Umakanthan53
Labour Law & Hr Consultant
+1 Other

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Hi , My employer says that I am not eligible for maternity leaves because I am not working in there firm from past 2.5 years. But as per my knowledge, to avail the benefits under maternity benefit Act 2017, a woman should have been working in a particular establishment for a period of at least eighty days in the past twelve months. I joined there firm on 27th march 2017 & I found about my pregnancy on 24th Aug 2018 ( 17 working months till date) and I took my maternity leaves from 1 April 2019 (25 working months till date) (my delivery date was 30th April 2019) .
There firm is a proprietorship and there are 10 working employees including Pantry boy & Driver & Site supervisors (I didnít include my 2 bosses who are the owner of the company). Although They gave me 6 months leave (3 Paid & 3 Unpaid). Now the Thing is I joined the office after completion of my 6 months leave, but after 4months of joining my mother in law got sick (because she is on insulin and due to work load she was not able to take care of herself) & then I realize that I have to leave job to take care of my family. But my employer deduct my one month salary as a compensate of maternity benefit. They said that itís too early to resign and you were not eligible for maternity benefit but still in a good relationship we gave you 3 months paid maternity leaves. So basically I want to know that, Are they right? I was not eligible or I have to compensate one month salary.

From the details given by the poster about the length of her service in the establishment prior to her actual date of delivery and the no. of employees in the establishment on the very date of the commencement of her maternity leave, as it is, clearly indicate her eligibility for statutory maternity benefit and the applicability of the Maternity Benefit Act,1961 to the establishment. Having said so, at the same time, it is also not clear to me from the narrative that on what legal ground the employer holds that she was not entitled to maternity benefit despite after sanctioning three months of maternity leave and another three months of leave without salary. Had there been any mention about the type of the establishment and its activities in the post, it would have been possible to come to a clear-cut conclusion either way. Similarly, the post is silent whether she still remains in service after submitting her formal resignation, if any and whether there is any notice clause in her contract of employment. Therefore, further clarification is essential from the poster to give an exact answer to her query.
Thank you so much Sir for your reply. It is an Architectural & Interior Consultancy firm which is registered as a proprietorship firm. Also there is no contract which I signed for such conditions. Even I didn't receive any appointment letter.
Sir, they are not registered with ESI & EPFO.
Madam,
If all the particulars furnished in your posts are correct, your entitlement to maternity benefit as revised in 2017 w.e.f 01-04-2017 cannot be disputed by your employer nor his move to deduct one month's salary as compensation is legal. In addition, you are also entitled to medical bonus u/s 8 of the MB Act,1961.
You can prefer an appeal u/s 12(2)(b) of the Act to the inspector under the Act for the area for the recovery of full maternity benefit from the employer within 60 days from the date of his refusal.

The employer may be thinking that their firm is not a shop or commercial establishments within the meaning of it under sec 2 (1) of MB Act.
Kerala HC had held that Architectural firms are shops for applying ESI Act.
Check whether the concerned state govt have notified such establishment under the proviso to sec 2(1) of the Act.
Varghese Mathew
9961266966
Tvm

Thank you again Sir. I will surely take the right action.
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