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Anshu (software analyst)     27 February 2013

Forced to resign when enquired about maternity leaves

Hello everyone,

I am working for a small IT firm in India. I am at present  30 weeks pregnant. When I enquired about the medical benefits and insurance coverage they sent me an e-mail that they no longer need my services and I am free to move on. I have to serve 3 months notice period. I requested them to kindly grant me work from home as the office infrastructure is not that good with very unhygenic toilet conditions and unsafe drinking water. I had been working from home earlier too and everytime my request was approved. I believe this was because I was billable on a project at that time. The company didn't had any problem then. But now since I am not working on a billable prject now and carrying I am being forced to come to the office else my notice period will be counted as leave without pay and I won't get a single penny for serving my notice period. Also since my notice period is overlapping with the time I would have liked to take my maternity leaves I don't know how am I going to avail them. The HR in my company says that I can take maternity leaves 45 days before and 45 days after delivery. 45 days before is ok and 45 days after is not possible as I won't be a employee of that company then. What if I have to deliever earlier than my due date. Isn't there any way in which I can have my maternity leaves as well as serve my notice period. Can anyone pls help me.



Learning

 3 Replies

Kumar Doab (FIN)     27 February 2013

You have posted that:

--“When I enquired about the medical benefits and insurance coverage they sent me an e-mail that they no longer need my services and I am free to move on.”

Did you submit copy of the Doctor’s Rx confirming pregnancy and expected date of delivery? Submit the same in writing under acknowledgment.

The employer can be penalized if employer denied maternity leave.

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}”

 --‘ I have to serve 3 months notice period.”

The employer can not ask to resign hence if you have been forced to submit notice of resignation you may lodge a complaint with o/o Labor commissioner and withdraw the notice of resignation.

Company can not accept the resignation before expiry of notice period, effective date of resignation/last day in office given by you.

Did you mention in notice of resignation that you have been asked to resign by Mr/Ms……..designation…..dept…….address…..in person/by phone/by email on dated…..as you have reported that you are pregnant?

While you withdraw the notice of resignation you should mention that you were forced to submit it and mention details.

--“ I requested them to kindly grant me work from home as the office infrastructure is not that good with very unhygenic toilet conditions and unsafe drinking water. I had been working from home earlier too and everytime my request was approved. I believe this was because I was billable on a project at that time. The company didn't had any problem then.”

‘But now since I am not working on a billable prject now and carrying I am being forced to come to the office else my notice period will be counted as leave without pay and I won't get a single penny for serving my notice period.’

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 employer is prohibited from knowingly employing a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage

A woman also, on her part, is required to abstain from working in any establishment during the said period;

A pregnant woman can also request her employer not to give her any work which is of an arduous nature or which involves long hours of standing, etc. during the period of one month immediately preceding the period of six weeks, before the date of her expected delivery or any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence, under the Act. On such a request being made by her, the employer shall not give her such work during such period. {Section 4}

 

--“ Also since my notice period is overlapping with the time I would have liked to take my maternity leaves I don't know how am I going to avail them.”

Withdraw your notice in writing under acknowledgment.

In addition to 45 days leave prior and after delivery:

- woman is entitled to Medical Bonus of Rs.3500/ (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}),

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

--‘ The HR in my company says that I can take maternity leaves 45 days before and 45 days after delivery. 45 days before is ok and 45 days after is not possible as I won't be a employee of that company then. What if I have to deliever earlier than my due date. Isn't there any way in which I can have my maternity leaves as well as serve my notice period.’

You need to act in writing under acknowledgment.

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 displayed the Act?

If you are unable to handle the situation the legal notice from your lawyer may fetch you relief.

The notice from o/o Labor Commissioner, Inspector under Shops and Commercial Establishments Act should further drill sense into heads.

Valuable advice of learned experts/members is sought.


Attached File : 725263969 maternity benefit act 1961.pdf downloaded: 110 times

Sudhir Kumar, Advocate (Advocate)     01 March 2013

advised suitably by Mr Doab

Sudhir Kumar, Advocate (Advocate)     03 March 2013

query repeated at https://www.lawyersclubindia.com/forum/Forced-to-resign-when-enquired-about-maternity-leaves-75755.asp#.UTLWbjd17fM


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