Saswatabanerjee
Partner - Risk Management
Essykkr
Statutory Complaince/labour & Employment
+2 Others

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Dear all,

Here is one of the case which I found typical to answer. Request you all to provide a solution for it.

The petitioner was appointed on contract basis for three years. She became pregnant. She absented for 106 days. She applied for maternity leave. She was directed to hand over charge. Her absence was treated as leave without pay. Maternity benefits were denied to her as per terms of contractual employment. The petitioner was notified that till the date of handing over the charge, the absence will be treated as leave without allowance and she was directed to hand over the office mobile and other assets, if any. Since the maternity leave applied was not sanctioned, the petitioner got issued a legal notice for sanction of maternity leave and for extending the legitimate benefits. The petitioner delivered twins. The respondent terminated the contract of service with the petitioner by invoking terms and conditions of her appointment letter. The petitioner filed writ petition to quash the communications sent by the respondent, terminating the contract and office order treating the period of absence as leave without allowances and to direct the respondent to sanction maternity leave and disburse the pay and allowances for the period of maternity leave and for consequential benefits, including permitting her to resume duty after the expiry of the maternity leave or as per the medical advice. The respondent in the counter has resisted the demands of the petitioner contending that the petitioner accepted the offer and is bound by the terms and conditions of the contract which does not provide for maternity leave benefits and hence, it is not open to the petitioner to claim maternity leave benefits. The respondent further stated that as the petitioner remained absent frequently on different dates on health grounds, issuance of the office order is justified. It was also stated that the post to which the petitioner was appointed was crucial post of Manager (Finance) which could not be kept vacant and it adversely affects the work. She was given one month's notice and thereafter her service was terminated. Even the respondent is not notified under section 2 of the Maternity Benefits Act, 1961. Held, in terms of the provisions of the Maternity Benefits Act, 1961, a woman is prohibited from working in an establishment during the period of six weeks from immediately following the day of her delivery, miscarriage or medical termination of pregnancy. She would not be asked to work for the specified period in sub-section (4) of section 4. She would be entitled to the benefits of sections 6 and 9 of the Act. Any Rule or Regulation being subordinate legislation, is subject to provisions of the Parliament Act. Though the appointment order alongwith the terms and conditions appended thereto issued to the petitioner did not provide for grant of maternity leave and other benefits to which a woman employee would be entitled to, the respondent has an obligation to provide the benefits in view of the provisions contained in the Act as well as the Directive Principles of State Policy enshrined in Article 42 of the Constitution of India. It is not disputed that the petitioner had 17 days in her credit whereas she remained absent for 106 days on health ground. Since she was a contract employee and did not have the leave to her credit, the respondent is right in treating the period as leave without allowance in excess of leave to her credit. Petitioner's prayer to permit her to resume her duty is not tenable since the appointment was purely on contract basis and that period is already over. However, the petitioner is entitled to all the benefits from the terms of appointment for the period of her maternity leave including maternity benefits and thereafter for a period of one month being the notice period. The petitioner is entitled to costs and the counsel fee of Rs.5,000/-. Payment to the petitioner be made within one month. Petition is disposed of in part accordingly.

From India, Bangalore
3. Definitions. -In this Act, unless the context otherwise requires,-

(

(d) "employer" means-

(i) in relation to an establishment which is under the control of the Government a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

1[(e) "establishment" means-

(i) a factory;

(ii) a mine;

(iii) a plantation;

(iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 2[***]

3[(iva) a shop or establishment; or]

(v) an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable;]

(f) "factory" means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(g) "Inspector" means an Inspector appointed under section 14;

4[(ha) "medical termination of pregnancy" means the termination of pregnancy permissible under

the provisions of Medical Termination of Pregnancy Act, 1971.];

(i) "mine" means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952);

(j) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);

(k) "plantation" means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);

(1) "prescribed" means prescribed by rules made under this Act;

(m) "State Government", in relation to a Union territory, means the Administrator thereof;

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

From India, Chennai
Dear Eswar,
Thank You for your interest in the case.
But I did not find any solution to it rather than knowing the definition of woman.
Please help me to solve the case.
With Regards,
PraveenKumar Keskar

From India, Bangalore
There is no solution If you have a women emoloyee, they are eligible for maternity benefits Else just don’t employ married woman
From India, Mumbai
The Maternity Benefit Act being a social welfare legislation, even if you will not incorporate such terms in appointment letter still it shall be applicable to eligible women employees. any agreement or contract of service which is against the law of land is void ab initio. So employer can not ascape from his/her liability to give benefit to employees even in absence of such terms in appointment letter.
It does not make any difference between an parmenanet employee or contractual employees in terms of benefit and applicability.
However you did not mentioned in your post whether she has completed the eligibility cretirea of 82 days of continous services in your organisation.


Hi,
Can anyone help me out for this query that In which time period a contractual women can avail the benefit of maternity leave?How many days later she can avail maternity leave after her joining?
Thanks with best regards,
Jyoti bhutt

From India, Bangalore
if she complete 80 days of continous service in an establishment, she will be eligible for Maternity Benefit.

Yeah, whether it is permanent or a contract employee, she has right to claim her maternity benefits...........
From India, Bangalore
Essaykkar, i am little bit adding to your point that criteria for eligibility for availing maternity benefit, is women has to be contributed minimum 70 day in preceding year.
Maternity Benefit is payable to an Insured Woman in the following cases subject to contributory conditions:-
Confinement-payable for a period of 12 weeks (84 days) on production of Form 21 and 23.
Miscarriage or Medical Termination of Pregnancy (MTP)-payable for 6 weeks (42 days) from the date following miscarriage-on the basis of Form 20 and 23.
Sickness arising out of Pregnancy, Confinement, Premature birth-payable for a period not exceeding one month-on the basis of Forms 8, 10 and 9.
In the event of the death of the Insured Woman during confinement leaving behind a child, Maternity Benefit is payable to her nominee on production of Form 24 (B).
Maternity benefit rate is 100% of average daily wages.
Regards,
Vedha

From India, Chennai
The petitioner should read the terms and conditions of the contractual policy of the company in order to know about the benefits and other information to avoid major issues like the one briefed above.
From India, Bengaluru
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