Earned Leave While On Meternity Leave

If an employee is in maternity leave for 84 days, covered under ESI. How ELs will be calculated, does ML 84 days can be considered as working days?

Dear Kishore,
ML should be calculated as a working day for calculating as a working day.
Regards
Praveen

For the purpose of arriving 240 days you can consider the Maternity leave but no employee will get earned leave on the maternity leave.
Ex:
An employee worked for 160 days in that particular year and as per the act a minimum of 240 days needs to be worked for the eligibility of earned leave hence 160 days actual working days + 84 days maternity leave makes the employees eligible for earned leave but the employee gets only 8 days earned leave ( 160 days / 20 = 1 earned leave for every 20 working days).
Regards - kamesh

Dear kishore
The period of maternity leave is treated as the period of permitted absence with wages and can be treated as part of contunuous service(working days) for various benefits like gratuity,P.F,ESI and as Mr Kamesh said, for computing 240 days to be eligible for earned leave but not count for computing earned leave thereon or for computing 240 days under the I.D Act 1947 to determine eligibility for retrenchment compensation.
B.Saikumar
HR & Labour Law advisor
Mumbai.
09930532927.

Dear Saiseven,
Even iF an employee is with permitted absence in maternity leave with out paying wages for 84days how we can consider it as a working day if do not pay her wages, as the employee convered under ESI the payment of her wages is routed by ESI.

It is mentioned in the ESI act that " No work for remuneration should be taken up during the period for which maternity benefit is being or is to be claimed. notice of resumption of work must be sent before any work is taken up"

Dear Saikishore

What I have said is that the period of maternity leave will form part of the "contnuous service " for various benfits like gratuity or leave or retrenchment compensation or P.F or ESI etc, there by meaning that it cannot be treated as "break-in- service" for the above purposes. I put the word "working days" in bracket looking to the context in which your query was discussed.To understand as to how it is treated as working day for the purposes of leave, gratuity or retrenchment compensation, one needs to go through the relevant provisions of law under relevant Acts.

If you go through Sec.79 of the Factories Act 1948 or Sec.25-B of the Industrial Disputes Act 1947 or Sec. 2-A of the Payment of Gratuity Act 1972, they, in very unambiguous terms, laid down that the period of maternity leave not exceeding 12 weeks availed by a female employee or a workman shall be deemed to be the days on which she has worked in a factory or establishment irrespective whether the employer paid her the wages or the ESIC paid the maternity benefit.This mandate is despite the fact that Maternity Benefit Act or ESI Act prohibited her from working during the period of maternity leave.Thus the relevant laws being welfare legislations, created a fiction of "working days" for the period of maternity leave so as to protect her rights to benefits like eligibility for leave or retrenchment compensation or gratuity. It is in this context the word"working days" needs to be understood but not from the narrow perspective that the female employee is not receiving wages from the employer.

Trust this would clarify the issue.

B.Saikumar

HR & Labour Law Advisor

Mumbai

09930532927