S Saikiran 20 November 2015

My company is not accepting for Buyout notice

I have applied resignation on 16th monday, due to some personal problems I'm requested my company people for buyout but they are treating me with mail. As Im responsible for very big damage etc etc the can't agree for buyout and I have to serve 3 months notice period.. This is the agreement I signed.

Employment Agreement:-

19. RESIGNATION. Consultant may resign with or without reason as of a speciiied date that is at least Three (3) months after Employer has received written notice from Consultant of his/her intention to resign as of the specihed date. In the event Consultant resigns without providing such advanced notice, and in light of the unique and specialized services being performed by Consultant for the Client, Consultant shall pay to Employer as liquidated damages an amount equal to Consultant's Six (6) month's salary amount. Consultant hereby authorizes Employer to deduct the amount of liquidated damages from any compensation or other payments due from Employer to Consultant to the full extent permitted by law. Consultant agrees that such amount of liquidated damages is reasonable to compensate Employer for losses that Employer could incur due to resignation by Consultant without Three (3) months of prior written notice.

20. REMEDIES FOR BREACHES. Consultant agrees that money damages would be an inadequate remedy for any breach of paragraphs 6, 7, 13, 14, 15, 16 or 17, regarding respectively, exclusivity, non-performance of services/non-recruitment, confidentiality and goodwill, disclosure, return of property and proprietary rights, because damages for such breaches are not susceptible to exact measurement in Rupees and that Employer would be irreparably harmed by any such breach. Therefore, Employer shall be entitled to temporary restraining orders, temporary/preliminary injunctions and permanent injunctions to prohibit such breaches. This paragraph in no way limits the remedies Employer has at law or equity for breaches by Consultant of any of the paragraphs mentioned in this paragraph or of any other provision of this Agreement Please suggest me can I go for buyout without any problems?

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3 Replies

Kumar Doab (FIN) 20 November 2015

You have posted that:

"Employer to deduct the amount of liquidated damages from any compensation or other payments due from Employer to Consultant to the full extent permitted by law."

There is an option of liquidated damages/ notice pay in lieu of notice period, that employer can't breach.

"Therefore, Employer shall be entitled to temporary restraining orders, "

How and what empowers employer to decline to accept resignation in your case is to be seen abd explained by you in this thread and to be asked by you from employer and also the contentions of the employer are to be countered by you.

Your designation is being mentioned as 'Consultant'........................probably to dodge/keep you

out of coverage as 'Employee' as in Shops and Estbs Act and also as 'Workman' as in ID Act.

While an able labor law consultant after examining all of your docs may opine that you are covered and notice period/pay is not more than that of 30 days.

Before you act on your own and start writing it shall be appropriate to an able labor law consultant and proceed further under expert advise of your counsel.

Are you a member of Employee's/Trade Unions?

S Saikiran 20 November 2015

As i am bassically for India, i dont know any thing anout Trade Unions. After going through the my records, i found in my conformation letter they have mentioned somthing which i think is the soultion. Please go through my appointment letter below and hope you will help me out. I'm ready to pay my 6months salary but they are not ready to relive me and they are threating me that "You will be liable to big damages if you do not report to office tomorrow. There are ways to make it amicable exit."

Employment Agreement was signed on 19/Nov/2014 (Posted on my previous post)

Confirmation letter was signed on 23/Mar/2015 (Posted Below)

Which one i should take ? Thanks in advance.

Dear My Name

Sub: Confirmation letter

We congratulate you on having successfully completed 3 months 10 days of training with Company and are pleased to revise your salary as Software Engineer effect from 1“ March, 2015. You will be based in our Bangalore office.

You will be paid gross emoluments as detailed in Annexure — A.

Your employment with us will be governed by the Employment Agreement as detailed in Annexure —- B of your original appointment letter. In case you for any reason decide to leave the services of the Copany without a notice period of 3 months, then you shall forthwith pay a sum equivalent to 6 months’ salary being the indemnification of the cost of training to the Company. The Employee undertakes not to dispute the amount, and shall pay the amount, before requesting for formal relieving letter from the company.

We congratulate you and wish you a long and successful career with us. We are confident that your contribution will take us further in our journey towards becoming world leaders.

We assure you of our support for your professional development and growth.

Yours truly,

Company Name

Kumar Doab (FIN) 21 November 2015

You have posted that:

---"they are threating me that "You will be liable to big damages if you do not report to office tomorrow. There are ways to make it amicable exit."

Who has threatened? Is it in writing? Have you recorded it?

The word 'damages' is used!

Have you caused any loss?

You may claim NO Tasks are pending at your end.

The word 'Amicable' is used! Have you explored what are the options and inner wishes of them?

----"pleased to revise your salary as Software Engineer effect from 1“ March, 2015. You will be based in our Bangalore office."

The company would claim that a 'Software Engineer ' is not cevered as 'Workman'. YOur able counsel may opine that you are covered!

----"In case you for any reason decide to leave the services of the Copany without a notice period of 3 months, then you shall forthwith pay a sum equivalent to 6 months’ salary being the indemnification of the cost of training to the Company. "

Does the company also tender 'sum equivalent to 6 months’ salary' if it inititaes termination? if NO the condition may get termed as arbitrary.

Has the company provided a training that is ground for such condition? If NO you may cite it.

Otherwise also this is the condition drafted and signed by employer and must not breach it.

However you need to counter the threat given to you that is apparently from other clauses posted by you.

Employee's/trade unions are in your sector too and embraced by trade unions.

It is reiterated that ........................Before you act on your own and start writing it shall be appropriate to an able labor law consultant and proceed further under expert advise of your counsel.