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Ravi Mundra (Officer)     05 June 2013

Voluntary abadonment from employment

One of my employee is on long leaves almost (6 months in whihc 3 month paid(maternity) & 3 months unpaid(granted by company on medical background),Leaves started from dec-2012 & ends on 24-may 2013,

A request of extension come again for extension of leaves up to first week of july-2013 based on medical background.

At this stage we are shortage of manpower & require a person to work As soon as possible.

Can we consider this case as Voluntary abadondment of service from employee side.

 

Is there is any rules or regulation for the same(if so them please let me know).

The employee is eligible for gratuity,can we hold her gratuity??



Learning

 1 Replies

Kumar Doab (FIN)     05 June 2013

 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}

First of all sanction this leave.

 

The employee has been on Maternity leave and thereafter on medical leave due to complications arising out of pregnancy and delivery.

The further extension is also sought due to complication/medical reason arising out of pregnancy and delivery.

The medical issues/complications mentioned by you are due to pregnancy/delivery and the employee has been submitting Doctor’s Rx/advice for seeking leave for treatment of complications arising out of pregnancy/ to meet the family obligations post delivery. The condition of the lady may be just and justified for extended leave even if unpaid. And doctor has advised bed rest.

Female anatomy is complex and a lady risks her life while giving birth to a child.

 

The effects on the health can be far reaching and in case of some women more time may be required to return to normalcy. A small mistake can adversely affect the health of the female may even render her unable to reproduce later.

While employer may insist that the lady may resume duties at the earliest the lady may feel that her body does not allow it to join now and she needs some more time.

 

It is suggested that the temptation for termination may be avoided and employer may rather allow to work from home. Reach an agreement.

The decision of termination apprehended by you may be termed discriminatory and bad, and may become

penultimate for both employee and employer.

 

HR/IR has their duties and responsibilities cut out for them, including: “Preparing for Employee Termination.” And avoid “Wrongful Termination” also “Adjustment for Employees who are Pregnant, on maternity leave, on leave after delivery.”

 

Does the employer have a reason for Termination which is unrelated to leave?

(This may not be an easy task.)

 

The lady is not feigning sickness? Employer should resort to principle of natural justice?

 

Abscondment: is by intention.

To abscond: is to leave without permission, escape, hide,…………..

Absconding is different from abstaining.

Here in this case the lady has not absconded. She has applied for sick leave that too for complications arising out of pregnancy/delivery and has submitted leave application which has been received by you.

Why would employer resort to termination on fake and fabricated grounds?

The term abscondment is derogatory.

The advice rendered to you by anyone to terminate citing abscondment in this case is a bad advice and decision may be termed a bad decision. The certified standing orders/Model standing orders should be looked into.

There are many highly informative threads at LCI, you may find these useful e.g:

https://www.lawyersclubindia.com/forum/TERMINATION-IN-CASE-OF-ABSCONDING-EMPLOYEE-28948.asp#.Ua8ngdKAqWN

Trade unions, women organisations, NGO's..............communities are sensitive in such matters.

Still if the company want to be adventrous it is it's choice.

 

 

Finally: Rest is up to you.


Attached File : 777753747 maternity benefit act 1961.pdf downloaded: 94 times

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