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subbalaxmi (Engineer)     21 April 2013

Resignation after maternity leave

Hi,  I had to take 2 months loss of pay leave due to medical reasons during pregnancy.Following this ,I took my maternity leave  ,which expires in June. Both the leave requests were acccepted by my manager. Now my doctor says I may need a C-section and minimum 6 months rest,so  I may not be able to join back soon after my maternity leave. In this situation, can I resign the job?If yes, should I resign before the maternity leave expires?Will my remaining leaves be adjusted against notice pay?Also,I am at my hometown and wont be able to personally go to my office for clearance formalities.Then  can my husband do the clearing formalities on my behalf?Or can I delay the clearing formalities till I am able to physically go to office and clear the dues myself?



Learning

 16 Replies

Sanjeev (Lawyer)     21 April 2013

the answers to your questions depends on your office rules there is nothing to do with law.

Kumar Doab (FIN)     21 April 2013

 

You should not act is haste and should not rush to resign.

What is the establishment in which you are employed: a Govt. Undertaking, PSU…..etc, or a private compnay.........

It is felt that for Women Employees of State Public Sector Undertakings / Statutory Boards……the Maternity Leave has been enhanced to 180 days.

 

Otherwise:

 

----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}

 

You may avail this one month leave.

 

Thereafter you may apply for medical leave under proper acknowledgment thru redg. post ( avoid speed post/courier0 with copy of doctor’s prescripttion and medical certificate attached to it., and maintain proper record and obtain POD. Get the leave approved even if on LOP.

  

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. Does your company offer Parental Leave, Child Care Leave and permit it immediately after Maternity Leave? Does your company allow combining maternity leave with any other leave of any kind?

 

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 ladies 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 resignation may be avoided and employer may be rather cajoled to 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 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.)

 

You are not feigning sickness? Employer should resort to principle of natural justice?

 

Even if the decision in such a matter is to be taken by say Chairman of the company you may approach them so that matter is not looked at with blurred vision by line managers/HR.

 

You may go thru other threads initiated by employees on Maternity leave e.g and provide some more details.:

 

 

https://www.lawyersclubindia.com/forum/Maternity-act-74586.asp#.UXPE3qKAqWM

 

https://www.lawyersclubindia.com/forum/Forced-to-resign-when-enquired-about-maternity-leaves-75754.asp#.UXPC0qKAqWM

https://www.lawyersclubindia.com/forum/Maternity-leave-salary-76258.asp#.UXPDG6KAqWM

https://www.lawyersclubindia.com/forum/Meternity-leave-75127.asp#.UXPEpaKAqWM

Why did you have to apply for leave on LOP while you were eligible for maternity leave?

You may not resign while on Maternity Leave.

Employer encashes paid leave in FNF statement/settlement and adjust notice pay.

Usually employer disburses paid leave, OT, bonus, Gartuity…… @ Basic + DA, and should therefore adjust notice pay at this rate.

It is reiterated that you may not resign in haste and rather avail leave even if on LOP.

Employer can waive off notice period/pay and handover formalities. However employee should get everything in writing.


Attached File : 310629060 maternity benefit act 1961.pdf downloaded: 324 times

Sudhir Kumar, Advocate (Advocate)     21 April 2013

you have not stated whether you are Govt employee or goverened under Maternity Benefits Act.

 

either way. Availailing Mate3rnity leave does not in any way cofer liability to serve further.

subbalaxmi (Engineer)     27 April 2013

Thanks for the advice, I am working in a private organisation. I thought about resignation as I am not sure if I will be able to join office after 6 months also,because it would be difficult for me to travel  after the delivery.

Sudhir Kumar, Advocate (Advocate)     27 April 2013

Availailing Maternity leave does not in any way cofer liability to serve further.

subbalaxmi (Engineer)     05 June 2013

what if I avail the extended maternity leave of 1 month , but still dont recover enough to join office.Can I resign at that point?Also will the extended maternity leave period be considered in lieu of notice period?

Kumar Doab (FIN)     05 June 2013

It is reiterated that :

You may not resign while on Maternity Leave.

You may join duties and obtain payment of al maternity benefits.

Maternity leave is counted in period of service, eleigibility for Gratuity.

Till the time you do not recover fully you may submit leave application and enclose prescripttion/medical certificate of the doctor clearly showing bed rest due to complications arising out of delivery, and request for leave even if on LOP.

Employer may not agree to adjust any leave in notice period.

Finally: Rest is upto you.

 

subbalaxmi (Engineer)     06 June 2013

Thanx for the replies, but my boss wont be approving lany more long eaves even if I submit medical xertificate.And after recovering also, I would need to be at home to take care of the baby as well.So I have no option but to resign. Will the salary paid during my maternity leave be taken back?

Also,I am at my hometown and wont be able to personally go to my office for clearance formalities.Then  can my husband do the clearing formalities on my behalf?Or can I delay the clearing formalities till I am able to physically go to office and clear the dues myself?

Kumar Doab (FIN)     06 June 2013

---Total Maternity benefit 12 weeks: out of which not more than 6 weeks shall precede the date of  expected delivery.

So after delivery a woman is entitled for Maternity benefit, say 6 weeks.

----Then another one month leave can be availed:

“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}. “

This leave can not be refused.

You should avail this leave and salary for this period.

-----“Now my doctor says I may need a C-section and minimum 6 months rest,so  I may not be able to join back soon after my maternity leave. “

You can produce a medical certificate from your doctor mentioning C-section and expected period of bed rest: 6 months, and date of review as after:…………….weeks/months, and attach it with leave application, and submit by redg. post.

After each review you can submit revised period of bed rest advised by doctor and leave application. If required you can request the company to get you examined by a specialist doctor.

Based on such it should be difficult for your manager and company to decline and terminate.

If the line manager/boss/HR does not agree you may submit a representation under acknowledgment to good offices of your appointing authority, MD, Chairman, Company Secretary, explain C-section and seek approval for leave.

The good offices can grant leave.

You may also go thru: 12. Dismissal during absence or pregnancy.

And

21. Penalty for contravention of Act by employers.

And

27. Effect of laws and agreements inconsistent with this Act. -- (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service,

 

----- 6. Notice of claim for maternity benefit and payment thereof. –

 

(5) The amount of maternity benefit for the period preceding the date of her expected

delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.”

 ------“ 8. Payment of medical bonus. -- Every woman entitled to maternity benefit under this

Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

 

It is felt that this amount has been increased to Rs.3500/-

------“ Will the salary paid during my maternity leave be taken back?

 

The employer should not resort to such practices, however there are threads suggesting that companies indulging in such practices.

 

The employee can seek relief and approach Inspector.

 

 

------“ Also,I am at my hometown and wont be able to personally go to my office for clearance formalities.

 

Then  can my husband do the clearing formalities on my behalf? { Is there any company property to be handed over by you? Depends upon your company. However if it agrees, it should be obtained in writing and proper acknowledgment should be obtained by your husband.}

 

Or can I delay the clearing formalities till I am able to physically go to office and clear the dues myself?

 

 

Employer may not agree to adjust any leave in notice period.

At the same time Employer can waive off notice period/pay and handover formalities. You may peruse.

However employee should get everything in writing.

Finally: Rest is up to you. You may proceed as deemed fit.

 

 

 

Gopala Krishna Reddy .N.V   20 July 2018

Hello Sir/Madam, 

 
This is Mr. Gopala Krishna, my query on Termination/Resignation after maternity leave after getting maternity benefits up to 90%. My wife was taken maternity leave from 23.12.2017 to 23.06.2018. she was employee of staffing company/placement agency, but was worked for some other company (Client) as a contract employee. she informed both the companies regarding maternity leave. She gives birth to baby boy and she got some amount as maternity benefits from ESIC after 4 months of Delivery. It is very happy news to us that my wife had received benefits. In the meantime, (Client) company recruit somebody as a temporary employee in the place of my wife (Job/Work) for pending work to be completed. At the final stage of my wife’s maternity leave, the (Client)company passes a rule stating that the temporary employee as a permanent employee. So there is no place/job for my wife to be join after completion of her maternity leave. So my wife decided to resign to Job/work and she take care of my Baby boy, but she didn’t resign the job, in the meantime 10 to 12 days back she got her gratuity amount. Then she was realized that she was already terminated from job by staffing company/ placement agency. This was the situation of my wife. She got a call from ESIC, they asked to provide a Form 10 and self-declaration stating that she was ceased to work after the maternity leave/She will join in the job. Already we had provided Form 10(Declaration from employer – employer was aware of leave, any salary given to her at the time of maternity leave from them, etc) to ESIC. My query was there is no place/job to wife at both companies. How would my wife will give such declaration to ESIC (that is Claim for maternity leave and Notice for Work) What should we do? Please suggest better way to solve the problem. My wife was decided that she will not going to the job for 1 more year (because my kid was 6months old, her presence was must, there no place to do her workunder section (88,89,91 1/2)). 
 
Note: My wife received 90% of ESIC maternity benefits, and 10% of  ESIC maternity benefits to be received. Please advise me how to close/slove our ESIC account issue with out giving Form(Claim for maternity benefits and Notice of Work(88,89,91 1/2).

Gopala Krishna Reddy .N.V   23 July 2018

This is Mr. Gopala Krishna, my query on Termination/Resignation after maternity leave after getting maternity benefits up to 90%. My wife was taken maternity leave from 23.12.2017 to 23.06.2018. she was employee of staffing company/placement agency, but was worked for some other company (Client) as a contract employee. she informed both the companies regarding maternity leave. She gives birth to baby boy and she got some amount as maternity benefits from ESIC after 4 months of Delivery. It is very happy news to us that my wife had received benefits. In the meantime, (Client) company recruit somebody as a temporary employee in the place of my wife (Job/Work) for pending work to be completed. At the final stage of my wife’s maternity leave, the (Client)company passes a rule stating that the temporary employee as a permanent employee. So there is no place/job for my wife to be join after completion of her maternity leave. So my wife decided to resign to Job/work and she take care of my Baby boy, but she didn’t resign the job, in the meantime 10 to 12 days back she got her gratuity amount. Then she was realized that she was already terminated from job by staffing company/ placement agency. This was the situation of my wife. She got a call from ESIC, they asked to provide a Form 10 and self-declaration stating that she was ceased to work after the maternity leave/She will join in the job. Already we had provided Form 10(Declaration from employer – employer was aware of leave, any salary given to her at the time of maternity leave from them, etc) to ESIC. My query was there is no place/job to wife at both companies. How would my wife will give such declaration to ESIC (that is Claim for maternity leave and Notice for Work) What should we do? Please suggest better way to solve the problem. My wife was decided that she will not going to the job for 1 more year (because my kid was 6months old, her presence was must, there no place to do her workunder section (88,89,91 1/2)). 

Kindly somebody help me/advise me please... 

Note: My wife received 90% of ESIC maternity benefits, and 10% of  ESIC maternity benefits to be received. Please advise me how to close/slove our ESIC account issue with out giving Form(Claim for maternity benefits and Notice of Work(88,89,91 1/2).  

 

sathish hs   29 May 2020

Hi I need answer for the following question If a woman just after her maternity leave or during her maternity leave resigns, does she has to pay back the amount paid during maternity leave period by employer And also give me link of govt of India order in support of this

Ritesh Maity (Labour Law Advocate)     30 May 2020

The woman employee may resign either after completion of her maternity leave or even during her maternity leave. However, she needs to serve the notice period in terms of her letter of appointment or to pay the equivalent sum in lieu of the notice period. 

If the woman employee is not ready to serve the notice period, then the managment may recover such amount (equivalent to unserved notice period) from her full and final settlment. But such recovery of unpaid notice period may be termed as illegal by court of law. However, the managment is at full liberty to recover the said amount through civil suit, but such suit is costly and time consuming. 

In my view, there is hardly any scope or provisions under the Maternity Benefit Act under which she is liable to refund the amount recieved by her if she resigns from her service.  

Sudhir Kumar, Advocate (Advocate)     02 June 2020

Originally posted by : sathish hs
Hi
I need answer for the following question
If a woman just after her maternity leave or during her maternity leave resigns, does she has to pay back the amount paid during maternity leave period by employer
And also give me link of govt of India order in support of this

 

 

Please give facts of the case.


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