• Resignation and notice period

Hi,

Thank you for taking my question. Appreciate your help.

I work with a management consulting firm in Delhi. I tendered my resignation two weeks ago and as per company policy one has to serve 3 months (90 days) of notice. I wish to serve only two months of notice (given my wife and I expecting a child next month) and I would ideally want to pay salary in lieu of the notice for the third month. Would this decision of mine be binding on the company? Can they deny this on grounds that "salary in lieu of notice" is not mentioned in the offer letter/ contract. And can privileged leaves be adjusted with the notice period?

Other facts to help with the analysis:

No employment contract was signed. The offer letter is the only document I counter signed and it says a notice of 3 months needs to be provided by either parties.

Salaries have been pending for about 2 months (guess this would make any employment contract/ agreement void).

Arrears have pending for 1.5+ years. The organization has violated multiple terms including lapsed medical insurance covers.

I would ideally want the reliving letter.

Looking forward to your advice on this issue. Thank you.
Asked 7 months ago in Labour

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10 Answers

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

 

2) since you want relieving letter request company to waive one month of notice period on personal grounds 

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

Salary is pending and arrears of the salary are pending too. When they haven't honoured their terms of the agreement why should you honour yours? I mean the contract itself doesn't hold good so you don't have to honour the agreement. Deduct the arrears of salary and ask them to relieve you. You don't have to pay salary in lieu of leaving early.

Rahul Mishra
Advocate, Lucknow
13845 Answers
65 Consultations

5.0 on 5.0

  1. Signing of offer letter amounts to acceptance of agreement obliging both the parties towards discharge of respective terms of agreement.
  2. Due to violation of terms of agreement, the employer has lost his right to enforce clause as to service of notice period. As two months of salary is already due, you are liable only to serve only one month’s notice period.
  3. After resigning you are entitled to recover all your arrears through civil Court.
  4. Email your resignation declaring your intention to serve one month notice period as employer has failed to pay two month’s salary.

Ravi Shinde
Advocate, Hyderabad
3124 Answers
42 Consultations

5.0 on 5.0

If offer letter of company mentions the notice period and other resignation clauses then written clauses are binding on both of you. If it does not have any notice period mentioned then you are free to resign as per your convinience.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 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, if the offer letter given three months period , then either you can pay the same or work, and further accordingly you can serve 2 months period and remaining can pay.

- Sent a notice to the employer for issuing Relive letter and to pay the arrears immediately. 

 

You can contact me , if further suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
10269 Answers
123 Consultations

5.0 on 5.0

You can send a legal notice to them and ask them relieving letter. 

Prashant Nayak
Advocate, Mumbai
28058 Answers
93 Consultations

4.4 on 5.0

Dear Client,

Most companies would have a severance payment in lieu of a notice period, if possible you can negotiate with your new company to pick up that tab. If that doesn't work, you may request HR to do the same and pay from pocket ( if desperate!)

But, never run away from your company without proper documentation. This can affect you decades later.

Thank You

Anik Miu
Advocate, Bangalore
5334 Answers
57 Consultations

4.9 on 5.0

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. Contract of Personal Service cannot be enforced.

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.

T Kalaiselvan
Advocate, Vellore
79184 Answers
1611 Consultations

5.0 on 5.0

You need to send legal notice to recover your arrears pending from last 1.5 years and ask releaving letter.

 

Company can't keep you forcefully without your wish when you are ready to pay in lieu.

Ganesh Kadam
Advocate, Pune
12418 Answers
192 Consultations

4.9 on 5.0

Hi,

I believe you must first send an email to your organization which I believe you must already have. Exlain the entire situation to them. If the company has so many pending payments, you can send a legal notice which might bend them. If that doesn't work as well, filing a civil suit with an interim application to give relieving letter 

Abhiraj Jayant
Advocate, Delhi
46 Answers
1 Consultation

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