right of resignation of employee on free will
Querist :
Anonymous
(Querist) 20 January 2011
This query is : Resolved
please explain about right of resignation of employee from employer's duty within parameters of employment appointment letter. what are remedies and under what law available to the employee, if he forced to stick with job or his resignation is not accepted within time / desired time. Can employee have right to enforce any law regarding his free movement or to say ask releiving letter ? Under what provision and circumstances ?
Kirti Kar Tripathi
(Expert) 21 January 2011
once an employee tenders his resignation under it is for the employer, whether he accept or not. But if he resigned under contract of service, he has every right to work with him. issue of reliving order is within the jurisdiction of employer, even after accepting resignation, he may deny reliving order. the employee has no power to get the same except to take legal recourse. some position is in the present circumstances, he may take legal shelter by filing a civil suit.
Kirti Kar Tripathi
(Expert) 21 January 2011
Please correct"he has every right to work with him" as he has every right not to work with him.
Dushyant Pandya
(Expert) 21 January 2011
sending herewith judgment passed by appex court. Just read, you will get all your answers.
Also, please note india is free country and there is no slavery system.
Order passed by
Hon'ble Gujarat High Court, at Ahmedabad
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 1171 of 2009
==========================================
HEMAL R SHAH - Applicant(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR MJ THAKORE, SR. ADVOCATE with MR GAURAV S MATHUR for Applicant
PUBLIC PROSECUTOR for Respondent(s) : 1,
None for Respondent(s) : 2,
==========================================
CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI
Date : 23/06/2009
ORAL ORDER
Heard Mr.M.J.Thakore, learned Senior Advocate with Mr.Gaurav Mathur, learned advocate for the petitioner.
Attention is invited to the allegations made in the complaint, to submit that the nature of the allegations are mainly in respect of breach of the declaration given by the petitioner at the time of tendering his resignation with the complainant Company. The other allegation is to the effect that the petitioner had information and details about the customers of the complainant, and that, he had violated the basis of his employment and associated with the complainant's business contacts and clients. Attention is also invited to the order dated 2nd February 2009 passed by the learned Metropolitan Magistrate, Court No.22, Ahmedabad while issuing process, wherein it is specifically observed that from the record produced before the Court, no offence can be said to have been made out under Sections 349 and 381 of the Indian Penal Code. It is submitted that in respect of breach of declaration of conditions of employment, only civil proceedings would lie. However, in view of the fact that it is settled legal position that, under Section 27 of the Contract Act, a service covenant extended beyond the termination of the service is void, the complainant Company instead of instituting civil proceedings, has resorted to filing the present criminal complaint. Reliance is placed upon the decision of the Supreme Court in the case of Superintendence, Company of India (P) Ltd. v. Krishan Murgai, reported in AIR 1980 SC 1717.
Reliance is also placed upon the decision of the Delhi High Court in the case of American Express Bank Ltd. v. Priya Puri, rendered on 24th May 2006, reported in 2006 LawSuit (Del) 894, wherein it has been observed that enforcement of post employment contract restrain restricting the freedom of an employee to obtain different job opportunities was held to be unenforceable and void in Pepsi Foods Ltd. and others v. Bharat Coca Holdings Pvt. Ltd. It was also held in the said decision that the details of customers are not trade secrets nor are they property.
Having regard to the submissions advanced by the learned Senior Advocate as well as considering the nature of allegations made in the complaint, Issue Notice returnable on 29th July 2009. By way of ad-interim relief, further proceedings of Criminal Case No.758 of 2009 pending before the learned Metropolitan Magistrate, Court No.22, Ahmedabad, are hereby stayed.
Mr.M.R.Mengdey, learned Additional Public Prosecutor waives service of notice on behalf of respondent No.1 State of Gujarat.
Direct Service is permitted qua respondent No.2.
[HARSHA DEVANI, J.]
Dushyant Pandya
(Expert) 21 January 2011
Mr. Tripathi is right and for the same sending attachment for your ready reference.
It will help to take actions.
Ajay Bansal
(Expert) 21 January 2011
The employee can file a civil suit against employer for mandatory injunction for the enforcement of resignation in question.
