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Hi, my wife is on first week of her maternity leave. Her current organisation is getting closed and they are asking for resignation from my wife too. Once resigned, she will have to forgo her maternity benefits. What should she do? Please help with legally and professionally complaint reply. It would be great help.
From India, Delhi
Dear friend,

If the company is getting closed then where is the question of maternity benefits? All other employees, are eligible to get their wages till the last working day of the company. In your wife's case instead of salary, it can be called as maternity benefit.

If the company is getting closed then in fact company need not ask for the resignation. However, they appear to be playing safe and showing that the employees left the company voluntarily in order to avoid unforeseen hassles. However, in your wife's case as she is already on maternity leave, tell her to put up application stating that on completion of her maternity leave she is not interested to continue her employment. Therefore, period from the date of resignation till the last day of her maternity leave, may be considered as notice period. Now it remains to be seen whether the company pays the maternity benefits even after the closure or the last working day of the company.

Thanks,

Dinesh Divekar
From India, Bangalore
Every member of ESI is eligible for the benefits for Six months even after resignation, if the contribution is made for the previous half yearly period. As such she can get the benefits from the ESIC. Anyhow, please check up with your Local ESI office and follow their advise. However, if your wife is not resign, she may not get the other benefits from the company in time and may be she has to wait her actual date of resignation.
From India, Vijayawada
Every statutory employment benefit due to the employee is coterminous with the normal terminal benefits of his/her cessation of employment. Like Mr.Dinesh said some unscrupulous employers resort to create a scene of voluntary termination of employment on the part of employees to make the process of closure of their undertakings simple and less costlier to circumvent the statutory provisions relating to closure. It is discernible from the original post that the closure process has not yet started. Therefore, my suggestion would be joining duty after the expiry of maternity leave and then resign so that the maternity benefits remain intact.
From India, Salem
Thanks for your views. But, Since company is getting closed it must have to pay all its liability towards its employees such as Gratuity, salaries, maternity benefits etc. I presume maternity benefits are top priority. Please suggest.
From India, Delhi
Please produce medical certificate/Delivery Certificate etc & make claim for 26 weeks benefit in advance on the ground that company is going to be closed at the time of completion of 26 weeks.Though company is going to close, Employer is liable to pay the benefit in full.
From India, New Delhi
Dear Concern,

Here, the first question is since how long your wife is working with that organization? This is very important question, as all the benefits for which she may be entitled are based on service length. Second thing, how she was communicated for putting resignation?

The above comments from respected members have must clear the picture in your mind, but still I want to clear few things.

As Dinesh Ji has well said, she need not revert to the organization's communication for resignation, as she will cease all her benefits from the date of resignation, including maternity benefits. So, it is better to keep quite and let the company process at its own.

As the company is shutting down, they need not any resignation but, if they will settle the Full & Final Account of an employee, they will have to settle his / her all legal dues as per land of law and in terms of the employee's Appointment Letter too.

So, in my view, she need not to give the resignation at her own.
From India, Delhi
Thank so much to everyone for suggestions. My only query is If employer is of natorious mindset can they close the company without paying maternity claim and can they stop relieving letter as well?
From India, Delhi
First of all I don't think she is covered under ESIC otherwise employer would have asked her to get benefits from esic. also if she is already on maternity leave she must be eligible for it. Now the question is even if she submits the resignation what if employer accepts her resignation and relieves her immediately. I don't think she should resign. instead she should ask HR people that she will resign on the last day of company after getting her benefits till date.
From India, Pune
Dear Mr Pathak,
When the Company is closing its operations, the question of Employees submitting Resignation does not arise.Further, not withstanding Closure of Company, Employee already under Maternity Benefit, should get full benefit i.e 26 Weeks
From India, New Delhi
Once the lock out or closure procedures as per section 25FFA are carried out and compensation as per section 25F or 25N are paid to all employees, the question of one employee who is on maternity leave alone will not arise. The employer cannot keep the company open till she returns to duty when it happens after some 26 weeks. Therefore, once closure notice is sent, it will cover all employees including those who are on leave. After the closure is over, there will not be any company which will pay monthly salary to one person who is on maternity leave.
Yet I don't find any legal battle being made in such a scenario which can be quoted as an example. But I believe that maternity leave being a leave admissible to pregnant women only and that it cannot be demanded when the woman is not pregnant or has had no child birth, the same is available while in service and once the company has wound up the question of leave will not arise. Otherwise there should be some provision that un availed maternity leaves can be encashed as it is the case with privileged leave or some other leave which are to be paid along with other amounts at the time of settlement subsequent to closure of the company. It should also be noted that in case of death of the woman before receiving the maternity benefit, the employer is under an obligation to pay the legal heirs the amount equal to the benefit. A similar provision is not available because it is admissible while in service.
Madhu.T.K
From India, Kannur
Dear Srinath Sir,
Surely She is Eligible for 26 weeks benefit, But after closure of company itself she will not be the employee of that company then why the company will pay for single day leave. I may be thinking this simply and logically. I am not even sure if it is the liability on the company to pay the full benefit on the leave after closure.
Also to answer Mr. Rajawat's question, that is the reason company is asking for resignation because they cant give relieving without resignation.
Thank YOU.
From India, Pune
Dear Mr Aniket,
As already mentioned at the time of commencement of Maternity Benefit Company was existing.Consequently, Employee is liable for Full benefit irrespective of Closing down of company.We are not sure why company is closing its operations.Consequently, the question of Employees submitting their resignation does not arise.Consequent to closure of Company, Employees service also comes to an end.
From India, New Delhi
Dear Srinath sir,
Thanks for clearing my doubts.
From India, Pune
Srinath Sairam has said that employee is eligible for maternity benefits irrespective of closing down of the company. At the same time he also says that consequent to closure of the company, the employees' services also comes to an end. In my post I have mentioned that once procedures as per section 25FFA (closure under ID Act) are followed, the operations come to an end and it will cover all employees who are on leave. Can you say should the employer is under any obligation to wait till one employee who is under maternity leave to complete her leave to close down his establishment? Should the employer keep open the doors of the establishment without any work and at the same time paying wages to the workers till one employee returns after maternity leave? If so, if say when she is about to join back, another employee takes maternity or Privileged leave, again the employer should wait for yet another 26 weeks or till the PL is over?
Madhu.T.K
From India, Kannur
Dear ANNONYMOUS,
In my view, the company is in gross violation of Law. It engaged in unfair labour practices.
The company wants to close down its business activity without following due process of law but by asking employees to resign on their own accord.
What other employees have done? Have they resigned and gone on their own accord?
Once your wife also resigns on her own accord, she has to forgo her maternity benefits.
In my view, if employer declares retrenchment during maternity leave, the employee women should be paid with full maternity leave.
I suggest, you / your wife should make a representation to the employer and ask for full maternity leave, maternity bonus amount, compensation in accordance with section 25F of ID Act and other legal dues as applicable.
From India, Mumbai
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