Stuck in a Job with No Exit: Can My Employer Legally Hold Me Back Despite a Buyout Option?

Dear sirs,

My name is Vineet, and I am employed with a leading telecom MNC. I am a rehire here and joined it 10 months back.

I had applied for this job myself, considering the nice time and learning opportunity I had in its previous center. Based on my earlier performance, I was offered the position.

However, I found the situation to be much different here, and the work culture has diminished. Long hours, back pain, and red eyes have become regular problems.

Now, I have received a job offer from another good firm, and they want me to join as soon as possible.

1) I have a 45-day notice period here, and it is mentioned that I can pay salary in lieu of that if I do not wish to serve the full notice period.

2) I gave them a 15-day notice period and sent my resignation through email. However, my manager has not responded to this email.

3) Both the HR Manager and my manager have asked me to serve the full notice period. When I talked about a buyout, they said "such an option does not exist," while it does exist as per my appointment letter.

4) They proposed to change me to a new project which is "supposed" to have a better work-life balance. However, knowing that this project will also be managed by my current manager, who is solely responsible for spoiling the culture of this company, I do not want to consider that.

Now that I have made up my mind to change companies and I am ready to buy out the notice period, I have the following questions:

1) Does this company have the legal right to retain my experience letter?

2) Do they have the right to withhold my Full and Final settlement?

3) What legal action can I take against this company if they do not provide me with my relieving cum experience letter and my dues?

The reason given for not releasing me is that they cannot find a replacement for me and do not have a mitigation plan.

Since this company has been unethical in all aspects during my time here, I do not wish to forfeit this good offer. Can they legally force me to stay based on such statements?

I appreciate your expert help. I am in urgent need of guidance.

Regards,

Vineet.

There is no law that can force you to work without your will and wishes. First of all, you have to submit your resignation with a 15-day notice and the remaining 30 days' pay in lieu of notice. Then the employer has no claim on your employment. This is a gentlemanly approach.

Another more practical approach is available. You have already informed them of your intention and submitted your resignation. Now, forget about all legal dues and formalities like relieving letters, etc. Because you did nothing wrong, nor have you been terminated for any misconduct, you can defend your employment tenure with this employer based on bad HR practices resulting in quitting the job in this manner.

In life, actions and reactions are reciprocal; it's not just a one-way traffic.

Badlu
Badlu

The exact clause given in my appointment letter is: "Your employment with the company may be terminated by yourself or by the Company by giving in writing a minimum of forty-five days notice or salary in lieu thereof. Notwithstanding, the above, the company reserves the right to pay the equivalent of the prior notice period in lieu of notice, and it is acknowledged and agreed in advance that this amount will be adequate compensation to you for the early termination of your employment. Furthermore, the company may accept or deny the receipt of salary from you in lieu of the notice period depending on the criticality of the assignment/work, etc., as deemed fit."

Does this not violate the equal justice paradigm? An employer can terminate employment by giving salary but has the RIGHT to accept/deny the same when an employee wants to leave early? Please, suggest to me what I should do. I am stuck here and unable to decide what to do.

Regards

Dear [Employee's Name],

The company cannot hold you forcibly because in India, there is no system of bonded labor. Legally, you are absolutely right as you are paying in lieu of the one-month notice period. Now, legally they should not hold your full and final settlement as well as your relieving letter. If they do not provide them, you can file a case with the Deputy Labour Commissioner under the Payment of Wages Act.

Thank you,
JS Malik

Thank you very much, Malik sir :)

But the exact clause given in my appointment letter is:

"Your employment with the company may be terminated by yourself or by the Company by giving in writing a minimum of forty-five days' notice or salary in lieu thereof. Notwithstanding the above, the company reserves the right to pay the equivalent of the prior notice period in lieu of notice, and it is acknowledged and agreed in advance that this amount will be adequate compensation to you for the early termination of your employment. Further, the company may accept or deny the receipt of salary from you in lieu of notice period depending on the criticality of the assignment/work, etc., as deemed fit."

Does this not violate the equal justice paradigm? An employer can terminate employment by giving salary but has the RIGHT to accept/deny the same when an employee wants to leave early?

Please suggest what I should do.

Regards

Dear,

This clause in the contract is void. The appointment of an individual is a contract. Even in some countries, they call it a contract letter. The clause in the contract should be the same for both parties. This clause will not hold good in the eyes of the law.

Thank you.

J. S. Malik

Mr. Malik is absolutely right, the contract of employment clause should be the same, i.e., with one month notice or payment in lieu of notice on both sides.

You can challenge and get relieved - Kameswarao

Dear Vineet,

The below clause in your contract itself is void:

"Further, the company may accept or deny the receipt of salary from you in lieu of notice period depending on the criticality of the assignment/work, etc., as deemed fit."

You have the full rights to get your end-of-service benefits. Regarding the question of issuing the experience certificate, it's at the discretion of the company to issue it. You cannot claim an experience certificate as a rightful claim. Normally, a company issues an experience certificate only after the employee fulfills certain criteria of continuous service.

Legal action - As mentioned by Mr. Malik, you can approach the Labour Commissioner under the Payment of Wages Act.

Anil

Dear Vineet,

It's very unfortunate to hear about the kind of treatment you have received from your current employer. First of all, hearty congratulations on securing a new job even in this recession.

As others have suggested, you can directly approach the Labor Department. Alternatively, you can request the company to extend the time of joining so that you can serve the 45 days of your notice period with your current employer.

ALL THE BEST!

Dear Malik Sir,

Similar to Vineet, I was working with a Telecom MNC until 07-July-2008. Actually, I had resigned from my previous company with immediate effect without serving the stipulated notice period of 30 days in lieu of the Notice period Amount for that period as per my appointment letter. This decision followed a proper discussion with my reporting manager and HOD, where I informed them through email and a personal meeting. Despite carrying my resignation letter, my Reporting manager did not acknowledge it, and I joined a new organization with a better work culture on 10-July-08.

In November-08, I finally received my Full and Final settlement with the deduction for the Notice pay for 30 days. However, the previous HR department did not provide me with my relieving letter despite numerous follow-ups with the HR head, my HOD, and the Customer Service head via emails, calls, and personal meetings. I was simply told that since I did not serve the notice period, they could not issue the relieving letter as per their process.

I had served that organization for 1 year and 8 months, being recognized as a top performer. Unfortunately, I had to leave due to the toxic work culture, including poor treatment and arrogant behavior even from the HR department.

The current issue I am facing is that my current employer is demanding my relieving letter, which I was unable to provide before my confirmation of services with them in Jan-09. I have kept my current HOD and HR head well informed about my correspondence with the old HR and this ongoing issue. Following my current HR's instructions, I submitted a letter to the previous HR, which was acknowledged but did not result in the provision of the relieving letter. My current HR head spoke with my previous HR head and received the same reason for the non-issuance of the relieving letter during a conference call.

In my last communication with my HR head in Jan-09, they waived the requirement for the relieving letter, but I am still on probation to date despite completing 8 months here. The reason given now is that due to the recession scenario, all probationary employees are on hold nationwide for confirmation. I have completed all necessary formalities for confirmation in Jan-09 and received a rating of 5 out of 6 in my performance appraisal last week. Sir, what can I expect now? Can you please guide me on this matter? 🤔