Dinesh Divekar
Business Mentor, Consultant And Trainer
Umakanthan53
Labour Law & Hr Consultant
Saurav Jana
Recruitment & Client Acquisition - Zeal
Khushva
Service
+1 Other

Hi,
I am working in IT industry, as per my employment agreement my notice period is of 90 days. However, I have given the notice for 30 days due to medical reason and is having medical certificate and all the prescriptions. But my employer is not accepting my resignation, I have also told my employer that I am ready to buyout my resignation period but on this thing also employer is not accepting my resignation. They are pushing me to either complete my notice period or go on sabbatical for 1 year. I have clearly inform them due to medical reason I am not being able to continue nor I want to go for sabbatical, as I am not clear how much time I require from recovering. But still my employer is not listening.
I wanted to know, what are my legal rights, can employer deny acceptance of resignation though it is due to medical reason? Secondly, what legal action employer can take if I don't serve the complete notice period?
Thirdly, whether it should be right on my part to just leave the laptop in the office and walkway like this only?
Fourthly, can I sue the employer for harassing me mentally by not accepting the resignation?
Regards
Rahul
20th January 2018 From India, Delhi
Dear Rahul,
Most of the employers include clause of separation in the appointment letter itself. In most of the appointment letters it is stated that employer reserves the right to accept the payout in lieu of the unfulfilled notice period. Therefore, you may check the provisions of the appointment letter.
By the way, what exactly is the diagnosis? Your employer could be little suspicious about disease and could be suspecting that medical reasons are nothing but a ploy to tide over the condition of serving of the notice period. Hence their refusal or coming up with the alternative for sabbatical.
Thanks,
Dinesh Divekar
21st January 2018 From India, Bangalore
#Anonymous
Dear Dinesh,
I am using my husband profile for writing up in this forum.
There is a gynae related issue which is going on and there is a medical history also wherein 2 year back there was a miscarriage and at that time I was in my current organisation. Further, I am having all the medical records, prescriptions & certificate (wherein I have been told to take complete rest and no stress).
Further, in my appointment letter there is no clause for buyout. However, in the company policy it is written that
'If you resign during your employment with company, you agree to give the Company notice according to your employment agreement. If you do not give the required notice, you will not be formally relieved from the services of the company and will be deemed as absconding employee. Company will further deduct short notice period money from your full and final settlement owed to you'
If in such a situation if I join some other company what legal action they can take against me and my new employer. Further, if I indemnify to my new employer that I will be responsible for any legal action, then in that case will there be any issue.
Regards
Rahul
21st January 2018 From India, Delhi
Medical certificate with diagnosis and treatment can be produced to the company and ask for release.
Couple it offer of buying out notice period (if required)
What stops you from going on sabbatical for one year?
You claim to be medically unfit and if really unfit will not be looking for another job, then the offer of sabbatical is attractive.
""I wanted to know, what are my legal rights, can employer deny acceptance of resignation though it is due to medical reason?""
Have you produced the medical certificate, diagnosis and likely duration of medical unfitness etc.
A company cannot force someone to work if he is genuinely medically unfit.They can be taken to task legally, which off course is time consuming and expensive process.Company doctor may challenge the diagnosis and delay the whole legal proceedings etc.
If you do not complete notice period as per appointment letter -company can file a suit for recovery of NP pay, put your name in NASSCOM list and refuse experience certificate etc.
""Thirdly, whether it should be right on my part to just leave the laptop in the office and walkway like this only?""
It would be absolutely wrong and can lead to claims of loss of laptop/theft of laptop.
Has to be returned properly and receipt of laptop with sl no ,date and proper acknowledgement of authorised official.
Do not get carried away and think courts are the remedy for all problems.
Right to sue exists but proving things in a court is not easy and expensive.
Approaching court should be always last resort and when no choice is there.
I suggest meeting higher officials of the company and explain your issues and ask for release.court is no solution for this problem where company will cast doubts on your medical condition and state that you have not fulfilled terms of release as per agreement.
Discuss the matter with a local advocate dealing in labour law for a mutually agreeable solution.
21st January 2018 From India, Pune
Dear Mr. Rao
I am using my husband profile for writing up in this forum.
There is a gynae related issue which is going on and there is a medical history also wherein 2 year back there was a miscarriage and at that time I was in my current organisation. Further, I am having all the medical records, prescriptions & certificate (wherein I have been told to take complete rest and no stress).
Further, in my appointment letter there is no clause for buyout. However, in the company policy it is written that
'If you resign during your employment with company, you agree to give the Company notice according to your employment agreement. If you do not give the required notice, you will not be formally relieved from the services of the company and will be deemed as absconding employee. Company will further deduct short notice period money from your full and final settlement owed to you'
If in such a situation if I join some other company what legal action they can take against me and my new employer. Further, if I indemnify to my new employer that I will be responsible for any legal action, then in that case will there be any issue.
Regards
Rahul
21st January 2018 From India, Delhi
Respected Madam,
Whatever I understand from the additional information given by you is that they will declare you as absconding and deduct short notice period for Final settlement.
The old company cannot take action against new employer in any way.
Only issue which is not clear is you are using medical grounds to leave the old company saying you are unfit but still wanting to join new company.
The tag of absconder may stick to you and NASSCOM maintains some such register.
Blacklisting in nasscom using nsr it pin
How the new company will take your unhappy departure from old company is not known.You have to think of that and keep them in the loop.
So take due care and take actions after advice from a lawyer who deals in labour cases.
Wish you best of health.
21st January 2018 From India, Pune
Dear friend,
The last paragraph of your replies posted as Sl No 3 and 5 read "If in such a situation if I join some other company what legal action they can take against me and my new employer. Further, if I indemnify to my new employer that I will be responsible for any legal action, then in that case will there be any issue."
If you are medically unfit to execute the duties of your current job, then you should be medically unfit to execute duties of your immediate future job as well. Your earlier query was on two counts. One is non-acceptance of the letter of resignation and second one permission for the early exit. However, your replies at these two places brings contradiction to the fore. This contradiction has not gone unnoticed and your current employer was able to see through it. Hence their denial to curtail the notice period or even to accept the resignation itself. They consider medical reasons as an eyewash for the early exit.
As far as abandonment of the duties is concerned, it is a too risky option. With this option, you will not be provided unblemished relieving letter or it may not be provided at all. Either option will nullify your tenure at the current company. Therefore, prudence demands completion of the notice period and have an honourable exit.
As far as indemnification of the future employer is concerned, there is no need to worry on that count. Your employment is a matter between you (as an employee) and your current employer. Your future employer is a third party. Therefore, for any wrongdoing(s) of the employee, liabilities cannot be passed on to the third party or any other party for that matter.
Thanks,
Dinesh Divekar
21st January 2018 From India, Bangalore
Dear Mr. Rao
Yes I am using my medical ground for reliving from my current organization.
Regards
21st January 2018 From India, Delhi
The company has seen through it and are using their tactics which is supported by terms and conditions of Appointment order.
Chances are that old company may give you a relieving letter with observations on your type of exit etc.
NO employer will be happy in such cases.
Think and act in a manner that it does not affect your employment chances.
21st January 2018 From India, Pune
Hi,
Can my employer issue show cause notice or terminate even after giving resignation?
Further, shall I approach to National Commission of Women as they are harassing me mentally or to District labour commissioner to intervene in this manner?
Regards
23rd January 2018 From India, Delhi
Legal rights of any person become enforceable only when the corresponding legal obligations stand fulfilled by him. Here, in this thread, the one and only need of the poster is to get relieved from the present organization without serving the long notice period so as to join another immediately or in time. Therefore, medical reasons are cited as a ploy to justify the stand only. Sensing this exactly, the employer tries to delay the process of exit by strictly sticking to the notice clause or suggesting an unacceptable alternative.
Various suggestions were given by M/S Dinesh and Nathrao after weighing the pros and cons of all the alternatives. But, the questioner is insistent on a safe solution only that too without affecting her employability. One can not have the cake and eat it too.
It is equally true that no unwilling employee can be compelled by the employer to be in service as that of no unwilling employer can be compelled to retain an unwanted employee in service. But, established procedures like that of convention or contractual or legal should be observed by both in a situation of unavoidable separation.
Let the poster approach the problem with equanimity as suggested by Rao rather than toying with fanciful ideas like going to National Commission of Women. At times it may boomerang too, who knows! With the frank admission of the poster about her actual desire and need, no one can find fault with the stand of the employer. Therefore, let not the poster precipitate the issue unnecessarily for the employer too has his native intelligence in such a situation.
26th January 2018 From India, Salem
Dear Sir,
I agree what you are saying, but I am not a bonded labor and no one can force me to work against my will. Even if contractual or legal obligation is there and I am breaching the contract, what is the maximum liability on me. According to my understanding, the maximum my employer can do is to pay for the shorter notice and I have already agreed that I am ready to buyout my notice period.
What is your view on this, or can you forsee any other liability/ implication?
Regards
26th January 2018 From India, Delhi
Madam,
My observation may sound like partial and fortify your conviction about the legal right of an employee to exit as and when s/he desires. But the underlying intention is out of a comparitive analysis of swapping long term career benefits with a small gain in a job. It is true that basically employment is not more than a mere contract which is certainly terminable at the option of either of the parties to it. But my emphasis is on the peaceful separation when the one wantonly refuses to relax the condition for exit under a preconceived notion about the other's true intention. I am not sure whether the exit clause imposes an equal restriction on the part of the employer too if he resorts to unilateral termination. If it is so, you can resign and walk out simply after remitting the buy-out amount without a formal relief and fight it out later. What about the stand of your prospective employer? Would he value your joining his services more than such a disputed relief from the previous organization? Can't he grant sufficient time for you to join after hassle-free exit?
26th January 2018 From India, Salem
If you are using any falsified information (i.e., in this case, your ill health) to get anything done, please do not go any court.
10th February 2018 From India, Kolkata
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