Saswatabanerjee
Partner - Risk Management
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Riteshmaity
Labour Law Advocate
+1 Other

Thread Started by #Anonymous

Hi,
One of my friend works in a project based pvt Ltd company. Depending on the projects the employees are recruited. At some point the employees are 15 and at some point the employees are are only 7. My friend has been working in the organisation from past 7 years. My query is
1. Can my friend claim the maternity benefit? Can she demand the benefit when the number of employees is only 8 now?
2. Since her salary is more than 35k per month, she does not come under any govt benefits which companies offer like esic, pf etc.
3. If my friend resigns can she claim gratuity as she worked for 7 years when the no. of employees is only 8 from past 12 months?
4. If the company refuses can she demand gratuity?
Please advise.
13th September 2016 From India, Mumbai
1. Maternity Benefit Act will be applicable to organization which employed 10 or more employees during preceding twelve months. Current number of employees is immaterial.
2. Currently ESI Act is applicable upto a salary ceiling of Rs.15,000/- so you can not come under the purview of ESI Act.
Regarding PF, the salary ceiling is also Rs.15000/- but this Act allows voluntary coverage unlike ESI Act. So if your company has deducted PF from your salary then you are entitled to get PF, otherwise not considering your present salary as well as number of employees (which is below 20).
3. She can claim gratuity.
4. If she resigns then she has to send FORM I to the company demanding gratuity. If company fails then dispute/ case has to be filed in FORM N before the controlling authority.
13th September 2016 From India, Kolkata
#Anonymous
Thanks Sir, for your valuable inputs.
With regards point no.3 there seems still some confusion. In search of other posts in this forum we found that gratuity is also payable only by companies having 10 or more employees preceding 12 months. Which means if my friend's company had only 8 employees since July 2015 and my friend resigns in September 2016 she cannot claim? Can you please advise if there is any such rule in gratuity as well. thanks
14th September 2016 From India, Mumbai
It is known from your information, that the strength varies from 7 persons to 15 persons in your company.
As 10 or more persons are working, you can claim the Maternity Benefit and if you leave the company after 5 years of service, you can also claim for Gratuity. You are fully eligible for these benefits.
18th September 2016 From India, Hyderabad
#Anonymous
Thank you very much RiteshMaity Sir and D. Gurumuthy sir and appreciate your response. I shall inform my friend to claim as advised by you both.
19th September 2016 From India, Mumbai
Maternity benifit is applicable to all women employees, irrespective of how many employees were working in that organisation. Gratuity, on the other hand is applicable only to establishments with 10 or more employees (yes, counted for the previous 12 months)
So, your friend will be eligible for maternity benifit but not for gratuity
25th September 2016 From India, Mumbai
Dear Saswata ji,
I am producing below section 2 of MB Act verbatim for your reading with a request to correct yourself.
"2. Application of Act
4[(1) It applies, in the first instance-
(a) to every establishment being a factory, mine or plantation including any such establishment belonging to government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]
PROVIDED that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.
(2) 5[Save as otherwise provided in 6[sections 5A and 5B] nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being."
25th September 2016 From India, Mumbai
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