Am I Entitled to Maternity Leave Pay After an Early Delivery and No Written Notice?

Hi, I have been working in a private organization since 10.10.10. My due date was 22.08.11. I had verbally discussed with my employer about proceeding on leave from 01.08.11 but had not provided it in writing. However, unexpectedly, I delivered on 25.07.11. I informed my boss/MD about the same via a teleconference. After 11 weeks, I rejoined and submitted a letter in which I clearly explained the above situation and confirmed the date of rejoining. The issue is that the company did not pay me maternity leave and also removed my name from the attendance register. Is this correct? Please let me know if I am entitled to pay during the leave.

Thanks.

Dear Revathi, I faced the same issue in my past company. They accepted my maternity leave for four months, but they didn't give any written statement, and they didn't accept my rejoining. I was on maternity leave for four months with LOP. I was not interested in rejoining there, so I quit and joined another company. Most employers do not accept maternity leave for female staff; I have heard from my circle that most female staff do not avail maternity leave from their company. Employers are not providing maternity leave. However, as per the act, the employer should provide maternity leave for female staff for at least three months. Regarding payment, it is based on the company policy.

Regards,
Cynthia.

Hi Revathi, As per your statement, you worked until 24.07.11, and the following day the delivery occurred. Is that correct? The Maternity Benefit Act states six weeks before the delivery date and six weeks after the delivery. In your situation, the first part of the six weeks could not be utilized due to the premature delivery. I believe you are only eligible for six weeks after the delivery. Let the experts provide their input.

However, provided proof on health grounds, you are eligible for an additional one month of leave in addition to the six weeks after delivery. Please wait for the legal experts' opinions.

Regards, Pon

Maternity Leave Policy Compliance

Please check the maternity leave policy of your company. No registered company can deny this benefit, as the Maternity Leave Act has been passed by Parliament (see attached file). You can send a legal notice to an employer. This will help female employees at least.

Regards,

Hi, thanks for the replies. I have the following doubts:

1. I had not given any "written" notice before proceeding for leave and joined after 11 weeks. In this case, can I claim maternity leave? My employer considers my absence as uninformed leave.

2. Is it a must to take 6 weeks before delivery leave, or can I take all 12 weeks after delivery?

3. What are the legal options and procedures? Experts, please help me out.

Regards, Revathi

Understanding Section 6 of the Maternity Benefit Act

Section 6 of the Maternity Benefit Act provides for notice of claim of benefit and payments. Sub-clause (3) states, "Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery." So, you can give the notice in writing now, i.e., after the delivery.

Sub-clause (4) states, "On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery." So, you can avail 6 weeks of leave from the day of delivery, not all 12 weeks.

Regards, Swapnil

From your email, it is evident that the premature (early delivery) led to your inability to provide a written notice to the employer. Even though the post-delivery leave is six weeks, you can still claim the benefit for the entire six weeks. However, please note that six weeks can result in Loss of Pay (LOP). I recommend contacting a legal expert for further clarification on this matter.

Please let me know if you need any assistance or have any questions.

Best regards,
Regards

Dear, please check whether you've satisfied the Maternity Benefit Act, 1961 subclause 5(2). No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.

Besides, I'd suggest you talk sensibly to your HR. Hopefully, they'll come up with a peaceful solution.

Regards,
Zakir
Bangladesh

Dear Ms. Revathi,

You are entitled to maternity leave under the Maternity Benefit Act if this Act is applicable to you and the establishment in which you work. If the Act is not applicable to the establishment, then you cannot claim maternity benefits under the M.B. Act. If you are covered by the ESI Act, you cannot claim maternity benefits under this Act. You could give notice of the delivery of the child even after the delivery if the situation is such that you could not have given the notice earlier. As you have not availed any maternity leave prior to the date of delivery, you are entitled to 12 weeks of maternity benefits. The restriction is that you could not have availed maternity benefits for more than six weeks prior to the date of delivery.

What do you really mean by removing your name from the attendance register? Were your services terminated, or are you still in the service of the establishment? This information is required for any further assistance/views if you so desire. What do you propose to do with the refusal of the company to pay maternity benefits? Are you ready to take legal action?

With regards,

Hi Mr. Harikrishnan, I work for an engineering consortium - Consultancy. PF has been paid from March '11. The company maintains a register to submit to the PF office. In this, my name was there up to July '11. From August, my name is not there. When inquired, I was told that since no salary was paid, hence no PF; so my name was removed from the list and also I may not join back to work. My absence from work has been termed as an uninformed leave by HR and hence relieved from services. Though this has not been informed to me either verbally or in writing. I got to know by chance after joining back. Is this considered as termination? I want to know my rights and eligibility for the paid leave before I take it up with HR/management. If refused, I plan to take legal action. Kindly help me in this regard. Thanks in advance.

Understanding Maternity Benefits in India

Reference to The Maternity Benefit Act, A.P. Shops & Establishment Act, The Factories Act, and The ESI Act, every employer is bound to provide maternity benefits, including paying three months' salary to any female employee who wishes to avail of this benefit. Either the ESI Act or The Maternity Benefit Act shall apply in any case where any female employee is working in shops, commercial establishments, or factories. Maternity benefit is mandatory for any female employee. During maternity, no female employee shall be removed from service once an employee has conceived.

Contact: Mohanrao - [Phone Number Removed For Privacy Reasons].

Dear Ms. Revathy, Please inform me whether you have documents to establish the employer-employee relationship, such as an appointment order, salary slip, or slip issued by the PF officials. How was your salary disbursed? Please also inform me whether the premises where you worked were inspected by the Inspector of Factories or the Inspector/Deputy Inspector/Assistant Inspector of Labour. This information is necessary for my further views.

With regards,

To establish my employer-employee relationship, I have an appointment letter, a PF number, and my salary is credited directly to my bank account by the company. I also have payslips for the past three months. The attendance register has my name listed up to July '11. I am not aware if the company has been inspected by labor officials (HR says we are not covered by the labor office).

Maternity Leave Concern

My prime concern is that since I proceeded on maternity leave without providing any "written" information to the employer, does it render me ineligible for maternity leave? This is the basis on which my company has not paid me and removed my name from the list.

Kindly help.

Regards,
Revathi

Clarification on Maternity Benefit Act Compliance

This point has been answered by another member in this thread. According to the provisions of Section 6(3) of the Maternity Benefit Act, any woman who has not given notice when she was pregnant may give such notice as soon as possible after delivery. Therefore, it is sufficient compliance with the provisions relating to giving notice of pregnancy if the required notice is given after delivery if not done before delivery.

Once your establishment is covered by EPF, I wonder how they say that labor law is not applicable. My surmise, based on the information so far furnished by you, is that the establishment in which you work is covered by the provisions of the Tamil Nadu Shops and Establishments Act, subject, of course, to the place in which it is located. Because the Tamil Nadu Shops and Establishments Act is not applicable to certain areas in Tamil Nadu.

If the TNSE Act is applicable to your establishment, then the Maternity Benefit Act is applicable, and you are entitled to get the benefit. If you could give all the information touched upon by me in this thread without making me surmise and conjecture, I could have given you a perfect answer to the query made by you. Even now, my views are based on surmises and conjectures.

With regards,

Dear Revathi, It would be better to share more relevant information to suggest keeping legal aspects in mind when dealing with your employer. Please let me know the following:

1. Where are you working and what is your designation?
2. What is the nature of the business of your establishment?
3. How many employees are there in your organization, including yourself?
4. What are the coverages like ESI, PF, Shops & Establishment, or what statutory contributions are reflected in your payslip that you have paid?
5. When did you inform your employer about your maternity, and do you have any proof of this?
6. Have you received your full and final settlement copy or any letter regarding the removal of your name from the list? What type of attendance record did you follow during your normal working hours to confirm this?

Warm regards, Mohanrao M [Phone Number Removed For Privacy Reasons]

Response to Mr. Mohan's Questions

1. Current Employment and Designation
Reply: I work at Engineering Consortium as a project manager.

2. Nature of Business
Reply: Our business involves design and construction site project management.

3. Number of Employees
Reply: 30+

4. Statutory Contributions and Coverages
Reply: PF is paid.

5. Maternity Intimation to Employer
Reply: I had only verbal discussions, not in writing. I provided a rejoining letter in writing.

6. Full and Final Settlement and Attendance Record
Reply: There was no intimation of removal from the list. My name was removed from the attendance list submitted to the PF office (they didn't mention the name and put 'L' against it).

Dear Revathi, please send some additional information.

1. Where are you working, i.e., where is your office located? (Required exact location of your attending office)
2. What is your current employment status, and are you attending the same office?
3. In case you are in the current establishment, have you received any salary after your rejoining?

Warm regards,
Mohanrao

Well, after the replies from all, especially Mr. Hari and Mr. Mohan, I asked my HR person about the issue. I received a reply that since it was a "partnership" concern, the rule doesn't apply. However, the Form Q for the Establishment Act is being followed (from which my name is removed). HR says they are acting in accordance with the rules. They indirectly indicated that I may be terminated if I raise an issue about this. I can't risk losing the job. Well, I'm stuck.

Regards,
Revathi

I sincerely empathize with your current predicament. Drawing from my own experience, I foresaw the unfolding of this situation. I chose not to express these thoughts to you earlier, as I believed it might dishearten you or even provoke anger. This case serves as yet another illustration of the shortcomings of Indian labor laws.

With regards,

Thank you for your reply. I am looking for a better job and plan to quit in a few months. Is it okay if I ask for the maternity leave salary as part of the final settlement when leaving? Is there a time limit for claiming this benefit? Can the company hold back my settlements due to this? Please help.

Regards,
Revathi

Have you given notice of the delivery? If not, please do so now. There is no time limit for claiming maternity benefits, but please ensure to issue the notice. You may also request the inclusion of maternity benefits in the final settlement. If the employer does not agree to the request, you can file a complaint with the relevant inspector after leaving the company. The inspector is obligated to take action on it.

Regards,

Further to our earlier discussions, I have received an offer from another company. According to the appointment letter, I am required to give one month's notice, so I submitted my resignation letter. However, the company released me after just two days, leaving me jobless for three weeks in between without pay.

I did not receive any salary for the last month of service as I had submitted my resignation before the salary deposit date. Additionally, they have refused to provide maternity leave pay, citing that it is a "partnership" concern and therefore exempt from such rules.

As I am eager to leave the company now, please advise if I can take legal action and whether I should communicate my intention to do so to the company.

Please advise.

Regards,
Revathi

Could you please help me with the query if the Maternity Act is applicable to a partnership concern?

Regards,
Revathi D

Applicability of the Maternity Benefit Act

"Partnership" is a form of ownership like "proprietorship," "private limited company," and "public limited company." The applicability of the Maternity Benefit Act is not dependent on the form of ownership of the establishment. It depends on whether the establishment is listed in section 2(1) of the Maternity Benefit Act. The Act applies to a factory, mine, or a plantation. It also applies to a shop or establishment in which ten or more persons were employed on any day during the preceding twelve calendar months. Therefore, if the conditions of applicability as stated above are satisfied in the case of the establishment in which you worked, then the Maternity Benefit Act is applicable.

With regards,