• My ex employer has sent me notice because I've joined one of their client

Hi,

I used to work for a IT firm here in India after leaving that company I got an offer from one of their client it's a US based MNC.

I joined their Indian office. Now few days back I got a notice from an advocate CEASE AND DESIST NOTICE. 

Stating the NDA which I signed, that I can't join their client for a period of 1 year.

They asking me to leave my job else they will take legal action against me.

Before joining the new company I asked the hr of my old company that do I need any NOC? HR said I can join as I've already left the company. This was on a phone call.

Can anyone help me to understand what I should do?
Asked 1 month ago in Labour

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18 Answers

Any agreement in restraint of trade is void under provisions of section 27 of contract act 

 

2) you are at liberty to join client after leaving organisation 

 

3) engage a lawyer and send reply to legal notice 

Ajay Sethi
Advocate, Mumbai
82669 Answers
5248 Consultations

5.0 on 5.0

Many people do setting with client companies to join them by leaving IT company of India by keeping some days gap in resign in old company and then join client company after few days.

 

you were working for same client or different client ?

The MNC offer letter date was after or before the last date of IT company ?  You said you got offer after leaving that company so there was gap of some days in joining MNC company ?

 

If you were working for same client then all the details have to be looked into. 

 

If different client then absolutely no reason to worry. 

send reply notice with help of Good lawyer. 

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

When you have received a proper relieving letter and other credentials, you can join any employer. It is your right to earn your livelihood by lawful means guaranteed under Article 21 of the Constitution of India. Such notices are issued only to intimidate ex-employees. By NDA if you a non disclosure agreement, the notice has to disclose what trade secrete or industrial invention that is patented by you ex employer you have disclosed. You ex has no case against you, no clause of against with ex is infringed, no law violated. You can just ignore the notice .    

Ravi Shinde
Advocate, Hyderabad
1007 Answers
8 Consultations

5.0 on 5.0

Yes, I can help in this matter, just need your previous employer employment agreement and NDA signed by you. Plus you have received notice from Lawyer so I can able guide you accordingly.

 

No need to worry about it. As per payment and remuneration act you have full rights to change the job and no one can stop you by threating any bond's clauses.

Ganesh Kadam
Advocate, Pune
12081 Answers
136 Consultations

4.9 on 5.0

If you have received a notice,  it becomes your duty to issue a reply notice denying the allegations. 

The previous company cannot restrict you from taking an employment of your choice after leaving that company. 

As per section 27 of Indian contact act any such restriction is not maintainable or enforceable in law. 

You contact an advocate and issue a proper reply notice denying the allegations leveled against you by the company. 

T Kalaiselvan
Advocate, Vellore
72756 Answers
1110 Consultations

5.0 on 5.0

Dear Sir,

 Please read section 27 of Contract Act 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
5897 Answers
297 Consultations

4.8 on 5.0

Dear Sir/Madam, 

A cease and desist notice that has been sent to you has valid grounds because you breached the non-disclosure agreement. However, a cease and desist notice is not legally enforceable in India because it has not been ordered by the Court. C&D notices usually serve as a firm warning to the other party. 

Following steps may be taken: 

1. Please ask for a copy of the NDA signed by you. It shall serve as a reference in case you are sued by the company. 

2. Get your NDA reviewed by a legal counsel to verify the terms of the particular contract. 

3. Please get in touch with the HR of your old company regarding the company policy of breaching an NDA. 

4. It is a standard practice for companies to include 'non-compete' provisions in contracts of employment. Such provisions restrict an employee from competing with the employer or joining a competitor during the term of the employment and for a period thereafter. These provisions are not restrictive in nature according to Indian law. 

5. Section 27 of the Indian Contract Act states that any agreement that restrains anyone from 'exercising a lawful profession, trade or business' is void. Thus, any restraint on employee, reasonable or other is treated as void. 

6. Normally a non-compete clause is NOT EFFECTIVE after termination of employment agreement. Since you have terminated your previous employement, you shall not be bound by the NDA and any such binding falls within the scope of Section 27 of Indian Contract Act. 

Thank you

  • For more assistance, you can book a consultation with me
  • If you like my answer, please give a good rating and leave a review

 

 

Anik Miu
Advocate, Bangalore
1516 Answers
18 Consultations

5.0 on 5.0

Reply through a lawyer and assert that you have not violated the NDA.

Your lawyer will have to go through the NDA you signed with you previous company to send a p[roper reply to them

Even if they file a case against you, it is highly unlikely that they would be able to succeed as the Constitution guarantees you right to trade and profession. 

 

Vibhanshu Srivastava
Advocate, New Delhi
9299 Answers
193 Consultations

5.0 on 5.0

Reply to legal notice 

 

mention that any agreement in restraint of trade is void under section 27 of Indian contract act 

Ajay Sethi
Advocate, Mumbai
82669 Answers
5248 Consultations

5.0 on 5.0

Dear Sir/Madam, 

As mentioned previously, you can include section 27 of the Indian Contract Act which states, "any agreement that restrains anyone from 'exercising a lawful profession, trade or business' is void." in your reply. Thus any restraint on an employee reasonable or otherwise will be treated Void. 

Thank You

  • For further assistance, you can book a consultation with me. 
  • If you like my answer, please give a good rating and leave a review. 

Anik Miu
Advocate, Bangalore
1516 Answers
18 Consultations

5.0 on 5.0

Whatever the reason be, your past employer cannot initiate any legal action against you and if he does that then it will not be maintainable in law. 

Before that you may have to issue a reply notice denying the allegations leveled against you in their legal notice to you. 

T Kalaiselvan
Advocate, Vellore
72756 Answers
1110 Consultations

5.0 on 5.0

1. Ok

2. Noted.

3. Carefully reply to this cease and desist through a lawyer. 

4. Do let me know if I can be of any further help.

Vibhanshu Srivastava
Advocate, New Delhi
9299 Answers
193 Consultations

5.0 on 5.0

- 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. 

- 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.

- Hence, if you are free to joint any company as per your wish , and cannot be forced to leave legally. 

- You can reply the said legal notice

 

You can contact me , if detailed suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
7062 Answers
73 Consultations

5.0 on 5.0

I guessed so. Most used technique :)

 

just inform the lawyer that you joined a company after leaving IT company and then lawyer will take care of it along with timelines in reply notice. 

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

1. Indian courts have consistently refused to enforce post-termination non-compete clauses in employment contracts, viewing them as “restraint of trade” impermissible under Section 27 of the Indian Contract Act, 1872 (the Act), and as void and against public policy because of their potential to deprive an individual of his ability to secure his livelihood. However, a one year cooling off period against joining the client can also be termed reasonable.

2. It is imperative you must answer the legal notice through your lawyer.

Ashish Davessar
Advocate, Jaipur
30635 Answers
893 Consultations

5.0 on 5.0

You need to reply it through advocate. It's better you deal the same carefully

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

If you had signed a NDA then the contents of the same are important. A non disclosure agreement only means that trade secrets and other organisational secrets and other things would not be disclosed by the employee. It cannot mean that you will not work with any of their client. Did they mention it specifically in the NDA??

Rahul Mishra
Advocate, Lucknow
12649 Answers
31 Consultations

5.0 on 5.0

You should eitehr share the NDA or show that to any other lawyer so that the situation may be better appreciated.

Regards.

Rahul Mishra
Advocate, Lucknow
12649 Answers
31 Consultations

5.0 on 5.0

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