My son is working with a very renowned Consultancy Firm in India. His Appointment had the following clause:
Under Termination
"Either party shall be free to terminate this Agreement at will and, at any time, with or without cause, upon Ninety (90) days prior written notice by the part desirous of terminating this Agreement or payment of equivalent salary in lieu thereof or a comination thereof, at the discretion of the firm".
My son had submitted his resignation stating that he may be released after serving the Notice period. But the Firm is now saying that he will be released after 3 days and he is not entitled to any salary in liew of the 90 days notice period, citing this clause.
Can the Firm do this based on the above clause? Is this lawful to have such a Clause in the Appointment letter which is one-sided at the discretion of the Firm ? I would be obliged to have the opinion of the learned members of this Forum and can there be any recourse to this one-sided exploitary clause in the Appointment ?
Regards
Bhaskar J. Roy
From India, Gurgaon
Under Termination
"Either party shall be free to terminate this Agreement at will and, at any time, with or without cause, upon Ninety (90) days prior written notice by the part desirous of terminating this Agreement or payment of equivalent salary in lieu thereof or a comination thereof, at the discretion of the firm".
My son had submitted his resignation stating that he may be released after serving the Notice period. But the Firm is now saying that he will be released after 3 days and he is not entitled to any salary in liew of the 90 days notice period, citing this clause.
Can the Firm do this based on the above clause? Is this lawful to have such a Clause in the Appointment letter which is one-sided at the discretion of the Firm ? I would be obliged to have the opinion of the learned members of this Forum and can there be any recourse to this one-sided exploitary clause in the Appointment ?
Regards
Bhaskar J. Roy
From India, Gurgaon
Hi It should be either side. If the employer is relieving in 3 days they are supposed to compensate. Please advise your son to check HR on this.
From India, Madras
919From India, Madras
As per the appointment order, the party intending to terminate has to give three-month notice, this has been done by your son. But if the other party does not agree to accept the serving of notice period by such an employee, what would be done is not clear in the rules, nor is there a clear-cut court verdict in this regard. However, there is a legitimate expectation that the employee will be allowed to serve the notice period and to summarily terminate the service will be in breach thereof. Moreover, there is a case of wilful breach of contract.
From India, Mumbai
From India, Mumbai
These are appointment orders that someone should have drafted and the company is just following it without going in deep and interpreting the clauses in the correct way. ".......or payment of equivalent salary in lieu thereof or a combination thereof, 'at the discretion of the firm' " shall not mean that there can be two policies regarding notice period, one for employee and another for the employer and the employer can relieve an employee without paying notice pay 'at his discretion' but it is only subjective of the main clause which says that both the parties are 'free to terminate' the contract by giving 90 days' notice or salary in lieu or 'combination of both which is subject to company's discretion.
But who will challenge it? Nobody will challenge it because we don't have time to go behind such things. Therefore, if the company relieves one in three days without paying the notice period salary, he should either decide that he will work for three months or forget about notice pay and silently come out of the organisation. The company loses anything but the employee will spoil his career if he is challenging the decision of the company. Even he will not get justice from the appropriate authorities now a days.
From India, Kannur
But who will challenge it? Nobody will challenge it because we don't have time to go behind such things. Therefore, if the company relieves one in three days without paying the notice period salary, he should either decide that he will work for three months or forget about notice pay and silently come out of the organisation. The company loses anything but the employee will spoil his career if he is challenging the decision of the company. Even he will not get justice from the appropriate authorities now a days.
From India, Kannur
Thank you honorable members.
From your responses it appears that although this is clearly a breach of appointment terms and Notice period cannot be different for either party, due to the inordinate delay in getting justice under our legal procedure, employers get away even after flouting all rules. An individual cannot fight a case on his own due to limited resouces while the employer can. So Employers (specially Private Companies) can flout Appointment agreements at will and the employee will always be at their mercy.
I was wondering if there is any caveat from the Government or any legal precedence to refer to. Will appreciate your replies.
Thanks & Regards
Bhaskar J. Roy
From India, Gurgaon
From your responses it appears that although this is clearly a breach of appointment terms and Notice period cannot be different for either party, due to the inordinate delay in getting justice under our legal procedure, employers get away even after flouting all rules. An individual cannot fight a case on his own due to limited resouces while the employer can. So Employers (specially Private Companies) can flout Appointment agreements at will and the employee will always be at their mercy.
I was wondering if there is any caveat from the Government or any legal precedence to refer to. Will appreciate your replies.
Thanks & Regards
Bhaskar J. Roy
From India, Gurgaon
In my considered opinion, the clause -
"Either party shall be free to terminate this Agreement at will and, at any time, with or without cause, upon Ninety (90) days prior written notice by the part desirous of terminating this Agreement or payment of equivalent salary in lieu thereof or a combination thereof, at the discretion of the firm"
does not authorize the employer to act arbitrarily and unilaterally and legal remedies are worth pursuing. Yes, the path is not easy and even hazardous; but unless some one takes up the courage to pursue the issue, law as a tool to ensure fairness would be rendered a dead letter in the long run.
From India, Kochi
"Either party shall be free to terminate this Agreement at will and, at any time, with or without cause, upon Ninety (90) days prior written notice by the part desirous of terminating this Agreement or payment of equivalent salary in lieu thereof or a combination thereof, at the discretion of the firm"
does not authorize the employer to act arbitrarily and unilaterally and legal remedies are worth pursuing. Yes, the path is not easy and even hazardous; but unless some one takes up the courage to pursue the issue, law as a tool to ensure fairness would be rendered a dead letter in the long run.
From India, Kochi
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