Umakanthan53
Labour Law & Hr Consultant
Rahul Chhabra
Hr Professional
Emily91
Service

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Hi, I am working in a reputed FMCG Company and have a job offer from other Company. My current employer has mentioned the following in the offer letter - "The contract of employment may be terminated by either parties by serving notice of 90 days or salary in lieu of notice period"
Now the present position is that my department is insisting on me serving complete 90 days notice period whereas I want to serve only 30 days and am willing to buyout the balance period. Now can the Company made me serve the entire 90 days inspite of this clause in the agreement? Since there is no mention of employer discretion anywhere in the contract. Also can they legally with-hold my relieving letter?

Dear Emily,
I suggest you speak to your employer and seek a relieving that suits both of you. There is no way that they can stop your relieving or experience letter. As you don't want to serve the entire notice, they can't force you serve it if you are willing to pay for it.
Regards
Rahul

Thanks Rahul for the reply. I have already involved the department and the HR but I see no resolution to the deadlock. My 30 days notice ends next week. What's the next best alternative that I can take? Suppose I stop going after the said date and work out with the new employer for this arrangement and then press for relieving letter? Would that be a workable solution?
Dear Emily,
The notice covenant on the unilateral termination of the contract of employment is a protective clause serving the interest of both the employer and the employee to mutually inform one another just to arrive at a suitable alternative. When there is a buy-back option of notice period available to the employee, one can not treat it fair or legal on the part of the employer to negate the option of the employee either in part or full and mechanically insist on actually serving the notice period in full. Even such an option of unilateral termination of the contract of employment at the behest of the employer which is generally termed as "retrenchment" provides for one month's notice only on the part of an employer having less than 100 employees. Therefore, the "90 days notice" clause seems unreasonable to me even though in the absence of any discretion on the part of the employer and having been agreed to by the employee as well. When you are prepared to serve the 30 days and buy-out the rest 60 days, the employer has to relieve you formally on the expiry of the 30th day without any hitch. After paying the notice amount, if you simply walk out, your employer can not sue you for specific performance or declare you as an absconder. At best, he can hold your relieving letter and experience certificate.
However, you may keep your prospective employer also informed in this regard. That apart, it is better to make a personal representation before the C.E.O and convince him politely.

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