Conference 7.286::digital

        Shaji,
    	Morally it's wrong to Lie and to Steal.  From your description,
    thats what it sounds like happened.  Legally, it may not be stealing
    though.  You should consult with a Lawyer.

    Jim Morton

Yes, consult a lawyer.  You may have recourse.

Judging from the number of horror stories I've heard regarding Digital India,
I question whether or not they can be referred to as "reputable".

    Why get a lawyer?You broke your contract with Digital and they have
    a right to get their money.The way they went about it was a bit
    underhanded but you did owe them.If you bring a lawyer in you will owe
    her/him too.The lawyer will be the real winner.
    I would complain to the Bank because they allowed monies in your
    account to be moved out without your agreement.
    If you are not satisfied with the way you are treated by them ..then
    move your account to another bank..
    
    JC.
    

Re .1,.2
--------

	Thanks for your support.

Re .3
-----

	I didn't know that Digital India was such a haunted house. My impression
was that since DEC owns 51% stake in Digital India they should be following 
the same business practices as DEC.

Re .4
-----

	I admit that they may have a right to get their money. But let me tell
you, there wasn't any kind of discussion regarding how I should compensate.
Without consulting me they have taken back my salary dues. Yes, I agree with 
you that I should have transferred all my money to the another account before 
giving the resignation. My conclusion is that Digital India want their
employees to abscond without giving any kind of notice to the clients.
But unfortunately my concept of work ethics does not allow me to do so.
 

Shaji Kumar.

>	I didn't know that Digital India was such a haunted house. My impression
>was that since DEC owns 51% stake in Digital India they should be following 
>the same business practices as DEC.

I have yet to see much evidence of this, which is what prompted my comment.
Here in this very conference I believe you can find sufficient evidence to
the contrary.

    The question of where are the ethics is a good one.
    
    Here the writer had a one year agreement with the understanding that
    if he broke it, probably to jump ship to another company for more
    money, that he would be liable to DEC for the money. So there is a
    basic question of ethics in breaking that initial agreement.
    
    Having broken that agreement, which makes him immediately liable for
    the payment, the writer now questions whether there were any ethics 
    on DEC's behalf for going against his account. 
    
    There are common law rights to set off against amounts owned and the
    use of a demand against his account, while not widely know, is a
    practice which is prefectly legal.
    
    Personally I think its a great approach. It saved them the hassle and
    potential costs of collection plus it will send a message to others 
    that if you are not going to live up to your end of the bargain they 
    will use all remedies available.
    
     
    
    

    
    	I tend to agree with .7. Agreements are made between two EQUAL
    parties; so you get what you give. This ain't professional baseball.
    
    		the Greyhawk

    > I have been contracting through Digital India for a project with
    > Digital US.I have a one year agreement with Digital India, failing 
    > which I am liable to damages maximum of $4,000.
    
    RE .0
    
    Since you broke the agreement, you are liable for $4000. So did you 
    pay the damages ? If Digital India has withdrawn more than $4000 your 
    argument is valid and you can talk to a lawyer. Otherwise you are 
    wasting your time and money ;-( Just my opinion ...
    
    
    

Can I join in? :-)

If you'd quit a couple of days before payday, then they would
simply have said "we're not paying you the pay WE owe YOU,
because YOU now owe US $4000".  This would seem to me
to be reasonable prudence on the part of DEC, since you're
the one who broke the contract.

So your only grounds for complaint seems to be that they
managed to unpay you after you thought you'd been paid.

I don't see that it's untruthful of DEC to say
that it was an incorrect transaction.  It was incorrectly
made on the assumption that you weren't going to owe
them $4000 in the near future.  :-)  

If you'd have been paid by cheque they could have
stopped the cheque, assuming you hadn't already cashed
it.  EFT just makes it more efficient, is all.
I bet there are even provisions for this in the
authorisation you sign for direct deposit.

Yeah, I'd probably be ticked off if it happened to
me as well.  But I don't think it's worth the effort/expense
of taking action - you don't seem to be entirely 
blameless in all this.

    
    I don't think anyone disagrees that you owed Digital India $4,000.
    
    I do find it extremely troubling that a company can withdraw money
    deposited to an individual's account without any type of court order
    or legal review.  All I need to do is say that my previous transaction
    was a 'mistake'.
    
    I think this method of extracting payment should be illegal.
    
    I also think it may be more hassle to follow up than is required.
    
       (of course you could demand your money back from the bank for 
    	a wrongful EFT transfer.  If they refuse, ask to see an 
    	authorization for the transfer.  I believe that once a check 
    	is cashed the money is the legal property of the holder.  Why 
    	should EFT be any different? )
    
    FWIW,
    
    	DanF

Whether this person broke his contract or not doesn't change the
fact that Digital allegedly was able to take money *out* of a bank account.

In other words: two wrongs do not make a right.

I don't dispute the point that the noter violated his contract with DEIL
(Digital Equipment India Ltd.) and is liable for the amount mentioned in 
contract but what troubles me is that the company is allowed by the bank
to take money away from your account which I equate to be able to take money
from you pocket. Could things have been different if the employee was paid
cash and he puts into his pocket and then the company takes it away from him.

Avinash

This type of transaction reversal is very worrisome. It implies there is no
safeguard against an incorrect reversal sucking the money back out of the
account, or against a person maliciously reversing the transaction claiming
[choose any explanation acceptable to the bank] in order to embezzle funds. Once
committed, the original transaction should not be allowed to be reversed. Last
month's Comm of the ACM had an interesting article on alleged ATM thefts in
Britain, where people had been wrongly accused of ATM withdrawals that were
either 1) incorrect, 2) non-existent, 3) or fraud perpetrated by others. The
position taken by the banks and the authorities is that the computer is right
(even if it's a Pentium!) and the person is wrong (lying, actually); several
innocent people went to jail due to these allegations and the "irrefutable"
evidence provided by the ATM data systems. [Note that the article said in the
US, the bank is liable, not the ATM cardholder, so US banks have a strong
incentive to make sure their data is correct, while British banks have no
incentive to improve their systems.]

Totally separate from the issue of the basenoter owing contract default
penalties, the bank should require a separate transaction, authorized by him, to
remove funds from his own account. Besides, what if he had written a check to
DEC India for $4,000 to pay the penalty, then found that the money had already
been removed? If that had caused the check to bounce, who do you think would
have been held responsible? Or what if it resulted in him effectively paying
$8000 in damages, forcing him to try to recover the additional $4000?

In this case the reversal had the same net effect as an authorized transfer, so
it is easy to say "what's the big deal". But you can be sure if any of us
experienced such a reversal when there was nothing owed, we would all cry foul.

At least in the US, the form authorizing direct deposit allows the company to
make corrections in the deposited amount (e.g withdraw some or all of it). This
is probably the case in this agreement, as well. Digital probably could get in
trouble for withdrawing money that was not owed them, however.

Did you read the form before you signed it? What did it say?

    re .14
    
    Hey, I'm as paranoid as you are (I'm a RISKS reader!) but this
    seems to me just like a case of a stop-payment order on a cheque,
    except that for a while he actually thought he "had" the money.
    
    Let's not confuse the case with issues of fraudulent access,
    real though they might be.   This is a case where he had
    freely granted DEC certain accesses to his bank account.
    
    I'd bet that in all cases where entity X can transfer
    funds to your bank account, X can fairly trivially untransfer
    the same funds, probably just by saying "oops, didn't mean to
    do that".  You probably agreed to it.   I presume (I hope!)
    that arbitrary withdrawals can't take place - they're limited
    to taking out what they just put in.
    
    You say, "once committed, the original transaction should not be allowed
    to be reversed".   What does that mean, though?   When does a 
    transaction become committed?   The instant that the transfer
    has occurred?  If that's so, then it means that there is no
    way to undo errors.   The only way that X can get money out of
    my account is by transaction-reversal, since I didn't authorize
    them to make arbitrary withdrawals from my account.   It's
    fine by me if there's a financial diode between X and my
    account but I can't see that it would be acceptable to X.
    
    If you don't mean that committment occurs the instant the
    funds transfer protocol has moved the amount from X to my 
    account, then how long an interval is/should be allowed?  And do we
    know whether the basenoter's pay backout occurred within
    that interval or not? (I forget :-)
    
    
    

      I agree with .16 absolutely.  Conceptually, this is no different 
      than stopping payment on a check.

      At the risk of being slammed for quoting platitudes, I really 
      believe that "you can't cheat an honest man."  At the very least, 
      I've better things to do with my life than looking for all of the 
      ways that you might be able to get ripped off in an electronically-
      assisted world.
      
      Terry

	Let me throw some more light on my agreement with Digital India.
	The following is extracted from the contract :

	"Consultants agrees for the period of his/her initial assignment or for
	a period of one year, whichever is longer, to faithfully, professionally
	and diligently perform such computer Consultant services as he/she may
	be called upon by Digital to perform from time to time at various loca-
	tions in United States of America. Consultant agrees further that he/she
	will not engage in any other consultant like business activities during
	the term of this agreement or any extensions thereof, and agrees that he
	/she will not terminate his/her work on behalf of Digital or his/her
	employment with Digital Equipment (I) Ltd. until his/her commitment to
	Digital is concluded."

	It further states that :
	
	"Digital may terminate Consultant's services or reduce the term of 
	Consultant's assignment to Digital for cause. Grounds for termination
	include, but are not limited to, poor performance by Consultant or
	early termination of a project by Digital customers."

	In another clause the contract states that :

	"Considering Digital's extensive investments in Consultant's training,
	travel, preparation etc. Consultant shall in the event of a breach of
	this agreement as it relates to the early termination by the Consultant
	of his services hereunder, Consultant shall pay to Digital as liquidated
	damages (not penalty) a sum of $4000.00."

		Correct me if I'm wrong, but doesn't this contract sounds
	like Digital India is promoting BONDED LABOR (which I believe is
	illegal according to the federal laws).

		I received a rather amusing mail from one Digital India
	employee. Let me quote his wordings..
		"Shaji, Instances of such kind has happened before and things
	were settled very amicably. And I think it is a little premature on 
	your part to go public in this issue. We should not wash our dirty 
	linen in the public every time such a thing happens".
	
	So dirty things happens in Digital India, yeah ? I respect your concerns
	but I believe a person with self respect should defend his personal 
	rights.

	Since my project account has been disabled, I am using a different 
	account to post this entry.

	Thanks for all the replies.
	Shaji Kumar	

    It might be illegal under federal laws (I don't know) but do
    the laws of the United States apply to an agreement, into
    which you apparently entered without coercion, between
    an India-based company, which I presume DEIL to be,
    and an Indian citizen, which I presume you to be?
    

	RE -- The note that said this was illegal...

	EDS has been doing this for years. I believe there was a court
	Case in Bethesda, MD about this but I never heard the outcome.

	The penality for leaving EDS was for the training they gave.
	I believe it was something like $10,000.

Re .19
------

	I signed the contract after coming to United States. There was no
indication from Digital India that I have to sign such an agreement before 
coming here. There was no option other than to sign it , otherwise they 
would send me back at my own cost.

Bonded Labor is indeed illegal according to the Indian judiciary. But since
I signed the contract in United States , my impression was that federal
laws will be applicable.

Re .20
-----

I was not aware of the EDS case. Since they are giving training to the 
contracters they may have a valid reason. But Digital India does not impart
any kind of training to the contractors. 


Shaji Kumar

I imagine that banking laws vary from nation to nation, but I was under
the impression that a bank is not allowed to make payments from an
individual's account without that individual's express consent. Your
argument is with your bank rather than with Digital India, to my mind.

You can't blame Digital (much) for trying to guarantee that you paid the
compensation, but you can blame the bank for serving Digital rather than
serving you, the account holder, their customer.

In this country, I believe, even if a bank accidentally puts large amounts
of its OWN cash in your account, it must ask your permission to correct
that error, and you are not obliged to consent - hence the "bank error in
your favour" card in Monopoly. Legally, the money is yours once it is
in your account. I would say that, regardless of your debt to Digital,
or Digital's outstanding debt to you, your bank owes you the sum that
it withdrew from your account without your consent. You should also
close your account for fear of what other creditors they may oblige on
your behalf in the future. I would have no confidence in a bank that
spends my money without my consent. It is not even true that the payment
to your account was an error, and your bank manager has no way of knowing
(given the elapsed time) whether that is true, especially if he does 
not consult you. How does he know that you resigned? How does he know what
you forfeit in that case, or when that forfeit is due? 

Demand recompense from your bank regardless of your position with Digital.
For free guidance on your rights, consult a rival bank informally about
the rights of a bank manager to debit funds without your consent, even in
the case of alleged error. Also, consult any "watchdog" organisation that
oversees banking in your country. That should be free advice.

    re .8:
    
    �	I tend to agree with .7. Agreements are made between two EQUAL
    �parties; so you get what you give.
    
    I disagree; the parties in this case are certainly not equal. the
    golden rule applies: he who has the gold, rules.
    

    Re .22
    
    I believe that banking laws are such that whether it's the bank that
    accidentally posts something to your account or whether it's a company,
    such as Digital, posting a paycheck and then realizing an error, it can
    be corrected without your approval. I have often seen banking errors on
    my statements that were corrected without my knowledge. I've had the
    DCU accidentally post my deposit to another badge number, I realized
    it, and it was corrected. They didn't have to call the other person to
    ask if I could have my money back. 
    
    I've also had a paycheck deposited twice to my account by mistake, and
    one of them was withdrawn without my permission.  Out of curiosity, I
    called and asked the bank about it. They are perfectly within their
    rights to do that.
    
    Similar problems happen when you try to cancel an automatic payment.
    The person/company authorized can continue to draw that payment so
    things get very sticky.
    
    In the instance of the basenote, DEIL did nothing illegal by rescinding
    that deposit. And the mechanisms are all in place so they could do it
    easily.

There are actually TWO balances on any bank account.
The first is the CLEARED Balance which is what you get from an ATM. The second
is the UNCLEARED Balance which is what the counter clerk looks at before 
allowing you to cash that big cheque, or if you ask for a balance over the
counter at you own bank branch.

The purpose of the uncleared balance is that when a sum of money is 
deposited into your account ( or a withdrawal made ) it is a multi step 
process. The money is initally deposited and the depositing bank gets an ack 
that the account was valid and then send a finish all done (simplified at lot).

What could have happened was the balance check was done before the finish was
revieved. The "error" was then corrected thus taking this notional money
from the account before clearance had completed.


ON the EDS point, the "leaving penalty" was to force those leaving to re-imburse
the company for the training recieved and other investments made in the skills
of that empoyee do be able to do their job.. Thay had lots of people take 
training and then hand in their notice. The courts ruled (in several countries)
that EDS were entitled to obtain re-imbursement in this investment. As time 
went by, the amount of money reduced so that after 1 year there was nothing to
pay. This is not (as far as the courts see it) BONDED LABOR.

As I read the words (i'm not a lawyer) the $4000 was payable only if you broke
the contract or under-performed. if you worked the whole year there was no 
penalty. Think about financial invetments. the parallel here is that if you
withdraw early you may not get back all that you put into the invetment.

S.D.

> I imagine that banking laws vary from nation to nation, but I was under
> the impression that a bank is not allowed to make payments from an
> individual's account without that individual's express consent. 

This is apparently not the case.  A Boston TV station recently had 
a brief consumer affairs report intended to dispel financial "myths."
One of the questions was "Can a third party have money disbursed
from your accounts without your permission?"
The consistent person-in-the-street answer was "Of course not!",
while the actual answer was "Well, under certain circumstances they can!"
I didn't catch the name of the actual mechanism.
This is separate from an attachment or a lien or anything that requires
a court order.

> In this country, I believe, even if a bank accidentally puts large amounts
> of its OWN cash in your account, it must ask your permission to correct
> that error

This apparently untrue as well.  The occasional story of "mistyped pay check
adds millions to worker's salary" ALWAYS (in my observation) ends with
"and the bank fixed the error by adjusting balances."

None of which applies to the base noter's real problem.....

- tom]

oh well, another dream shattered. 

    FYI: If you relocate within Digital you are compensated for the cost of
    relocation... (when there are relocatin funds) but the amount is 
    "depreciated" by month over two years.  In other words, if you leave 
    Digital (as in you quit) you owe a certain balance of your relocation 
    benefit if it is before the end of the two years.
    
    It is a constraint... for example if another employment opportunity
    came along I would end up paying to leave Digital or another company
    would need to "buy me out".  However I agreed to it and feel that it is
    appropriate based on the fact that Digital spent money and I knowingly
    accepted the conditions.
    
    All-in-all... a contract is a contract.  
    
    Interesting point unless I misread a couple of the quotes from the
    Indian contract... it appears that you (the contractor) owe money if
    you willing *or* unwillingly (i.e. get fired) leave Digital.

    Many years ago I was the cash manager of a $200 million company.  We
    wired an interest payment of $750,000, but a number inversion sent it
    to the wrong account.  Needless to say, the cash was missed.  The next
    day, the bank reversed the transaction and payed the right account.  I
    didn't think it was evil.  We'd have been in tough shape if we had to 
    beg the unintended receiver to give it back.  

    re -1 The unintended receiver is law bound here to inform
    the bank of a such a deposit before wishing to pocket it..
    
    RE .18 It would seem from your contract that if you managed to get
    yourself a "consultant TFSO"  [fired] you would have been able
    to keep your 4k$. Not a bad package for somebody working for Digital
    for less than a year..
    
    JC.
    

    The general gist appears to be "Sure, everything worked out the way it
    woulda if we'd done it through the courts, but dammit, no lawyers were
    involved!".  I personally find it very distressing that, in these days
    when packs of hungry lawyers are wandering the streets, an opportunity
    like this was yanked from their hungry mouths.
    
    							Tex (he's baaaack)

In .21, Shaji writes that he was not informed about the conditions, and told to
sign or go back to India at his own expense.

THIS is what I find sleazy, if not unenforcable. Contracts signed under duress
are generally considered void, and being told to sign or pay for a trip back to
India would likely be considered duress.

However, I am not a lawyer, and this is not legal advice.

    I think the folks who are saying that this is like
    a transposed digit in an account number are simply wrong.

    This is somewhere between stopping payment on a check,
    and having security mug the guy and take his wallet.

    The money was deposited.  There was no mistake made.  
    The depositor then sought redress by debiting the contractor's 
    account.  This just doesn't seem right to me.

    Should Digital be able to seize his car from the parking
    lot because they feel he owes them $4K?

    I don't think the issue is whether or not the contractor
    owes digital $4K, but whether Digital can debit the account
    because they feel entitled to the money in it.

So, why'd you bother to verify that you'd been paid 
before resigning, anyway?  

I wouldn't have thought of doing that - but then, I'm a 
naive sort of person.

    RE .21
    
<<<<       I signed the contract after coming to United States. There was no
    indication from Digital India that I have to sign such an agreement
    before
    coming here. There was no option other than to sign it , otherwise they
    would send me back at my own cost.
    <<<<<
    
    
    Is there more to this than meets the eye.?
    
    How did you manage to convince the American Embassy to give you a work
    visa to allow you to enter the US in the first place?
    
    My experience has been that I had to get a copy of my contract and
    present it to the embassy before they would grant me a working visa.
    
    A visitors visa on the other hand is much easier to get but if you then
    present yourself for work you are letting yourself open to all sorts of
    abuse..not to mention what emigration could do to Digital..
    
    Another way to get a non working visa is to get a letter from your
    employer saying you are being sent to the US for work related training
    and  you are then returning within a given period.With this type of
    letter the company accepts responsibility for your welfare while in
    the US and sees to it you do not become a burden on the US government.
    
    So either way the threat of dumping you on the street without a return
    ticket does not seem to be rational from Digital's viewpoint.
    Lets have the full story..
    
    Or are you an American citizen??
    
    
    JC.
    

    What can and cannot be done to your bank balance and by whom will vary
    according to where (which country) you're talking about.
    
    In the UK money placed in your account can only be removed with either
    your permission, or a court order.  It cannot be removed just because
    the bank finds it's made a mistake, or because someone else tells them
    a transfer was made in error.
    
    So you should check the legal situation for your bank, then seek
    redress as appropriate.  At least move your account and tell them why.

re.                      <<< Note 3543.35 by JGODCL::CRONIN >>>

US visas for temporary work assignments can be obtained in following two
ways, none of which requires that the employment/assignment contract be
submitted and scrutinized by the US embassy. Even if it is required a
standrad employment contract can be presented and a specific assignment
contract can be signed separately without the knowledge of US embassy.

H-1 Visas - temporary work assignment for highly skilled workers
  These visas can be applied for by a US employer stating the need for a
  temporary worker for a poistion which requires high skills (read programmer,
  software engineer). The US employer submits documentation to the US
  Govt. (Immigration and Naturalization service, an arm of US Justice 
  department) proving the temporary nature of work assignment and offering
  same employment conditions (salary) to the foreign worker as other US
  workers doing similar jobs. Once the US Govt. approves the application the
  US embassy issues the H-1 visa as a routine matter without any further
  documentation requirements. H1 visa can be given for maximum 6 years in
  lifetime of an individual.

L-1 visas - Intra-company tarnsfer for temporary work assignment
  These visas are given to employees of multi-national companies who
  have need for temporarily relocating to US for work assignment in
  the company's US offices. For large US based multi-nationals (like Digital)
  there are blanket L-1 visas available. This means that the company has
  already established it's need to bring employees to US from time to
  time. Each individual then need to apply for L-1 visa at US embassy
  with minimum documentation.

Avinash

    Re -1
    
    The contract presented to the embassy indeed does not contain specifics
    like how much pay you receive etc but it did state that Digital is
    responsible for the welfare of the relocatee.This includes making sure
    the relocatee has the wherewithall to get back out of the US when the
    contract is terminated under good or bad circumstances.That means to me
    and many other relocatees I talked to ..a return ticket..
    So I find it very difficult to believe that Digital would be so stupid
    as to put themselves in a position of confrontation with the US justice
    department over a flight ticket..
    Its a very serious allegation against a DEC employee in my book..I hope
    you can prove it.
    
    
    As for the 4K$ my beef is still with the bank..
    
    JC.
    

re                      <<< Note 3543.38 by JGODCL::CRONIN >>>
                           -< serious allegation.. >-

>    So I find it very difficult to believe that Digital would be so stupid
>    as to put themselves in a position of confrontation with the US justice
>    department over a flight ticket..
>    Its a very serious allegation against a DEC employee in my book..I hope
>    you can prove it.

Hmm! Am I missing something here? What allegation? My reply simply gives an
overview of visa procedures as understood by me. I have no knowledge of
Digital visa practices. Could you please elaborate.

Avinash

    
    .36
    
    Not true.  I made many reversals from all kinds of accounts during the
    7 years that I worked for Midland Bank Plc.  There are instances where
    money incorrectly deposited is withdrawn and spent in good faith by the
    customer.  In such cases, the bank has little recourse.  In most cases the
    recipient of the incorrect funds is liable to a detinue action under UK
    tort law.  
    
    I can't speak to the issue under discussion here as it is US banking
    law, but even in the UK it's possible to reverse standing orders,
    direct debits, or other forms of interbank/interbranch transfer even
    after they have been credited to a recipient account.   
    
    In practice, very few UK bank customers knowingly use funds to which
    they have no right.  It would destroy their credit rating overnight and
    they would never be able to bank with any of the clearing-house banks
    again. 
    
    Regards,
    
    Colin
    

    RE .39
    
    	You are right Avinash. 
    <<" I hope you can prove it"  is directed at the base noter.
    
    Thank you for correcting this..
    
    JC.