Notice Period Dilemma: Can You Pay Instead of Serving the Full Time?

Hello Team,

Is there any law that states an employee has to complete his notice period as per company policy, even if he/she is willing to compensate for the shortfall by paying for the remaining days he/she won't be able to serve?

One of the objectives of law is to create preventive checks in human transactions and align them with the Principles of Natural Justice. If any agreement between two or more people for a lawful purpose is based on a valid offer and acceptance, whether conditional, express, or implied, it becomes a valid contract. Generally, the workplace or employment relationship between an employer and an employee is an implied contract that can be verbal, written, or both. However, when it is a written contract comprising specific terms and conditions accepted by both the employer and the employee, it becomes an Expressed Contract.

So, there is no necessity for a law to create an obligation for the employee to serve the entire length of the notice period in the event of resignation, which is a unilateral termination of the employment contract. But if it is mentioned in the employment contract without providing an alternative, such as a buy-out, the employee has no option other than to compulsorily serve the entire notice period. The employer is entitled to exercise discretion to accept the resignation and formally relieve the employee.

Regards

Dear,

It is not required to work during the notice period. The maximum liability for the same is the notice pay in lieu of the notice period, which the employee is ready to pay.

Anurag Lakhotia
Lexlabour.com

There is no law that can compel you to work during the notice period. Either you serve the notice period or pay the equivalent amount in lieu of the notice period.

However, your resignation can be rejected if there is an existing or contemplation of a domestic inquiry for any serious misconduct against you. Such conditions cannot compel you to work even if the resignation is not accepted.

You are a labor law advocate, but if you feel strongly that your point is correct and that there is no law compelling you to work during the notice period, your concept should not necessarily be deemed the law of the land. This is especially true when your question does not reveal the most necessary facts about the terms and conditions of appointment.

However, if you believe there is no law that can compel you to work during the notice period, you are also obliged to point out the provisions of any law that states the employee is not compelled to work during this time. In fact, without a discussion about the terms and conditions of appointment or any inconsistency or invalidity in the employment agreement, your query itself becomes incomplete and vague.

Notice Period and Resignation Terms

In the post, Mr. Ritesh has not included the notice period-related clause in the letter of appointment, which is crucial. Generally, terms and conditions regarding resignation and notice periods are as follows: An employee must provide written notice of their intention to leave or discontinue services. The minimum notice period is 3 months for all employees, except for those on a temporary/contract basis or probation. Employees on probation or a temporary/contract basis with a continuous service period of 3 months or more should give 14 days' notice.

If an employee gives a shorter notice period, the competent authority may accept the request on the condition of compensation not exceeding the Cash Component for the shortfall in the notice period. Following resignation, an employee is obligated to serve the entire notice period diligently and carry out their routine duties. Employees are entitled to pro rata leave during the notice period and will be relieved after submitting a No Dues Certificate obtained from the relevant departments, at least one week before the relieving date, to the HR department for processing their Full and Final payments.

The competent authority may waive the shortfall in the notice period only exceptionally. If these general terms are stated, an employee cannot leave by offering to pay the salary as compensation for the notice period shortfall.

It is imperative to acknowledge and appreciate a situation where someone defaults. The terms and conditions agreed upon in the appointment letter, signed by both the employee and management, constitute a legally binding contract. An employee who decides not to report for duty, intending to pay a notice pay without employer approval, is subject to prosecution for breach of contract. Such defaulters may be liable for damages claimed by the employer, if approved by the courts.

Advice on Notice Period

MY ADVICE IS TO SERVE THE FULL NOTICE PERIOD OR SEEK A WAIVER FOR THE SHORTFALL. ENSURE TO OBTAIN A RELIEVING CERTIFICATE GRACEFULLY.

Thanks and regards,

RDS Yadav
Director, Future Instt. Of Engg and Management Technology and Labour Law Advisor
Navtarang HR Services
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