By Received a termination letter immediately after returning from maternity leave? You are likely facing a “Performance-Based” dismissal—a standard corporate tactic used to mask discrimination. Under Indian labour jurisprudence, specifically Section 72 of the Code on Social Security 2020 (which subsumes the Maternity Benefit Act 1961), discharging a woman during her absence or immediately upon return is often void ab initio—invalid from the start.
Corporations frequently rely on the assumption that employees will not challenge “redundancy” or “poor performance” claims. This guide strips away those corporate defenses. We examine the statutory protections that shield you from constructive dismissal, define the legal distinction between a “Workman” and a “Manager” to determine your correct judicial forum, and provide the specific legal templates required to demand reinstatement and back wages.
Fired After Maternity Leave? The Law Is on Your Side.
A comprehensive analysis of Section 72 of the Code on Social Security 2020. This guide explains your statutory rights against “Performance-Based” dismissals and the legal definitions of “Workman” status.
Disclaimer: This analysis is for educational purposes and does not constitute attorney-client privilege.
Employment termination immediately following maternity leave violates fundamental labor jurisprudence in India. It represents a direct conflict between corporate cost-cutting and the constitutional rights to reproductive dignity. With the implementation of the four Labour Codes, protections against such termination are now codified under the Code on Social Security 2020.
The 2026 Legal Reality
The Maternity Benefit Act 1961 has been subsumed by the Code on Social Security 2020. While the core protections remain, all legal notices drafted in 2026 must cite Section 72 of the new Code. The “Inspector” is now the “Inspector-cum-Facilitator,” shifting the focus to digital compliance via the Shram Suvidha Portal.
The Ironclad Prohibition: Section 72
Historically, Section 12 of the 1961 Act provided the shield. Today, Section 72 of the Code on Social Security 2020 carries the torch. The law is explicit:
“No employer shall discharge or dismiss a woman during her absence from work… or give notice of discharge or dismissal on such a day that the notice expires during such absence.”
This creates a “void ab initio” scenario. If you are fired during leave or immediately upon return without a rigorous inquiry into gross misconduct, the termination is invalid from the start.
| Feature | Old Act (1961) | New Code (2020/2026) |
|---|---|---|
| Dismissal Ban | Section 12 | Section 72 |
| Nursing Breaks | Section 11 | Section 66 |
| Enforcement | Labour Inspector | Inspector-cum-Facilitator |
| Pregnancy Illness | Section 10 | Section 68 |
The “Workman” Distinction: Are You a Manager?
A common employer defense is to classify the employee as “Management” to deny protection under the Industrial Disputes Act. However, designation is irrelevant; the nature of duties determines your legal status.
The “Dominant Nature” Test
Indian courts apply the principle laid down in Sunderambal vs. Govt of Goa and Burmah Shell judgments. Even if you are a “Senior Manager” by title, you may legally be a “Workman” if:
- You do not have the power to hire, fire, or grant leave to other employees.
- Your primary role is technical (coding, designing, accounting) rather than supervisory.
- You do not have financial signing authority for the company.
If you are a “Workman”
You can approach the Labour Court/Tribunal. This process is low-cost, allows for “Reinstatement with Back Wages,” and puts the burden of proof on the employer to justify termination.
If you are “Management”
Disputes fall under Civil Court jurisdiction (Breach of Contract). Remedies are typically limited to notice pay damages, not reinstatement.
Check Your Legal Standing
Select “Worker” if you have no authority to hire/fire, regardless of salary.
Analysis Result
Select options and click “Analyze My Case” to see your recommended legal path.
Piercing the Corporate Veil
Employers rarely cite “maternity” as the reason for firing. They use proxies. The courts use the “But-For” test: But for the maternity leave, would this employee have been fired?
The “Poor Performance” Trap
A sudden drop in ratings from “Exceeds Expectations” to “Needs Improvement” post-leave is highly suspicious. Courts require documented history of poor performance before the leave to validate this claim.
Sham Redundancy
“Your role was eliminated.” If a new hire takes over your duties under a different title, the redundancy is a sham. The “Last In, First Out” (LIFO) principle must usually apply.
Probability of Success in Court
Data simulated based on reported Labour Court judgments involving maternity disputes (2020-2025).
Judicial Precedents
Indian courts have historically taken a pro-employee stance regarding maternity rights, treating them as fundamental to human dignity (Article 21). Cite these cases in your negotiations.
Municipal Corp of Delhi vs. Female Workers (2000)
Supreme Court of India
Established that maternity benefits are a fundamental right for all women employees, including those on “Daily Wage” or “Muster Roll,” and not just permanent staff. This precedent destroys the argument that contract workers are ineligible.
Neera Mathur vs. LIC of India (1992)
Supreme Court of India
Held that discharging a probationary employee during pregnancy to avoid maternity liability is illegal. The employer cannot hide behind “probationary terms” to conduct discriminatory firing.
Deepika Singh vs. CAT (2022)
Supreme Court of India
Expanded the definition of family. The court ruled that maternity leave cannot be denied because the woman previously took Child Care Leave (CCL) for non-biological children. It reinforces the spirit of the law over technicalities.
Constructive Dismissal: The “Silent Fire”
What is it?
Employers often avoid direct firing to evade Section 72. Instead, they create a hostile work environment to force you to resign. In legal terms, this is Constructive Dismissal.
Returning to find your team reassigned, your desk moved to an isolated spot, or your access to key projects revoked.
Setting KPIs that are statistically impossible to achieve within the first 30 days of return to manufacture a “performance” cause.
Comments about “commitment issues,” exclusion from email loops, or scheduling meetings late at night.
Digital Forensics & Evidence
In “Constructive Dismissal” cases, the burden of proof lies with the employee. Admissibility of electronic evidence is governed by Section 65B of the Indian Evidence Act (and corresponding provisions in the new Bharatiya Sakshya Adhiniyam).
Protocol for Recording Evidence
Audio Recording Meetings
While consent laws are grey, recordings are often admissible if they prove a violation of rights. Do not edit the file. Submit the raw file with the original device (phone) if required by the court.
Email Headers
Do not just screenshot emails. Download the “Raw Message” or “.eml” file to preserve metadata (timestamps and server paths), which proves authenticity.
WhatsApp Exports
Use the “Export Chat” feature (without media to save space) rather than screenshots. Screenshots can be challenged as fabricated; exported logs are harder to refute.
Compensation Estimator & Taxation
If you win a wrongful termination suit in Labour Court, you are typically entitled to “Full Back Wages” plus reinstatement.
Estimated Claim Value
Tax Implications on Settlement
- Retrenchment Compensation: Exempt under Section 10(10B) of the Income Tax Act (limits apply, check current slab).
- Gratuity: Exempt up to ₹20 Lakhs under Section 10(10).
- Notice Pay/Ex-Gratia: Generally taxable as “Salary” or “Profit in lieu of salary.”
- Legal Tip: Ask your lawyer to structure the settlement as “Compensation for loss of employment” rather than “Ex-gratia” to maximize tax efficiency.
The Emergency Protocol
Do Not Resign
HR may pressure you to resign for a “clean exit.” Resignation waives your right to claim illegal termination. Force them to issue a termination letter.
Preserve Evidence
BCC relevant emails to your personal account. Download the Employee Handbook and past appraisals. Save WhatsApp/Slack logs.
Send the “Minutes” Email
Immediately after the firing meeting, email HR summarizing the conversation. “I was informed today of my termination immediately upon returning from maternity leave…”
Legal Templates
Use these templates to establish a paper trail. Click the copy button to grab the text.
