We have a three month notice period to be served on the company when we resign. There is also an option to pay for shortfall in notice. Can the company force the employee to work for the entire three month notice period without accepting notice pay for shortfall even after the employee offers to work for a reasonable time after notice(say, offered to work for one month and pay for the balance two months)? Can somebody please tell me regarding Sec.14 of Specific Relief Act?

The details of the clauses in Appointment Letter pertaining to resignation are as follows:

The appointment letter says "It is also understood and agreed upon confirmation of your services: (i) The employment may be terminated by either party without assigning any reason by giving the other party three months notice or pay in lieu thereof
(ii) Notwithstanding anything to the contrary contained herein, misconduct on the part your part will entitle us to terminate your services without any notice or pay in lieu thereof"

At another place it says that "You shall be bound by the Company\'s Service rules and regulations as applicable to senior members of staff, save the terms and conditions explicitly specified in the contract of service, including any other rules and regulations that are in force from time to time."

Service regulations say that it is the discretion of the company whether or not to accept notice pay. In essence they can ask us to serve the complete notice period by rejecting the offer by employee to pay for shortfall in notice.

Request you to let us know about notice period law in India.

From India, Visakhapatnam
You can leave the job by either giving notice or payment in lieu of notice. The relations between the employer and employee are primarily governed by the Appointment Letter. The Company's policies and procedures are the supplimentary aspects. The constitution of India provides the fundamental right to every person to choose the profession of his choice and any agreement contrary to this is invalid. By putting the clause in service regulation that it is company's discretion to accept the notice or not is against the provisions of constitution of India. Hence company can not threaten you by showing this clause. The Company cannot force you to serve the entire notice period.
From India, Mumbai
The Rules pertaining to notice period varies from company to company and when the employee agrees and accepts the terms & conditions mentioned in the appointment letter he/she willl need to abide by it, whether the co can force an employee i guess it purely depends on the work culture and rapport between the employee and the management
From India, Mumbai
Dear Mr. Manish,
I will differ on your opinon if the task of the " Resigned Employee " are not properly handed over or due to which the Employer is going to have " Financial or any other Loss " in this cases if the "Resigned Employee " not interested to indemnify the employer then Employer may ask " Resigned Employee to Serve Notice Period ".
There is not question of Fundamental Rights in above question.
There is resonable restriction on it.
And if the Compensation is not "Good " relief to EMployer then As per Indian Contract Act Employer can compel the employee to serve the total notice period.
P.S. - Please go through the provisions " Specific Performance " under Indian Contract Act.
Hope you will agree with me.

From India, Pune
Dear Prashant
The losses that employer suffer (what you are saying) due to non service of notice period need to be actual loss. It cannot be imaginary loss. It is very difficult to prove in court of law the actual loss happened because the employee did not serve the notice period. If Company do not want an employee to leave during the notice period then why the clause of 3 months notice or payment in lieu of notice is mentioned in appointment letter. Yes, one can strongly claim the fundamental rights enshrined by costitution of India and it applies in such cases. I have in my practical experience have seen various cases where companies file the cases against the employees and end up loosing the same on these grounds.

From India, Mumbai
Dear Prashant and Manish, thanks for your replies.

The fundamental thing here is, we do not want to leave abruptly and cause inconveience to the employer. One month is sufficient and reasonable notice for the employer to get his act together. The company can recruit a new person within one month and ask the resigned person to handover things. If replacement is not found, the resigned person's records/work can be handed over to his colleagues and when new person is recruited the same may be shifted to him.

In the Appointment letter it says (i)3 months notice or pay in lieu thereof and also says (ii)" bound by the service conditions except conditions explicitly specified in contract of service(ie., appointment letter)". It does not say that the company has option to refuse notice pay. However, the service rules has such condition. Now, because of (ii) above can we say the company can not refuse to accept notice pay as it explicitly specifies that it is either notice or notice pay and does'nt give the company the discretion to accept notice pay or not?

Now which will prevail, the contract of service or service rules?

Now, the new employer in most cases would like the candidate to join atleast in 1 month, if there is more delay they may refuse to take the candidate and he may lose the opportunity and also it is not so convenient to continue in the present job. The management(in this case I do not mean the top level management, I mean the immediate manager) may take him for granted as is he will become aware that the employee has nowhere to go. I am specifically talking about this because, I have come across an incident where the manager has flatly refused that he has received any resignation letter after the employee has served three months of notice period (the employee has failed to take acknowledgement of his resignation letter), the manager simply said that I asked you stay back and I thought you are staying and you have not given any letter. That person lost this opportunity and afterwards got another job and paid 3 months notice pay this time.

This notice pay thing is not critical if both the parties are reasonable, but if unfortunately one has a vindictive boss, he may cause one to miss the opportunity and also relieve you after the notice period leaving one without job. He may ruin not only the career but also may cause immense financial crisis to the employee making even his family members suffer.

It is in this context I am asking whether the company can force to emplyoee to work for complete 3 months. If the employee cleary indicates in his resignation letter or by a later communication that he would like to serve only one month notice and offers to pay for shortfall, and if on not receiving any positive response leaves after one month, can the company withold the relieving certificate?

From India, Visakhapatnam

legal consultant
The Specific Relief Act says that a Contract of Personal Service cannot be enforced in a Court of Law which means that if a employee quits before the Notice period the Employer can only recover the Notice pay .
No Employer can force an Employee to complete the Notice period.It is for the employee to complete the Notice period in order to take his full salary and the relieving letter.

From India, Madras
M/s Rajan Law firm, thanks for your inputs. Does it mean that the employer is at his discretion whether or not to issue the Relieving Certificate if full notice period is not served?
From India, Visakhapatnam
Executive manager
My friend is getting engaged and she don't have time to server notice period.
But HR in the oragnization is forcing her to serve 2 months notice period instead of salary pay for 2 months.
They are telling if she won't serve notice period they won't provide her the experience letter.
Now she is in dilema what to do or what not to.
So can anyone help me regarding this

From India, Hyderabad
I guess we need a regulatory body for organizations based out of India, specially IT-ITES based firms as they don't have a union to take up their cause, and as in case of what has been cited by Mr. Pradip above, if the HR/boss of an employee is trying to mess things up, it is really a black-hole for people within no output coming out of whatever inputs you try to give.
As for Mr.Pradip, I'll say, ask your friend to file a case in Consumer Court against the firm and hope the best comes out of you. In most cases, the result is in favor of the employee (unless something was messed up from employee's side as well).

From India, Mumbai

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