US Salary on hold based on India Agreement

[bhaweshkumar]

I worked with a company for 5 years and then left it before rejoining it last year April. I rejoined as this company offered to transfer my H1b for a job assignment in US. They did that after client interview was cleared and I was having approved H1b petition. I agreed upon joining this company looking after my 5 year association with it.

Once in the company they asked me to sign an agreement which they do with everyone who goes to work for them.

I have emails from the company saying that they have already reduced 5150 USD out of 5520 payable by me for bond. They want rest 370 around USD for the bond money.

Points: -

1. There was never any training as I came here as an Architect and worked all the time on my own skills. I worked with this company earlier on L1 in 2009 as Senior Project Lead that is a visa for specific skills only.

2. I served 2 weeks’ notice before leaving them in Illinois. It is At-Will employment here.

3. It was not my first international job. I always had a good skill set which provided me International jobs since 2004. Before re-joining … I was working in Japan. It was a direct employment and I still hold a valid work visa for Japan.

4. There was no special assignment thing that … offered me when they offered to work in USA. The offer to work was based on my technical interview with the client. Client did a technical interview. I satisfied their technical queries and when client gave their willingness to hire me for their project, only then … India offered to hire. … India offered me to hire as I was holding a valid work permit and I got technical interview cleared up with client

5. … India pushes everyone to sign a bond for specialized knowledge program. It doesn’t matter if anyone is being sent as a specialist on some technology or not, a bond is pushed to everyone. The bond talks about a specialized knowledge program.

6. There was also no request of mine “as mentioned in agreement” to provide me a specialized knowledge transition.

7. They wrote me email while serving notice that my paycheck will be processed along with March 31 payroll but never paid.

They got two agreements which are given along with the post. I have removed specific details and kept points for getting your views: -

1. Security bond

2. Service Agreement

SECURITY BOND

THIS BOND is executed at ******** on 23rd July, 2012(date of bond) I, *********** ********aged about 33 years and currently residing at … (hereinafter called the “Employee”, which expression shall, wherever the context so admits, include his/her legal representatives, heirs, successors and executors), do bind myself and my heirs, legal representatives and executors in the sum of Rs 3,00,000.00 (Rupees Three Lacs only) for the payment to … Private Limited, having its office at … (hereinafter called the “Company”, which expression shall, wherever the context so admits, include its successors and assigns).

WHEREAS by an agreement dated 23rd July, 2012, entered into between me and the Company (hereinafter called the Agreement) , upon my request, the Company has agreed to impart specialized knowledge transition (herein after called the "Program") to me, at Company's cost and expense, on the terms and conditions contained in the Agreement;

AND WHEREAS I accept and acknowledge that the sum of Rs. 300,000.00 (Rupees Three Lacs Only) is the proper estimation of the cost and expense incurred by the Company upon me for the Program;

AND WHEREAS it is condition of the Agreement that the Employee shall furnish a Security Bond to undertake due performance of the covenants of the Agreement in the sum of Rs 300,000.00(Rupees Three Lacs only) before the Employee is enrolled in the Program;

AND WHEREAS I have voluntarily undertaken to unconditionally and irrevocably guarantee due observance and fulfillment of the terms and conditions contained in the Agreement, and in the event of my failure to observe all or any of the terms and conditions contained in the Agreement, I undertake and bind myself to pay immediately on written demand and without demur or objection or set-off, to the Company, a sum of Rs 300,000.00(Rupees Three Lacs only) .

CONDITIONS

NOW the conditions of this Bond are such that if I shall duly and faithfully observe and perform all the stipulations and conditions on my part to be observed and performed and contained in the Agreement, then this Bond shall be terminated upon end of 6 months from the date of completion of the Program; otherwise the same shall remain in full force and effect and that I agree that this guarantee is irrevocable during the continuance of the Agreement, and I further expressly agree that if any disputes or differences arise between … and myself under or in connection with or relating to this Bond, the same shall be referred to Arbitration to be conducted by an arbitral tribunal consisting of three arbitrators. One arbitrator to be appointed by me and one by the Company and the two arbitrators so appointed shall appoint the third arbitrator, who shall also be the presiding arbitrator. The Arbitration shall be held in accordance with the provisions of The Arbitration and Conciliation Act, 1996, and/or any statutory modifications thereof. The cost of the Arbitration including reasonable attorney fees shall be borne by the losing party in the Arbitration. The decision of the Arbitration panel shall be final and binding on both the Employee and the Company. The venue of Arbitration shall be ******, ******** **********, India and the language of Arbitration shall be English. Subject to above, all legal proceedings shall be subject to the jurisdiction of appropriate courts in Delhi city only.

I further agree that in default of all or any of the conditions of the Agreement by me or failure to discharge my obligations in accordance with the Agreement, I and my heirs do hereby undertake and bind ourselves to pay to the Company, at ******, a sum of Rs 300,000.00 (Rupees Three Lacs only) unconditionally, on a mere written demand by the Company of such default or failure without any demur or objection or set-off. The decision of the Company as to whether I have committed any such default or failure under the

Agreement shall be final and binding on me and I shall not raise any objections to the same or contest such decision at any point of time.

NOTWITHSTANDING the provisions contained in any law relating to security, any changes in terms and conditions of the letter of appointment of the Employee and / or the Agreement shall not affect this Bond.

Any change in the constitution of the Company shall also not affect this Bond.

If on a mere demand by the Company, I am unable to pay the sum demanded, I shall be bound and hereby undertake to pay interest at the SBI prime lending rate from the date of demand till date of payment and the Company may proceed against my estate in this regard.

IN WITNESS WHEREOF, I ********* ******* set my hands the day and the year first hereinabove mentioned in the presence of:

AGREEMENT

THIS AGREEMENT executed at ********* on 23rd July, 2012 by and between ********* **********… aged about 33 years, currently residing at …, ********** permanently residing at … hereinafter called the "Employee", of the first part;

AND

… Private Limited, a company duly incorporated under the Companies Act, 1956, having its office at …, hereinafter called "…" of the second part;

WHEREAS … is in the business of rendering Software business process outsourcing services to customers in India and abroad.

AND WHEREAS Employee has voluntarily agreed to enroll in certain specialized knowledge transition (hereinafter collectively referred to as "Program");

AND WHEREAS the Employee acknowledges that the Program involves enormous amount of expenditure for ... and ... will be put to a loss if the Employee does not commence and complete the Program successfully and does not serve ... for a minimum period of 6 months (period of bond) after return from the onsite assignment (Program);

AND WHEREAS realizing the loss that will be suffered by ... if the Employee does not commence and complete the Program successfully and thereafter serve ... for a period of 6 months (period of bond) from the date of completion of the Program, and as a security for due and faithful performance of the Employee's obligations, the Employee has agreed to furnish a security bond in the manner mentioned hereunder;

AND WHEREAS, ..., on the basis of the above requests and assurances of the Employee, has agreed to enroll the Employee to the Program; subject to the terms and conditions mentioned in this Agreement:-

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:-

1. In consideration of the Employee undertaking to enroll & successfully complete the Program, and immediately thereafter use such newly acquired and existing skills and knowledge for ...’s sole benefit by serving ... for a minimum period amounting to a period of 6 months (period of bond) from the date of completion of Program, ... agrees to bear all the costs and expenses of the Program.

2. During the period of the Program, the Employee shall remain in the service/rolls of ... in accordance with its terms of employment. During the course, the Employee shall also abide by ...'s rules and regulations that are applicable to all other employees.

3. The Employee shall receive orders, directions and instructions from his/her superiors during the period of program or thereafter.

4. The Employee shall receive his/ her salary from ... in accordance with the terms and conditions of his/her employment with ....

5. On completing the Program to the satisfaction of ..., or in the event of expiry of the Program, the Employee undertakes to continue employment with ... for a minimum period amounting to 6 months (period of bond) from the date of completion of the Program.

6. During the currency of this Agreement, which comes into force on the date of signing and shall continue to be in force until fulfillment of all the Employee obligations herein, the Employee shall devote his/her ability, knowledge and special skills including those he/she gained during the Program and arising out of the same, for ...'s exclusive benefit, in accordance with his/her terms of employment and shall work diligently and honestly to the full satisfaction of ....

The Employee hereby undertakes with ... to sincerely and with absolute commitment gather as much special knowledge and skills as are capable by him/her during the Program and guarantees to apply such special knowledge and skills to ...'s benefit.

7. The Employee further undertakes with ... not to divulge to any person or persons not authorised by them, any information relating to or concerning the Program, ...'s customer's businesses or finances, agreements between them or any of their dealings, transactions or any other matter or matters which may come to his/her knowledge by reason thereof, except so far as is really necessary and proper in the normal course of his/her duties and functions in the employment. This undertaking of secrecy shall survive even after the expiry of this Agreement and / or severing of employment.

8. The Employee shall not undertake or give commitments or enter into any Agreement or bind ... or their customers in any manner with any third party and ... will not be responsible for any such dealings unless authorized and approved in writing by ..., and the Employee shall keep ... indemnified at all times against any claims / losses suffered by ... or the customers in this regard.

9. During the currency of this Agreement, should the Employee on his/her own volition ceases his enrolment in the Program or commits any breach of the terms and conditions of this Agreement, the Employee shall be liable to ... for losses suffered and he/she also undertakes to bear all direct and indirect costs incurred by ... in connection with his/her Program. The Employee understands and agrees that an unauthorized absence from work for seven (7) days continuously and/or any deliberate or willful non-performance or poor or below average performance of work shall, among several other events, be construed as a breach of this Agreement, by the Employee. The decision of ... as to whether the Employee has committed a breach or as to the quantum of direct and indirect costs & expenses incurred by ... towards the Program shall be final and binding on the Employee and the Employee shall not raise any objections to such decision at any point of time. The Employee accepts and agrees that ... will spend the onsite travel costs and expenses towards the onsite assignment/ Program, and further agrees not to question or raise objection to such costs incurred by ... at any point of time. The Employee agrees to the recovery of these costs and expenses without ... being required to give any other or further proof of actual loss or damage suffered by them because of the breach provided however, that ... shall not be entitled to recover anything more than Rs 3,00,000/- in this regard.

The Employee further undertakes that upon his/her failure to observe and / or perform any or all the terms and conditions herein to pay on written demand and without demur the said Rs 300,000/- (Rupees Three Lacs Only) by way of liquidated damages to .... A mere written intimation by ... that the Employee has failed in his/her performance of the terms and conditions herein is sufficient notice for invoking this clause.

10. The Employee shall pay the aforesaid amount of Rs 300,000/- on a mere written demand from the ... citing a breach of this Agreement, by the Employee, and failure to do so will entitle ... to realise this sum by legal means including interest thereon at Bank lending rates from the date the amount falls due till payment is realised. In the event, the Employee does not pay the said costs and expenses, ..., without prejudice to any of its right under the applicable law or this Agreement, shall also be entitled to recover and adjust this sum from any payments accrued to the Employee on account of salary, bonus, stock options, leave encashment and any other dues besides withholding of clearance certificates.

11. In addition, to secure the faithful performance of the terms and conditions of this Agreement, the Employee agrees and undertakes to provide simultaneously, a Security Bond for the sum of Rs 300,000/- , to undertake the faithful performance by the Employee of this Agreement, in the manner required and acceptable to ... and as set out in Annexure - A.

12. In case of any disputes or differences arising between the parties hereto with regard to any or all the matters covered by this Agreement, the same shall be referred to Arbitration to be conducted by an arbitral tribunal consisting of three arbitrators. One arbitrator to be appointed by the Employee and one by ... and the two arbitrators so appointed shall appoint the third arbitrator, who shall also be the presiding arbitrator. The cost of the Arbitration including reasonable attorney fees shall be borne by the losing party in the Arbitration.

The decision of the Arbitration panel shall be final and binding on both the Employee and .... The Arbitration shall be held in accordance with the provisions of The Arbitration and Conciliation Act, 1996, and/or any statutory modifications thereof. The venue of Arbitration shall be ***** , **** ******, India and the language of Arbitration shall be English. Subject to above, all legal proceedings shall be subject to the jurisdiction of appropriate courts in Delhi City only

13. All other terms and conditions of employment of the Employee with ... shall continue to apply in addition to this Agreement. This Agreement is in addition to and not in derogation of such terms of employment and in case of any inconsistency between such terms of employment and this Agreement; the conditions of this agreement shall prevail. This Agreement shall not affect any other service Agreements or the like signed by the Employee with ... and if there are any such Agreements, the same and this Agreement shall run concurrently.

Nothing in this Agreement shall extinguish or diminish the rights of ... as an employer under law or under ...'s rules and regulations governing employment or under the terms and conditions of employment that the Employee has agreed with ..., and this Agreement may be enforced by ... independently and irrespective of any such rights.

14. The conditions of this Agreement may be waived at the sole discretion of .... Any waiver shall be valid only if communicated in writing to such Employee.

.15. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received only when delivered (personally, by courier service, or by other messenger or by facsimile transmission and followed promptly by mail) or four days following the day when deposited in the registered or certified mail, postage prepaid, return receipt requested, addressed as set forth below:

(a) ... [●]

(b) Employee [●]

16 The Parties warrant to each other that they have full power and authority to execute this Agreement for and on behalf of themselves and other affiliates.

17. This Agreement shall bind the Employee's Heirs, legal representatives, executors, successors -in-interest and Assigns.

IN WITNESS WHEREOF, the parties hereto have set and subscribed their respective hands and seal the day, month and year first hereinabove written.