Queries
I have one query, in our company have two month notice period rule for resign. it is legal? because I have received opportunity and they will ask me join in one month. but if i give notice period for one month than they take action on me it is also legal. they written in appointment letter for two month notice period and i sign. because we need on that time job so for under pressure we sign. so please guide me.
Anonymous

8th September 2017 From India, Ahmedabad

PARTICIPATING IN DISCUSSION:
Umakanthan53
Labour Law & Hr Consultant
Ashutosh Thakre
Hr Professional
Amitraje
Payroll Analyst - Shipping Industry
+1 Other

The Notice Period that is mentioned upon your Appointment is very legal. Depending upon the nature of the business the notice period will change... So right from immediate reveling, to 5 months of notice period is also possible. The Pilots are now suppose to give a notice period of one year before they can sign off.

So, yes... the clause of 2 months of notice period is legal.

Now coming to your query of early joining in the new organisation. You will convince either the existing company or the new company for your joining. The old company can take a legal action if you choose to just abscond... You may also not get the releving letters. So, you will need to speak with management for an early leaving and settle it amicably.

Regards,
8th September 2017 From India, Mumbai
If 2 months is notice period – out of which one month you are ready to serve notice period

Then question remains for 1 month?

You may request management to adjust your Leave balance (if you have 30 days as PL/EL) against 1 months’ notice period or you may pay 1 month notice period (only basic pay amount) you can ask your new employer if they can cash back this amount?

There MUST be some provision in order to sort this out?
Talk to your HR / Manager (sometimes It’s totally depends upon your manager if he is Ok to release you then no one can stop you to go)
8th September 2017 From India, Mumbai
Dear Friend,
In sum and substance, your post raises two basic questions - one is whether the notice period of two months while on exit by resignation mentioned in the contract of employment is legal and the other is whether the consent obtained from the employee at the time of his joining by coercion or under pressure allegedly exercised by the employer is sustainable.
Before coming to the answers, let me give an extract of the observation of the hon'ble Supreme Court of India in its judgment in Union of India & Another v. Tulsiram Patel & Others [ AIR 1985 SC 1416 ]:
" Whether the contract of service is for a fixed period or not, if it contains a provision for its termination by notice, it can be so terminated. If there is no provision for giving a notice and the contract is not for a fixed period, the law implies an obligation to give a reasonable notice. When no notice in the first case or no reasonable notice in the second case is given, the contract is wrongfully terminated and such wrongful termination will give rise to a claim for damages".
I think that you have got the answer for the first query. Still you may argue whether two months notice is a reasonable one in so far as the employee is concerned. The purpose of such a negative covenant in the contract of employment is basically to avoid the hardships which could be created to the employer and the employee by the sudden termination of the contract of employment on either side. The employee gets a reasonable opportunity to find an alternate job and the employer to find a suitable substitute for the post. The reasonableness of the duration of the notice period depends upon the facts of each such case and no straight-jacket formula can be carved out. Again I draw your kind attention to the following observation of the same Court in Chairman and Managing Director, Indian Airlines v. Binodkumar Sinha & Ors [ AIR 2001 SC 3988 ]:
" An employee when he joins service is subject to certain terms and conditions of service and he cannot quit the employment without giving requisite notice to the employer. But what should be the duration of a reasonable notice in such circumstances is a matter to be decided in each case depending upon the exigencies, needs or necessities and the essentiality of the service concerned."
By any stretch of imagination two months notice can not be construed as unreasonable.
When the notice period prescribed is thus held to be reasonable, your allegation of coercion can not stand the scrutiny of law.
By and large, when the employer is left with no option of enforcing the notice period covenant by the immediate resignation of the employee, he can claim for damages for breach of contract by way of asking the employee to pay in lieu of notice. When the notice condition of exit is reasonable, there is no room for the resigning employee's pecuniary difficulties in compensating the employer as already agreed..
8th September 2017 From India, Salem
If the standing orders act is applicable to your company, the act provides for one month notice period. Even though one month notice period is provided for many orgs mention even 3 month period. It is illegal but can you fight it out with the management?
8th September 2017 From India, Mumbai
Dear Friend,
The notice period for two month notice is appropriate. The notice peiod one month to three months is also appropriate. The organisation fixes notice period as per its structure & employee strength to administrate termination/retrenchment in legal way.

Further, raising question to notice period (two months) for a signed /agreed contract has got no meaning at this stage, rather comply to norms would be benificial for your future.
9th September 2017 From India, Mumbai
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