Employee is located in whihc state?

The actions of the Boss and HR are probably not his /her own but he/she is executing the inner wishes of employer. Boss and HR is not employer.

Start finding faults with line management/HR and employer.

The action of the company and boss may be termed lay off/retrenchment of a pregnant women.

The lady should have submitted information on pregnancy along with copy Doctor’s Rx showing expected date of delivery under acknowledgment.

She should have explained/narrated the incidences prior to/in the notice of resignation and could have mentioned that her Boss has coerced/forced her to resign on reporting pregnancy, and resignation was extracted in office premises.

Forcing to resign is offence. Employee can lodge complaint. The onus of providing evidence is on employee. Employee should record such transactions (audio/visual), keep witness for use at appropriate time in appropriate forum.

Forced resignation may be deemed termination.

-------Has the lady mentioned reason of sickness due to pregnancy in leave application which was approved: 7th may to 20th may.

----------“When she arrives back after leaves on 22nd May and joined office. ‘

Has she submitted and obtained joining report copy?

--------“ On continous force from her boss, she resigned on same and give one month notice till 24 june 2013 as per company policy.”

She has submitted notice of resignation with date of retirement (future date of resignation).

 Employee can withdraw resignation before expiry of notice.

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

https://indiankanoon.org/doc/1452145/

“11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

-------- Maternity Benefit Act:

“Under the Act the employer is required: (a) to exhibit the abstract of the provisions of the Act and the rules made thereunder in a conspicuous place in every part of the establishment in which women are employed {Section 19 & Rule 5}; (b) to maintain a muster roll in the prescribed form {Rule 3}; (c) to submit annual returns in the four prescribed forms. {Rule 16}”

{ Has this company done it?}

“(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under the Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of the Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees. The Court may, however, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment. (2) If any employer contravenes the provisions of the Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under the Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both. Where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the Court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled hereto. {Section 21}“

“The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman on production of proof that the woman is pregnant and the amount due for the subsequent period shall be paid to the woman within 48 hours of production of proof that the woman has been delivered of a child. {Section 6}

“

“When a woman absents herself from work in accordance with the provisions of the Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence. {Section 12}”

“The maximum period for which any woman shall be entitled to maternity benefit shall be 12 weeks of which not more than 6 weeks shall precede the date of her expected delivery.”

“A woman suffering from illness arising out of pregnancy delivery, premature birth of child or miscarriage shall be entitled, in addition to the period of absence allowed to her under the provisions of the Act, to leave with wages at the rate of maternity benefit for a maximum period of one month. {Section 10}“

“A woman entitled to maternity benefit under the Act shall also be entitled to receive from her employer a medical bonus of 250 rupees, if no pre-natal confinement and postnatal care is provided for by the employer free of charge. The medical bonus shall be paid along with the second installment of the maternity benefit. {Section 8 & Rule 5}“

{This amount has been raised to Rs.3500/}

-------- The Ladies Police, Women Commission, Trade Unions, Govt. are sensitive to such issues.

------The lady may fine tune her representations as deemed fit.

It shall be appropriate to approach a competent and experienced labor consultant/lawyer, show all records, give inputs in person, understand the merits, and proceed under expert advice of your lawyer.

The IT companies are covered under Shops and Commercial Establishments Act of the state.

The o/o Labor commissioner, Inspector under Shops and establishments Act may be approached.

Uttar Pradesh Shops and Commercial Establishments Act, 1962:

Earned Leave, Sickness Leave and Casual Leave

Discharge  of employee by his employer: No employee shall be discharged from services by his employer except on the ground that-

-          The post held by him has been retrenched.

-          He is unfit to perform his duties on the ground of physical infirmity or continued ill-health.

-           

-          Provisions for employment of children and women: No employer shall knowingly require or allow a woman to work, and no woman shall work during the period of six weeks following the day on which she is delivered of a child.

-          Every woman has a right of absence during pregnancy, maternity leave, maternity benefit and interval for rest.

-          No employer shall discharge o remove from the service any woman employee on account of or during the period of, absence from duty allowed to her.

-          The notice for absence during pregnancy shall be in Form ‘F’. This form shall be made available by the employer to the employee concerned at any time during working hours.

{ The Forum/ Union for IT employees and women employee is IT/ITeS companies,  in addition to Trade Unions for all employees}

https://www.itecentre.co.in/

Contact Us

Please contact us on
mail id : contact@itecentre.co.in.
ph : 9620907912

Please Join ITEC group for discussion among IT-BPO employees. To join the group, please send a blank mail to itec_bangalore-subscribe@yahoogroups.com

https://ithiworld.wikispaces.com/News+Update

ITHI, a forum
of women employees in IT and ITeS

IT/BPO Voice of India | Facebook

-------“she will not be able to find a new job in next 8 months to 1 year time frame.”

Apparently the company is also looking at this period and has calculated its liability to keep the employee on board without break in service and costs like: wages, PF, Gratuity, medical insurance etc……….

-------The employee can agitate at the location of HQ/town assigned to her, Redg. office of the company, jurisdictional courts as stated in appointment letter.

Valuable advice of learned experts/members is sought.

I wiolladd to what Mr Dopab said that if company cannot afford twoperson and releives one then it is a case of retyrenchment.  move for retrenchment compensation.

@Vibhore,

The manner in which you have drafted your post gives clear impression that you have understood the kind and level of protection available to the lady under Maternity Benefit Act and you can read between the lines.

The lady is HR person and shall understand the nuances of the matter.

The lady is not permanent employee and has worked for less than 1 year.

--------My wife has joined a private IT company in noida as Senior HR Profestional

“Designation alone does not decide employee is a workman or not.”

Apparently the HR professional may not be accepted as a workman.

However the let the opinion of the lawyer who has seen all docs and has gone thru nature of duties performed may finally opine, on coverage of the lady in definition of workman and also “Employee” as in Shops and Establishments Act.

------“ Reason given to her was : Company cannot afford two HR personal (She and her boss ), so she has to resign.  She was told that there is no such performance issue from her part.”

(Probably the lady is being made to understand that she is junior in vintage and she has to leave: ‘last in first out’

The reason given to her is only Verbal…………………………….

It is plain and simple: self centered/selfish/shrude act of cost cutting without any cost and consequences to employer.

{Here the employer has done his home work and Boss has acted as executioner and resignation is in the custody of the employer. The question arises: Shall the employer now agree to pay more than notice pay now? And that how can employee make the employer pay more than notice pay?}

No document or printed reason is given. To avoid documentation or a written order, resignation is extracted.

Did the Boss state verbally that if she does not tender resignation will invite termination order from company?

(Here the word extracted is for the reason that lady was asked to resign, against her will. The lady may be required to lead the evidence that she was forced to resign due to pregnancy.)

In case of lay off the relationship between employer and employee may continue to exist.

Provisions relating to Lay off & retrenchment are laid down in Industrial Disputes Act, 1947.Chapter V-A and V-B…………………….

Employer and employees can voluntarily refer the matter to arbitration. (Section 10A) If no settlement is arrived at, there is three tier system of adjudication –

'Redundancy' can be described as the situation where an employer no longer requires employees to carry out work of a particular kind or to carry out work of a particular kind at the same location. Redundancy refers to a job becoming redundant and not an employee becoming redundant.

An employee's position is usually considered to be redundant if:

• an employer has made a definite decision that the employer no longer wishes the job the employee has done to be done by anyone
• that decision is not due to the ordinary and customary turnover of labour
• that decision led to the employee's termination of employment, and
• that termination is not on account of any personal act or default of the employee.

In redundancy situations, the emphasis is upon a 'job' becoming redundant rather than a worker becoming redundant. The words 'when a position becomes redundant' should be given a broad reading and not one that is strictly literal, confining the word 'position' to a 'position with the employer'.

The employer has not made a reasonable offer of alternative work, it has extracted resignation.

Retrenchment – ‘Retrenchment’ means termination by the employer of service of a workman for any reason, other than as a punishment inflicted by a disciplinary action, discharge of surplus labour or staff by employer. It is not by way of punishment.

The retrenchment should be on basis of ‘last in first out’ basis in respect of each category, i.e. junior-most employee in the category (where there is excess) should be retrenched first. [section 25G]. If employer wants to re-employer persons, first preference should be given to retrenched workmen. [section 25H].

A worker who has completed one year of service can be retrenched by giving one month notice (or paying one month’s salary) plus retrenchment compensation, at the time of retirement, @ 15 days’ average wages for every completed year of service (section 25F).

Unfair Labour Practices – Section 25T prohibits unfair labour practices by employer or workman or a trade union. If any person commits unfair labour practice, he is punishable with fine upto Rs 1,000 and imprisonment upto 6 months. [section 25U].

……………………..Employers resorting to any of the said forms of creating job losses is acting illegally and workers are entitled to receive wages for the period of illegality.

The lay off compensation is guided by the standing orders of the company, statue, contract of appointment………If standing orders are not applicable, there is no provision of lay off in appointment letter, employee can not be laid off.

You have posted that:

“‘Can we file case in Delhi ’

Was the women employee posted at Delhi? Has the cause of action arisen at Delhi?

The Delhi Shops and Establishments Act is very comprehensive as compared to the printed version available for the state of UP. Pls check if it shall cover the establishment in NCR by any latest amendment/notification published in Gazette.

You may go thru Section:1, 2(7), 3…………,

30. Notice of Dismissal.

COMMENTS

(d)  Section  30  of  the  Delhi  Shops  and  Establishments  Act,  1954  does  not  exclude  the application of the Industrial Disputes Act, 1947………………

“The object of the provisions of Delhi Shops and Establishments Act is entirely different from that of the Industrial Disputes Act. No doubt on the basis that the petitioner’s business is a shop or  establishment  and  the  respondent  is  an  employee  within  the  meaning  of  Delhi  Shops  and Establishments Act, the said Act would be applicable to them, and on the basis that respondent is a  “workman”  and  the  petitioner’s  business  is  an  “industry”  within  the meaning  of the  Industrial Disputes Act, the said Act also would be applicable to them. But the question of the provisions of one Act excluding the provisions of the other Act will arise only if the subject-matter of the claim is one  which  has  been  provided  for  in  both  the  Acts.  When  the  claim  was  for  retrenchment

compensation under section 25F of the  Industrial Disputes Act and there was no corresponding provision  in  the  Delhi  Shops  and  Establishments  Act  which  provided  for  such  retrenchment compensation, the question of the latter Act excluding the former does not arise at all;”

Kindly proceed under expert advice of your lawyer.

Valuable advice of learned experts/members is sought.

-----“Company has policy of probabation period for first 6 month.”

Did the company conduct any appraisal in time well in advance before expiry of probation period?

Has the service been confirmed in writing?

Or the probation period been extended in writing?

----“ Company cannot afford two HR personal”

Then company should not have recruited the employee.

There is no point in playing with career of a qualified female.

The resignation within 6 months (in addition if services after expiry of probation period were not confirmed) shall not speak well about candidature. The recruiters observe such things in resume minutely.

The order of the company stating redundancy of the position could have been issued by the company.

It is clear that company has extracted resignation.

The intentions of the company seem to be malafide.

Valuable advice of learned experts/members is sought.

Hi ,

Thanks for all your valuable legal advices.  Here I want to add few more points and latest advancement of the scenario.

Yesterday, we formally met 2 owners of the Company(out of 4 owners) for informal settelment. One of them is a supreme court lawyer.

----- Initially they insist there was no force applied to lady for resignation and she have given resignation by her own wish.  I said if such is case then she will taken back our resignation.

----  Then they said that if she will taken back her resignation then we will terminate her. Her termination reason is legal threat given by her husband (i.e given by Myself). They donot want indulge in any legal issue in future.

--- They said that there is no such coverage under marternity benifit that a pregnant women cannot be fired.

---Here Owners informed us that is her Boss is a Head Operations and who is heading  HR, IT and Operations. He is not supposed to do day to day HR activities. and so we are in a crunch now  and actively looking for a HR profestional.  So indirectly they denied Cost as a reson for resignation.

-- They also said they were not informed about whole scenario  as her boss (Head - Operation) has full rights to take decision of his own. He has not consulted us and neither we have told him to fire you.

--- Owners also asked us when she has informed about her pregnancy. (Fortuanately she has written a email earlier when she went for leaves indicating reason as her pregnancy.)

--- When her boss arrived he had now given reason as her performance. Cited so many issues related to performance. He simply said at last "I cannot work with her".

---- Here I want to inform that her boss has not given any single performance notice before today. He had never indicated any such things to my wife earlier.

--- When her boss left, Owners said that they feel Her boss has not executed things in good way.

---Later, Owners said that they will help her getting a new job first as good will gesture. Later in end they said they can do business with her.  She can work as Recruitment Consultant for them.  (My Wife is very strong in recruitment process). But they will not take back her in the office.

*************************************************

On day of resignation, While comming back home my wife fell down in metro station due to mental pressure. By grace of god nothing has happened to women and child. since then to protect my family insterest, I have studied law wanted a strict course of action agaiinst culpirts. 

[2] We have least priority about compensation package or any business, but first want a strong course of action againt her boss. i.e Culprit.

[3] What should we do now ? I have recorded most of the conversation between owners and us. So I have audio proof now. 

Also Few more points i want to add 
*********************************************************************
---- Owners have denied any additional benifts for pregrancy. They however agreed for agreement for Recruitement consultant business.

----One of benifits my wife wants was sabatical leave (i.e. Leave without pay till she finds a new job) .. Owners Denied. (They may not want to give maternity benefits if we may ask later)

----After seeing the reaction and attitude of her Boss(Head Operations), I also donot want my wife to join that office again.  This is good for her mental peace.

You have posted that:

-----“ Owners also asked us when she has informed about her pregnancy. (Fortuanately she has written a email earlier when she went for leaves indicating reason as her pregnancy.)”

“Owners have denied any additional benifts for pregrancy.’

“The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman on production of proof that the woman is pregnant and the amount due for the subsequent period shall be paid to the woman within 48 hours of production of proof that the woman has been delivered of a child. {Section 6}

The lady may claim that copy of Dr’s Rx showing expected date of delivery was also submitted.

The Boss or any one else in the company did not supply any communication writing to submit any other document or form.

Did the company pay any benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman, although the woman has submitted information??

“Under the Act the employer is required:  (a) to exhibit the abstract of the provisions of the Act and the rules made thereunder in a conspicuous place in every part of the establishment in which women are employed {Section 19 & Rule 5}

{ Has this company done it?}

------“They also said they were not informed about whole scenario  as her boss (Head - Operation) has full rights to take decision of his own. He has not consulted us and neither we have told him to fire you.’

The decision to fire a pregnant women was bad and employee has approached the goof offices of owners to undo the bad decidion.

-----“ Then they said that if she will taken back her resignation then we will terminate her.”

Then they said that if she will taken back her resignation then we will terminate her.

It is a threat and speaks of the mindset of the promoters and owners which is in sync with Boss. All of them seem to have decided to separate the pregnant woman by extracting resignation and now if the pregnant woman employee rightfully withdraws resignation, she will be terminated.

“Her termination reason is legal threat given by her husband (i.e given by Myself). “

The husband has accompanied pregnant woman employee who is put under stress/fell down to the workplace, after seeking appointment/ on appointed date and time, to meet the good offices of promoters/owners for redrssal of Grievances, urging them to undo the wrongdoings of the Boss (another employee).

It is proper and good conduct on the part of employee and her husband.

“They donot want indulge in any legal issue in future.”

Apparently they are also wary of legal issues.

-------“They said that there is no such coverage under marternity benifit that a pregnant women cannot be fired.”

Pregnant woman can be fired. However there seems to be a penalty and punishment for it in the Act and law of the land.

Pregnant woman can not be indiscriminated at workplace…………….

------“Here Owners informed us that is her Boss is a Head Operations and who is heading  HR, IT and Operations”

The UP shops and establishments Act has used the word “Owner” under Registration etc……….

This owner and others can be proceeded against by authorities.

{The boss might be a manager, agent or representative of such owner in

the said business; as explained in Sub section (8) of Section 2: Definitions in The Delhi Shops and Establishments Act, 1954. This Act of Delhi is quite comprehensive while the copy available for UP is not that comprehensive.}

To agitate against wrongdoings is not threat.

-------“so we are in a crunch now  and actively looking for a HR profestional.  So indirectly they denied Cost as a reson for resignation.”

There is vacancy and the lady can continue to work in the same position.

The lady may ask permission for working from home for the period and type of work which can be done from home, and try to get a letter/communication mentioning she can work from ………………………….Delhi Address. ( The communication with Delhi may help in future and lady may succeed in contesting compliant from Delhi).

-----“When her boss arrived he had now given reason as her performance. Cited so many issues related to performance. He simply said at last "I cannot work with her".”

“When her boss left, Owners said that they feel Her boss has not executed things in good way.’

The owners may be pleased to terminate the boss.

His conduct is fit for it.

If you make a phone call from Delhi even from PCO against bill and Boss indulges in intimidation you can file the complaint at Delhi.

------“Later, Owners said that they will help her getting a new job first as good will gesture. Later in end they said they can do business with her.  She can work as Recruitment Consultant for them.  (My Wife is very strong in recruitment process). But they will not take back her in the office.’

This is probably not acceptable to employee.

Such offer may be subdue and is escapism and disposal.

------‘On day of resignation, While comming back home my wife fell down in metro station due to mental pressure. By grace of god nothing has happened to women and child. ‘

Get the symptoms, treatment recorded in Doctor’s Rx.

 The Ladies Police, Women Commission, Trade Unions, Govt. are sensitive to such issues.

Approach a competent and experienced lawyer, give inputs in person, spend some quality time with your lawyer, understand the merits, and let your lawyer’s opinion that has seen all the docs and has analyzed the merits, be final on all points and posts in this thread. 

Hi All,

My wife is working in a online furniture company here in Bangalore, India. She is 3 months pregnant now. Her company is asking her to resign now. They put her in PIP (performance improvement plan) but it was withdrawn after they know she is pregnant. They have terminated many of her colleagues (from different team) by giving PIP as their salaries were on higher side. There is no performance issue; she had been working there since last two years. 

Now, She was also told that her salary is on higher side and they want to heir new resource with lesser salary, so they are asking her to resign. If she resigns they will provide 3 months compensation. As she has just completed 1st trimester of her pregnancy, she can not seek any employment anywhere for next 11 to 12 months. 

Any advice?

Thanks
Ranbir
9880360169