• Would not like to serve notice period

Hi,
I am working in IT firm from last 2.3 years as Consultant. Company is in Noida.
My Offer letter mentioned that i would be working for 6 months on Probation Period with 01 month notice period and thereafter i will be confirmed employee.
After 6 months, company has given me Confirmed Employee Letter and increased my notice period to 3 months
Now In this tough covid time, my company is facing Cash flow issue and is not paying us on time. From last 2 months i have not received my Salary. In addition to this, my longevity bonus amount, which i am entitled to have on the completion of one year, completed on June 1 2020, is also still not received. 
Company is also not giving me the dates and clarity on the payment.
Hence i have resigned from my company week before and now they are forcing me to serve full 03 months notice period.
But i am not able to server 03 months notice period because i am facing huge financial crunch currently and hence applying in new companies. What should i do now? Since salary is very basic part and which is not receiving i dont want to serve notice period. Can company take any legal action if i resume my work from current company tomorrow? Please suggest me
Asked 18 days ago in Labour

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24 Answers

1) in your resignation letter you should mention reasons as to why you have resigned 

 

2) mention that you had no option but to resign as salary not paid for last 2 months 

 

3) that you are willing to serve 3 months notice period provided salary is paid on time 

Ajay Sethi
Advocate, Mumbai
76978 Answers
4621 Consultations

5.0 on 5.0

Company is at default for not paying salary on time and due payment with bonus. So you not responsible to serve notice period and can resign forthwith.

NO legal action against you and contrary to that, you can send legal notice to company.

Yogendra Singh Rajawat
Advocate, Jaipur
20144 Answers
28 Consultations

4.5 on 5.0

They can't sue you on salary and lieu period basis if company has not paid salary for the last 3 - 4 months on this basis you can leave the company.

Ganesh Kadam
Advocate, Pune
10682 Answers
94 Consultations

4.9 on 5.0

1. See as per the letter of your appointment and confirmation you have to serve 3 months notice period. In case you fail to do so company may serve you legal notice and file suit to recover the notice period pay from you. 

Shubham Jhajharia
Advocate, Ahmedabad
25205 Answers
105 Consultations

5.0 on 5.0

Send them a demand notice asking you to pay the amount which is unpaid and also inform them that as they fail to pay you the salary , you are unable to join them.

Swarupananda Neogi
Advocate, Kolkata
2251 Answers
4 Consultations

4.7 on 5.0

Dear Sir,

You are suggested to reply strongly to the company and that the basic reason of your leaving job was non-payment of salary from them and it is practically not possible to serve the notice period of 03 months without any money. You may serve the legal notice for the same.   

Ganesh Singh
Advocate, NEW DELHI
5435 Answers
10 Consultations

4.5 on 5.0

At the most they may demand 3 month salary which may be dealt with happiness to get that adjusted with your statutory dues. 

Please join new employer and forget earlier one for the time being. 

Ramesh Pandey
Advocate, Mumbai
1303 Answers
5 Consultations

5.0 on 5.0

You need to serve notice period or pay basic no other remedy If you default they may not provide you relieving letter and F&F for the same

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

Why you will pay ? your claiming your due amount. company is at default not you.

Yogendra Singh Rajawat
Advocate, Jaipur
20144 Answers
28 Consultations

4.5 on 5.0

Please ask them to adjust your dues against notice periods and release you from your job and responsibilities. 

Ramesh Pandey
Advocate, Mumbai
1303 Answers
5 Consultations

5.0 on 5.0

Company is bound to relieve you as they did not paid you the salary.

Swarupananda Neogi
Advocate, Kolkata
2251 Answers
4 Consultations

4.7 on 5.0

Company may refuse to give you relieving letter to force you to serve notice period 

 

company is bound to pay you salary 

 

in absence of salary you cannot be expected to keep on working for the organisation 

Ajay Sethi
Advocate, Mumbai
76978 Answers
4621 Consultations

5.0 on 5.0

If new company insists on relieving letter then it is your interest to serve the notice period 

 

reason being litigation is long drawn and expensive proposition 

 

going to court to direct company to issue relieving letter does not make sense as suit would take years to be disposed of 

Ajay Sethi
Advocate, Mumbai
76978 Answers
4621 Consultations

5.0 on 5.0

I just told you the procedure. If you will not pay they will not give you relieving letter. You need to contest the same with competent authority

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

1. In case company issue notice for notice pay recovery you may reply there notice stating that salary is not paid and you are forced to leave company due to this reason.

Shubham Jhajharia
Advocate, Ahmedabad
25205 Answers
105 Consultations

5.0 on 5.0

See you may write you old company for reliving letter in case they fail to give same you have to file a suit for the same.

Shubham Jhajharia
Advocate, Ahmedabad
25205 Answers
105 Consultations

5.0 on 5.0

Please make aware of your new employer the reason of joining them and leaving earlier one expressly at the time of recruitment and and selection process. 

If they are fair they won't mind you to appoint being loyal and fair in your interview process. 

You have to take risk.

Ramesh Pandey
Advocate, Mumbai
1303 Answers
5 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.

- Since, the company has not paid you 2 months salary , hence you are entitled to serve one month notice period only. 

- Send a demand notice to the company for the arrears of salary , and mention that you are ready to work one month with the salary . 

Mohammed Shahzad
Advocate, Delhi
4180 Answers
43 Consultations

5.0 on 5.0

Sue the company if they refuse to issue the releaving letter. 

Swarupananda Neogi
Advocate, Kolkata
2251 Answers
4 Consultations

4.7 on 5.0

1. Company cannot initiate any legal action against you for not serving notice period they are not paying you salary from last two months.

2. You can ask them to clear previous dues and ensure further salary on time for notice period if they demand that you should serve complete notice period.

Mohit Kapoor
Advocate, Rohtak
9322 Answers
3 Consultations

5.0 on 5.0

Dear Sir,

You are quite genuine at your contention and you are suggested to talk and inform the new company accordingly regarding the present issue going with this company.  

Ganesh Singh
Advocate, NEW DELHI
5435 Answers
10 Consultations

4.5 on 5.0

In India, it is well within the legal framework for IT companies to incorporate 3 months notice period in the appointment letter. 

Some companies allow the employees to resign with 30 days notice even though they have signed the 90 days notice period clause, but this is purely at the discretion of the company.

You can quit any time you want and you will not have to pay the company any compensation for violating the notice period in the contract. This is because employment is at will and cannot be forced.

The catch is that when you leave an employer, you invariably want to join another employer. The new employer will invariably require an experience letter from the former employer and will also do a background check with your former employer.

When you leave an employer without serving the notice period, there is always the risk that the employer can withhold your experience letter for violating the terms of the contract and be indifferent or scathing while responding to the background verification questionnaire.

If the new employer feels the selected candidates services are very urgent for them, they can buy out the notice period by paying equivalent amount to present employer. This has happened in many cases.

 

Since your employer has not paid the salary for past two months, you may ask him to deduct the same towards the notice period and agree fort paying the balance amount.

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

The company cannot do any illegal thing against you, however they may play havoc while your name is referred for background check, which may ruin your future, hence you may be very careful in this regard.

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

You create a record for sending a letter demanding the relieving letter from the previous employer.

You can show the copy of the letter to the new employer for the steps you have taken to procure the same. 

All these would convince the new employer to wait for the same.

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

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