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My Friend got a job in an IT Company(A) as a mid level position,He joined at the last week of month, He served there for 4 days,He got a very good onsite offer on 5th day for Company B,So he resigned the current company(A) to join the Onsite offer on weekend.He has signed the Service Agreement contract paper on the Companies Letter head. where its said to server a 2 months Notice period,where it is also written that the company reserves the right to recover Salary in lieu of Notice period, He is on probation period for 3 months. He has not got any salary from the company nor he was assigned any work. He doesn't want any reliving/exp letter from Company A. Can he directly go and join the company without any fear or he should pay the Notice period. Please guide me what can be the differnt options to get rid of this situation.
From India, Bangalore
Ideally the actual notice served should be in accordance with the appointment terms. Normally during the probation period; the notice period is very less. i.e. 15-30 days. Check for it. If not much of an amount, better get it cleared. In many cases a negotiations can lead to lesser amount in salary recovery settlement. Also, ask him to talk to some current and ex-employees of the company and check how aggressive the HR department is on the salary recovery. On a lighter note, as he had just joined and was not given any work, the HR may let him go without any recovery at all. Though don't expect a relieving letter in short time.
From India, Indore
Hi Steps your friend may follow: 1 - He must formally put in his resignation with immediate effect. 2 - During probation the notice period may be one month or less. Let him do his best negotiation to release him without any notice pay. 3 - He may not bother to have an exp letter as for the rest of his life he will be finding it difficult to justify resignation after 5 days,so which means no need to show this 5 days job in the CV too. 4 - But he must take a relieving letter ,just as a proof that he had completed his full and final settlement with company A and no one can bother him from company A in future. 5 - He should be ready with a convincing answer to face HR on his decision to quit the company and also since he has not earned any thing may be if he is not willing to pay the notice pay amount then HR may release him without any hassels at all. Ask him to offer as a good gesture, he is willing to let go his 4 days salary too. 6 - His case is strong since he is not asking for an exp letter or salary for 5 days all that he is looking for is hassel free release from company A.So he should not have problem at all. Thanks Geeta
From Korea, Seoul
During the notice pay, one has not to give notice pay. but all will be driven according to the appointmnet letter that had signed by the employee.
From India, New Delhi
The Appointment Letter is a contractual agreement which two parties...the Employer on one hand and the candidate (employee) on the other...sign to give shape to a professional relationship. This agreement is a Contract of Employment. Once this contract is signed, both parties to the same are obliged to honour the terms and conditions stipulated in the contract. In the instant case, if the terms and conditions contained in the Appointment Letter requires the employee to give 2 months' notice upon resignation from the service of the employer during his probatipon has period, well I am afraid, the employee in morally and legally obliged to honour this commitment he has agreed to when he signed the Appointment Letter. Agreed your friend has found a better job and would like to take that up, well he will have either serve the notice period or pay salary in lieu thereof. Not doing so may attract legal action by his present employer if they choose to go legal on the matter. Just imagine a situation if the employer were to tell the employee after 4-5 days of his joining the company that they have found a better candidate whom they would like to employee in his place and asks the current emloyee to leave without any notice of salary in lieu of notice as per terms of the Appointment Letter. How would the employee feel. Employment is a two way process with certain eithical, moral and legal bindings and one should, in all fairness be awlays prepared to honour these basic commitments. In the present case, he has the following options: 1. Just walk away and join the new Co. without any reference to the present job. 2. Resign, serve out the notice period or pay salary in lieu of the prescribed notice and gracefully exit from the organization in a tidy manner with a relieving letter, Service/Experience Certificate, a farwell party etc.. The choice rests with the person concerned. Best Wishes, Vasant Nair 9717726667
From India, Mumbai
Geeta, I am afraid I would not agree with you on waht you have suggested. Please respond to what I have stated in my response. Best Wishes, Vasant Nair
From India, Mumbai
Vasant Nair has put the right thing that if the employer feels that he has a right candidate better than you just after your joining and asks you to resign, what will be the reaction from your side?. However, this being the case, from legal point of view an employee leaving the organisation with out serving the notice period even if the contract of employment says so, is not an offence. There is no where written in the labour laws that an employee should give notice of one month or three months to leave! On the other hand, if an employer wants to terminate once service, then the employer should give notice. This is because, all labour laws are made to protect employees and not for the sake of employers. I don't think that there is any case lodged by any employer against an employee who left without giving notice or paying notice pay in lieu of notice period. This is because, a contract prohibiting one's right to take up employment is voidable. Regards, Madhu.T.K
From India, Kannur
It seems your friend got offer from another company after he has joined his current company. Ask him to take it like normal resignation. He can negotiate the joining time with the new company he wants to join. And than explain to his current boss/ HR of the situation. Normally, no company wants to invest two months on new joinee who is going to quit. So they can be convinced to waive off his notice period.
From India, Delhi
fully agreewith Madhu sir, very well explained ........as there is no law which restrian an employee. Sanjay Advocate

Thanks Everyone for all your Reponse.My friend is able to convince for a 1 Month Notice Period payout to the Company A.Now The Company A is asking him to Pay gross Salary for 1 month.In the Offer Letter under separation policy it is not mentioned wether he should Pay Basic or Gross Salary.It is just said that the Company has the rights to ask for Notice Period Pay. Now My Question is what he should Pay as Notice Period Payout? Is there any Labour Law which say to Pay the Gross Salary or the Basic Salary in Liue to notice Period? My Friend as server for 4 days,he has not availed any FBP or HRA or any other salaray Component,That means he has not drawn anything from the company. Then why the company is asking for full 1 month Salary? he has resigned gracefully and wants a clean exit,but the company is creating new obstacles. Please let me know what are the possible options he can do? Thanks Brajesh +919886997410
From India, Bangalore
Dear Brajesh He is not required to pay anything. It would be real Shylockian company to insist on such things, when a person has served for only 4 days. Just ask him to put up his resignation, with 'regret' and 'request for waiving off any notice period"; and forget about the whole episode. Please see the comments of Mr. Madhu T.K. He is absolutely correct, as far as practicalities are concerned. Generally companies do not bother for such trivial issues, they would rather utilize the time in looking for replacements. Regards.
From India, Delhi
Hi, As already mentioned that there is no law under which the emplyee has to pay notice period if he resign from the serive, However if the employer retreched they the employer has to pay in lieu of notice under I.D.Act. Sanjay Advocate

Even when an issue of salary comes, there will not be any relevance to allowances but only basic salary and dearness alllowances constitute salary. If we interpret salary for the purpose of calculation of lay off compensation or retrenchment compensation under the ID Act, salary means basic salary and dearness allowance. Therefore, the question of gross salary does not arise at all. Regards, Madhu.T.K
From India, Kannur
I would suggest your friend to pay the money asked by the company, join the new job. before leaving for abroad file a case on that company thro' a good labour lawer and pray for suitable compensation. He will certainly get back his money oneday or other.
From India, Bangalore

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