• Can employer force me to serve notice period? i'm willing to pay for notice period.

I joined 10 months ago and now I got a new job opportunity. Even if there are no dependencies on me and I'm willing to pay for the notice period also, but My current employer is not willing to waive off notice period and forcing me to serve it. It is stated in my offer letter that: " Your relieving from the services of the Company would be contingent upon successful serving of the full and complete notice period. Failing to do so would entitle the Company to recover damages for all losses caused due to any shortfall in serving of the full and complete notice period. The Company in addition to its rights to recover damages will not furnish a relieving letter in case of shortfall in the notice period" I also have a bond for 18 months which if failed to serve have to return the joining bonus and I'm ready to do that too. I also don't need a relieving letter, I only require an acceptance of resignation. Can they force me to serve the notice period ?
Asked 4 years ago in Labour

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22 Answers

Sir in case you refuse to serve the notice period the company can issue legal notice and/or file suit to recover the damages, also they may deny reliving letter or govind acceptance of registration. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1. Since there is no prevision for buying out the notice period service you can not force the employer to waive the notice period i lieu of the salary for those period.

2. As per the stipulation you are further bound to pay the damages which the employer finds it reasonable for breach of this contract.

3. However you make take note that if you nevertheless quit the company without serving the notice period the previous employer hardly goes to court to recover the damages as the same is both time consuming and not so cost effective. 

Devajyoti Barman
Advocate, Kolkata
22777 Answers
484 Consultations

5.0 on 5.0

As you stated above that you don't need relieving letter than kindly submit resignation personally to HR and take acknowledgement from them that is also acceptance of resignation. Or you can send resignation via email and get acknowledge or their reply is also acceptance indirectly when they are asking you to pay losses from your.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

See they have to quantify the damages in there suit, they will quantify same as bond amount and notice period pay. 

Further they cannot force you they may just recover damages and deny proper reliving document.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

It is at discretion of employer to waive notice period and accept salary in lieu of notice period 

 

2) if employer is forcing you to serve the notice period offer to pay salary in lieu of notice period 

 

3) if employer rejects your application you won’t get relieving letter and would be called to pay the bond money 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

Amicable settlement is best option 

 

send cheque for notice period 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. If the Company has given you specialised training or you were sent abroad incurring expenses by the Company, then only the Company can force an employee to serve the notice period.

2. Inspite of your willingness to pay 3 months' basic pay in confirmity with the Company Policy/ clauses in the offer letter, if the Company is not willing to accept your resignation, then it amounts to bonded labour and you are treated as a bonded labourer.

3. Send a legal notice to the Company to forthwith relieve you from the services of the Company.

Shashidhar S. Sastry
Advocate, Bangalore
5068 Answers
314 Consultations

5.0 on 5.0

- As per Specific Relief Act, if any employee quits before the notice period, the Employer can only recover the Notice pay, and the Company cannot force to serve the entire notice period.

- Further, the resignation decision is the employee’s decision, and the employer cannot sue for breach of contract, if the employee leaves without serving contractual notice. 

- Except, recovery of the said amount, company cannot harm you for the same

- Further, no employer can refused to return the original certificates or to issue relieving letter .If they are doing so, their act is illegal, unjustified and against the fundamental rights of the employee.

- Further, the employment bond with the negative covenant is valid and legally enforceable, if the parties agree with their free consent i.e. without force, coercion, undue influence, misrepresentation and mistake, but it is not enforceable, if it is either one sided, unconscionable or unreasonable.

- Further, section 27 of the Indian Contract Act prohibits any agreement in restraint of trade and profession.

- Hence, better serve the notice period only or to pay for the same , and tender your resignation with the request of issue experience certificate , and dont take tension, they cannot take any legal action against you .

 

Good luck and dont forget to rating Positively. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

Dear Sir,

If you are not in need of  acceptance of resignation then you can just walk out and please see the following judgment of Supreme Court.

===============================================================

SC expounds: "To resign is a Right of an Employee, cannot be forced to serve in case he is not willing",

November 28,2018:

Supreme Court has declared in the judgment of the case –Sanjay Jain v. National Aviation Company of India Ltd, through Division Bench consisting of Justice Arun Mishra and Justice Vineet Saran that,“ To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services.”And based on this declaration, Apex Court has concluded that the Bombay High Court has erred in law in holding otherwise.

The appellant was aggrieved by the judgment and order passed by the Bombay High Court on September 7, 2010, dismissing writ petition No. 1740/2010.The question involved has been whether the appellant ceased to be an employee of the respondent on October 1, 2006 as 30 days’ period ended on that very day.

The appellant joined the services of Air India Ltd. as Assistant Aircraft Engineer in Major Maintenance Division of Engineering Department with effect from September 1, 1992.As per the terms and conditions, stipulated in his appointment letter, he was required to serve Air India for a minimum period of five years. As on the date he  resigned, he had completed five years of service.

The Certified Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 as introduced in Air India Ltd. and as applicable to the establishment, required the employer to define the terms and the conditions of applicable to a workman and inform him of the same.

The Certified Standing Order, deals with the condition under which an employee can tender his resignation. He is entitled to receive the certificate of service rendered at the time of cessation of his employment. The Certified Standing Order confers a right on the employer, under the Act of 1946, not to accept the resignation if at the relevant time of his resignation any disciplinary action is pending or is contemplated.

The Court has pointed out that it is apparent from a bare reading of the provisions contained in Standing Order 18 of the Industrial Employment (Standing Orders) Act, 1946 that workman has a right to resign from the services by giving a notice of the period as prescribed under Standing Order 17 which provides termination of services by serving 30 days notice upon a permanent workman and seven days notice with respect to workman who is on probation and temporary workman by serving a 24 hours notice. Thus, for a permanent employee, a period of 30 days is provided to terminate or resign as is apparent on a conjoint reading of provisions of Standing Orders 17 and 18.

In the Court’s opinion, from a bare reading of the provisions contained in Standing Order 18, it is crystal clear that a permanent employee has a right to resign from the services by giving a notice of the period of 30 days as prescribed under Standing Order 17, and is entitled to obtain certificate from the employer for the period services have been rendered.

Clause 2 of Standing Order 18 provides that in case resignation is submitted with immediate effect or at any time before expiry of notice period, acceptance is necessary. Acceptance of resignation is not required in case a notice has been given of 30 days. It would operative from and effective on the lapse of the period.

It is right of a workman to serve an employer and to resign also by serving notice of 30 days. The bond to serve was only for five years as stipulated in his order of appointment. The period of bond to serve was admittedly over. There is no other Standing Order or Rule which puts a fetter on an employee to resign or confers power on the employer to reject a resignation.

No disciplinary proceedings was pending or contemplated against an employee in the case, when he resigned. The resignation became effective after lapse of 30 days period. There was no power with the employer as per Standing Order 18 to reject such a resignation. Moreover, the bond period of five years service was already over.

A case of voluntary retirement stands on a different footing than that of resignation. Voluntary retirement is with certain civil consequences of monetary benefits. It would depend upon the phraseology used in a particular provision whether prayer made for the resignation or for voluntary retirement is required to be accepted or it takes effect without acceptance.

In the facts of the case, in the Standing Order 18, there is no provision for acceptance of resignation, notice is served for requisite period of 30 days, obviously, the appellant had the right to resign from the services.

In view of enunciation of law and on consideration of the provisions contained in the Standing Order 18, in the facts and circumstances of the case, the Court has been of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation.

The Court has held that in this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in the case – Moti Ram v. Param Dev and Another – (1993) 2 SCC 725 paragraphs 16 and 18 ,heavily relied upon by the Respondent’s counsel , is not applicable ,as factual matrix in that case is different from this case.

The Supreme Court has allowed the appeal and quashed the HC’s judgment and order and the order passed by the respondent- employer declining to accept the resignation. The benefits which may be available shall be paid to the appellant. Provident Fund with the prevailing rate of interest from time to time. The gratuity, if payable or any other benefit, shall be paid with interest at 6 pc per annum. Outstanding amount, if any, has been ordered to be paid within three months from the date of the judgment.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

1. Unless there is anything contrary stated in the contract, it is the discretion of the employer to allow payment in lieu of notice period.

2. If you do not serve the notice period the employer can sue you through a suit for damages to recovery liquidated damages. They can ask for sky, but it is for the court to determine a reasonable sum of money.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

The employer cannot force you to serve the notice period.

You can tender your resignation in writing, if the employer refused to receive it in person, you can send it by registered post, have a copy of it secured.

In the resignation letter you may clearly mention the last date of the service with the company and your willingness to pay the compensation in lieu of the balance notice period.

Let the company refuse to accept your resignation letter and may try to pressurise you with unenforceable law mentioning the conditions of employment offer letter which yo have signed.

He cannot restrict your rights to leave the company and also he cannot refuse to relieve you especially when you have clearly mentioned your willingness to comply with the conditions for compensating the loss of balance of notice period. 

You can take legal action as per law for his refusal to provide you the relieving letter as well as experience letter or return of your certificates etc. through court of law.

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 cannot force you to serve the entire notice period.

The Specific Relief Act says that a Contract of Personal Service cannot be enforced in a Court of Law which 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 for the employee to complete the Notice period in order to take his full salary and the relieving letter.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

You can leave the job by either giving notice or payment in lieu of notice.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 constitution of India. Hence company cannot threaten you by showing this clause. The Company cannot force you to serve the entire notice period.

The compensation would be to the extent of salary to the  number days that you are desirous of waiving the service of notice period.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

No he can't force you to serve notice period. You can buy the notice period by paying the basic salary to him for lieu of notice period

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

Contract of Personal Service cannot be enforced.  The Specific Relief (Amendment) Act, 2018 ("Amendment Act") has brought about significant amendments to the Specific Relief Act, 1963 ("Act"), the critical one being that specific performance is now (unless a case falls within the exceptions) the norm instead of a discretionary power with indian courts.

 

Under specific relief act sec 14 it is specifically mentioned that

CONTRACTS, WHICH CANNOT BE SPECIFICALLY ENFORCED

[14. Contracts not specifically enforceable.—The following contracts cannot be specifically
enforced, namely:—
(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;
(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;
(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and
(d) a contract which is in its nature determinable.

 

So the duties which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms, or the performance of which involves the performance of a continuous duty which the court cannot supervise can not specifically enforced.

most organization have a condition of ”lieu of”. Typically the notice period can be waived ”in lieu of” pay deduction. And most employees exercise that option by negotiating the difference with the other organization.

There are always exceptions but no ethical organization can force an employee to serve the notice unless there is a pressing business need or ”notice pay” refusal from the employee or monetary advances provided to the employee.

So you need not to worry as legally you can not be force to serve if you are ready for the pay deduction, and for more clarification we need to see the appointment letter.

 

Hope this will help plz rate..

Tarun Singhal
Advocate, Chandigarh
38 Answers

5.0 on 5.0

You have to follow the conditions as laid down in your appointment letter no person can hold your progress and in case you are not willing to work in the organisation and want to move to another organisation the company have only option to recover the consideration for the notice period case where you are agree to compensate the notice period company cannot hold you to set the notice period.

You can move to the court in case you are being pushed to do so.

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

Company cannot force you to serve if you are ready and willing to pay. Secondly if your documents are not withhold by them leave the job and send notice through lawyer. Ask them for damages if you need. Feel free to contact me in karnataka for further guidance if you need 

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

No, company cannot really force you to serve notice period if you are ready to pay the damages.

But i would like to give you a hint that they may calculate a huge amount as damages to recover from you .

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

 1) There is no way that the company can force you to serve the full notice period.

2) The clause in the employment agreement usually states "ninety days' written notice or three (3) months' gross salary in lieu thereof". Therefore if you are willing to pay the company should not raise any objections

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You can very well pay the remaining salary and end up your notice period, but only it must written in your agreement or appointment letter. read your agreement or appointment letter carefully before moving ahead. you can file a complaint in your local govt labour dept for your safer side. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You are offer salary in liue of notice period. If employer do not accept, you can resign forthwith.

Only notice period salary payable. Nothing else.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

As per the offer letter, you are required to serve the complete notice period and the extent of damages will be decided by the company itself. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

1. No employer cannot force you to serve notice period if you are ready to compensate the salary of notice period to employer. 

2. Amount of damage cannot be ascertained as it will be on discretion of company that how will they calculate the damage amount. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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