We have a three-month notice period to be served on the company when we resign. There is also an option to pay for the shortfall in notice. Can the company force the employee to work for the entire three-month notice period without accepting notice pay for the shortfall even after the employee offers to work for a reasonable time after notice (say, offered to work for one month and pay for the balance two months)? Can somebody please tell me regarding Sec. 14 of the Specific Relief Act?
The details of the clauses in the Appointment Letter pertaining to resignation are as follows:
The appointment letter says, "It is also understood and agreed upon confirmation of your services: (i) The employment may be terminated by either party without assigning any reason by giving the other party three months' notice or pay in lieu thereof (ii) Notwithstanding anything to the contrary contained herein, misconduct on your part will entitle us to terminate your services without any notice or pay in lieu thereof."
At another place, it says that "You shall be bound by the Company's Service rules and regulations as applicable to senior members of staff, save the terms and conditions explicitly specified in the contract of service, including any other rules and regulations that are in force from time to time."
Service regulations say that it is the discretion of the company whether or not to accept notice pay. In essence, they can ask us to serve the complete notice period by rejecting the offer by the employee to pay for the shortfall in notice.
Request you to let us know about the notice period law in India.
From India, Visakhapatnam
Acknowledge(0)
Amend(0)
The details of the clauses in the Appointment Letter pertaining to resignation are as follows:
The appointment letter says, "It is also understood and agreed upon confirmation of your services: (i) The employment may be terminated by either party without assigning any reason by giving the other party three months' notice or pay in lieu thereof (ii) Notwithstanding anything to the contrary contained herein, misconduct on your part will entitle us to terminate your services without any notice or pay in lieu thereof."
At another place, it says that "You shall be bound by the Company's Service rules and regulations as applicable to senior members of staff, save the terms and conditions explicitly specified in the contract of service, including any other rules and regulations that are in force from time to time."
Service regulations say that it is the discretion of the company whether or not to accept notice pay. In essence, they can ask us to serve the complete notice period by rejecting the offer by the employee to pay for the shortfall in notice.
Request you to let us know about the notice period law in India.
From India, Visakhapatnam
Acknowledge(0)Amend(0)
You can leave the job by either giving notice or payment in lieu of notice. The relations between the employer and employee are primarily governed by the Appointment Letter. The Company's policies and procedures are the supplementary aspects. The constitution of India provides the fundamental right to every person to choose the profession of his choice, and any agreement contrary to this is invalid. By putting the clause in service regulation that it is company's discretion to accept the notice or not is against the provisions of the constitution of India. Hence, the company cannot threaten you by showing this clause. The company cannot force you to serve the entire notice period.
From India, Mumbai
Acknowledge(0)Amend(0)
21From India, Mumbai
Acknowledge(0)Amend(0)
The rules pertaining to notice periods vary from company to company. When the employee agrees to and accepts the terms and conditions mentioned in the appointment letter, he/she will need to abide by them. Whether the company can force an employee, I guess it purely depends on the work culture and rapport between the employee and the management.
From India, Mumbai
Acknowledge(0)Amend(0)
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Mr. Manish,
I will differ on your opinion if the task of the "Resigned Employee" is not properly handed over, or if the Employer is going to incur any "financial or other loss." In these cases, if the "Resigned Employee" is not interested in indemnifying the employer, then the Employer may ask the "Resigned Employee to Serve Notice Period."
There is no question of Fundamental Rights in the above scenario. There are reasonable restrictions on it. If the Compensation is not "good" relief to the Employer, then as per the Indian Contract Act, the Employer can compel the employee to serve the total notice period.
P.S. - Please go through the provisions "Specific Performance" under the Indian Contract Act. Hope you will agree with me.
From India, Pune
Acknowledge(0)Amend(0)
I will differ on your opinion if the task of the "Resigned Employee" is not properly handed over, or if the Employer is going to incur any "financial or other loss." In these cases, if the "Resigned Employee" is not interested in indemnifying the employer, then the Employer may ask the "Resigned Employee to Serve Notice Period."
There is no question of Fundamental Rights in the above scenario. There are reasonable restrictions on it. If the Compensation is not "good" relief to the Employer, then as per the Indian Contract Act, the Employer can compel the employee to serve the total notice period.
P.S. - Please go through the provisions "Specific Performance" under the Indian Contract Act. Hope you will agree with me.
From India, Pune
Acknowledge(0)Amend(0)
Dear Prashant,
The losses that employers suffer (what you are saying) due to non-service of the notice period need to be actual losses. It cannot be imaginary loss. It is very difficult to prove in a court of law that the actual loss happened because the employee did not serve the notice period. If a company does not want an employee to leave during the notice period, then why is the clause of a 3-month notice or payment in lieu of notice mentioned in the appointment letter? Yes, one can strongly claim the fundamental rights enshrined by the Constitution of India, and it applies in such cases. I have, in my practical experience, seen various cases where companies file cases against employees and end up losing the same on these grounds.
From India, Mumbai
Acknowledge(0)Amend(0)
The losses that employers suffer (what you are saying) due to non-service of the notice period need to be actual losses. It cannot be imaginary loss. It is very difficult to prove in a court of law that the actual loss happened because the employee did not serve the notice period. If a company does not want an employee to leave during the notice period, then why is the clause of a 3-month notice or payment in lieu of notice mentioned in the appointment letter? Yes, one can strongly claim the fundamental rights enshrined by the Constitution of India, and it applies in such cases. I have, in my practical experience, seen various cases where companies file cases against employees and end up losing the same on these grounds.
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Prashant and Manish, thank you for your replies.
The fundamental thing here is, we do not want to leave abruptly and cause inconvenience to the employer. One month is sufficient and reasonable notice for the employer to get their act together. The company can recruit a new person within one month and ask the resigned person to hand over things. If a replacement is not found, the resigned person's records/work can be handed over to their colleagues, and when a new person is recruited, the same may be shifted to them.
In the Appointment letter, it says (i) 3 months' notice or pay in lieu thereof and also says (ii) "bound by the service conditions except conditions explicitly specified in the contract of service (i.e., appointment letter)." It does not say that the company has the option to refuse notice pay. However, the service rules have such a condition. Now, because of (ii) above, can we say the company cannot refuse to accept notice pay as it explicitly specifies that it is either notice or notice pay and doesn't give the company the discretion to accept notice pay or not?
Now, which will prevail, the contract of service or service rules?
Now, the new employer in most cases would like the candidate to join within 1 month. If there is more delay, they may refuse to take the candidate, and the candidate may lose the opportunity. Also, it is not so convenient to continue in the present job. The management (in this case, I do not mean the top-level management, I mean the immediate manager) may take the employee for granted as if he will become aware that the employee has nowhere to go. I am specifically talking about this because I have come across an incident where the manager flatly refused that he had received any resignation letter after the employee had served a three-month notice period (the employee had failed to take acknowledgment of his resignation letter). The manager simply said that he asked the employee to stay back, thought the employee was staying, and that the employee had not given any letter. That person lost the opportunity and afterwards got another job, paying a 3-month notice pay this time.
This notice pay thing is not critical if both parties are reasonable, but if unfortunately one has a vindictive boss, he may cause one to miss the opportunity and also relieve the employee after the notice period, leaving one without a job. He may ruin not only the career but also may cause immense financial crisis to the employee, making even their family members suffer.
It is in this context I am asking whether the company can force the employee to work for a complete 3 months. If the employee clearly indicates in their resignation letter or by a later communication that they would like to serve only a one-month notice and offers to pay for the shortfall, and if, on not receiving any positive response, leaves after one month, can the company withhold the relieving certificate?
From India, Visakhapatnam
Acknowledge(0)Amend(0)
The fundamental thing here is, we do not want to leave abruptly and cause inconvenience to the employer. One month is sufficient and reasonable notice for the employer to get their act together. The company can recruit a new person within one month and ask the resigned person to hand over things. If a replacement is not found, the resigned person's records/work can be handed over to their colleagues, and when a new person is recruited, the same may be shifted to them.
In the Appointment letter, it says (i) 3 months' notice or pay in lieu thereof and also says (ii) "bound by the service conditions except conditions explicitly specified in the contract of service (i.e., appointment letter)." It does not say that the company has the option to refuse notice pay. However, the service rules have such a condition. Now, because of (ii) above, can we say the company cannot refuse to accept notice pay as it explicitly specifies that it is either notice or notice pay and doesn't give the company the discretion to accept notice pay or not?
Now, which will prevail, the contract of service or service rules?
Now, the new employer in most cases would like the candidate to join within 1 month. If there is more delay, they may refuse to take the candidate, and the candidate may lose the opportunity. Also, it is not so convenient to continue in the present job. The management (in this case, I do not mean the top-level management, I mean the immediate manager) may take the employee for granted as if he will become aware that the employee has nowhere to go. I am specifically talking about this because I have come across an incident where the manager flatly refused that he had received any resignation letter after the employee had served a three-month notice period (the employee had failed to take acknowledgment of his resignation letter). The manager simply said that he asked the employee to stay back, thought the employee was staying, and that the employee had not given any letter. That person lost the opportunity and afterwards got another job, paying a 3-month notice pay this time.
This notice pay thing is not critical if both parties are reasonable, but if unfortunately one has a vindictive boss, he may cause one to miss the opportunity and also relieve the employee after the notice period, leaving one without a job. He may ruin not only the career but also may cause immense financial crisis to the employee, making even their family members suffer.
It is in this context I am asking whether the company can force the employee to work for a complete 3 months. If the employee clearly indicates in their resignation letter or by a later communication that they would like to serve only a one-month notice and offers to pay for the shortfall, and if, on not receiving any positive response, leaves after one month, can the company withhold the relieving certificate?
From India, Visakhapatnam
Acknowledge(0)Amend(0)
Dear,
The Specific Relief Act states that a Contract of Personal Service cannot be enforced in a Court of Law. This means that if an employee quits before the notice period, the employer can only recover the notice pay. No employer can force an employee to complete the notice period. It is up to the employee to fulfill the notice period in order to receive their full salary and the relieving letter.
rajanlawfirm
https://www.citehr.com/285737-legal-...-industry.html
From India, Madras
Acknowledge(0)Amend(0)
The Specific Relief Act states that a Contract of Personal Service cannot be enforced in a Court of Law. This means that if an employee quits before the notice period, the employer can only recover the notice pay. No employer can force an employee to complete the notice period. It is up to the employee to fulfill the notice period in order to receive their full salary and the relieving letter.
rajanlawfirm
https://www.citehr.com/285737-legal-...-industry.html
From India, Madras
Acknowledge(0)Amend(0)
M/s Rajan Law firm, thanks for your inputs. Does it mean that the employer is at his discretion whether or not to issue the Relieving Certificate if full notice period is not served?
From India, Visakhapatnam
Acknowledge(0)Amend(0)
From India, Visakhapatnam
Acknowledge(0)Amend(0)
Hi,
My friend is getting engaged and she doesn't have time to serve the notice period. However, HR in the organization is forcing her to serve a 2-month notice period instead of receiving salary for those 2 months. They are stating that if she doesn't serve the notice period, they won't provide her with the experience letter. Now, she is in a dilemma about what to do. Can anyone help me regarding this?
From India, Hyderabad
Acknowledge(0)Amend(0)
My friend is getting engaged and she doesn't have time to serve the notice period. However, HR in the organization is forcing her to serve a 2-month notice period instead of receiving salary for those 2 months. They are stating that if she doesn't serve the notice period, they won't provide her with the experience letter. Now, she is in a dilemma about what to do. Can anyone help me regarding this?
From India, Hyderabad
Acknowledge(0)Amend(0)
I guess we need a regulatory body for organizations based out of India, especially IT-ITES based firms as they don't have a union to take up their cause. As in the case of what has been cited by Mr. Pradip above, if the HR/boss of an employee is trying to mess things up, it is really a black hole for people, with no output coming out of whatever inputs you try to give.
As for Mr. Pradip, I'll say, ask your friend to file a case in Consumer Court against the firm and hope the best comes out of it. In most cases, the result is in favor of the employee unless something was messed up from the employee's side as well.
From India, Mumbai
Acknowledge(0)Amend(0)
As for Mr. Pradip, I'll say, ask your friend to file a case in Consumer Court against the firm and hope the best comes out of it. In most cases, the result is in favor of the employee unless something was messed up from the employee's side as well.
From India, Mumbai
Acknowledge(0)Amend(0)Looking for something specific? - Join & Be Part Of Our Community and get connected with the right people who can help. Our AI-powered platform provides real-time fact-checking, peer-reviewed insights, and a vast historical knowledge base to support your search.