Navigating Probation Resignation: What Happens If You Want to Leave Early?

As per these clauses, what should be done if an employee is on probation period and has been over for 2 months and now wants to resign without serving the full notice period by giving just 1 week notice?

(a) What is the procedure to get full and final settlement if the employee agrees to serve a one-month notice?

(b) Should it be considered a mutual understanding or does it have to be given in writing by the company?

(c) Can the company sue an employee based on these clauses if he does not serve the full notice period?

OFFER LETTER

Notwithstanding any other provision of this Agreement, this Agreement may be terminated by either Party by providing sixty (60) days prior written notice to the other Party, or by payment of basic salary in lieu of notice in case of termination of employment by the Company.

APPOINTMENT LETTER

Should you wish to terminate your services with the company, you will be at liberty to resign from our employment with three months' prior notice. It will be the company's discretion to decide whether you should work for the full period of the notice or whether your services shall terminate at some earlier date.

Dear Anamika Devi,

An employee on probation does not require any notice period. The provisions you have quoted apply only after you confirm them into your employment, where you establish some privilege by virtue of this clause to exercise your right.

Both the employee and the company have the right to terminate services without notice during the probation period. No matter what is written in black and white, it is null and void. Your agreement clause cannot supersede labor law and practices in India.

For more information or legal opinion, please contact a lawyer from the Supreme or High Courts. Half knowledge is always dangerous.

Regards,

Sawant

Hi Anamika,

Why does the offer letter say it's 60 days, and the appointment letter says it's 3 months? Which is accurate?

Also, notice period in probation differs from company to company. Your clauses do not specify if these notice periods are applicable during the probation or after the employee is confirmed.

Usually, the notice period in probation is 1 week. If this employee completed his probation and has been confirmed, then he has to serve 2 months' period as per the clauses above.

While in the notice period, leaves are not permitted if there is work to be completed. Otherwise, they can be adjusted against his notice period at the time of F&F settlement. F&F is done on the last working day of the employee, clearing all the dues that the company has to pay him and/or he has to pay to the company.

By the way, please don't get into legal hassles. You cannot sue the employee for not serving the notice period. Even if you manage to actually file a suit, it wouldn't stand ground in the court, and the settlement will take a hell lot of time... it's just not worth it.

This is a waste of time for probationers who have not served the company for a month or two. There is no validity to such clauses; whatever you may write does not necessarily endorse by the laws. Something beyond the purview of law cannot be legalized.

For example, if we both enter into an agreement to murder Mr. X, will it be a legal agreement? No, we both will be jailed under the law.

Regards,
Sawant