Stuck in a Notice Period Dilemma: What Are My Legal Options If I Can't Meet the 90-Day Requirement?

Dear Sir, I am working as an Account Manager in a private limited company since May 2013. I am required to provide a 30 days' notice as per my appointment letter. I tendered my resignation on the 27th of February 2020, making my last working day the 26th of March 2020. However, the company management has not responded to my resignation email. Currently, I am continuing to work in the same company without any interruption. On the 29th of July 2020, I followed up with the same email to inform the management that I will be unable to continue my duties for the organization after 18 days, i.e., 16/08/2020. I requested my full and final settlement along with my leaving certificate. The management has now responded, stating that I need to provide a 90-day notice period.

Please advise on what steps to take and what the legal obligations are if I am unable to provide the notice period as requested by the management. If they decide to withhold my salary for July 2020 and 16 days of August 2020, as well as my gratuity and bonus, what actions can I take? Where can I file a complaint in this situation?

I would appreciate your guidance on the above matter.

Thank you.

Since you are in a managerial cadre of employment, you should understand that for any employment grievances, you can seek civil remedy only directly in a civil court based on the terms and conditions of your appointment orders or the service regulations of the organization applicable to managerial cadre employees from time to time.

Notice Period and Resignation

As per your appointment letter of 2013, the notice period might be 30 days, but later it could have been changed to 90 days through an amendment to the service regulations, which could have been notified through a notice on the office notice board or by individual communication. First, you have to confirm this yourself. If no such change was actually made and the present communication is an afterthought of the management to hush up their belated acceptance of your resignation, you can repudiate it by sticking to your appointment letter and insist the management formally relieve you with pay for the extended period of your duty. If there is a refusal, you can quit the job on your own with a written notice and file a suit for recovery of unpaid salary and damages for breach of contract.

Gratuity Claim

Regarding your gratuity, you can file a formal claim before the Controlling Authority under the Payment of Gratuity Act, 1972, for the area where you worked last. These are the ultimate legal options only. As you are a manager and likely to continue as such elsewhere, my suggestion would be to try for a negotiated settlement so that the separation can be mutually peaceful.

Dear Mr. Umakanthan, thanks for resolving the matter. Now, my MD has requested a letter from me covering the following points:

1. I will state that I am resigning from my current position due to a lack of financial growth.
2. I am unable to fulfill the 30-day notice period.
3. I request the provision of an experience certificate, notice period salary, and relieving certificate.

Could you kindly suggest what I should do? Should I submit a request letter as per my MD's requirements, or is there a legal plan I should follow?

Thank you,
Davender Kumar

Dear Mr. Umakanthan,

This is in regard to your reply to the query raised by Mr. Davender Kumar. I would like to know whether any service condition, like the revision of the notice period for resignation, could be simply notified during the notice period and if it would have a binding effect on employees.

However, it is clear, and I do agree, that an amendment to service rules/regulations applicable to officers in public sector companies and in some private sector organizations (for whom standing orders under the statute are not applicable) does bind the officers.

I am of the view that the appointment contract is bilateral and mutual in nature. The employer should have the employee sign the amendment to the appointment contract, such as the notice period for resignation, before implementing it.

Your enlightened view, please.

Thanks,

Panchsen P. Senthilkumar

[Email Removed For Privacy Reasons]

[Phone Number Removed For Privacy-Reasons]

You are correct, Mr. Senthil. In the absence of specific and cadre-wise service regulations in the organization, what is stated in the appointment orders about unilateral termination will hold good as it is one of the terms of the contract of employment unless it is modified later in a formal manner.

Notice in Unilateral Termination

The concept of notice in case of unilateral termination of the contract of employment by either of the parties has been covered in the Fair Labor Standards Act, 1938 in the U.S., and the Employment Rights Act, 1996 in the U.K., followed by many European countries wherein the notice period varies from one week to three months depending on the length of service of the employees. Though we find the notice provision for retrenchment or discharge effected by the employer in the Model Standing Orders under the IE(SO) Act, 1946, IDA, 1947, and the State Shops & Estts Acts ranging from 15 days to 3 months, there is no specific provision for notice of resignation from the employee's side. The matter is purely left to the contract of employment, thereby creating an anomalous situation of unequal terms of notice in the contract. Some employers include a buy-out option of the notice period subject to their acceptance, vaguely revolving around the necessities of work while they are scot-free to terminate an employee immediately by paying notice salary in lieu of notice, not caring for the livelihood of the immediately ousted employee. I am given to understand that even some Indian I.T. giants include no buy-out option in the notice clause.

Modification of Notice Period

What I mean by the phrase I used "unless it is modified later in a formal manner" is the prerogative of the employer to prospectively change the length of the notice period generally applicable to the particular cadre of employees with reference to the importance of their position for avoiding poaching by competitors or reducing employee turnover and the like as well as the freedom of choice of the employees concerned for acceptance or rejection. Certainly, no employer is empowered to unilaterally change the existing notice clause to his advantage after receiving the letter of resignation from the employee. Yet, I suggested the poster to toe down because of the fact that an ex-employer can also mar the career of an employee whose departure is not the way he liked.

Dear Sir, I still have not received any full & final or experience certificate from my employer. Kindly advise on what I should do now. Verbally, my MD has refused to give gratuity, bonus, and leave encashment. He also told me that our company does not provide any of these benefits. If I decide to take this matter to court, they have no issue and are willing to hire an advocate and pay for it. Additionally, he warned me that they may file a case against me for fraud. I am very scared. Kindly advise me.

Notice Period Amendment

The notice period might be 30 days; however, it could have been changed to 90 days through an amendment to the service regulations. This change could have been communicated either through a notice on the office notice board or through individual communication.

Notification Inquiry

Have there been any notifications regarding the above-mentioned paragraph?

Employee Signature Requirement

I also want to know if an increase in the notice period days requires an employee's signature.