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Madhu.T.KCompany can have a different Maternity leave Policy but it should not be inferior to that of the official Maternity Benefit Act. Therefore, denying maternity benefits or paying less than what is stipulated in the Act is not fair and also illegal. Appointment order need not speak about general policies which are applied by statutory enactments and therefore, even if the appointment order is silent about maternity benefits, the benefits should be given to eligible employee. It will be more correct to say that even if the appointment order clearly says that you will be paid only basic salary of three months as maternity benefit and or you will be asked to resign from the job if you take maternity leave, the same will not be maintainable because contracting out is not permitted under labour laws. As such you cannot have an agreement saying that the employee will not be paid maternity benefit or gratuity, bonus etc.
If there is denial of benefits you can approach the Labour Officer and get justice. You can also say that you were forced to resign which will again be a charge against the company.
From India, Kannur
HRsvarunThanks for the clarification Madhu. I would confirm a few more things.
1. is the pay full pay and not basic pay alone. she was not provided any payslip and the only documentary proof of salary is the Bank account statement. Is it valid?
2. maternity benefit doesnt need the employee to join back, does it?
3. can i take legal action, in case the company gives a bad report along with her re-leaving, as they have asked her to resign.
4. is email from the company hr legally valid proof if i approach the legal officer.
5. does the fact that the company is not registered under ESI or for EPF, change any of the maternity benefits or payment amount
Thanks for the fast n helpful response.
Dear Mrugen.vyas. Maternity leaves can only be availed after 6 months of joining date. - are you sure this is valid, coz as per what i read in the maternity benefit act 1961, the employee should have completed only 80 days, not 6 months.
From India, Mumbai
Madhu.T.KEmployer is expected to issue salary slips every month and if the company has not given it, it is yet another charge against the company. You can say that the amount deposited in the bank is not whole salary but leaves only basic wages. Remember that salary for leave days need not necessarily include reimbursements and such payments which are paid proportionate to attendance in the office, like, lunch/ meals allowance, transport/ conveyance allowance etc.
Maternity leave is considered as usual leave days and the payment for the month is made every month and not like that it is paid once the employee joins back office.
You can take legal action, no doubt, but what makes all to abstain from legal action is the worry about career and in IT, especially, the chances of being blacklisted is very simple for the employer. Therefore, before initiating legal action just think twice. In fact I should not advise that you should not move against the employer, but should encourage those who comes to fight against injustice. Therefore, you may first collect your service certificate and relieving order and then think of any action against the company.
Labour department officials do not have judicial powers but they will only call the employer and ask for a compromise and settle the issue and in that process whatever you produce is the evidence whether it is email or written statements, it will be accepted. Even in court emails will also be taken as evidence when the company itself has no hard forms of communications. Most of the new generation companies communicate only through emails and there is hardly any hard copy of such communications and if the same is accepted by the company, how can the company refuse to accept email communication of an aggrieved employee only?
The fact that the company employs more than what is required for coverage under the ESI Act or EPF Act itself is a proof that the company has no right to exist. If the employee has been drawing less than 15000 per month by way of salary, naturally she would have got the benefits from the ESI Corporation but having not registered under ESI, the company has to give it following the Maternity Benefit Act.
From India, Kannur
varghesemathewMr Mrugen.vyas, Please understand that there is no law to the effect that maternity leave should be availed after six month’s service. Varghese Mathew HR/Labor Law Adviser 09961266966
From India, Thiruvananthapuram
HRsvarunDear Madhu, She was asked to submit resignation within next 2 days. I would like to know if i will be able to approach the labour officer after she submit the resignation and get relieved.
From India, Mumbai
Madhu.T.KYes, provided you can establish that it was a forced resignation. Forced resignation shall be viewed as an unfair labour practice from the side of employer Madhu.T.K
From India, Kannur
Thanks for the clear advice. I would like to update you on the sequence of events, in case, it would prove beneficial to any fellow members.
My wife was relieved from the office a day after the this. She was refused any other docs other than a standard relieving certificate with date of joining and relieving and a Pay slip that they managed to setup. Further calls to the company were not answered by the HR or MD and we were told that they didnt have the 'time to waste' in this matter.
So, I took up this matter with the Labor officer. My wife and I approached him with all documentary proof like bank statement of the amount deposited by the company, hard copy of all email communications with the company. The labor officer was quite understanding and after listening to all we had to say, asked us to give a written request to the Assistant Labor officer explaining the matter. We explained in the letter the details of amount paid and attached a copy of Pay Slip given at the time she was relieved. We gave the request and were informed that we would be informed of any update. Within a week, we received a call from the labor officer and he informed us that he had visited the company to collect details and check if the information we had furnished was correct. He also informed us that he will contact us for any updates in this matter.
He followed up the case and kept us informed periodically of the updates. Finally, we were asked to meet him on a date and were informed that the settlement would be done on that day. We were also informed that the company officials would be present at that time. We went there and met the labor officer on time. The company HR arrived half an hour late and we were asked to come in together to discuss the matter. The labor officer asked the company HR to provide full 12 weeks FULL payment and informed them that the policy they are following is legally invalid and Company can have a different Maternity leave Policy but it should not be inferior to that of the official Maternity Benefit Act, as Mr. Madhu said in this thread. The HR gave us the cheque and we were asked to give a written letter stating the issue has been solved and we have no more issue. and the case was closed.
Thanks to all the great helpers out here at cite hr, we were able to win this battle. Thanks to you, more people would be benefited, and people would not be cheated off their rights!
From India, Mumbai