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Understanding Non-Poaching Agreements and Their Relevance In Employment Laws

Updated: Sep 1, 2022


Sakshi Shairwal

Ch Shloka

Today, we are living in a time of rivalry were to prevail on the lookout; individuals will in general utilize alternate ways to support themselves and get accomplishments. There is an overall propensity of individuals to keep others from carrying on their work either essentially or pointlessly relying upon the losses they may predict to. However, here we are not worried about every single inclination of such people aside from the propensities to meddle, harm different people by specific disclosures that may be the core method how the person works, of poaching certain faculty to advance oneself with the insider facts of another individual. Here, individuals include employees, professionals, companies, firms, etc.

A company or a firm generally enter into an agreement with their employees or other company/firm, namely- (1) Non- Solicitation Agreement and (2) Non- Poaching Agreement A Non-Solicitation Agreement is the one which is usually entered as a contract between employees or partners of a company or firm. The purpose of this agreement is to restrain a former or present or a partner from solicitation of clients and employees of the company for his advantage and against the interest of the company during and after his employment tenure ends.


A Non- Poaching Agreement is entered into with other companies or firms dealing with similar businesses. This agreement emphasizes the meaning of human assets in a continually developing society. Human asset is the foundation of any association that can energize or crash the advancement of any business.

Fulfilment of such asset, particularly the profoundly qualified professionals managing the course of business, is normally shown by the business as high compensation and different motivations which help them in the acknowledgment of their objectives. On the off chance that this human asset isn't as expected familiar and gave the legitimate conveniences needed by them, at that point it may prompt them to change their jobs and therefore influence the interests of the business. The contenders regularly draw this human asset through different methods, which may thwart the advancement of the organization and influence it severely. Businesses frequently go into such agreements with their rivals to forestall such incidents and to do their business as deftly as they can unafraid of such allurement or intentional switching of jobs of the employees.


In India, as the ability pool in the IT area is restricted, IT organizations need to dish out immense amounts of cash to prepare new selects to make them employable, which is the reason IT organizations incline toward recruiting individuals who have effectively been prepped in their past positions so that they (the recruiting organization) can begin receiving benefits right away. Despite what is generally expected, numerous contend that the sum spent in preparing a new select (comprehensive of compensation and customer costs) ends up being less expensive than what is paid to an accomplished worker, for similar work.

As this is a typical issue being looked at by the IT area in India, the HR groups of these organizations have been attempting to think of an answer all alone to eliminate wearing down of representatives, and to keep their workers from joining contenders.

From a business viewpoint, this may appear to be legitimate, notwithstanding, it will be similarly pivotal to analyze the suitability of the NPA from an unadulterated legitimate stance and furthermore check whether such arrangements will be enforceable and feasible in India.


Employment/ Labour Laws control the relationship between workers, employers, trade unions, and the government. These laws provide directions for employers- the procedure to hire employees, the amount of salary which needs to be paid to the employee and on how to provide an appropriate working environment to the employees, etc.

Section 27 of the Indian Contract Act, 1872 talks about an agreement in restraint of trade. According to this section, any such agreement is void to that extent that restrains anyone from exercising any kind of lawful trade, profession, or business.

The clause of Non- The poaching Agreement does not apply during the term of employment but acts when the term of employment comes to an end. In the case of GUJARAT BOTTLING V. COCA-COLA COMPANY AIR 1995 SC 2372, the apex court held that a man is qualified to exercise any lawful trade or calling as and where he wills, as long as it isn't against public policy. However, the court added a rider to it as an exemption that when a worker may uncover the classified data of the past employer, such clause is supported.

In the case of PEPSI FOODS LTD. & ORS. v. BHARAT COCA-COLA HOLDINGS PVT. LTD. & ORS. (1999) IILLJ 1140 DEL, it was held by the Delhi High Court that the clause of the negative agreement like ‘restriction from engaging or undertaking employment for 12 months post-termination sustains monetary illegal intimidation and makes conditions practical for 'reinforced work.' Such clauses abuse Section 27 of the Indian Contract Act and along these lines is unenforceable and void. Compatibility of administration is definitely not an acknowledged standard of administration statute, and a directive can't prohibit workers' entitlement to end their agreements. Looking for the order was unique with the incidental rationale to keep employees from changing employers. The rights of employees to have better working conditions and open positions somewhere else can't be abridged. Hence, an injunction was not granted by the Court to the defendants as the agreement was violative of Section 27 of the Indian Contract Act, 1872.

In the case of JET AIRWAYS (I) LTD. v. MR. JAN PETER RAVI KARNIK 2000 (4) BomCR 487, it was held by the Bombay High Court that terms and conditions of administration of the defendants have been singularly modified by the plaintiffs to the burden of the litigant. The Court held that non-grant of an injunction would not reason any hopeless misfortune to the plaintiffs. Prior it was the plaintiffs who had effectively poached 16 pilots from Sahara Airlines. The lead of the plaintiffs was with the end goal that defendants had no recourse left except to look for employment somewhere else, the burden which had been brought about by leaving of administrations by the defendants was just transitory and plaintiffs were not qualified for the award of any injunction.

Section 27 of the Indian Contract Act, 1872 is not violated per se by the Non-Poaching agreement as it does not curtail the rights of any person to seek employment. This clause simply directs other employers/competitors to seek the consent of the past employers before hiring their old employees.

Section 3 of the Indian Competition Act, 2002 holds any such agreement entered by any enterprise relating to production, supply, etc…, void, which causes adverse effect on the competition within India. Non-Poaching agreements are not violate of Section 3 as it only provides for parameters in case of lateral hiring of employees and do not forbid such hiring.

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