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Raj Kumar Hansdah
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Thread Started by #namrataya@gmail.com

hi guys,
plz let me know what can one do if your company asks you to go on 6 months unpaid leave or resign (in the name of recession) when you are 5 months pregnant..alo the company refrains from paying maternity leave salary or any kind of hospitalisation charges...
what law protects women against such act and what legal action can one take on such company?
Rgds,
Namrata
4th October 2009 From India, Mumbai
dear namrata
ofcourse it is illegal.if you have put up more than 80 days service than individual is entitle for maternity leave.they can not ask yoiu to resign or proceed on forced leave.
you intimate them about pregnancy in writing and if if they refuse to give benefit than file a case against them with labour dept.
regards
js malik
4th October 2009 From India, Delhi
Dear Namrata, If yo are in company payroll, they are bound to give you either Maternity or ESIC leave, depends on your gross salary. If they are refusing ...pl. do as maliksir suggest....
4th October 2009 From India, Madras
Dear Namrataya,
Here is my advice to your query .
First I will talk about eligibility and benefits under esi ,than legal action taken to that company who denied to give benefits under this act.

Eligibility

The Act is applicable to all women working in any establishment.

However, to be eligible, you need to have worked in an organisation for at least 80 days before your due date.

Notice

To avail the leave and benefits, you need to submit a written notice to your employer. The notice date should start from when you are going on leave.

You may give the notice before or soon after delivery.

It also depends upon the company policy. Some organisations ask for a notice before you take leave.

Even if you forget to submit the notice, you can still claim the maternity benefit. "It is advisable to have it in writing. It can be used as proof in court in case of any discrepancy.
Benefits-----

According to the Act, six weeks of paid leave is mandatory. However, if your organisation allows more than six weeks,whether you will be paid for the days beyond six weeks depends on company policy.

If you earn less than Rs.10,000, your company may offer you the State Employees Insurance scheme (ESIC). It is a government scheme, wherein a small amount will be cut from your salary every month.

If you are eligible for ESIC, then the maternity leave provided by your company will be unpaid. Instead, you will have to claim the amount from the ESIC office in your city. However, all the legwork will have to be done by you.

The ESIC cannot be exchanged for the monetary benefits provided by the company.

Legal Action-------
if you are fired during the leave period or forced by employer to resign on unjust reasons (such as absence from work due to pregnancy or for requesting a flexible working time,or requesting paid leave,or benefits under ESI act), then you can take legal action against your employer.

In any such event, file a case in the Industrial and Labour court. The court will then issue a notice to the employer.

"Depending upon the case, the court will decide on a suitable monetary compensation," explains Madon. Apart from the pay, the employer can also be imprisoned for up to three months.

The Maternity Benefits Act is a beneficial tool for all pregnant working women. However, it is up to you to take advantage of it.

Plz provide me your feed back.
4th October 2009 From India, Mumbai
Dear namrata
its depends on the organisation rules and regulation and policy they made.
because they might be mentioned on the policy itself about your issue.
we cannot terminate the company policies and regulation. we have to obey the same.
at the time of joinig itselt we had agreed all the terms and conditions of org.
regards
siva prasad
5th October 2009 From India, Nellore
Hey Namrata,

You are eligible to get the 12 weeks of fully paid maternity leave under the Maternity Benefits Act, 1961.

You can take this leave not before 6 weeks of your expected date of delivery. The entire 12 weeks leave should be taken in 1 stretch. You have to support your leave claim with the doctor's certificate explaining your pregnancy confirmation and expected date of delivery.

Every company has to provide the maternity leave for 12 weeks and the full pay according to this act. The company doesn't have any relaxation because of recession or no funds along with them. Neither does the company have any right to dismiss you or ask you to resign because of your pregnancy. Even when you are on maternity leave, the company does not have any right to terminate your services until you report back to the work.

So you have all rights to take the 12 weeks of maternity leave on full pay. So, explain to your HR that you are aware of the Maternity Act and the benefits you are entitled to under this act.

All the best..

Regards,
Roopali Patil
Facilitator/Trainer
email:
5th October 2009 From India, Bangalore
is it really so that the maternity benifit rules also differ acc. to the type of company(proprietorship,MNC etc.) as said .......
5th October 2009 From India, Delhi
Hi Namrata,



I can understand the state you must be in. Pls refer to the Maternity Benefit Act 1961. It is quite elaborate and will answer your queries. This act is applicable to every establishment. You are entitled to the benefits if you have worked for atleast 80 days in the last 12 months with the current employer. U are entitled for a max of 12 weeks of benefit period out of which not more than 6 weeks can precede the date of expected delivery. You are entitled to wages for this period (12 weeks) which include cash allowances (da, hra), incentive bonus but not any other bonus, nor overtime earnings, nor contribution payable by employer towards pf, pension etc, nor gratuity. I think the act also allows evey woman who is covered under this act, to be entitled to a medical bonus from her employer, about Rs250/- if no pre natal confinement and post-natal care is provided by the employer free of charge.



There are also conditions specified regarding prohibition of dismissal during absence due to pregnancy, i think it means for the peiod of 12 weeks, but i dont think there is any mention of giving 5 months break bythe employer which could be termed unlawful.



The bottom line is that you are entitled to the benefits as per the act. Pls read the act and check the applicability before you confront your employer. If the act is applicable, the employer is liable for punishment including imprisonment for not following the act. I am not sure about your terms of employment and the medical benefits associated with it to comment on that area.



All the best and dont get stressed.
5th October 2009 From India, Visakhapatnam
Dear Namrataya
Please search this site, as Maternity Benefits has been a very popular topic of discussion. You'll get all the relevant information.
Secondly, as advised by others, please furnish more details about yourself-job profile; and the company.
It is very common to find small, bad companies flouting Labour legislations and denying guaranteed benefits to its employees.
CiteHR fraternity is with you and shall offer all possible help.
Regards.
5th October 2009 From India, Delhi
hi everyone!

i really appreciate the suggestions given by you all. however, taking the leagl course of action is all bookish and just not practical. i'm saying so because i have been a victim of such circumstances myself.

when my employer came to know of my pregnancy, all of a sudden they started raising questions on my performance and asked me to resign. since i was aware of the maternity benefit act, i gave them a written application about my pregnancy and requested for leaves when required. after that the company started harassing me mentally by humiliating me at each opportunity about my performance and my health started detirorating all of a sudden. and that led to my proceeding on maternity leave well in advance. the pay structure was such that some part was paid as salary and some against bills as reimbursements to save tax (though the appointment letter talked only of gross CTC with income tax & PF deductions and PLI) and thus during the maternity leave period my reimbursements was no paid. I had rqeuested for my PLI before proceeding on my leaves and only 50% was paid to me and later was told your performance appraisal has been done in your absence and you are only eligible for 50% ( already paid to you).

just 10 days before my joining back i was terminated from my services (letter sent to my residence) and dues were not properly settled. in fact when i went to the office to speak to HR and my boss i was not allowed to enter the office. i filed an application to the labour commissioner and with great difficulty got my form 16 and pf withdrwal form.

labour officer too didn't help much as he was bribed by the organization and i didn't have those means.

i was not paid my rightful justified dues and was subjected to a lot of mental tension which almost caused me my son's life.

since i was at a managerial level, there was no door open for me to take any legal course of action and hence had to leave things as it is in the end. i don't think our legal system actually helps.
5th October 2009 From India, Gurgaon
dear shefali
i too agree with you.practically things are like that only.
the points dicussed by friends are correct legally.
the employer who donot want to follow the law they only do this type
acts.
regards
js malik

=Shefali Tandon;900070]hi everyone!

i really appreciate the suggestions given by you all. however, taking the leagl course of action is all bookish and just not practical. i'm saying so because i have been a victim of such circumstances myself.
when my employer came to know of my pregnancy, all of a sudden they started raising questions on my performance and asked me to resign. since i was aware of the maternity benefit act, i gave them a written application about my pregnancy and requested for leaves when required. after that the company started harassing me mentally by humiliating me at each opportunity about my performance and my health started detirorating all of a sudden. and that led to my proceeding on maternity leave well in advance. the pay structure was such that some part was paid as salary and some against bills as reimbursements to save tax (though the appointment letter talked only of gross CTC with income tax & PF deductions and PLI) and thus during the maternity leave period my reimbursements was no paid. I had rqeuested for my PLI before proceeding on my leaves and only 50% was paid to me and later was told your performance appraisal has been done in your absence and you are only eligible for 50% ( already paid to you).
just 10 days before my joining back i was terminated from my services (letter sent to my residence) and dues were not properly settled. in fact when i went to the office to speak to HR and my boss i was not allowed to enter the office. i filed an application to the labour commissioner and with great difficulty got my form 16 and pf withdrwal form.
labour officer too didn't help much as he was bribed by the organization and i didn't have those means.
i was not paid my rightful justified dues and was subjected to a lot of mental tension which almost caused me my son's life.
since i was at a managerial level, there was no door open for me to take any legal course of action and hence had to leave things as it is in the end. i don't think our legal system actually helps.[/QUOTE]
5th October 2009 From India, Delhi
Dear Friend,
In one of my earlier responses I had suggested that whenever anyone poses a problem, the query made should be complete.
In the instant matter basic details like DOJ, Salary, Designation etc..., could have been mentioned in the first mail itself. This would enable the members to give a complete solution.
Generally it apprears we operate on an EMI Plan !!!
Nair
6th October 2009 From India, Mumbai
Dear Namrataya, Shefali

What Malik ji has said is the true reality of bad corporates and rogue companies in India.

I have always tried to raise my voice against such injustice through this forum.

I agree, it is difficult for an employee to take on a company alone; a fact realized by the Labour Courts and Labour Deptt. It is all the more difficult for a person in Managerial position, who does not have any protection except Civil Courts.

But, as individual with conscience and true HR professionals, we must keep on raising our voice, protest, and generate an awareness.
  • At least, it will make such bad, little, rogue companies feel ashamed, instead of doing it with pride and impunity.
One can also give them certain awards (like the Iggy Awards) in various categories such as:

Awards for Excellence in -
  • "denying the maximum number of Maternity leaves (based on employee ratio)";
  • "delaying Full and Final settlement to maximum number of ex-employees)";
  • "having the longest Notice Period"
  • "taking surety in the form of blank cheque in Lakhs of rupees"
  • "summary dismissals without any apparent cause"
  • "not regularizing the services to avoid payment of statutory benefits"

The list can be added upon.

I also request HR professionals to voice these concerns to their management, rather than be a willing party in these violations, for the sake of their career growth.

Regards.
6th October 2009 From India, Delhi
Dear Namrata,

After reading your query and even after all the suggestion just want to tell you that as per our Indian Constituion runs with old citizens then our country will not be ruled as like as other Countries.

I am not pointing that everyone who are in Govt are culprit, but 99% will be find along with office boy, the same is there in our HR dept too, like some one take the charges through consultancy if at all anyone join / offered from their respective Company.

As you said that the Labour Officer is in favor of your Employer and u try to offer the table cross and see that this case will be in your favour as all govt Employees bound to take table cross amount.

As we are the one who encourages them by givng the amount as and when they are expecting at the time of opening the new account or while submitting the Annual returns.....like so on....
just keep aside and be realistic and now i think that almost you might have got the idea abt Maternity act of 1961,

If you are from Hyderabad take time and meet to Mr. P V Murali Sagar he is R R Dist Joint Comm for Labour Dept and explain him and he might can help you in this regards. if not Approch to Mr. B Ajay Kumar he is City Comm for Labour Dept and file a case against your Current Employer and get the benefits of your Maternity Benefits.

dont concentrate much about your Employer and try to take some health tips and take care of your health too

Being concentrating on all these issues dont neglect your health issues and try to take food on time and extra protiens too.....
6th October 2009 From India, Hyderabad
Dear Namrata,
The legal aspects of the issue have been explained well by a lot of people, so there is no need to shed more light on that. However, please be on your guard as the company knows as well as you do that you cannot be fired for being pregnant, so instead they might try underhand tactics such as giving you bad performance rating and later use that as an alibi to terminate you, or a small behaviorial ,conduct or leave issue may be blown out of proportion to create ground for forced unpaid leave. This might sound preposterous to many of my friends here but it has actually happened in completely respectable companies. From what u have told us ur company is capable of doing that, so....
7th October 2009 From India, Bhubaneswar
Hi Namreeta,
This info may assist you to know your eligibility and authorisation
Regards
NS
MATERNITY
BENEFIT ACT, 1961
CHECK LIST
Object of the Act

To protect the dignity of motherhood and the dignity of a new personís birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.

Conditions for eligibility of benefits
Women indulging temporary of unmarried are eligible for maternity benefit when she is expecting a child and has worked for her employer for at least 80 days in the 12 months immediately proceeding the date of her expected delivery Sec. 5.

Coverage of the Act

Upon all women employees either employed directly or through contractor except domestic women employees employed in mines, factories, plantations and also in other establishments if the State Government so decides. Therefore, if the State Government decides to apply this Act to women employees in shops and commercial establishments, they also will get the benefit of this Act. Bihar, Punjab Haryana, West Bengal, U.P., Orissa and Andhra have done so.









Cash Benefits

∑ Leave with average pay for six weeks before the delivery.
∑ Leave with average pay for six weeks after the delivery.
∑ A medical bonus of Rs.25 if the employer does not provide free medical care to the woman.
∑ An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage, or premature birth.
∑ In case of miscarriage, six weeks leave with average pay from the date of miscarriage.
Non Cash Benefits/Privilege

∑ Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
∑ Two nursing breaks in the course of her daily work until the child is 15 months old.
∑ No discharge or dismissal while she is on maternity leave.
∑ No change to her disadvantage in any of the conditions of her employment while on maternity leave.
∑ Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
Exception: Women dismissed for gross misconduct lose their right under the Act for Maternity Benefit

Leave for Miscarriage

& Tubectomy Operation
∑ Leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or her medical termination of pregnancy.
∑ Entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.

Leave for illness arising out of pregnancy etc. etc.
A woman suffering from illness arising our of pregnancy, delivery, premature birth of child (Miscarriage, medical termination of pregnancy or tubectomy operation) be entitled, in addition to the period of absence allowed to her leave with wages at the rate of maternity benefit for a maximum period of one month. Sec. 10

Conditions for eligibility of benefits
∑ Ten weeks before the date of her expected delivery, she may ask the employer to give her light work for a month. At that time she should produce a certificate that she is pregnant.
∑ She should give written notice to the employer about seven weeks before the date of her delivery that she will be absent for six weeks before and after her delivery. She should also name the person to whom payment will be made in case she can not take it herself.
∑ She should take the payment for the first six weeks before she goes on leave.
∑ She will get payment for the six weeks after child-birth within 48 hours of giving proof that she has had a child.
∑ She will be entitled to two nursing breaks of fifteen minutes each in the course of her daily work till her child is fifteen months old.
∑ Her employer cannot discharge her or change her conditions of service while she is on maternity leave.
Sec. 5.






















Prohibition of dismissal during absence of pregnancy

∑ Discharge or dismissal of a woman employed during or on account of such absence or to give notice or discharge or dismissal on such a day that the notice will expire during such absence or to very her disadvantage.
∑ Discharge or dismissal 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, or to vary to her disadvantage any of the conditions of her service.
∑ At the time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus, etc.
∑ Not barred in case of dismissal for cross misconduct. Sec.







Failure to Display Extract of Act

Imprisonment may extend to one year or fine.

Forfeiture of maternity benefit

If permitted by her employer to absent herself under the provisions of section 6 for any period during such authorized absence, she shall forfeit her claim to the maternity benefit for such period.
For discharging or dismissing such a woman during or on account of her absence from work, the employer shall be punishable with imprisonment which shall not be less than 3 months, but it will extend to one year and will find, but not exceeding Rs.5, 000. Sec. 18






MATERNITY
BENEFIT ACT, 1961
CHECK LIST
Object of the Act

To protect the dignity of motherhood and the dignity of a new personís birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.

Conditions for eligibility of benefits
Women indulging temporary of unmarried are eligible for maternity benefit when she is expecting a child and has worked for her employer for at least 80 days in the 12 months immediately proceeding the date of her expected delivery Sec. 5.

Coverage of the Act

Upon all women employees either employed directly or through contractor except domestic women employees employed in mines, factories, plantations and also in other establishments if the State Government so decides. Therefore, if the State Government decides to apply this Act to women employees in shops and commercial establishments, they also will get the benefit of this Act. Bihar, Punjab Haryana, West Bengal, U.P., Orissa and Andhra have done so.









Cash Benefits

∑ Leave with average pay for six weeks before the delivery.
∑ Leave with average pay for six weeks after the delivery.
∑ A medical bonus of Rs.25 if the employer does not provide free medical care to the woman.
∑ An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage, or premature birth.
∑ In case of miscarriage, six weeks leave with average pay from the date of miscarriage.
Non Cash Benefits/Privilege

∑ Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
∑ Two nursing breaks in the course of her daily work until the child is 15 months old.
∑ No discharge or dismissal while she is on maternity leave.
∑ No change to her disadvantage in any of the conditions of her employment while on maternity leave.
∑ Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
Exception: Women dismissed for gross misconduct lose their right under the Act for Maternity Benefit

Leave for Miscarriage

& Tubectomy Operation
∑ Leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or her medical termination of pregnancy.
∑ Entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.

Leave for illness arising out of pregnancy etc. etc.
A woman suffering from illness arising our of pregnancy, delivery, premature birth of child (Miscarriage, medical termination of pregnancy or tubectomy operation) be entitled, in addition to the period of absence allowed to her leave with wages at the rate of maternity benefit for a maximum period of one month. Sec. 10

Conditions for eligibility of benefits
∑ Ten weeks before the date of her expected delivery, she may ask the employer to give her light work for a month. At that time she should produce a certificate that she is pregnant.
∑ She should give written notice to the employer about seven weeks before the date of her delivery that she will be absent for six weeks before and after her delivery. She should also name the person to whom payment will be made in case she can not take it herself.
∑ She should take the payment for the first six weeks before she goes on leave.
∑ She will get payment for the six weeks after child-birth within 48 hours of giving proof that she has had a child.
∑ She will be entitled to two nursing breaks of fifteen minutes each in the course of her daily work till her child is fifteen months old.
∑ Her employer cannot discharge her or change her conditions of service while she is on maternity leave.
Sec. 5.






















Prohibition of dismissal during absence of pregnancy

∑ Discharge or dismissal of a woman employed during or on account of such absence or to give notice or discharge or dismissal on such a day that the notice will expire during such absence or to very her disadvantage.
∑ Discharge or dismissal 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, or to vary to her disadvantage any of the conditions of her service.
∑ At the time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus, etc.
∑ Not barred in case of dismissal for cross misconduct. Sec.







Failure to Display Extract of Act

Imprisonment may extend to one year or fine.

Forfeiture of maternity benefit

If permitted by her employer to absent herself under the provisions of section 6 for any period during such authorized absence, she shall forfeit her claim to the maternity benefit for such period.
For discharging or dismissing such a woman during or on account of her absence from work, the employer shall be punishable with imprisonment which shall not be less than 3 months, but it will extend to one year and will find, but not exceeding Rs.5, 000. Sec. 18






8th October 2009 From India
Hello Ms. Namrata,
Pls. note that you must have worked atleast 160 days preceeding to the delivery date to avail all benifits under the Maternity Benefits Act, 1961.
Rest is explained in detailed manner in earlier reply by Roopali Patil.
Do not leave your right. Just explain this to your superior authority
Regards,
Vimal Shrimali
10th October 2009 From India, Vadodara
Dear All
In all such cases the entitlement under the Maternity benefit is fixed.If one avails leave over and above the maximum 90 days plus one month for pregnancy related illness then it will be LOP.Management cannot force an employee.The redressal mechanism is embedded in the Act.
V.Sounder Rajan
VS Rajan Associates
Chennai-98401-42164
10th October 2009 From India, Bangalore
hey guys



details of my joining -



joined on - 12 Feb 2008

asked to go on unpaid leave from -1st April 2009

was confirmed - July 2008

salary package- Rs.3,00,000/- p.a

Designation - Research Associate (placed in Mumbai)

had informed company that i am pregnant but as mentioned have not given notice for leave as they did not give me even the time to react...

was called up on 30th March evening at arnd 5pm..(my offical timing is 8:45-5:45)....and askd to go on leave without any notice from the day itself.....whn i returned to my desk to digest the fact...to my suprise my outgoing mails were locked...my login id was stopped...once i logout cant login again....thinghs were really bad..handful of others were also asked to go on leave as the company said it does not have funds to pay salary do to recession....

hey all do let me know can recession or moving out of cash save a company from not paying my maternity benefits...

do let me know hw do i go about it now...



shld i first send a written request for my maternity benefits...n then wait for reply....

if any one could guide me hw to go about in this matter..i have yet not given my resignation letter as my Retention Bonus due in Feb 2009 was also on hold...i m trying to recover the same n have succeced in getting part of it till date....

the company also has asked me recently if i plan to rejoin as six months leave is now over.....is it a kind of drama to protect themselves....

Rgds,

Namrata[/QUOTE]
12th October 2009 From India, Mumbai
Dear Namrataya,
As rightly said in the above posts an employee who has completed 80 days with an organization is entitled for Maternity leave but would like to add what happened with one of my friend who was pregnant they just provided a 15 days paid leave to her that too which she was having as a causal leave quota and when she went on leave they shut down their operations all together and did not even intimated her on the same. She had to start all over once again a new job hunt but thanks to God she got one...
Regards
31st July 2012 From India, Pune
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