What does the relieving clause exactly say? As you say that it is vague but it does have a buyout option and hence you should exercise it. The company cannot hold you against your will when there is a clause wherein you can resign early.
Notice period conflict
Hi My notice period is for 90 days. My current organisation is not relieving me on 18 December 2022 wherein my new date of joining is 19 dec. My relieving date is 25 January and thus im serving majority of notice period ie for 52 days. I feel they are being unreasonable. The clause is vague regarding early release. The company reserves the right to make the payment in lieu of notice Can you guys please suggest what laws would govern and overule this clause ie labor laws or indian employment laws that keeps me safe and not make it a breach of contract
Asked 3 years ago in Labour
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11 Answers
You can buy your notice period by paying for remaining days
You or company may terminate by giving the other party written notice as follows: Pns01.11 at any time during probationary period : 30 calendar days Pns01.2.2 after completion of your probationary period : 90 days Pns01.2 the company reserves the right to make a payment in lieu of notice( prorated monthly equivalent of total pay) This is extract of my contract. As you can see clearly buyout option from the employee is not mentioned and my supervisor says it is at discretion of management. What are legal loopholes that allow me to buyout my notice in my contract, labor laws of india, or employment acts?
Asked 3 years ago
Even if it's not mentioned you can opt for it. They can't force you to complete
The buyout option can be exercised by the management ie they can let you go by giving you money or not. But you can't. This is discrimination and violation of basic laws governing contract. This agreement would not hold in court.
Send them a legal notice that you wish to resign and leave early. They may take money or you will resign in case they don't respond which would be deemed accepted after 3 days.
You have to serve the notice period of 90 days
2) you can offer to pay salary in lieu of shortfall in notice period
3) it is at discretion of company to accept the salary in lieu of shortfall
If you need experience letter / relieving letter it is in your interests to serve notice period
seek extension of time for joining new organisation
You can leave the company after the last date of working as mentioned in your resignation letter and can make the payment as compensation in lieu of the balance notice period beyond the date of last working day.
Before leaving the company you ensure that you return the company's assets held by you.
If the company is furnishing the relieving and experience letter then you can issue a legal notice to the company demanding the same besides settlement of F and F dues.
After that you can resort to legal action as per labor law
The employer may try to take advantage of this one sided agreement conditions of employment.
But the law says otherwise that if you have tendered the resignation by properly observing the procedures of law, the employer cannot force you to remain in employment beyond the last date.
He can take action to recover the amount for the remaining period of notice to be served, but since you are ready and willing to pay the compensation in this regard, he cannot stop you from leaving the company as per the resignation letter notification.
“Pns01.2 the company reserves the right to make a payment in lieu of notice( prorated monthly equivalent of total pay).” This is implied consent by employer to permit employee buy out of notice period. As when employer can make payment in lieu of notice period, the option cannot be denied to employee. You have a good case to win against employer. You can approach civil Court forcing it to relieve you within 90 days as your salary might be more than 15K you cannot approach labour Court. But Court proceeding drag, by the time you get an order from Court it will be more than one year. Further, your reputation will be tarnished in market. The best option is settle amicably with employer and obtain relieving letter before joining date.
- 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.
- Hence, if you have worked after completing the probation period , then notice period rule applied in your case, however the management cannot take any legal action against you legally , and you are ready to joint other organization freely without any hurdle , if you have already informed that company after tendering your resignation.
You can contact me, if further suggestion needed.
You can buyout your notice period, and offer to pay any compensation to the company as may be reasonable in your situation. If the company says u don't have a buyout option, you can take them to the court because it is unreasonable that they should have an option to buyout your notice period, but you are not given the same option which would make the agreement unilateral and arbitrary and hence can be declared void by the court.
