Employer not relieving early with buyout option (as per contract)

Dear Sir/Ma'am,

I have resigned on 21-Oct-2015 with the reason of separation given as 'Family reasons and my parents' prevailing heath issues' and requested to relieve me by 20-Dec-2015. But my manager did not consider my request and asked me to serve 90 days of notice period.
Now, during this period, unfortunately my father's health deteriorated and got hospitalized with a minor heart attack on 20th Nov, 2015.

Subsequent to this, I wrote (via email) to HR head and my manager that I need to move back to my homeplace to take care of my family and parents and hence to relieve me by 15th Dec 2015, submitted the relevant hospital reports and informed that I am ready to pay the basic salary in lieu of the remaining days of notice (excersizing the right to do so as given in the notice period clause of appointment letter).

But, despite of all that, the HR and Manager not ready to relieve me and asking me to take leaves and/or go on Leave without Pay, saying that they will send the relieving letter on your last day after completing notice period of 90 days.(verbal communication)

Meanwhile, I got another offer in Delhi/NCR , which I am taking as an opportunity to stay with family and parents. But the new employer asking me to join early within December, 2015 else the job offer will stand expired.

I have not informed the current HR about his job offer because they will possibly try to retain me intentionally after hearing about the same.

All I am expecting is a proper relieving with clearing all the dues and full & final settlement as per my rights.
Please advise & suggest the possible legal ways in order to get relieved by 15th Dec, 2015.

Thanks,
Tapish

Asked 9 years ago in Labour

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6 Answers

1) under terms of your appointment letter you have to give 90 days notice

2) management has rejected your application to leave within 60 days .

3) dont make the mistake of joining another organisation within your notice period

4) if you do so they wont give t you the relieving letter

5) take leave without pay if you want to visit your home town

6) if there is a notice clause in your appointment letter there is a clause that you can pay the basic salary in lieu of the remaining days of notice management cannot force you to serve 90 days

Ajay Sethi

Advocate, Mumbai

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Hello,

1) You can send a legal notice to the Company seeking the relieving letter stating the reasons for your resignation and that if you are not given the relieving letter you will miss out on opportunities of taking up employment where your parents live and that the company shall be held responsible for such loss.

2) There is no legal reasons for the company to withhold the relieving letter when you are complying with the requirements.

3) Alternately be honest with the company in Delhi/NCR that your relieving letter is being withheld for reasons you have stated and seek time for the relieving letter to be submitted.

4) You may negotiate with the the current HR telling him frankly about the new opportunity that will help you to be by your parents. If that does not help proceed with the legal notice.

S J Mathew

Advocate, Mumbai

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If you have given a two month notice and are willing to pay the salary of one month the employer is bound to issue the relieving letter. The employer is within the periphery of his right to withhold the issue of relieving letter till the notice period is completed. If the relieving letter is not issued after the completion of the notice period then issue a lawyer's notice to the employer and if it is still not issued then move to civil court through a lawsuit.

Ashish Davessar

Advocate, Jaipur

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Talk to Advocate Ashish Davessar

Dear Sirs,
Thank you for your valuable suggestions.
Pls refer the notice period clause mentioned in the appointment letter/ letter of employment:
"Notwithstanding anything contained herein, the company, in its sole discretion, may terminate your employment without cause by giving three months' notice in writing or payment of pro rata three months' basic salary, in lieu thereof. Likewise, you may resign from employment without cause by giving three months' notice in writing or by payment of pro rata three months' basic salary, in lieu thereof. In the event of your resignation, the company in its sole discretion will have an option to accept the same and relieve you prior to the completion of the stipulated notice period of 3 months, without any pay in lieu of notice period."

Could you please suggest for the below points:

1). As per the notice period clause, I am ready to pay the basic salary in lieu of the remaining notice period and requesting to get relieved. Then, can the HR/ employer force me to serve 90 days or ask me to leave on loss of pay and not relieve me as per the date? If yes, then by which laws or policies.

2). Allthough, I have communicated everything by email, but should I send a detailed resignation letter by Registered post / courier mentioning the reason and write in clear words that I would not be able to serve 3 months notice and ask for relieving by 15th Dec, 2015 by paying pro rata basic salary in lieu of remaining notice period?

3). I have tried talking with the manager and HR, tried to sort the issue amicably, but they are not considering the situation and insisting to go on Leave without Pay and they will send the relieving letter later after completion of 90 days. Could you please suggest any point which can convey my message/ intention in a polite manner and can bound the HR to relieve me as requested.

4). In case the HR relieves me from duties by asking me to go for Leave without Pay on 15th Dec, 2015 without any relieving letter or so, can I join the new employer showing the email confirmation or relieving?

5). By sending a legal notice, could I expect the company to act on the same within 7 days and relieve me as requested.

Thanks again for your advice. Hope to get a response soon. Your suggestions will be very helpful for me.

Asked 9 years ago

1)it is at the discretion of management to accept payment in lieu of shortfall in notice period

2) the management had already commmicated it's decision to you .sndng letter by posy won't be of any use

3) you can't force management to give you relieving letter

4) don't send any legal notice . It will further aggravate the situation

Ajay Sethi

Advocate, Mumbai

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1. Since you are willing to pay the salary equivalent to the remaining notice period the employer cannot legally bind you to serve the notice period.

2. Communication by email is very difficult to prove in the court. So send a hard copy your resignation through registered post.

3. If even after the written resignation your employer withholds the relieving certificate then issue a lawyer's notice to him which can be followed, if necessary, by filing a lawsuit against it.

Ashish Davessar

Advocate, Jaipur

30830 Answers

975 Consultations

Talk to Advocate Ashish Davessar

The company by not yielding to pressure is taking a protection under the provisions of this clause:

the company in its sole discretion will have an option to accept the same and relieve you prior to the completion of the stipulated notice period of 3 months, without any pay in lieu of notice period."

1) Since you have already sent your resignation, you may just wait for the confirmation. How did you send your resignation? whether by email or by registered post, if you have sent by an email, just mentioned that and send a reminder by registered post stating that you have already sent your resignation and want to get relieved on ....date, and ask them to confirm the same.

2) The above answer is applicable to this question too.

3) You should not met them in person. The manager and the HR are just another employee of the organisation, the MD or the chairman will be the decision making authority. You can escalate the issue to the top level management if the HR is not conducive.

4) Until you are not properly relieved fro the previous company, you are supposed to be on the rolls of the previou company, so there is nothing that the HR will relieve you on 15 Dec by asking you to go on leave. This cannot be treated as relieving letter.

5) You can issue a legal notice, if the company is not relieving on the stipulated time, you may proceed legally against them claiming compensation for the loss you suffered by dragging them to the consumer forum.

T Kalaiselvan

Advocate, Vellore

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Employer not relieving early with buyout option (as per contract)

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