Umakanthan53
Labour Law & Hr Consultant
Alka Kashyap
Sr. Hr & Admin Executive

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Hye, i would like to share a issue and expecting favorable reply.

One female employee is working since 3 years, in establishment where employees strength are only 8. In this year 2020, she got pregnant and inform verbally to the HR dept about her pregnancy. HR dept asked to submit the leave application with proper handover in the month of January or February so that if there any provision of maternity benefit to her it will be told to her that time only. because before that, company has never given any maternity benefit to any employee. she didnt submit her leave application and didnt handover anything, meanwhile lockdown has started from 23rd march, and as she asked by the hr dept about the date of delivery in the lockdown period which she never shared to the organisation before the lockdown. d.o.d will be 10th may as she replied.

Our industry is directly connected with Hospitality sector, which is worst affected from this travel bans and worldwide lockdown. we have given march 20 full salary, in april we told her to apply the leave atleast, she send the email the leave i.e., 03rd April 20 to 01st August 20.

during the lockdown period, i told her through conversation that, maternity benefit will not be given as company donot have enough funds so it will be decided when you join back. and our establishment does not falls under the ambit of the Maternity Benefit Act.

We didnt disburse her April salary for which she is sending email about her salary, i told her that her applied leave has considered as unpaid leave. and the rules which is framed to be followed in the maternity benefit and she didnt follow any rules she didnt submit any pregnancy report to the organisation and not even the date of deilivery on which basis we give her maternity benefit and she never did any work from home during the leave. but she is not able to understand and asking about her april salary. Kindly share your views.

From India, Chandigarh
Dear Alka,
The answer is very simple. Your establishment is certainly not a factory or mine or plantation as per section 2 (1)(a) of the Maternity Benefit Act,1961 and as such the Act is not applicable. Alternatively it should be an establishment falling under section 2 (1)(b) of the Act employing either now or in the preceding 12 months 10 or more no of employees. However, you have mentioned that the total no of employees in the establishment is only 8.
(1)If your statement is correct in respect of the no of all persons employed as of now and of the past also, certainly you are not bound to entertain any claim under the Act.
(2) Hence the leave applied for has to be treated as Leave on Loss of Pay only.

From India, Salem
What happened if women employee has taken full amount/benefit of maternity and not joined the organisation after the completing of maternity leave.
From India, Chandigarh
thanks for the replying sir, i want to ask, What happened if women employee has taken full amount/benefit of maternity and not joined the organisation after the completing of maternity leave.
From India, Chandigarh
Dear Alka,
Maternity benefits contemplated under the MBA, 1961 include mostly leave of absence with wages for certain no of days based on the reasons/stages associated with the pregnancy/delivery of child of an employed woman. As the eligibility for all such things arises from her certain length of minimum service in the establishment only, the employer can take suitable disciplinary action against her failure to rejoin duty without any intimation like anyother case of unauthorised absence and award appropriate punishment including termination of service as he deems fit.
Coming to your question, well, one can easily understand its import. Sorry, you cannot rescind the leave already granted or recover any money already paid for her subsequent unauthorised absence, if any.

From India, Salem
thanks sir for the reply, with regards Alka Kashyap
From India, Chandigarh
hello sir,
how are you sir, refer to above threads regarding the unpaid leave issue, now that employee email the extension of leave for 2months more in continuing to previous leave period. she is sending email and claiming the maternity leave period salary since April to July 2020 and she is going to take legal action against the company.
Our management dont want to continue her as there is no lot of work on her profile.
please suggest can we send the termination letter on responding to the leave extension email.
please suggest.

From India, Chandigarh
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