Umakanthan53
Labour Law & Hr Consultant

Sir/Madam, Can a pregnant woman be replaced (not retrench) by any other contract labour in a service contract? if no, then in a service contract if a work is to be performed with 10 nos. manpower than how it be possible with 09 manpower? What is the remedy for the principal employer?
From India, Faridabad
If the pregnant woman is the employee of the contractor and proceeds on maternity leave, the principal employer is entitled to get it replaced by another employee of the contractor. The contractor is liable to extend maternity benefits to his employee.
From India, Faridabad
Very good morning Mittal sir, generally problem arises in petty contractors, they are saying that is principal employer not paying them then how they will give them the wages . In that case there is always a chance to get rid of that female employee by the small contractor. Grievance/ complaint may be arises which may lead to legal complications.
From India, Faridabad
Dear Shyam,

Before arriving at the answer for your query regarding who is liable to give maternity benefit under the Maternity Benefit Act,1961 to a contract labor, whether the principal employer or the contractor, one has to look into the definitions of the terms "maternity benefit", "woman" u/s 3 (h) and 3 (o) of the MB Act,1961 respectively in conjunction with the restrictions on employment imposed u/s 4 and other benefits provided for under sections 8,9,9-A, 10,11 and 13 and take a decision in totality of the actual meaning and purpose of all the sections.

If analyzed in this back drop, by virtue of the definition u/s 3(o),

Firstly, a woman contract labor also becomes entitled to all the maternity benefits contemplated under the MBA,1961, had she worked in the establishment for a minimum period of 80 days in the 12 months period preceding the date of her expected delivery,

Secondly, she also becomes entitled to claim the benefits of the restrictions on working conditions including nursing breaks,

Thirdly, in case of application of the ESI Act,1948 to the employee, the liability u/s 40 of the Act to pay the contributions in the first instance on the principal employer and

Fourthly, all the above put together fasten the vicarious liability imposed u/s 21 (4) of the CLRA Act,1970 on the principal employer to pay the maternity benefit to a female contract labor.

Finally, the resultant inconvenience caused to the principal employer or the contractor mentioned in the post pales into insignificance as the costs of these statutory benefits and the alternative arrangement to ensure the continuous flow of the contract work automatically merge with the entire cost of contract.

Therefore, both the principal employer and the contractor shall have the insight and foresight to include such statutory contingencies in their contract for service.

From India, Salem
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