Can I Legally Enforce a 45-Day Notice Period When an Employee Resigns Abruptly?

I am working in a small IT company. By designation, I am a technical lead and temporarily handling the HR department too. One of my junior employees is leaving the organization on a notice of just 5 days.

HR Policy Highlights

• Employees must take prior permission from the department for applying for alternative assignments/posts. If an employee does not obtain prior permission from the management and applies or serves his services elsewhere, he will not be relieved until alternate arrangements are made or until 45 days, whichever is earlier.

• Employees who wish to resign must give a mandatory 45 days advance notice as per the terms of the appointment. In certain cases, the notice period may be waived at the discretion of the Director in consultation with the HR Head.

• The HR will conduct exit interviews to critically assess and analyze the reasons thereof and suggest corrective action if needed in the future.

Offer Letter Highlights

"During the probation period, if your performance is found to be unsatisfactory or if it does not meet the prescribed criteria, your training/employment can be terminated by the company with one month's notice or salary thereof. Upon confirmation as a regular employee, you will be required to give 45 days' notice or salary thereof in case you decide to leave our services. In the event of you having any incomplete assignments, the company will have the discretion to relieve you only at the end of the 45 days' notice period. Similarly, the company can terminate your services by giving you one month's notice or salary thereof. The company may terminate your services immediately on disciplinary grounds."

Questions

1. I just want to know if I can reject his resignation letter and ask him to serve the notice period of 45 days.

2. Can I take legal action based on the above document if he does not continue the job with us and leaves after working 5 days?

Regards,

With regard to the first point, you need not accept the resignation of this employee if his services are required to complete unfinished tasks which were entrusted to him. Otherwise, his resignation may be accepted by asking him to pay the balance period of notice after serving a 5-day notice as was given. If he does not agree either to continue in the job till the completion period of the notice of 45 days or refuses to pay for the unserved notice period, you can take action against him by filing a civil suit for the recovery of salary for the unserved period of notice.

Regards

With regard to the first point, you need not accept the resignation of this employee if his services are required to complete unfinished tasks which were entrusted to him. Otherwise, his resignation may be accepted by asking him to pay the balance period of notice after serving a 5-day notice as was given. If he does not agree to either continue in the job until the completion period of the 45-day notice or refuses to pay for the unserved notice period, you can take action against him by filing a civil suit for the recovery of salary for the unserved period of notice.

Actually, he is ready to pay the salary for 45 days, but I want him to serve the notice period of 45 days. Is it right to not accept the salary of 45 days from him and ask him to serve the notice period?

Regards

If he has some assignments pending or monetary matters involved with his work/assignment, then you have the right to reject his resignation. There are rules to be followed by the employees. If your company suffers due to his resignation, then he is bound to serve a 45-day notice period.

On the other side, if he does not have any serious or major family problems, then the management can consider the matter.

Regards

Any reason(s) why you don't want to relieve the employee when he is ready to pay back the 45 days' notice period salary? Only to fulfill the rules, or does he have any project work/handover to be completed?

Also, look at such situations from other angles:

1. Would retaining the employee after he/she completes the work or handover be of any help/utilization to the organization—just to satisfy the rules/policies? Though this can't be generalized, quite often the presence of such employees can be counterproductive to the environment, affecting other employees.

2. Nowadays, many companies have enhanced the notice period to 2 or 3 months to control attrition. With respect to your line "Is it right to not accept salary of 45 days from him...", please note that this is surely not a right-wrong issue. The danger of giving in to this request would be to make this a precedent for future resignations—unless you make this a one-time case and change/strengthen the HR policies to preempt any such future situations.

One straightforward change would be this (most companies have this wording):

Instead of "On confirmation as a regular employee, you will be required to give 45 days' notice or salary thereof in case you decide to leave our services," change to "On confirmation as a regular employee, you will be required to give 45 days' notice or salary thereof in case you decide to leave our services, at the sole discretion of the company."

Regarding the options open to you, one is to take things legal. The second is to put his name in the NASSCOM Skills Register—that would be referred to by other employers before they hire this employee. Both options have their own set of pros and cons.

Prima facie, this also points to another possibility. When the notice period is clearly mentioned as 45 days in all the documents, how did this employee take the liberty to commit to the new company that he can join in ~5 days? Did he get that impression—that he can get away without serving any notice period—from the existing company environment? Were there any earlier such resignations—who were relieved earlier as a precedent for this case?

Regards,
TS