In my appointment letter the termination clause is mentioned as below:
______Clause____
"After satisfactory completion of probation, the services will be liable to termination by Three month notice on either side without assigning any reasons therefor; provided also that Appointing Authority shall have right to terminate the services of the appointee forthwith or from any subsequent date on payment of a sum equivalent to the amount of pay last drawn by the employee for the period of notice in lieu of the notice period or period by which such notice falls short of."
i would like to serve for 45 days notice period and buy out for rest of the 45 days. But my employer says, as per below clause, there is no buy out option for employee, he said only employer can pay money in lieu of the shortfall notice period and can relieve you if he has decided. But i feel that the clause is applicable on eitherside. Please let me know the legal opinion on this. They are not accepting and saying i have to serve for 90 days notice period
From India, Hyderabad
______Clause____
"After satisfactory completion of probation, the services will be liable to termination by Three month notice on either side without assigning any reasons therefor; provided also that Appointing Authority shall have right to terminate the services of the appointee forthwith or from any subsequent date on payment of a sum equivalent to the amount of pay last drawn by the employee for the period of notice in lieu of the notice period or period by which such notice falls short of."
i would like to serve for 45 days notice period and buy out for rest of the 45 days. But my employer says, as per below clause, there is no buy out option for employee, he said only employer can pay money in lieu of the shortfall notice period and can relieve you if he has decided. But i feel that the clause is applicable on eitherside. Please let me know the legal opinion on this. They are not accepting and saying i have to serve for 90 days notice period
From India, Hyderabad
Dear Manohar,
In the first place, such a clause permitting the employer to terminate the employee even after confirmation by giving 3 months notice or salary in lieu of notice without assigning any reason is arbitrary and against the principles of natural justice. In this context, you may refer to the judgment of the Apex Court in Central Inland Water Transport Corporation v Brojonath Ganguly [1986 SCR (2) 278].
Secondly and very particularly with reference to the contract of employment that places the parties on equal footing in respect of their consequential rights and obligations under the contract, your employer's contention that the employee has no buy out option is not correct. The phrase " three months notice on either side " clearly empowers both the employer and the employee to exercise the option of unilateral termination of the contract of employment subject to fulfilment of the notice clause already mentioned in either of the way they like.
From India, Salem
6018In the first place, such a clause permitting the employer to terminate the employee even after confirmation by giving 3 months notice or salary in lieu of notice without assigning any reason is arbitrary and against the principles of natural justice. In this context, you may refer to the judgment of the Apex Court in Central Inland Water Transport Corporation v Brojonath Ganguly [1986 SCR (2) 278].
Secondly and very particularly with reference to the contract of employment that places the parties on equal footing in respect of their consequential rights and obligations under the contract, your employer's contention that the employee has no buy out option is not correct. The phrase " three months notice on either side " clearly empowers both the employer and the employee to exercise the option of unilateral termination of the contract of employment subject to fulfilment of the notice clause already mentioned in either of the way they like.
From India, Salem
Dear Sir,
Thanks for addressing my concern. I am very grateful to you in this regard. This favour is not only to me but also to my colleagues who are being harassed by our management.
My management is acting so smart and harassing employees, thinking they have every right to do so as per their will and treating employees as bonded labours. I have to mention that some employees are not being relieved even after serving 3 to 4 months of notice period and their best offers of other companies are getting cancelled due to that.
Also to mention you that they have relieved one employee recently after serving one month notice period for whom two months of basic salary was deducted for shortfall notice period(Same clause is mentioned in his appointment letter) But in my case they are not considering my request of serving 45 days notice period and buy out option for rest of the 45 days. They are not giving any acceptance of my resignation since last 20 days eventhough i am approaching them daily. They are not assigning anyone to handover my job responsibilities even after repeated mails and request.
My other job offer may get cancelled due to that. Please let me know how to handle the situation.
I am sure my polite requests are not working in this company, they are taking advantage of it.
Anticipating for your reply. Thank you so much.
From India, Hyderabad
Thanks for addressing my concern. I am very grateful to you in this regard. This favour is not only to me but also to my colleagues who are being harassed by our management.
My management is acting so smart and harassing employees, thinking they have every right to do so as per their will and treating employees as bonded labours. I have to mention that some employees are not being relieved even after serving 3 to 4 months of notice period and their best offers of other companies are getting cancelled due to that.
Also to mention you that they have relieved one employee recently after serving one month notice period for whom two months of basic salary was deducted for shortfall notice period(Same clause is mentioned in his appointment letter) But in my case they are not considering my request of serving 45 days notice period and buy out option for rest of the 45 days. They are not giving any acceptance of my resignation since last 20 days eventhough i am approaching them daily. They are not assigning anyone to handover my job responsibilities even after repeated mails and request.
My other job offer may get cancelled due to that. Please let me know how to handle the situation.
I am sure my polite requests are not working in this company, they are taking advantage of it.
Anticipating for your reply. Thank you so much.
From India, Hyderabad
Unfortunately, you have signed the terms of the employment without reading it or without understanding it.
In this case, the employer has right to terminate the notice period early by giving salary for the remaining period. You do not have any such right.
That being said, you now need to speak to your new employer and ask them what solution would be acceptable for them. They may be willing to wait for 3 months, or they may be ok with you joining immediately without completing your notice period. In that case, you do not need to bother even completing your notice period.
However, you need to remember that the world is often a small place. Leaving without notice means your future background verification would be affected. Further, you may meet the same manager in future jobs and he may ask the company to reject your candidature at that point.
IF you are working for a software company, remember that they have a master skill index database in which they can report your leaving without notice and you will be blacklisted for future job with all client companies.
From India, Mumbai
In this case, the employer has right to terminate the notice period early by giving salary for the remaining period. You do not have any such right.
That being said, you now need to speak to your new employer and ask them what solution would be acceptable for them. They may be willing to wait for 3 months, or they may be ok with you joining immediately without completing your notice period. In that case, you do not need to bother even completing your notice period.
However, you need to remember that the world is often a small place. Leaving without notice means your future background verification would be affected. Further, you may meet the same manager in future jobs and he may ask the company to reject your candidature at that point.
IF you are working for a software company, remember that they have a master skill index database in which they can report your leaving without notice and you will be blacklisted for future job with all client companies.
From India, Mumbai
Sir i would like to know that after three months of notice period, do they have right to retain me without accepting my resignation? I came to know from few of my colleagues that they are trying to retain me even after 3 months without accepting resignation.
If they don't accept my resignation, can i serve the notice period of 3 months and directly leave the company and join the other company, if they are willing to take me. Can i demand legally for my relieving letter and final settlements after 3 months?
I would be grateful if a detailed clarification is given on above aspects.
I would also like to mention that the other company is ready to take me after serving 45 days notice period in my current company irrespective of my resignation acceptance by the management. They are not able to wait more than that period as they have urgent requirement.
Kindly guide me what to do as i am in a big confusion.
From India, Hyderabad
If they don't accept my resignation, can i serve the notice period of 3 months and directly leave the company and join the other company, if they are willing to take me. Can i demand legally for my relieving letter and final settlements after 3 months?
I would be grateful if a detailed clarification is given on above aspects.
I would also like to mention that the other company is ready to take me after serving 45 days notice period in my current company irrespective of my resignation acceptance by the management. They are not able to wait more than that period as they have urgent requirement.
Kindly guide me what to do as i am in a big confusion.
From India, Hyderabad
Legally, acceptance of resignation is not a requirement for you to leave.
The employer can not force an employee to work if he does not want to work. What is legally required is that you must complete the terms of your contract, which in this case, is a 3 month notice period.
The notice period starts from the date of delivery of the notice and not the date of acceptance.
So after 3 months, you can leave and join elsewhere, you will be legally entitled to relieving letter and F&F
however, as i have said before on this forum, enforcing a legal right in india through legal action is a very long and time consuming exercise. In fact, it is an expensive exercise also.
If your new company is willing to take you without completing your notice period, i suggest you leave.
However, you need to keep proof that you have delivered your resignation and followed up enough of times for a handover
From India, Mumbai
The employer can not force an employee to work if he does not want to work. What is legally required is that you must complete the terms of your contract, which in this case, is a 3 month notice period.
The notice period starts from the date of delivery of the notice and not the date of acceptance.
So after 3 months, you can leave and join elsewhere, you will be legally entitled to relieving letter and F&F
however, as i have said before on this forum, enforcing a legal right in india through legal action is a very long and time consuming exercise. In fact, it is an expensive exercise also.
If your new company is willing to take you without completing your notice period, i suggest you leave.
However, you need to keep proof that you have delivered your resignation and followed up enough of times for a handover
From India, Mumbai
Dear Sir,
Kindly clarify me on below two queries.
1. What could be the possible consequences from my previous employer if my new employer has asked me to come after serving 45 days notice period though i didn't receive my relieving letter? I mean what rights my previous employer would have in this case, as per appointed terms, if i serve 45 days notice period and opted buy out for the remaining 45 days? And can i be entitled from my previous employer for my final settlements and for my experience certificate in this case?
2. Is there anyway i can insist my current employer to relieve me after 45 days notice period? i have dropped 3 to 4 mails saying my personal cirumstamces and demanding home situations dont allow me to work beyond 45 days in this organization. i want to get relieved after serving 45 days and want to pay for remaining 45 days. i had promised them that i will handover my job responsibilities in 45 days and help in smoother transition. But there is no response from them until now. They are very particular that i had to serve 90 days notice period which is not possible for me.
is there anyway i can force them to relieve me after 45 days and make them accept the buy out option for remaining 45 days?
From India, Hyderabad
Kindly clarify me on below two queries.
1. What could be the possible consequences from my previous employer if my new employer has asked me to come after serving 45 days notice period though i didn't receive my relieving letter? I mean what rights my previous employer would have in this case, as per appointed terms, if i serve 45 days notice period and opted buy out for the remaining 45 days? And can i be entitled from my previous employer for my final settlements and for my experience certificate in this case?
2. Is there anyway i can insist my current employer to relieve me after 45 days notice period? i have dropped 3 to 4 mails saying my personal cirumstamces and demanding home situations dont allow me to work beyond 45 days in this organization. i want to get relieved after serving 45 days and want to pay for remaining 45 days. i had promised them that i will handover my job responsibilities in 45 days and help in smoother transition. But there is no response from them until now. They are very particular that i had to serve 90 days notice period which is not possible for me.
is there anyway i can force them to relieve me after 45 days and make them accept the buy out option for remaining 45 days?
From India, Hyderabad
From what you have told us so far,
Legally, you can not force them to accept your buyout. Therefore there is no way for you to force them to give you a relieving letter either. But if your new employer does not care about it, then it does not really matter (though future employers may ask why you did not get a relieving letter)
What is more likely to happen is that the company will withhold your salary and consider it as a penalty for your absconding. It will mark you as absconding and process your separation. It is unlikely to take legal action against you though it has the right to do so. If legal action is taken, the court is also unlikely to order you to work for 45 days more, but may impose a penalty, which should be similar to the buyout.
However, you need to consult your legal advisor because with the limited information we have, none of us can predict the legal outcome correctly. In any case, we do not know the company, their attitude or their relationship with you so we are only guessing what their reaction will be
From India, Mumbai
Legally, you can not force them to accept your buyout. Therefore there is no way for you to force them to give you a relieving letter either. But if your new employer does not care about it, then it does not really matter (though future employers may ask why you did not get a relieving letter)
What is more likely to happen is that the company will withhold your salary and consider it as a penalty for your absconding. It will mark you as absconding and process your separation. It is unlikely to take legal action against you though it has the right to do so. If legal action is taken, the court is also unlikely to order you to work for 45 days more, but may impose a penalty, which should be similar to the buyout.
However, you need to consult your legal advisor because with the limited information we have, none of us can predict the legal outcome correctly. In any case, we do not know the company, their attitude or their relationship with you so we are only guessing what their reaction will be
From India, Mumbai
Sir as i mentioned earlier that they had relieved an employee recently after serving one month notice period for whom two months of basic salary was deducted for shortfall notice period(Same clause is mentioned in his appointment letter), in what way they could have relieved him if the buy out option is not there? I see that the way clause is written, it is applicable on either side but my management is saying it is not applicable on either side.
From India, Hyderabad
From India, Hyderabad
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