Pan Singh Dangwal
Retired Government Servant/advocate
Asso.prof.(commerce & Management) Pg
Srinath Sai Ram
Shops & Commercial Establishments Act of which State or
is the Employee in question is Covered under ESI Act
Maternity benefit is paid by ESIC or by Employer under The Maternity Benefit Act, 1961
The above information is very much required to answer your query
20th March 2017 From India, New Delhi
I presume the query is related to an estt. situated within Maharashtra. If yes and the estt. is subjected to the Shops & Estt. Act. see what the Bombay S&E Act says about maternity leave -
The Bombay Shops and Establishments Act, 1948 BOMBAY ACT NO. LXXIX OF 194
" [ЗЗ-С. Application of Maternity Benefit Act for women employees in estabIishment.- Notwithstanding anything contained in the Maternity Benefit Act, 1961 (hereinafter in this section referred to as "the said Act"), the State Government may, by notification in the Official Gazette, direct that all or any of the provisions of the said Act or the rules made thereunder shall apply to women employed for wages in all or any of the establishments to which his Act applies, For that purpose, such women employees shall be deemed to be women within the meaning of the said Act. On such application of the provisions of the said Act, аn Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act also within the limits of his jurisdiction.] " XXXXXX.
If this is correct, and the Maternity act is applicable, we shall refer the provisions of MA as well -
The Maternity Benefit Act only talks about how the leave shall be granted and not how any leave related issues should be regulated in the estt. for which one should refer to the leave policy of the said estt. By all means, since the ML is an authorised leave and there is no break in service either, the period of 12 weeks allowable under the MA and availed by a female employee should be counted for computation of EL/PL as for any other leave. Provisions under ESI act is different.
I have not come across anybody's leave policy which prohibits earning leave while on authorised leave, of course excepting while on study leave/extra ordinary leave which does not earn EL/PL credits.
20th March 2017 From India, Bangalore
The employee is not covered under ESI. We have covered her in Group Medical.
You are right Mr Kumar we are situated in Maharashtra and fall under Bombay S&E Act.
Ok I understand that EL should be given while the employee is on ML but once she exhausts her ML and extends her leave availing LWP (leave without pay) for say 3-4 months in that case for the duration while she is on LWP would she be entitled for the EL credit.
Please do share inputs.
21st March 2017 From India, Pune
No she will not entitled for EL. The EL, as the name denotes, first need to be earned than only the employee can avail the leave. However as per company policy you can give all entitled and accumulated leave on a single instance, but if the employee is LWP, as per my opinion he/she is not entitle for leave for that period.
Senior members can put more light on the matter.
21st March 2017 From India, Delhi
It is a debatable issue, Maternity Leave is a paid leave and it is a benefit/privelege given to women, hence Leave under Maternity Benefit can be treated as days worked.
Now after amendment of MB Act the Maternity leave will be 26 weeks, if we do not count maternity leave as worked days then any lady employee availing Maternity leave twice in 5 years of her job in any particular company, she will not be eligible for Gratuity as she will not be working for 240 days during that period.
23rd March 2017 From India, Ahmadabad
23rd March 2017 From India, Kochi
I completely agree the female employee is entitled for accrual of Earned leave while she is on Maternity Leave. My query was just that would she be entitled for the accrual of EL while she has extended her leave essentially as unpaid leave (leave without pay).
Please share your inputs on this particular aspect.
Thanks all for the valuable inputs posted so far.
24th March 2017 From India, Pune
Period of maternity leave is considered as part of continuous service. When considering applicability of continuous service under gratuity act, one has to study provision under that act, and no other act. As for shops act, every state has its own provisions. In most of the states it is based on days 'worked'. In factories act it is based on 'days work performed' - very specific.
25th March 2017 From India, Mumbai
I got feedback from some HR experts and just to share the update. Earned Leave is not given to Employees who are on LOP irrespective of whether it is an extension of Maternity Leave or otherwise.
Hope this information will be useful to the forum.
31st March 2017 From India, Pune