Madhu.T.K
Industrial Relations And Labour Laws
Sumitk.saxena
Service/manager-hr
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Richrachna
Gamut Hr
Poonam Sriram
Junior Exeutive Hr
+3 Others

Hi ,

My wife works in an import export registered firm and she is working there is Aug 2014, she has completed 14 months with the organization. She is expecting and into her 7th month her due date is around 15th Jan 17, Considering same she gave verbal information in office about her pregnancy around 2 months after she conceived. She also informed organization that she would take leaves from December 15th till Feb 15th 2017.

Recently it was figured out there is already a replacement hired against her for same position and she was given a verbal notification as to she needs to leave office by 30th November 16 as new resource is already hired. She confirmed to her manager that she does not want to leave as she wants to rejoin office from feb 17. to this office made it clear stating if something goes wrong during her delivery they would not like to take risk and hence they have hired a replacement.

When she notified initially about her pregnancy company notified she will get 3 months leave and these would be unpaid leaves. she agreed to it as we needed the job.

These days every now and then there are people from HR and finance provoking her to take the decision to leave right away, sometimes they come and give her count of prorated leaves that only 1 leave is remaining and all sort of crap.

She is actually gone into a depression as this is related to her career and as a husband I understand this is not a right time for her to take mental pressure and go through all this.

Few questions:
- Company does not have policy for maternity leave not acceptable
- Should she resign right away or work till 30th November - I as a husband not at all in favor of same.
- After agreeing to 3 months leave although leave without pay, asking her to resign.

Not sure what should I do, how should I file a legal complaint, should I or should I not. It's more of harassment for her and i would request you to share options available with us for us to move forward.

Regards
Chetan Sharma
7th October 2015 From India, Noida
A woman employee who has already completed 14 months of service would definitely be entitled to paid leave for 84 days and Rs 5000 as medical bonus as prescribed under the Maternity Benefit Act. Replacement for the days she is not working is the headache of employer but once she comes back after maternity leave, she should be given employment. Therefore, you need not tender resignation nor ask for leave without pay. Employer cannot deny the benefits and if denied, the consequences will be very high. This will even lead to harassment of woman employee. Therefore, first apply for maternity leave following section 6 of the Maternity Benefit Act, 1961. I am not sure if there is any form prescribed other than Form E which is meant for Mines or Circus, but in general it can be as follows:

FORM E

[See rule 5(1)]

NOTICE UNDER SECTION 6 OF THE MATERNITY BENEFIT ACT, 1961

To ………………………………..(name of employer)

I,………………………………(name of woman employee), wife/daughter of…………………………………..employed as………………………………., do hereby give notice that:

1. I expect to be confined within six weeks next following from the date of this notice/have given birth to a child on………….(date) and shall be absent from work from………..(date). I shall not work in any establishment during the period for which I receive maternity benefit.

2. For the purpose of section 7, I hereby nominate…………….. (here enter name and address of the nominee) to receive maternity benefit and/or any other amount due to me under the Act in case of my death.

Date …………. Signature of woman employee

This application will become a formal intimation of pregnancy and request for maternity leave. The HR cannot just reject the application when it is submitted in the formal format quoting the relevant sections and rules. Therefore, you may send the same asap and wait for the reply. If the employer is still negative, she can raise it as an industrial dispute before the Labour Officer. But I don't think that that would not be required and the matter will be settled before that.

Madhu.T.K
8th October 2015 From India, Kannur
Advice given by learned member Shri Madhu is right.
In case of further harassment Labour officer of the district is always available for complaints.
This Act is a social welfare act and the company cannot pressurise anyone to leave or take unpaid leave etc.
8th October 2015 From India, Pune
I too had faced the problem in one of the Pune company. Inspite of the policy they had stopped payment for the third month of maternity leave.More over, every time pressurizing me to come to work even when work from home was granted.
9th October 2015 From India, Hyderabad
Agreed with Madhu TK employer can deny maternity benefit to its employee in any respect after completion of 84 days of service, if still employer in denial mode you may contact with office of labour department immediately to get justice.
Thanks & regards,
From,
Sumit Kumar Saxena
9th October 2015 From India, Ghaziabad
Hello Madhu TK,
Do you think Chetan Sharma's wife approaching the Local Chapter of Women's Commission IN PARALLEL would also help expedite the resolution......or do you think it will side-track the whole issue?
@ Chetan Sharma--
I think your wife did a mistake by not putting the developments IN WRITING.
It's also not clear whether 'company notified she will get 3 months leave and these would be unpaid leaves' were also verbal OR are they in writing?
If the Company's notification is in writing, then you surely have a base built-up.
If NOT, then suggest modify the draft suggested by Madhu TK a bit to ensure that the past verbal communications are all put into writing at least now.......to ensure you have written records of what transpired IN CASE the case goes to the Labour Officer.
All the Best.
Rgds,
TS
10th October 2015 From India, Hyderabad
Dear Chetan Sharma,

You ask your wife to forget whatever discussion she had with her seniors or colleagues regarding her maternity leave. She need not have to be worry about her maternity leaves at this crucial juncture but to concentrate on the future. Ask her to submit a formal leave application to her reporting authority with CC to others clearly mentioning her desire to take leaves from --- to ---. Do not refer any law and rules in this application and ask her to wait a few days and if she doesn't receive any reply in writing send the same application marked as "reminder". If she doesn't receive any reply even after the reminder she may send the same once again marked as "2nd reminder" and mark copy to a) labour officer, Human rights commission and c) Women rights commission and I am sure something will happen in favour of your wife and whatever might be the consequences ask her to proceed for the leave as scheduled.. I would suggest to search for a new job for your wife even if her leaves are granted. Legal battle can be fought anytime after the birth of the baby but this is not the right time physically or mentally to be involved in any such incidence.

Best of luck.
12th October 2015 From India, Kolkata
As per law the women employees are entitled for leaves. please ask her to write to them and lets see what they reply
12th October 2015 From India, Madras
Where does women's right commission and human rights commission come into play?
Here it is a question of a lady being maternity leave,which is a purely a matter for being taken up with local labour officer if company fails to follow law.
Bringing any other angle will not be in order and side track main issue.
12th October 2015 From India, Pune
It is surprising that Chetan Sharma, who started this thread, has not responded to the discussions despite having read the advises and suggestions given by all of us. Is it that these are useless comments/ advises?
Madhu.T.K
14th October 2015 From India, Kannur
Hello Madhu TK,

While agreeing with your unease, I guess this has been a repeated feature of many of those who post their problems/issues in this Forum.

However, I wouldn't agree with your line "Is it that these are useless comments/ advises?".

After all, all of us who take time to post our responses to active issues do so with the LARGER perspective in mind......the CURRENT issue at-hand being JUST the trigger.

There would be others who see solutions in such threads later to THEIR problems......how many of us haven't got 'Appreciates' for postings that we made months/years ago [which we might not even remember that we made]? Such persons wouldn't be giving Appreciates NOW UNLESS they would have found ready-made solutions for similar issues they MIGHT be facing.......even without initiating a thread?

And I am sure all of us ALSO still learn a bit from the threads we participate in. The only LOSERS would be those like this thread initiator who NEITHER respond & acknowledge NOR take note of OTHER'S time spent. From a psychology perspective, this is the surest recipe to keep making the same mistakes again & again.....anyone who can't say a simple 'thank you' is bound to fall into that trap. But, I guess, that's THEIR problem.

And......this may not appeal to everyone.....we are just practicing what's mentioned in the Bhagavata Gita--"perform your acts/action with your best without any anticipation of the fruits". WHO picks the 'fruit' of our advice/suggestions is not for US to guess or expect or desire.

Rgds,

TS
14th October 2015 From India, Hyderabad
As a HR Officer i will agree with Mr. Asru J's opinion better to do like so....rather than legal proceedings. seems to be everything verbal discussion only there weren't proceed with any kind of formal letter or leave application. what i am suggesting is please proceed with the firm procedures that might be differ depends on the policies of the firm. and there is the most important thing is if proceeding through legally then everything will interrupts, after that if they allow her to continue she might feel uncomfortable to work in that same ambiance.
15th October 2015 From India, Chennai
Anuradha
I believe nobody has suggested going legal at the first instance itself but has only advised to get everything done in black and white and that was why I posted an application which is expected to be in the formal format. There is much difference between applying leave in formal format to the employer and representing the matter before the controlling/ appropriate authority and the latter should be resorted only when the former fails to give any response. If the organisation has an empowered HR person sitting in the top of HR department then there would be no conversation like refusing the maternity leave or asking her to take leave without pay. This has happened in many companies and these companies remain EMPLOYEE FRIENDLY organisations among many of us due to the reason that denial of rights are not objected by the employees. Still, I don't know if my experience of 30 years in Personnel/ Industrial/ HR Management.
Madhu.T.K
15th October 2015 From India, Kannur
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