file a civil suit as well.
This would help you to compensate the loss of relieving letter and defend you from future litigation if they decide to file any.
You should engage a lawyer and reply to legal notice
2) deny allegations made in legal notice
3) mention that you won best employee award
4) that you have not committed any breach of non compete No disclosure agreement
5) that no damages are payable by you
Reply to notice through an advocate that the notice is sort of blackmail and extortion. Cite offer extended by company to deposit Rs 58,264 to company's CEO personal account and resignation duly accepted. Now to extort more amount, this notice has been sent and Rest allegations are false.
Company has no capacity to decide jurisdiction of lower and same shall be as per CPC. And demand amount given in CEO account as same is received under extortion and compensation for mental harassment.
NO criminal case made agasint you.
You have to take legal proceedings to direct company to issue you experience certificate
Please respond gently the notice through a lawyer denying allegations.
Later file recovery suit against the Company and Principal Officers befor labour commissioner of Punjab having jurisdiction to try your disputes of certificate and due payments.
You need to reply to the said legal notice with your facts. Later you need to contest the said cases
Serve them with a legal notice and than file a specific performance suit against them
- As i mentioned above except recovery of notice period amount , company cannot take any legal action against you.
- You should send reply of the notice .
Sir
You are not wrong and you have complied everything as per the terms and condition,
It is Advisable to kindly send them a legal notice stating all the facts and also file a complaint before the labor commissioner.
You are also liable to claim expenses for Mental Harassment.
1. Serve a legal notice to the company to seek relieving letter.
2. Also reply to the legal notice served on you.
3. If relieving letter is not issued even after legal notice then you can sue the company in the civil court.
If you have received the legal notice then it becomes your duty to reply them denying the allegations.
You may also issue a separate legal notice demanding the experience letter, if they fail to respond then you may either drag them to the labour commissioner or to the high court with a writ petition directly.
Since you have all the documents supporting yor claim you need not be worried about their dodging activities, they are answerable in court of law.
You deny the allegations mentioned ion the legal notice.
You consult a local lawyer and issue a reply notice very strongly and properly.
Since the company has accepted the buy out amount and also issued the relieving letter, the company should not have any more claim from you.
They do not have any evidence or any authority over you for the so called breach of contract conditions or the NDA clause.
In fact that clause is not maintainable because of the provisions of section 27 of the iNDIAN CONTRACT ACT.
You may consult a local advocate and issue a strong reply notice as suggested.
1..You should hire an advocate and send a legal notice to your employer for issuance of relieving letter and experience certificate or provide written explanation for not providing the documents.
2. Mention about buyout of notice period and transferring funds in the account of CEO.
3. If they refuse to issue the certificates or doesn't reply to your legal notice then file suit for mandatory injunction and claiming compensation for loss of opportunities due to non issuance of certificate.
A legal notice should be sent to them and if they do not respond then file a complaint against them for fraud and cheating and criminal breach of trust.
Attach this notice to the complaint and file it before a magistrate immediately.
Send them a reply with the help of your advocate.
Regards
This is what they have added in the agreement letter when i have joined the company back in 2016. General Provisions 17. Waiver of Breach: Waiver of any breach of the provision of the service agreement, or any delay or failure to exercise a right under a provision of this agreement, by either party, shall not be understood or construed as a waiver of that breach or any other subsequent breach or right. 18. Notice: The Notice to be given by either party to the agreement may be effective either by personal delivery with sufficient receipt or through registered post at their last known addresses as appearing in the records of the Employer. The Employee shall notify within Seven (7) days any change of address to the Employer. 9. Severability: The non-enforceability or invalidity of any provision of this agreement shall not affect the remaining enforceable and valid provisions of this agreement thereof. 20. Governing Laws/Jurisdiction: This agreement shall be construed in accordance with and governed by the Indian Laws and all disputes arising or incidental to this agreement shall be subject to the jurisdiction of OFFICE near by courts only. 1. Capacity: The Employee is competent to execute this agreement under the Indian Contract Act, 1872 and has agreed to be bound by this agreement and the terms and conditions hereof. 2. Counsel Fee's and Costs: The Employer shall be entitled to responsible Counsel Fee, Costs and necessary expenses, if any necessary legal action is brought in any court to enforce or interpret any term of this agreement.This agreement cancels and supersedes any previous understanding, written, oral or implied that the Employee may have with the Employer.If the above terms are acceptable to you please sign your acceptance in the place provided and return the duplicate copy of this agreement. In this case what should I do to proceed further and this company has a history to getting more money from employees after resignation .
Asked 3 years ago
1) you must reply to legal notice
2) contact a local lawyer
3) deny allegations made in legal notice
You need to reply to the legal notice and contest the case if filed. If you haven't done any fraud then you don't have to worry.
The employment offer conditions are not enforceable when taken up through court of law in view of provisions of section 27 of Indian contract act.
Let there be any condition, don't get confused or frightened over the contents.
When they take legal action you can very well defend your interests on the basis of merits and documentary evidences in your support.
You may consult a local lawyer practicing service law and proceed as suggested
- 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.
File a criminal complaint for defrauding you and for cheating and forgery and criminal breach of trust.
File a case in the labour court for recovery of money along with compensation.
File specific performance suit and you will get all the expenses
This is what I got as a reply that i have sent 1) That you have joined the company of my client i.e. ABC Tech. Pvt. Ltd. company on dated XX.0X.20XX vide appointment letter dated XX.0X.20XX as Software trainee which was signed by you and later on promoted to software developer and your salary scale has been also raised as per your skills and experience. Even you signed the letter of non-competency on dated XX. 2) That as per the clause in the letter of Non-Competency you agreed not to compete with same company business during your job and within five years after leaving job. As per that letter you even agreed that you are fully responsible for adhering to all aspects mentioned in the letter and in violation to the terms of letter company has right to initiate legal action against you. 3) That you have resigned the job dated 1X.0X.2020 without serving any notice & notice period as well as without delegating your duties. Even my client revert you through mail and accepted you resignation from 1X.0X.2020 and also informed you that my client has been received buyout period. You just want to avoid your responsibility by sending a mail that resignation may be considered final as you are leaving job as you are interested to continue your family business. But your intention is malafide and story concocted by you is false, it came to the knowledge of my client that you have breached policy of letter of non-competency and contacted company's clients outside the business after stealing intellectual assets including projects source code and tools. 4) That your sudden resignation, buyout amount and breach letter of non-competency hampered the project as well as work of my client. Even your act of violating terms as well as stealing of intellectual assets including project's code and tools, not only create legal liability against you, but also cause loss to my client's work. Hence, you have committed the cyber offence too, which attracts criminal liability too.
Asked 3 years ago
You should take plea that any agreement in restraint of trade is void under provisions of Indian contract act
2) after resigning you are at liberty to join another organisation
3) your resignation was accepted by company
4) you have not stolen any intellectual assets
5) you have not committed any cyber offence
You can contest if they file any case on grounds mentioned in your reply.
Please reply to the reply of your ex- employer and deny the allegation and proceed.
Deny all their allegations. This is usual practise of company when employee resigns.
Non competence clause is not valid.
Specific performance suit is to be filed
You first issue a reply notice denying all their allegations made in their notice to you.
Stealing of intellectual assets is the one which is causing concern, you may clarify what it is and give a suitable reply to that allegations too through a reply notice issued through a lawyer.
The conditions what they have mentioned ion the legal notice are not enforceable in law if they decide to approach court of law for this purpose.
When we see the Indian legal scenario about the non compete clause, it is prohibited under the Law of Contracts.
Section 27 of the Indian Contract Act-1872 provides that ”Every agreement by which anyone is restrained from exercising a lawful profession or trade or business of any kind, is to that extent void”
Non-compete provisions for the term of employment are not regarded 'restrictive covenants' under Indian law.
However, having such provisions applicable after a person leaves the organisation is against the Indian Contract Act, and, therefore, not enforceable.
Typically, the only way to fight a non-compete agreement is to go to court. If you are an employee (or former employee) who signed such an agreement, this means you must violate the agreement and wait to be sued.
It may be that your former employer has never sued another employee to enforce the non-compete agreement.
There are tough laws that restrict the scope of non-compete agreements, and judges are reluctant to enforce them – which makes it less difficult for you to get out of a non-compete agreement you signed.
Indian law is therefore very clear and strict on this point, any such non compete agreement shall not be binding on the parties and the same shall be null and void. By using the term void ab initio, for such type of agreements it has shown that it has kept such non compete clause in the agreements beyond consideration.
Indian courts have also consistently refused to enforce post termination non compete clauses in employment contracts as “restraint of trade” is impermissible under section 27 of the Indian Contract Act-1872, and have held them as void and against the public policy because of their potential to deprive an individual of his or her fundamental right to earn a living.
Thus you need not be worried about this aspect, let them take action as per their own understanding of law, you can very well defend your interests and get out of it very easily.
This is nothing. Go ahead with your job. They cannot sue you and even if they do you have a strong case.
- Reply the notice after mentioning that resignation is your right as per Supreme Court judgement .
- Further pay the notice period mentioned in the appointment letter .
- Section 27 of the Indian Contract Act prohibits any agreement in restraint of trade and profession.