Prashanth R (Software engineer) 19 November 2010

Notice Period

Hi,

I have joined a software company in the last month and I have completed almost 30 days in that company. Till now I have not got any work. Daily I am going to office and coming back. and Not even got any calls from any of the team regarding the requirement in their projects. So I would like to leave the company.

The clauses in apointment letter are as follows:

1. Your employment with the Company is subject to termination on Two month's prior notice by either side.

2. The Company reserves the right to, at its sole discretion, substitute the notice period by paying
you salary in lieu of the notice period.

3. For abundant caution, it is hereby clarified that you cannot waive the notice period requirement
in the event you wish to terminate your employment with the Company, and that your
termination/resignation letter (by whatever name it is called) will be accepted by the Company
only on your satisfying the required notice period as stated in our Company’s HR handbook.
Further, till such time as the Company accepts your resignation letter, you will be deemed to
be an employee of the Company and the terms and conditions of your employment will still
continue to bind you.

4. The Company shall have the right to terminate your employment immediately without notice or
payment in lieu of notice if:
a) You neglect, refuse, fail or for any reason become unable to perform any of your duties
under this agreement or comply with the Company policies and code of conduct. or
b) You are guilty of any misconduct whether or not in the performance of your duties
(including but not limited to being an undischarged insolvent, being convicted by any
criminal court, being involved in fraudulent acts, etc) or commit any act which in the
opinion of the Company is likely to bring the Company any disrepute whether or not such
act is directly related to the affairs of the Company; or
C) You commit any breach of any of your duties or obligations under this agreement or the
policies of the Company.
d) There is a discrepancy in the copies of the documents/certificates given by you as a proof
in support of the information provided by you.
In the event of termination under Clause 8.4.2, you shall not be entitled to any benefits
whatsoever.

I dont want to serve the notice period and more over any work is not assigned to me in this period. so I want to get releaved in a day or two.

Please suggest on the below questions.

1. Is it necessory to serve the two month notice period? even if the work is not assigend to me.

2. Is there any alternate option if I dont want to serve the notice period ?.

3. Is it enough if I send a resignation or Is it necessory to Get the acceptance of resignation?

4. Is it necessory to get the releaving letter (to make sure there there will not be any legal issues)

Please suggest.

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5 Replies

Kirti Kar Tripathi (lawyer) 19 November 2010

so for as legal position is concern from the condition of your appointment letter, it is clear that the same is voidable at your option as the conditions imposed on you can be challenged on the ground of other party on better position. even in any case, the liability is for only two months notice or notice pay in lieu thereof. so you should be ready to make payment. but so for as practical aspect of said condition is concerned by experience is that no employer opt to go in court in such a case unless and prestgious issue is not involved. these conditions are put just to put pressure on the employee. so if you want to leave, you can leave but you should be ready to pay amount under notice pay.

1 Like

Surendra Singh Chandrawat (Lawyer) 19 November 2010

As per law provision and decided ruling of the court of law, employer is not supposed to impose restriction on the part of serving notice period as a mandatory provision. If employee is ready to pay for remaining days which he has not served as notice with the organisation, he can do so.

1 Like

Namit (engineer) 19 November 2010

Sir,

I have resigned from organization on 11 month of my joining date. I am serving a notice period of 2 months.
I am told by HR that PL is application only after 12 months of service but since I have put up my papers before 12 months I am not entitled for PL encashment. I have checked the company employee handbook for any such clause but couldnt find. Please advice what is correct and give me any reference to law that is applicable in this case. I work in Gurgaon in an engineering firm.

Thanks & Regards
Namit

V. VASUDEVAN (LEGAL COUNSEL) 20 November 2010

Section 22: Leave
(1) Every person employed in an establishment shall be entitled :
(a) after every twelve months', continuous employment, to privilege leave for a total period of not less than fifteen days;
(b) in every year, to sickness or casual leave for a total period of not less than twelve days;

Provided that :
(i) an employee who has completed a period of four months in continuous employment, shall be entitled to not less than five days privilege leave for every such completed period; and
(ii) an employee who has completed a period of one month in continuous employment, shall be entitled to not less than one day's casual leave for every month.