Maternity Leave And Dismissal Compensation - CiteHR
Dinesh Divekar
Business Mentor, Consultant And Trainer
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Pvenu1953@gmail.com
Retired Government Servant/advocate
+1 Other

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Hello, everybody! I am a citizen of a foreign country working for Indian Government. Currently I am on maternity leave. How many months I can take for maternity leave according to Indian legislation? Can an employer dismiss me after three months of maternity leave? Have I right to be paid a one month compensation in this case?
Best regards,
Feya
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Dear Feya,
It appears that you have clubbed maternity leave and dismissal unnecessarily. If your employer had sanctioned three months of paid maternity leave then prima facie it appears that conditions of Maternity Benefits Act are fulfilled and matter closes there.
What are the terms of appointment mentioned in your appointment letter? What is the notice period from either side. Now the question comes whether employer gave notice for removal from employment as per the terms of appointment letter or not. Notice could have been given even though you were on maternity leave. If not, then you may put up application and ask to fulfil the conditions of appointment letter. Whether notice period and maternity leave can overlap could be a bone of contention.
Thanks,
Dinesh Divekar

Dear Mr. Dinesh Divekar, thank you so much for your reply! I was on maternity leave but my employer dismissed me at the end of the 3rd month, giving just an e-mail notice about dissmissal. Only now 2 months later after dismissal they say that woman on maternity leave cannot be dissmised if she is a citizen of India,having right for 6 months maternity leave and I am not a citizen. Is it right? What about dismissal compensation? Are there any law articles regulating this issue?
Dear Feya,
Maternity Benefit Act, 1961 does not distinguish between Indian citizen and non-Indian citizen. Eligibility for the for maternity leave is same.
Now coming to the "dismissal" part. Why your company has removed from your job? Generally employees are dismissed either on disciplinary grounds or because of under-performance. Whatever reason for dismissal might be, any company has to conduct the domestic enquiry.
What was your designation? How many persons reported to you?
As stated in my earlier post, I recommend you putting application for the payout for the notice period or allow you to serve to complete the notice period. We will discuss your matter thereafter.
Thanks,
Dinesh Divekar
Dear Mr. Dinesh Divekar,
I thank you very much for your detailed reply! As for dismissal..I was on maternity leave and needed more time for rehabilitation because of difficult delivery. I have a medical confirmation of it. But I was ordered to join the duty immediately. After my explanation that I couldn't join immediately I was sent an order of dismissal. There were no disciplinary grounds or under-performance, 4 years of successful work. My designation was Senior Interpreter. Thank you once more for your advice!
1. Dear member, apart from the remarks of senior and expert Sh. Dinesh Divekar ji, as above, I will like to submit to kindly examine your entitlement by examining following aspects:-

(a) what are your terms and conditions of employment ? In such terms and conditions, it must have been mentioned as to what are your rights in respect of various labour laws of India.

(b) You have mentioned that you are working for "Indian Government". Question arises whether you are working for "Central Government of India" or for any of its independent department/corporation or bank etc. etc. The terms and conditions of employment may be different as compared to Central Govt. of India, or independent Corporations or Banks.

(c) Where you are employed ? Whether you are serving in Indian territory itself, or in any of offices/organisations of Central Govt. of India in any other country ?

2. I hope, if you will furnish some details on above points, the issue will be more clear for myself as well as for our seniors and experts.
Dear Feya,
In your third post, you have come to the point. Because of the critical situation that arose during your pregnancy, on completion of your maternity leave, you wanted to avail of additional leave, with or without pay. When you had approached the authorities, they declined to sanction the additional leave. Since you did not report for the duty, they treated you as absconding. Without conducting the enquiry, they have removed you from the job.
Nevertheless, there is more than that meets the eye. I feel that, as such the authorities of your office wanted to check you out. Your unauthorised absence came handy to the authorities to strike at you. Has anyone replaced you? I feel that they wanted to continue with that person.
For further advice, please reply queries raised by Mr Mehta.
Thanks,
Dinesh Divekar
Can you provide some information on your statement " I am a citizen of a foreign country working for Indian Government. " Were you in regular employment (governed by service conditions notified under Article 309 of the Constitution) or otherwise?
Dear Mr. HARSH KUMAR MEHTA and Mr. Dinesh Divekar, I am very grateful for your replies! Please find below my answers to your questions:

1)
a) It is a labour contract and according to one of its articles: "Her grievances if any, will be settled according to the Government of India's rules and regulations and not according to the Local Laws of the country concerned where the Mission is located."
b) This is the Embassy of India in a foreign country.
c) The territory of the Embassy is considered to be territory of Indian Republic.
2) I will be thankful for your comments and recommendations regarding my maternity leave period and dismissal compensation!

According to the Indian law maternity leave lasts for 180 days, if I am not mistaken, 12 weeks of which are paid. I needed unpaid leave after 12 weeks of the maternity leave, necessary for my rehabilitation after difficult delivery (confirmed by medical certificate) and I asked for it but in reply I was sent an order of dismissal. It was not unathorised absence. Nobody replaced me yet because the Embassy has not found suitable candidate.

Best regards,

Feya
Please immediately write to the external affairs ministry. You may write Mrs. Shushma Swaraj. Her email id is available n the external affairs ministry website. She s known to be a very helpful minister who is known to take swift action. I am aware that she has helped a lady employee of a foreign citizen in the the Indian embassy in the country I am located in. The case was similar. The secretary to one of the consulars went n maternity leave and her services were terminated. She wrote to Mrs. Shushma Swaraj and she was reinstated. Mark a copy to the ambassador also.
All the best.

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