Navigating Maternity Benefits: Is It ESIC or the Company's Responsibility for My Wife's Leave?

My wife is working in a private limited company. She is getting 12000/- net after cutting P.F & P.T. She has been working for 5 years. Two years back, she received an increment in her salary from 9500/- to 12000/- and is not covered under ESIC. However, the ESIC limit has now changed from 10000/- to 15000/-.

My question is whether she can receive Maternity Benefits from ESIC as she is 5 months pregnant and planning to go on maternity leave from October 2010. I am unsure because I have heard that ESIC benefits will only be applicable from February 2011. ESIC has been deducting from her salary since May 2010.

Who is responsible for providing her with a 3-month leave and salary – ESIC or the company?

When I asked the company HR regarding this matter, they said the company has no responsibility toward paid salary. They can only give a 3-month leave as she is under ESIC preview. They will try to get benefits from ESIC but not from the company.

For those who are not covered under ESI and for those who are not eligible for the benefit under ESI, the employer is liable to pay the Maternity Benefit under the provisions of the State Maternity Benefit Act, 1961. The relevant provisions of Section 5A and 5B are reproduced below. If the employer refuses to pay, the matter can be brought to the notice of the Inspector of Factories/Labour Commissioner for redressal.

Extracts from the Maternity Benefit Act:

5A. Continuance of payment of maternity benefit in certain cases - Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees' State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.

5B. Payment of maternity benefit in certain cases - Every woman:
(a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply;
(b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and
(c) who fulfills the conditions specified in subsection (2) of section 5, shall be entitled to the payment of maternity benefit under this Act.