Rule 38 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
The Code protects a woman from being discharged or dismissed on account of maternity-related absence, and lets an employer deprive her of maternity benefit or medical bonus only where the dismissal is for prescribed gross misconduct. Rule 38 defines that gross misconduct and sets the appeal process.
For the second proviso to section 68(1), rule 38(1) lists five acts as gross misconduct: wilful destruction of the employer's property, assaulting a superior or co-employee at work, a criminal offence involving moral turpitude resulting in conviction, theft, fraud or dishonesty in connection with the employer's business or property, and wilful breach of safety rules or interference with safety or firefighting equipment. A woman who appeals under section 68(2) files Form XII with the competent authority, who must decide within three months (extendable by up to three more).
How rule 38 fits with section 68
Section 68(1) makes it unlawful for an employer to discharge or dismiss a woman during or on account of her absence under the Chapter, or to give notice that expires during the absence, or to vary her service conditions to her disadvantage. The second proviso says that where the dismissal is for gross misconduct as prescribed by the Central Government, the employer may, by written order communicated to her, deprive her of maternity benefit or medical bonus, or both. Section 68(2) gives her an appeal to the competent authority within sixty days of the order being communicated, and the authority's decision is stated to be final. See our article on sections 68, 69 and 70 for the Code text and the older explainer on dismissal during maternity under the repealed Act. Rule 38 supplies the content of "gross misconduct" and the procedure of the appeal. Central Rules apply where the Central Government is the appropriate Government; in other cases the State's rules apply. HR teams facing a disciplinary case involving a woman on leave can consult our employment and labour law advisory team before acting.
The five listed acts (rule 38(1))
| Clause | Act constituting gross misconduct |
|---|---|
| (a) | Wilful destruction of the employer's goods or property |
| (b) | Assaulting any superior or co-employee at the place of work |
| (c) | A criminal offence involving moral turpitude, resulting in conviction in a court of law |
| (d) | Theft, fraud or dishonesty in connection with the employer's business or property |
| (e) | Wilful non-observance of safety measures or rules, or wilful interference with safety devices or firefighting equipment |
Three things stand out:
- The list is stated as what "shall constitute" gross misconduct for this purpose. Employers should assume that acts outside the five do not fall within the proviso.
- Clause (c) requires a conviction, not merely an allegation or a pending case.
- The consequence under the proviso is deprivation of maternity benefit or medical bonus, or both, by a written order communicated to her.
- Clauses (a), (b) and (e) depend on words such as wilful or at the place of work, so the facts must match.
The appeal (rule 38(2))
| Step | What the rule says |
|---|---|
| Forum | The competent authority (rule 38(2)(a)) |
| Form | Form XII |
| Mode | In writing; handed over personally, sent under a registered cover, or electronically |
| Employer's role | The competent authority gives the employer a copy of the memorandum of appeal, calls for his reply and asks him to produce documents connected with the issue by a fixed date |
| Enquiry | The authority may ascertain further details from employer and appellant and considers the facts before giving his decision |
| Time | Within three months of receipt of the appeal; may be extended for reasons recorded in writing by not more than three months |
| Employer default | If the employer fails to reply or produce documents in time, the authority may decide ex parte |
The rule itself sets no time for filing; the Code's section 68(2) fixes sixty days from communication of the order of deprivation, discharge or dismissal. The competent authority is the gazetted officer described in rule 34.
Forms help
Under rule 40(2) the employer must supply a woman, on request and without charge, copies of Forms X, XI, XII, XIII-A and XIII-B, and under rule 40(3) a failure to use the specified form does not take away her right. The authority may, within fifteen days, require the right form to be submitted. See our article on rules 39 and 40.
Examples
Example 1. An employer dismisses a woman and, by written order, deprives her of the medical bonus because she was convicted of a criminal offence involving moral turpitude. Clause (c) can apply only because there is a conviction; a mere pending case would not match the rule.
Example 2. An employer dismisses a woman citing "general indiscipline" and withholds maternity benefit. That is not one of the five acts, so the employer cannot rely on rule 38(1) for the second proviso, and she can appeal in Form XII within the sixty days given by section 68(2); the competent authority must then decide in three months. (Illustrative.)
Practical steps for employers
- Before any dismissal during maternity-related absence, map the facts to the five clauses.
- Keep documents (inquiry record, conviction copy, safety rule acknowledgment) ready for the competent authority.
- Reply within the date fixed; silence risks an ex parte decision.
- Do not treat this list as a general disciplinary code; it applies to this proviso alone.
Need help with a dismissal or appeal involving maternity provisions?
The law here is protective, and an error in classification can be costly. Our employment and labour law advisory practice can help employers review the facts and prepare a reply to a Form XII appeal.
Key takeaways
- Rule 38(1) lists five acts of gross misconduct for the second proviso to section 68(1).
- A criminal offence counts only if it involves moral turpitude and results in conviction.
- Appeal under section 68(2) is in Form XII to the competent authority.
- Decision within three months, extendable by up to three months for recorded reasons.
- The employer's failure to reply or produce documents can lead to an ex parte decision.
Read next
- Sections 68, 69 and 70: Dismissal during absence, deduction of wages and forfeiture
- Rules 39 and 40: Complaint before Inspector-cum-Facilitator and duties
- Rules 34 and 35: Competent authority and maternity benefit claims
- Dismissal during maternity: the prohibition under the old Act
Disclaimer: Based on the Code on Social Security, 2020 (as enacted) and, where noted, the Code on Social Security (Central) Rules, 2026 (G.S.R. 344(E), 8 May 2026), as on 30 September 2026. The Code is in force from 21 November 2025; some provisions may be notified later, and State Governments make their own rules for establishments where the State is the appropriate Government. Verify the current position before acting.