look news india
In today’s modern corporate and IT sector, the process of changing jobs is no less than an ordeal. The biggest hurdle faced by millions of professionals working in India’s major tech and commercial hubs—such as Noida, Gurugram, Bengaluru, Hyderabad, Pune and Lucknow, the capital of Uttar Pradesh—is the long notice period of 3 months i.e. 90 days. The situation becomes such that when an employee resigns due to his career growth, better package or personal reasons, the new company puts pressure on him to join immediately (within 30 days), whereas the old company is not ready to let him leave without completing 90 days. Not only this, many companies, despite giving the option of Notice Pay (Notice Buyout), try to forcefully stop the employee and if he does not do so, they start giving open threats of withholding ‘Relieving Letter’, ‘Experience Certificate’ and Full and Final Settlement (F&F) or sending legal notices. In such a situation, the question that arises in the mind of every salaried employee is whether the law of the country gives a company the right to force an employee to work against his will?
The direct and clear legal answer to this question is – ‘Absolutely not.’ India is a democratic country and it is illegal to force any citizen to work against his will. Article 23 of the Indian Constitution completely prohibits any kind of ‘forced labour’. If an employee does not want to work in an organization and has duly submitted his resignation, the management of the company cannot force him physically or mentally to work sitting on a chair. Additionally, Section 14(b) of the Specific Relief Act, 1963 makes it clear that contracts of personal service cannot be forcibly enforced by the courts or any authority. Various High Courts of the country and the Supreme Court of India have reiterated in many landmark decisions that the clause of employment bond or notice period is not a license to make an employee a ‘slave or bonded labour’. The company cannot under any circumstances force an employee to do a job against his will.
Most companies’ offer letters and appointment letters contain a standard term: ‘The employment can be terminated by either party by giving X months’ notice or by giving notice pay (an amount equal to the basic salary) in lieu.’ But disputes arise when the employee offers to pay notice pay (buyout) from his own pocket or through the new company, but HR refuses saying ‘buyout depends on the discretion of the management.’ Legally, the purpose of the notice period under Sections 73 and 74 of the Indian Contract Act, 1872 is to protect the company from unexpected losses and ensure proper handover of work (Knowledge Transfer – KT). If the employee has made a proper handover of all his/her projects and responsibilities and is willing to compensate the remaining days of notice pay, the company’s unreasonable rejection of a buyout without causing any tangible business loss may amount to Unfair Labor Practice under labor laws.
Very few employees are aware that in India, most state-level Shops and Establishments Acts—under which all private IT, BPO, banks and corporate companies are registered—generally provide for a notice period of only ’30 days (1 month)’. It is clear in the Shops and Establishments Act of Uttar Pradesh, Maharashtra, Delhi or Karnataka that giving 30 days’ notice or salary in lieu is sufficient for termination of service of any employee. The 4 new labor codes being notified by the Government of India (notably the ‘Industrial Relations Code’ and the ‘Occupational Safety, Health and Working Conditions Code’) also give priority to the fundamental rights of employees and workplace freedoms. The arbitrary 90 day clause written by companies in their internal rules (Company Policies) cannot exceed any state or central law. If the internal policy of a company goes against the labor laws of the country, then only the statutory sections of the labor law will be valid in the court, and not the offer letter of the company.
The biggest weapon of the HR department to scare the employees is relieving letter, experience letter and stopping PF money. The stance of labor laws and courts on this is very strict. Experience Certificate of the employee is a factual document as to how long he has served in that organization. Due to any dispute, the company cannot deny the truth of the past work done by the employee. If an employee leaves the company during the notice period and is willing to make adjustment of the outstanding amount, the company cannot illegally withhold his experience certificate. As far as PF and Gratuity are concerned, it is the employee’s hard-earned statutory money, which is protected under the EPFO and Payment of Gratuity Act, 1972. The company has no legal right to stop the employee’s PF transfer or withdrawal due to its internal notice dispute. If the company does so, the employee can directly petition the Labor Commissioner or EPFO’s grievance portal for punitive action against the employer.
If your company is refusing to give short notice or buyout and you are afraid of losing your new job, then without panic, take legal and diplomatic route:
-
Proof of written communication and email: Never rely on phone calls or verbal discussions. Send a clear resignation letter to management through your official and personal emails, stating your closing date of leaving, a valid reason for resignation (such as a family emergency, health issue or higher education) and your clear desire to give a notice buyout.
-
Document Knowledge Transfer (KT): Create a detailed handover document of your work and send it over email to your team leader and colleagues. This will prove that you have not left the company’s project at any loss.
-
Medical or emergency grounds: If you are unable to complete the notice due to extreme mental stress, depression or serious health reasons, request immediate release by attaching a medical certificate from a Registered Medical Practitioner. No court or company can force resignation given due to health reasons.
-
Complaint to Labor Commissioner: If the company is not giving the relieving letter or withholding the salary even after deducting the money, then apply online or offline for ‘conciliation’ in the Assistant Labor Commissioner (ALC) office of your district. As soon as a notice from the Labor Department is received, most companies immediately issue the documents to avoid legal complications.
-
Recourse to legal notice: Send a legal notice to the company through a labor law specialist lawyer, warning of damages and legal action for illegally withholding documents, citing Article 23 and the Specific Relief Act.
Legal rights are in place, but employees should also understand that leaving the office without any written notice or suddenly disappearing (absconding) can prove to be the most suicidal step. If you leave the company without resigning or without communication, the company has the right to record ‘Absconding’ in its official records. You may have to suffer the consequences of this during Background Verification (BGV) in the future, due to which you may have to lose the new company. Therefore, always maintain decency and professional decorum when resigning, offer notice pay and keep a written record of all formalities. Only correct legal understanding and balanced communication can get you out of this corporate notice period maze in a safe and respectable manner.