Humairaz
I have joined a private organisation on September 8th 2017. I have completed 6 months probation on March 8 2018, but I dint get confirmation letter. My delivery date is June 1 2018. I am planning to take maternity leave from 3rd week of may.Am I eligible to avail maternity leave??
From India, Chennai
PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Umakanthan53
Labour Law & Hr Consultant
Harsh Kumar Mehta
Consultant In Labour Laws/hr
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber

Harsh Kumar Mehta
921

1.Dear member, you have not intimated whether you want to avail maternity benefit under the Maternity Benefit Act, 1961 (being not covered under ESI Act, 1948) or under ESI Act, 1948 (if covered).
2. Eligibility to claim maternity benefit do not depend upon whether a female employee is under probation or temporary or not confirmed. Under MBA, 1961 it depend upon the period of service rendered in a covered organisation and under ESI Act, 1948 the eligibility depend upon contribution paid for a minimum number of days as mentioned in said Acts.

From India, Noida
Humairaz
Sir , I have informed about my maternity plan but the HR people saying that as I have joined the organisation recently 6 months and taking maternity leave will be difficult. I wanted to know as per the law am I eligible to take maternity leave in may month ??. So that I can explain them and apply for the leave.Kindly guide me here.
From India, Chennai
korgaonkar k a
2554

Dear Queriest,
Please refer the Section 5(2) of Maternity Benefit Act 1961 which is given verbatim as under:
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.
In your case, you joined your organisation on 08.09.2017. Your expected date of delivery is 01.06.2018.
Your case seems to me is not a chronic absenteeism and you must have certainly worked for more than 80 days. Therefore you are entitled to maternity benefit under the Act.
You are on probation is not a criteria to refuse the benefit to you.
Your employer / your HR may not be aware of the provisions of the Law.

From India, Mumbai
Humairaz
Can I avail 100% wages during my maternity leave or they will give only basic salary??
From India, Chennai
korgaonkar k a
2554

Dear Queriest,
The section 5 which deals with right to payment of MB says that women is entitled to MB at the rate of avg. daily wage. Section 2(n) define Wages means all remuneration paid monthly.
Hope you will get correct answer from above sections.

From India, Mumbai
korgaonkar k a
2554

Dear Friends,
Women is entitled to maternity Benefit if she work for 80 days in 12 months immediately preceding the date of delivery, as I said earlier.
This 80 days can be completed in 3 months also. But there is a condition of 80 days in 12 months.
That means in my view, one has to complete one year and work for 80 days in that year.
Is it so? It's an interpretation by me.
Can any one enlighten on this?

From India, Mumbai
umakanthan53
5959

Thank you Mr.Korgaonkar for drawing my attention to the thread. At the same time, I am also very sorry for my inordinately delayed response.
Well; your interpretation of sec.5(2) of the Maternity Benefit Act,1961 seems to be based on two presuppositions viz., (1)subsisting employment of the woman in the same establishment for a period of 12 months immediately preceding the date of her expected delivery and (2) rendering a qualifying service of not less than 80 days in the 12 months of her employment in the establishment.
Sorry, I beg to differ with your above interpretation. As the entitlement to maternity benefit under the Act has to be reckoned with from the date of expected delivery only, it is actually a calculation in backward stride and for that purpose the Statute furnishes a unit of measure of 12 months period preceding the date of expected delivery and imposes 80 actually worked days as qualifying service within that unit of measure for the entitlement of maternity benefit. As you rightly observed, 80 days can be completed even at a stretch during 3 months of one's employment in the same establishment;even it can be of broken spells due to the reasons mentioned in the explanation to the sub-section. Logically, therefore, the emphasis is on the completion of the qualifying service of 80 days, may be at a stretch or otherwise, immediately preceding the date of expected delivery and not on the unit of measure of 12 months. It is immaterial whether the claimant happens to be in the employment of the establishment for the entire 12 months preceding the date of her expected delivery.
My interpretation is based on the ratio decidendi of the Supreme Court in Ramakrishna Ramnath v. Labor Court [1970 LLJ (2) 306] and Surendrakumar Verma v. C.G.I.T -cum-Labor Court, NewDelhi [1981(1)LLJ 386] on continuous service u/s 25B of the I.D Act,1947.

From India, Salem

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