Every day of absence from work for which salary /wages is statutorily payable to the employee concerned should be treated as the day actually worked by him /her.
Holiday, leave and weekly off are terms of similar meaning as long as salary /wages are payable. Therefore, entitlement to wages is the basis for notionally treating such days of absence as the days actually worked by the employee for the purpose of computing a particular stretch of period during which such days fall as continuous service for claiming maternity benefit under the Maternity Benefit Act, 1961.
However, position is different in respect of computing "continuous service" u/s 2-A of the Payment of Gratuity Act, 1972 where the emphasis is more on the treatment of absence as provided for in the Service Regulations of the establishment rather than wages for it.
10th December 2018 From India, Salem
received email from ESIC :- Dear Sir(s),
The above named employee of your factory has submitted a certificate
of Form10 for the period
01/02/2018 to 01/08/2018 and has declared that he/she has not worked on any
day during the above period.
He/She has further declared that he/she has not received wages as defined
under section 2(22) of ESI Act, 1948 for any leave holiday/weekly off/Lay
off and strike in respect of any day during the above period and that he/she
was on strike on any day during the above period.
I shall be grateful if you confirm the exact position, in this regard,
on the form appended within ten days of the receipt of this Form.
Please guide me what will happen in this caes ? what i have to do ?
14th December 2018 From India, Pune
You were on maternity leave from February,2018 to July,2018. But you were required to work from home during that period for which your employer paid the salary. Therefore strictly speaking, you were not on leave at all. Then how can you claim benefit under the ESI Scheme?
Both your employer and yourself have acted in gross violation of the provisions of S.4 of the Maternity Benefit Act,1961.
Besides, you claim being considered as a false claim you incur the risk of being prosecuted u/s 84 of the ESI Act,1948.
Better withdraw your claim immediately. I don't know how the HR could have advised the management to do such things!
14th December 2018 From India, Salem