Hi,
I need your advise to go forward from my present situation.
I work for a Pvt software services company as Core HR. I have been employed for close to 2years in this company. I was on maternity leave for 3 months, during that period my employer did not pay salary saying, he will pay me once I return to my job.
Meanwhile during 3rd months of leave I request for extension of leave for 15 days, he agreed for the same. On the date which I am supposed to join back, I wanted to request for another 15days of leave since to take care of baby. So i requested for extension of leave on Phone to my HR, he said drop me an email I will talk to MD and let you know. So Immediately I dropped email requesting leave extension for another 15 days. He didnt reply anything so next day I enquired on phone for the same, for which he said we are looking for possibility by checking your existing earned leave( I have more than 10 ELs).
But to my surprise after 2days late in the night this guy informed me on whats app saying , sorry we are not able to take you.
Next day I went to office to find the reason, they said since you were supposed to report back on that day but you didnt hence we are terminating you for no show and we will not pay you maternity benefit and also no compensation for terminating.
I said you cannot do like this this is unlawful, but he is not agreeing saying that in our handbook we have such rules. Then I mentioned this is unlawful to dismiss an employee returning from maternity leave, but this HR is saying you were not on maternity leave you were on extended leave so that is not applicable.
I even tried to convince, you cant terminate with the reason saying "no show" since I already requested for leave on the same day, for which you didnt reply anything whether it is approved or not.
So I am planing to take legal action, can you please let know know how favorable that will be?
Thanks,
KSR
From India, Hyderabad
1I need your advise to go forward from my present situation.
I work for a Pvt software services company as Core HR. I have been employed for close to 2years in this company. I was on maternity leave for 3 months, during that period my employer did not pay salary saying, he will pay me once I return to my job.
Meanwhile during 3rd months of leave I request for extension of leave for 15 days, he agreed for the same. On the date which I am supposed to join back, I wanted to request for another 15days of leave since to take care of baby. So i requested for extension of leave on Phone to my HR, he said drop me an email I will talk to MD and let you know. So Immediately I dropped email requesting leave extension for another 15 days. He didnt reply anything so next day I enquired on phone for the same, for which he said we are looking for possibility by checking your existing earned leave( I have more than 10 ELs).
But to my surprise after 2days late in the night this guy informed me on whats app saying , sorry we are not able to take you.
Next day I went to office to find the reason, they said since you were supposed to report back on that day but you didnt hence we are terminating you for no show and we will not pay you maternity benefit and also no compensation for terminating.
I said you cannot do like this this is unlawful, but he is not agreeing saying that in our handbook we have such rules. Then I mentioned this is unlawful to dismiss an employee returning from maternity leave, but this HR is saying you were not on maternity leave you were on extended leave so that is not applicable.
I even tried to convince, you cant terminate with the reason saying "no show" since I already requested for leave on the same day, for which you didnt reply anything whether it is approved or not.
So I am planing to take legal action, can you please let know know how favorable that will be?
Thanks,
KSR
From India, Hyderabad
Dear KSR,
After going through your post, certain questions come to my mind. First question is how leave application is submitted in your company? Is it on hard copy or soft copy? If it is hard copy then for the extension of leave, why you did not go personally and submit the application for extension?
Withholding wages during maternity leave illegal under the provisions of Payment of Wages Act or Maternity Benefit Act, 1961. Nevertheless, when your employer had put on hold your monthly salary this was signal to you that you were de trop in your company.
For any dismissal, principles natural justice need to be followed. In your case, your company has not conducted enquiry. Neither they have issued any show cause notice to you. Against this back drop, your dismissal is illegal. You may approach some good lawyer to challenge the dismissal.
There are few issues related to the litigation. In India, legal cases drag on for the decades. You might file a suit after becoming mother but you may get a verdict when you become grandmother! Be prepared for that! Second thing is that HR fraternity looks down upon the job candidates who challenge the authorities judicially. Overall most of the HR in India are submissive and they expect birds of the feather. Now whether to become a bird of different feather that is a call you need to take.
My above reply is based on the facts that you have provided. Hope you have given complete information and nothing is withhold.
All the best!
Dinesh V Divekar
From India, Bangalore
After going through your post, certain questions come to my mind. First question is how leave application is submitted in your company? Is it on hard copy or soft copy? If it is hard copy then for the extension of leave, why you did not go personally and submit the application for extension?
Withholding wages during maternity leave illegal under the provisions of Payment of Wages Act or Maternity Benefit Act, 1961. Nevertheless, when your employer had put on hold your monthly salary this was signal to you that you were de trop in your company.
For any dismissal, principles natural justice need to be followed. In your case, your company has not conducted enquiry. Neither they have issued any show cause notice to you. Against this back drop, your dismissal is illegal. You may approach some good lawyer to challenge the dismissal.
There are few issues related to the litigation. In India, legal cases drag on for the decades. You might file a suit after becoming mother but you may get a verdict when you become grandmother! Be prepared for that! Second thing is that HR fraternity looks down upon the job candidates who challenge the authorities judicially. Overall most of the HR in India are submissive and they expect birds of the feather. Now whether to become a bird of different feather that is a call you need to take.
My above reply is based on the facts that you have provided. Hope you have given complete information and nothing is withhold.
All the best!
Dinesh V Divekar
From India, Bangalore
Thanks Dinesh and essykkr for your replies.
Finally I went ahead and sent out a legal notice stating "Illegal termination and request of reinstatement".
After receiving the legal notice the Company MD came down for negotiation and settled the issue by paying 4 months full salary(3months maternity salary and one month as Ex-Gratia).
A small amount of Rs.3000 as lawyer fee cost me to recover my 4month salary and teach a lesson to the Company.
They used to pay just basic salary for employees on maternity leave, from now on they are paying Full-wages according to the maternity law.
Thanks,
KSR
From India, Hyderabad
Finally I went ahead and sent out a legal notice stating "Illegal termination and request of reinstatement".
After receiving the legal notice the Company MD came down for negotiation and settled the issue by paying 4 months full salary(3months maternity salary and one month as Ex-Gratia).
A small amount of Rs.3000 as lawyer fee cost me to recover my 4month salary and teach a lesson to the Company.
They used to pay just basic salary for employees on maternity leave, from now on they are paying Full-wages according to the maternity law.
Thanks,
KSR
From India, Hyderabad
Congrats KSR , Great to hear about the result. Thankyou for sharing your situation. This would remain a live example to others. Wish you all the best for your career in future !
From India, Mumbai
From India, Mumbai
Dear Anonymous
If you have not got your dues please issue a winding up notice to your employer , for recovery of dues.
If you want your employee to get your job back, please refer the matter to National/State Human Rights Commission and also file a Writ petition in HC.
Sending Commercial winding up petition and registering a complain with National/State Human Rights Commission is the easiest.
If you company is listed then there is also other ways of bringing your employer on to their knees.
Regards
Octavious
From India, Mumbai
If you have not got your dues please issue a winding up notice to your employer , for recovery of dues.
If you want your employee to get your job back, please refer the matter to National/State Human Rights Commission and also file a Writ petition in HC.
Sending Commercial winding up petition and registering a complain with National/State Human Rights Commission is the easiest.
If you company is listed then there is also other ways of bringing your employer on to their knees.
Regards
Octavious
From India, Mumbai
Thankyou Octavious,
I have a question regarding her reference with this employer. Can she appeal for a positive one? Goes without a doubt that they might try to ruin her future with negative remarks.
Looking forward hear from you !
From India, Mumbai
I have a question regarding her reference with this employer. Can she appeal for a positive one? Goes without a doubt that they might try to ruin her future with negative remarks.
Looking forward hear from you !
From India, Mumbai
Dear (Cite Contribution)
I understand your point.
To avoid retaliation she can do the following :-
Issue a notice to her employer, stating that what they have done is wrong and their legally liable as employer and how their termination is illegal.
She will then issue a resignation citing mental harassment and hardship.
She will then have to issue claim for damages from the company and warn of severe repercussions if they resort to arm twisting tactics of spoiling her carrier by way disparagement .
Or she can issue a commercial winding up notice.The HR and Management will come hold this lady's feet the moment they get a Statutory winding up notice, claiming various damages. When they come for settlement get them to sign a settlement deed.
Regards
Octavious
From India, Mumbai
I understand your point.
To avoid retaliation she can do the following :-
Issue a notice to her employer, stating that what they have done is wrong and their legally liable as employer and how their termination is illegal.
She will then issue a resignation citing mental harassment and hardship.
She will then have to issue claim for damages from the company and warn of severe repercussions if they resort to arm twisting tactics of spoiling her carrier by way disparagement .
Or she can issue a commercial winding up notice.The HR and Management will come hold this lady's feet the moment they get a Statutory winding up notice, claiming various damages. When they come for settlement get them to sign a settlement deed.
Regards
Octavious
From India, Mumbai
Dear All
Kindly go through the below news article. This order is by Chennai HC and is not void of challenge before bigger bench or SC.
Madras high court stays termination of TCS employee - The Times of India
Regards
Octavious
From India, Mumbai
Kindly go through the below news article. This order is by Chennai HC and is not void of challenge before bigger bench or SC.
Madras high court stays termination of TCS employee - The Times of India
Regards
Octavious
From India, Mumbai
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Show cause and Termination letter.doc
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