Hi, I work for an organisation where the terms of my appointment letter mention “ after confirmation, your employment can be terminated by either the company, or You by giving 90 calendar days prior written notice. Only the company has the option ( but not the obligation ) of paying 90 calendar days salary in lieu of notice” . I have resigned on 15th march 2022 and requested for an early relieving in 30 days i.e 15th April 2022. I am also ready to pay the balance 60 days salary in lieu of the notice period shortfall. However, my employer is unwilling to let me go and is not ready to relieve me even 1 day before the said 90 days. there is absolutely no pressing business need, no logical or reasonable explanation for me to stay back for the said 90 days. they are forcing me to serve the 90 days notice else they will hold back my relieving letter and experience certificate. I have worked here for 2.5 years. If I fail to join my next employer within 40 days I stand to loose out on a great career opportunity. Due to this harassment I am under tremendous stress. I feel Please advice what legal chances I have in such a situation. Best regards Nikhil
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It is at discretion of employer to waive the notice period and accept salary in lieu of notice period
2) since company has rejected your offer of payment of salary for shortfall better serve the notice period if you need experience letter and reliving letter
3) seek extension of time for joining new organisation
Dear Ajay Sir, thank you for your quick response. 1) what if my future employer is ok to onboard me without the relieving letter? 2) Can they still force me to work for the entire 90 days? 3) can this one sided clause not be challenged? regards nikhil
if you don’t want experience and reliving letter leave the organisation after 30 days
2) send cheque for shortfall in notice period
3) the terms of contract are arbitrary ,one sided as employer given option to pay 90 days salary but employee forced to serve notice period
4) litigation is long drawn and expensive proposition
You can buy out the notice period the company cant compel you to work for all the notice period. You can also send them legal notice.
Dear Sir,
If you need any further assistance.You can approach me through Kaanoon or LinkedIn.
- 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, you are ready to pay for the remaining period , then pay the same with the notice of resignation which you have already tendered , and request for issuing a reliving letter.
- If no issue , then sent a legal notice , and without waiting further period , you can join the second offer .
There is no way that the company can force you to serve the full notice period. 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
Therefore there is nothing wrong in submitting your resignation with 30 days notice period and your willingness to compensate the company with your pay for another 60 days notice period.
Let them give a reply in writing so that you can plan legal action, if necessary after that.
1. If your future employer agrees to appoint you without production of the relieving letter from the previous employer, you can proceed, however you may have to procure the same from your previous employer to submit the same to the new employer at a later stage.
2. You may first submit your resignation letter referring to the specific provision under which the 30 days provision is mentioned.
Let the HR respond to that saying that they are imposing a 90-day policy. You can use this to send a legal notice or initiate court proceedings.
3. You can
Dear Client,
As per the facts which have been provided, if you do not serve notice period nor pay the compensation amount, then the company may initiate legal proceedings against you to recover the same but if you are willing to pay the compensation amount then the company cannot deny to give experience letter, reliving letter. But they may mention this on reliving letter (like date of resignation and date of reliving)
Hope this clarifies your query and requirement.
Thank you.
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. The management has no right to retain even after payment of the damages as per the agreement. Thereafter, you should issue a written notice to the management by communicating about further development and requesting your relieving letter.