Harsh Kumar Mehta
Consultant In Labour Laws/hr
Retired Government Servant/advocate
Interview Skills Guide
Manager - Hr
2. Kindly also intimate whether it was a pre-condition of employment that no woman employee should be pregnant at the time of joining her employment in your organisation ?. If so, whether such terms and conditions is communicated in writing to woman employees in your organisation before her joining ? So far as I understand, there is no such pre-condition in the Act as mentioned above.
14th March 2016 From India, Noida
15th March 2016 From United States, New York
5(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery:
True construction of the provision is that any woman employee who has worked for period of 80 days during the preceding twelve months is entitled for the benefit. The provision is that 80 days of employment need not be continuous, but could be spread over a period twelve months in different spells. It could as well be that she has joined just 80 days before her date of delivery.
6. Notice of claim for maternity benefit and payment thereof
(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominat6 in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
1[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.]
(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.
The provision is unambiguous. The notice could be given even after the delivery. And in exceptional cases, maternity benefit could availed of even if if she has failed to give notice. As such, it is no consequence if she has not informed of her pregnancy at the time of selection.
The answers are quite elementary if the provisions of the Act are read as a whole.
16th March 2016 From India, Kochi