If you have been terminated during pregnancy in India, the first proviso to Section 68(1) of the Code on Social Security, 2020 says the discharge does not deprive you of the maternity benefit or the medical bonus, so the twenty-six weeks and the bonus remain payable. If the termination came while you were on maternity absence, Section 68(1) makes the dismissal itself unlawful: an employer may not discharge or dismiss a woman during or on account of that absence, may not serve a notice timed to expire during it, and may not vary her conditions of service to her disadvantage. The only exception is prescribed gross misconduct recorded in a written order given to you, and both cases open a sixty-day appeal and a complaint to the Inspector-cum-Facilitator.
Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.
This page is for the woman in a Bengaluru private company who told HR she was pregnant and was told weeks later that her role is redundant, and for the woman on maternity leave who has just opened a termination email. It stays on the maternity chapter of the Code, which replaced the Maternity Benefit Act 1961 when the labour codes commenced on 21 November 2025 (item 5 of the repeal list in Section 164). Whether a termination is lawful as a termination is covered in wrongful termination in India, and a forced resignation in when a resignation is really a termination.
| Entitlement | Section | What the Code says |
|---|---|---|
| Benefit period | 60(3) | Twenty-six weeks, not more than eight before the expected date of delivery. Twelve weeks (six before) for a woman with two or more surviving children. |
| Eligibility | 60(2) | Eighty days actually worked for that employer in the twelve months before the expected date of delivery, counting lay-off days and paid holidays. |
| Adoption and surrogacy | 60(4) | Twelve weeks from handover, for an adopting mother of a child below three months and for a commissioning mother. |
| Medical bonus | 64 | Rs 3,500 or the notified amount, if the employer gives no free pre-natal and post-natal care. |
| Miscarriage, MTP, illness | 65 | Six weeks paid after a miscarriage or medical termination, two after a tubectomy, up to one further month for illness arising from pregnancy or delivery. |
| Creche | 67 | Where fifty employees are employed, with four visits a day. |
Can I be terminated during pregnancy in India, or while on maternity leave?
Not while you are on maternity absence, and not by a notice timed to run out during it: Section 68(1) makes both unlawful, and Section 133 makes it an offence. The sub-section makes it "unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence".
The pregnant woman still at her desk is in a slightly different position, because the Code does not say a pregnant employee can never be dismissed. Its first proviso says a discharge or dismissal "at any time during her pregnancy" shall not deprive her of the maternity benefit or the medical bonus if she would otherwise have qualified. The Supreme Court read the identical provision of the 1961 Act as an "embargo" on the employer in Dr Kavita Yadav v Secretary, Ministry of Health and Family Welfare (17 August 2023) and held that the benefit "is not co-terminus with the employment tenure". The money is safe. Whether the termination stands is tested below.
Key takeaway. During maternity absence the dismissal is unlawful in itself. During pregnancy it cannot take away the twenty-six weeks or the medical bonus. The only carve-out is prescribed gross misconduct, recorded in a written order given to you.
Am I covered? The eighty-day rule, headcount, probation and fixed-term contracts
You are covered if your employer is a factory, mine or plantation, or a shop or establishment that employed ten or more people on any day in the preceding twelve months, and you have actually worked for it for at least eighty days in the twelve months before your expected date of delivery. The headcount test is in the First Schedule, and Section 1(8) keeps a chapter applied even if the number later falls.
Designation does not matter. Section 2(26) defines "employee" to include supervisory, managerial and administrative work, so a manager is inside the chapter. Probation is not mentioned in it at all. The only qualifying condition is the eighty days in Section 60(2), and a probationer who has crossed them qualifies like anyone else (see terminated during probation).
Fixed-term staff are covered twice over. Section 2(34) makes a fixed term employee eligible for every statutory benefit "available to a permanent employee proportionately", and Section 161 gives the Code effect over "the terms of any award, agreement or contract of service". Dr Kavita Yadav settles the harder case: a doctor on a one-year contract was held entitled to the full period even though it overshot the contract, because "discharge" includes "discharge on conclusion of the contractual period" (see fixed-term contract rights). Municipal Corporation of Delhi v Female Workers (Muster Roll) (Supreme Court, 8 March 2000) did the same for casual and daily-wage women.
Three facts decide most coverage questions.
Ten or more employees
The chapter applies to every shop or establishment that employed ten or more people on any day in the preceding twelve months, and stays applied if the headcount later drops.
Eighty days worked
The only eligibility test is eighty days of actual work for that employer in the twelve months before the expected date of delivery, counting lay-off days and paid holidays.
Contract end is no escape
Dr Kavita Yadav holds that maternity benefit travels beyond the end of a fixed-term contract, and Section 161 overrides any inconsistent clause in an appointment letter.
They say the role is redundant, not the pregnancy: does the label matter?
It matters less than HR thinks, because Section 68 does not ask why you were dismissed, only when. During maternity absence every discharge "during" the absence is caught, and "or on account of" catches a termination timed for the week you return, dressed as restructuring, if the absence was the real cause. The single carve-out is prescribed gross misconduct, and even then only by "order in writing, communicated to the woman". Redundancy is not misconduct.
The label is then tested on its own terms. For a non-worker, Section 39(1) of the Karnataka Shops and Commercial Establishments Act bars removal of an employee with six months of continuous service "except for a reasonable cause" and without one month's notice or pay in lieu, and the appellate authority under Section 39(2) decides whether the cause was reasonable. A redundancy declared three weeks after a pregnancy intimation, for a role someone is still doing, is exactly what that authority examines. For a worker within Section 2(zr), a redundancy is a retrenchment under Section 2(zh), and Section 70 requires one month's written notice "indicating the reasons", fifteen days' average pay for every completed year, and notice to the Government (see tech layoffs are not lay-offs).
Nothing in the Code shifts the burden of proof to the employer, so the record does the work. Keep the intimation and the termination email with their dates, and anything showing the role was not abolished: a handover note, a job posting, a colleague's new title. A genuine restructuring has a document dated before your intimation. A pretext has a paragraph.
Common mistake. Signing whatever HR puts on the table on the day. A resignation letter, a "mutual separation" or a release that waives all claims converts a Section 68 dismissal into a voluntary exit on paper, and Section 68 protects a woman who is discharged, not one who resigns.
What am I still entitled to receive after an unlawful termination?
The full maternity benefit for the period you would have had, the medical bonus, your notice pay or retrenchment compensation, and your wages within two working days of the termination. The benefit is the twenty-six weeks at the average daily wage under Section 60, preserved by the proviso to Section 68(1), and Section 62(5) times it: the pre-delivery portion in advance on proof of pregnancy, the balance within forty-eight hours of proof of delivery. Not having given the Section 62 notice does not disentitle you (Section 62(6)). The medical bonus under Section 64 is due unless the employer provided free pre-natal and post-natal care.
Notice for a non-worker is one month or pay in lieu under Section 39(1) of the Shops Act, or the longer contractual period, which Section 39(7) preserves. A retrenched worker gets a month's notice or wages in lieu and fifteen days' average pay per completed year under Section 70 of the IR Code. Either way, Section 17(2) of the Code on Wages, 2019 requires the wages of an employee who has been removed, dismissed or retrenched to be paid "within two working days" (more in my full and final settlement is not paid).
Reinstatement is on the table in every forum. The Section 68(2) appeal asks the competent authority whether the woman "should or should not be ... discharged or dismissed". Under Section 39(3) of the Shops Act, where the employer "does not agree to reinstate", the appellate authority awards compensation up to one month's pay for every year of service. For a worker, Section 50(1) of the IR Code lets the Tribunal set aside an unjustified termination and "direct reinstatement".
Where do I complain, and by when?
Three forums and three clocks: the sixty-day appeal to the competent authority under Section 68(2), the complaint to the Inspector-cum-Facilitator under Section 72, and the appeal to the Assistant Commissioner of Labour under Section 39 of the Shops Act within thirty days under Rule 25 of the Karnataka Shops and Commercial Establishments Rules, 1963.
| Forum | Who can use it | Clock | What it can give |
|---|---|---|---|
| Appeal under Section 68(2) to the competent authority notified by the State | A woman deprived of benefit or bonus, or discharged or dismissed under Section 68(1) | Sixty days from communication of the order | A final decision on whether she should be deprived, discharged or dismissed |
| Complaint to the Inspector-cum-Facilitator, Section 72 | A woman whose benefit is withheld, or dismissed during or on account of maternity absence | No period is written into Section 72. Appeal from the Inspector's order within thirty days | A direction to pay, or such orders as the Inspector deems just and proper |
| Appeal under Section 39(2) of the Shops Act to the Assistant Commissioner of Labour | An employee with six months of continuous service removed without reasonable cause or notice | Thirty days from communication of the order (Rule 25(2)), condonable on sufficient cause | Reinstatement, or compensation up to one month's pay per year of service, with revision to the District Judge |
| Conciliation, then the Tribunal, under the IR Code | A worker under Section 2(zr) | Two years for conciliation (Section 53(1)), ninety days from the failure report for the Tribunal (Section 53(6)), or a direct application after forty-five days and within two years (Section 4(10), (11)) | An award setting aside an unjustified termination, with reinstatement or other relief (Section 50(1)) |
| Writ petition, public employer only | Employees of Government departments, corporations and autonomous bodies | No statutory period, but delay is weighed | The route in Municipal Corporation of Delhi v Female Workers and Deepika Singh v Central Administrative Tribunal (16 August 2022) |
Deadline warning. The Section 68(2) appeal runs sixty days from the day the termination or deprivation order was communicated to you, not from the day you stopped being paid. The Shops Act appeal runs thirty days from the same communication. Waiting for HR to "revert" is how both are lost.
What should I write to HR today?
One email, sent the same day, which is not a resignation and which puts four things on record: the date you intimated the pregnancy, your refusal to accept the termination, the sections you rely on, and what you want paid. With your own dates in the brackets:
"I refer to your email of [date] informing me that my employment ends on [date]. I intimated my pregnancy to [name] on [date], and my expected date of delivery is [date]. I do not accept the termination. Under Section 68 of the Code on Social Security, 2020 my maternity benefit and medical bonus are payable notwithstanding any termination, and I request (1) the reasons for the decision in writing, (2) any redundancy assessment relied on, (3) my wages within two working days under Section 17(2) of the Code on Wages, 2019, and (4) the date my maternity benefit will be paid. This email is also my notice under Section 62 that I will be absent from [date]. I reserve all rights, including the appeal under Section 68(2) and the complaint under Section 72."
Send it from a personal address as well, because work access tends to end the same afternoon. If HR says you resigned, my employer says I resigned but I was forced deals with that turn.
Step by step: from the termination email to the complaint
- Save the pregnancy intimation, the termination email and every message between them, with dates, outside the company's systems.
- Reply the same day with the email above. Do not resign, and sign no release or mutual separation.
- Give the Section 62 notice if you have not, naming the expected date of delivery and the date from which you will be absent.
- Diary two dates from the day the termination was communicated: sixty days for the Section 68(2) appeal and thirty for the Section 39 appeal.
- Ask for the Section 67(2) written intimation of benefits given at appointment. Its absence is evidence.
- File the Section 68(2) appeal and the Section 72 complaint with the Labour Department, and the Section 39 appeal in parallel if you are not a worker.
- If you are a worker, apply for conciliation and diary the ninety-day Tribunal clock and the two-year outer limit.
- Chase the wages within two working days and the advance benefit on proof of pregnancy. Withholding the benefit is a separate offence under Section 133.
Where these cases actually turn
What I tell clients is that these matters turn on three things. The first is the calendar: the date of the intimation, the date of the decision, and whether any restructuring document predates the first of them. The second is whether the employer pays the benefit anyway. One that terminates and still pays the twenty-six weeks and the bonus has complied with the proviso to Section 68(1), and the dispute narrows to whether the termination had a reasonable cause. One that withholds it has handed you a Section 72 complaint and put itself inside Section 133. The third is the clock. The sixty-day appeal is the one people miss, because they spend those weeks waiting for HR, and the thirty-day Shops Act appeal goes with it.
Three numbers to hold in your head.
Sixty days to appeal
Section 68(2) gives a woman deprived of benefit, or discharged or dismissed, sixty days from communication of the order to appeal to the competent authority.
Thirty days under Section 39
Rule 25 of the Karnataka Shops and Commercial Establishments Rules, 1963 sends the Section 39 appeal to the Assistant Commissioner of Labour within thirty days, condonable on sufficient cause.
Two working days for wages
Section 17(2) of the Code on Wages requires the wages of an employee who is removed, dismissed or retrenched to be paid within two working days.
Frequently Asked Questions
What if I resigned under pressure after telling HR I was pregnant?
Section 68 protects a woman who is discharged or dismissed, and a resignation that was in truth a discharge can be treated as one, but only if you say so at once and in writing. Withdraw the resignation the same day, state the pressure and the dates, and file the Section 68(2) appeal within sixty days of the termination being communicated as if it were a dismissal.
Does the creche duty apply to my office?
Section 67(1) requires a creche, within a distance the Central Government prescribes, in every establishment covered by the chapter in which fifty employees are employed, and the employer must allow the mother four visits a day. An office of forty people is outside that duty but still inside every other provision of the chapter.
I am a commissioning mother or I am adopting a baby: am I covered?
Yes. Section 60(4) gives a woman who legally adopts a child below three months, and a commissioning mother, twelve weeks of maternity benefit from the date the child is handed over, and Section 2(13) defines a commissioning mother as the biological mother whose egg was used to create the embryo carried by another woman. An absence taken under Section 60(4) is an absence in accordance with the chapter, so Section 68 protects it.
Can they move me to a lesser role or cut my pay when I return?
No. Section 68(1) makes it unlawful to vary any condition of service to the woman's disadvantage during or on account of her maternity absence, and Section 69 bars any wage deduction for nursing breaks or for lighter work assigned under Section 59. A demotion on return is a Section 72 complaint and, within sixty days, a Section 68(2) appeal.
I am on probation: does the maternity chapter apply to me?
Yes. The chapter does not use the word probation, and the only qualifying condition is eighty days of actual work for the employer in the twelve months before the expected date of delivery under Section 60(2). A probationer who has crossed eighty days is entitled on the same terms as a confirmed employee.
Did I have to disclose my pregnancy when I joined?
The Code imposes no duty to disclose a pregnancy at joining, and the Section 62 notice exists to claim the benefit, not to qualify for the job. In Neera Mathur v Life Insurance Corporation of India (Supreme Court, 31 October 1991) a probationer discharged over a pregnancy declaration was reinstated, and the Court described the declaration's columns as "embarrassing if not humiliating".
Can I take up freelance work while receiving maternity benefit?
Not without losing the benefit for that period. Section 70 says a woman who works for remuneration during the period she has been permitted to absent herself for maternity benefit is not entitled to the benefit for that period, so paid work during the twenty-six weeks forfeits the pay for the days worked.
My employer has fewer than ten employees: what do I have?
The maternity chapter applies to a shop or establishment only once it has employed ten or more people on any day in the preceding twelve months, or the State Government notifies it, so a company that has never crossed ten is outside it. Section 39 of the Karnataka Shops and Commercial Establishments Act still applies after six months of service, and so does your contract, and a company that crossed ten at any point in the last twelve months is inside the chapter under Section 1(8).
Is refusing to pay maternity benefit a criminal offence?
Yes. Section 133 of the Code lists, as offences by an employer, failing to provide any maternity benefit to which a woman is entitled and dismissing, discharging, reducing in rank or otherwise penalising a woman employee in contravention of the maternity chapter, with a higher punishment for a repeat failure to pay the benefit.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
