Maternity leave and dismissal compensation - citizen of a foreign country working for the Indian Government

Hello, everybody! I am a citizen of a foreign country working for the Indian Government. Currently, I am on maternity leave. How many months can I take for maternity leave according to Indian legislation? Can an employer dismiss me after three months of maternity leave? Do I have the right to be paid a one-month compensation in this case?

Dear Feya,

It appears that you have combined maternity leave and dismissal unnecessarily. If your employer had sanctioned three months of paid maternity leave, then prima facie, it appears that the conditions of the Maternity Benefits Act are fulfilled, and the 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 arises: did the employer give notice for removal from employment as per the terms of the appointment letter or not? Notice could have been given even though you were on maternity leave. If not, then you may submit an application and ask to fulfill the conditions of the appointment letter. Whether the 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 email notice about dismissal. Only now, 2 months later after dismissal, they say that a woman on maternity leave cannot be dismissed if she is a citizen of India, having the right to 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,

The Maternity Benefit Act of 1961 does not distinguish between Indian citizens and non-Indian citizens. Eligibility for maternity leave is the same for all.

Now, let's address the "dismissal" aspect. Why were you removed from your job at your company? Typically, employees are dismissed either for disciplinary reasons or due to underperformance. Regardless of the reason for dismissal, every company must conduct a domestic inquiry.

Could you please share your former designation and how many individuals reported to you? As I mentioned in my previous message, I suggest you apply for the payout for the notice period or allow yourself to serve and complete the notice period. We can further discuss your situation after that.

Thank you,
Dinesh Divekar

Dear Mr. Dinesh Divekar,

Thank you very much for your detailed reply! Regarding my dismissal, I was on maternity leave and required more time for rehabilitation due to a difficult delivery. I have medical confirmation of this. However, I was instructed to return to work immediately. Despite explaining that I was unable to do so, I was issued a dismissal order. There were no disciplinary issues or performance concerns, considering my successful 4 years of work. My position was Senior Interpreter.

Thank you once again for your advice!

Dear member,

Apart from the remarks of the senior and expert Sh. Dinesh Divekar Ji, as mentioned above, I would like to submit for your kind examination of your entitlement by considering the following aspects:

(a) What are your terms and conditions of employment? In such terms and conditions, it must have been specified what your rights are in relation to various labor laws of India.

(b) You have stated that you are working for the "Indian Government." The question arises as to whether you are employed by the "Central Government of India" or any of its independent departments, corporations, or banks. The terms and conditions of employment may vary between the Central Government of India and independent corporations or banks.

(c) Where are you employed? Are you serving within Indian territory itself or in any of the offices/organizations of the Central Government of India in another country?

I hope that if you provide some details on the above points, the issue will become clearer for myself as well as for our seniors and experts.

Dear Feya,

In your third post, you have come to the point. Due to the critical situation that arose during your pregnancy, upon completion of your maternity leave, you wanted to avail of additional leave, with or without pay. When you approached the authorities, they declined to sanction the additional leave. Consequently, since you did not report for duty, they treated you as absconding and without conducting an inquiry, they have removed you from the job.

However, there may be more than meets the eye. I sense that the authorities at your office intended to scrutinize you. Your unauthorized absence conveniently provided the authorities with an opportunity to take action against you. Has anyone replaced you? I have a feeling that they intended to proceed with that individual.

For further advice, please respond to the 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 the 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 labor 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 the territory of the Indian Republic.

2) I will be thankful for your comments and recommendations regarding my maternity leave period and dismissal compensation!

According to 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 maternity leave, necessary for my rehabilitation after a difficult delivery (confirmed by a medical certificate), and I asked for it. However, in reply, I was sent an order of dismissal. It was not unauthorized absence. Nobody replaced me yet because the Embassy has not found a suitable candidate.

Best regards,

Feya

Please immediately write to the Ministry of External Affairs. You may address the email to Mrs. Sushma Swaraj. Her email id is available on the Ministry of External Affairs website. She is known to be a very helpful minister who takes swift action. I am aware that she has assisted a female employee of a foreign citizen at the Indian embassy in my current location. The situation was similar. The secretary to one of the consular officers went on maternity leave, and her employment was terminated. Upon reaching out to Mrs. Sushma Swaraj, the secretary was reinstated. Please remember to send a copy to the ambassador as well.

All the best.

Dear Anonymous,

We do not know the facts of the case completely. Therefore, it would be unfair to give a recommendation that the poster should put up an application directly to the Minister of External Affairs, Ms. Sushma Swaraj. Unless the routine administrative procedure is followed, it would not be a fair approach directly to the Foreign Minister level. India is a democratic country where the rule of law and the principle of natural justice are followed. In case of violations, the Government of India has created mechanisms for redressal. Therefore, what happens in some kingdom or where the military rules need not be recommended in this forum.

Thanks,

Dinesh Divekar

Dear Mr. Dinesh Divekar,

I have addressed the organization regarding the settlement of such labor issues. We have contacted the Embassy and have tried to follow all the procedures, but unfortunately, there has been no result. They are unwilling to provide any compensation unless it is explicitly mentioned in our labor contract, which they should honor. I believe my dismissal is unjust, especially considering my dedicated work of 4 years, the appreciation received from all the Ambassadors during this time, and my promotion to the position of Senior Interpreter.

Thank you for your comments!

Best regards,
Feya

Dear Mr. Dinesh,

I have given the advice with total responsibility. As an office bearer of an NRI association, I am aware of many such cases coming up in the embassies. This brings a bad name to the country just because someone does not follow the rule of law. This happens because in the embassies, they do not have an HR department. All hiring is done in an ad hoc manner by the reporting boss, and the firing also happens by the reporting boss. As an office bearer of the India Club, I have taken up the issue with the embassy many times. But, the response was that they will look into it. Finally, when 3 cases came up where the embassy did not respond, we, the members of India Club, helped them draft appropriate petitions to the ministers concerned. One was a similar case of maternity leave. The fastest response came from Ms. Sushma Swaraj. Mr. Manohar Parrikar acted within a week, and Mr. Jaitley took about 15 days.

Unlike the Middle East, USA, or UK, in the countries that we live in, there are small sets of NRIs, and the diaspora is hit very hard when the locals are treated badly or victimized. The local employees of embassies knock on the doors of the expat associations of that country for help and support. Embassies respond to the associations. However, there are a few hot-headed swags who come through political appointments and not through the proper process who behave in such a bad manner. To give you an example, the gardener and two sweepers of the Indian embassy are Indians related to a powerful MP. They don't work but enjoy the perks, which include free education for their children in international schools. The embassy building in the country that I live in is a masterpiece of art designed by the famous Charles Correa. However, it's an eyesore on the avenue that it's located on because it's very badly maintained and not even swept or cleaned. We have taken it up with the embassy. But, no one has the guts to bell the cat from the embassy, lest they will be shifted to Afghanistan or Iraq or some other dangerous location. And the embassy is unable to recruit local sweepers and gardeners since the manpower is filled, and there is no vacancy.

So, I know what I am recommending and am doing so in all earnestness.

Dear Dinesh Divekar ji,

I may submit that the initiator of this thread has mentioned that she was employed on a contract basis. This clearly shows that she is not a central government employee. As per Rule 42 of the CCS (Leave) Rules, 1972, 180 days of maternity leave is admissible to a female "Government servant." As per Rule 2(h) of the said Rules, these rules are not applicable in respect of persons engaged on a contract basis. Therefore, the initiator of this thread, in my opinion, is entitled to maternity leave only under the Maternity Benefit Act, 1961 (for 12 weeks as per section 5(3) of the said Act) and that too on the basis of various judgments of the honorable Supreme Court of India. Some of the judgments were earlier also discussed in some other threads on CiteHR; the online link is mentioned as follows:

https://www.citehr.com/528640-matern...-employee.html

Online link of the CCS (Leave) Rules, 1972 is also mentioned as follows for the kind consideration of members:

http://persmin.gov.in/DOPT/Employees...eave_rules.pdf

Furthermore, the initiator of this thread has commented and informed that she "was sent an order of dismissal." In this connection, I may submit that the term "dismissal" is generally associated with regular employees, charge sheets, departmental inquiries, orders of the disciplinary authorities, etc. Such departmental actions are hardly resorted to against a person or employee engaged "on a contract basis." As per the practice followed, persons engaged on a casual or contract basis are simply terminated without assigning any reasons as generally mentioned in their terms of contract and employment. I feel that there appears to be some doubt about the facts mentioned by the initiator of this thread, particularly the word used "dismissed." As far as I understand, there is a vast difference between the words "termination" and "dismissal" of an employee, whether regular or engaged on a contract basis.

I hope, Dinesh Divekar ji, seniors, and experts will like to see my remarks as above and correct me if I am wrong in any aspect.

Dear all,

I received an order of dismissal, which is true. Before my maternity leave, the Embassy informed me that I was entitled to 3 months of paid maternity leave, with the remaining period being unpaid. I was also told that I could rejoin the Mission at a time suitable for me. However, at the end of the 3rd month, I received a dismissal order. Furthermore, the order stated that I was dismissed as a Junior Interpreter, not as a Senior one. My explanations, supported by a medical certificate, were not taken seriously by anyone. It was only after I sought assistance from a local organization for dispute resolution that the Embassy contacted me. I have not yet been paid for my 3rd month of maternity leave. Additionally, I have not received a one-month compensation as indicated in my employment contract in case of termination.

The discussion reveals a shocking state of affairs. It appears that, though we, as a nation, profess to be governed by law, we are prone to reduce the concept to be an excuse rather than a path to right action!

Dear Mr. ANONYMOUS,

Thank you once more for all your previous comments. According to your advice, we addressed H. E. Sushma Swaraj 10 days ago. Unfortunately, we have not received any reply yet, and the issue remains unresolved. I would be grateful if you could recommend other possible and effective ways of settling this case.

Respectfully,
Feya