Maternity Leave and Privilege Leave: Should Contract Employees Get PL for Leave Period?

I am working in a Pvt Ltd company where some employees are on a contract basis. One of the contract employees went on maternity leave from 1st August 2011 to 30th September 2011. She claimed ESIC for maternity benefits and received the ESIC claim as well. During the privilege leave calculation, we omitted these two months as she was absent. The employee has requested PL for these two months. Could you please help me decide whether she will be entitled to PL for these two months when she was on maternity leave?

Regards,

For the purpose of calculating leave that will accrue in a calendar year to an employee based on the days she worked, I am of the view that the maternity leave enjoyed by her during the relevant calendar year shall not be taken into consideration.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai
[Phone Number Removed For Privacy Reasons]

No leave will be calculated for the maternity leave period. You can refer to Section 79 of the Factories Act, Explanation 1, where it is clearly written that no computation will be made for the maternity period.

The issue is not whether PL can be adjusted against or substituted for maternity leave. The issue is whether the period for which the woman employee was granted maternity leave should be added to other days on which she was present on duty during the calendar year for the limited purpose of calculating the number of days of PL that would accrue to her during the calendar year. It cannot be added as per the provisions of the Factories Act, as Mr. Malk explained. Even if the establishment is not a factory, it cannot be added going by the spirit of the provisions of the Shops Act unless any Shop Act specifically includes it. So far as the Bombay Shops Establishments Act is concerned, it does not specifically include the period of leave for the purpose of deciding PL eligibility.

Regards,
B. Saikumar HR & Labour Law Advisor Mumbai

Mandatory Salary Payment During Maternity Leave

Is it mandatory for an establishment to pay a salary to an employee (not covered under ESIC) who is on maternity leave? How many days' salary should be paid if mandatory, and under which rule?

Thanks & regards,
Meena

As she has availed Maternity Leave from ESI and received benefits, the Earned Leave (EL) cannot be sanctioned for the same leave period. However, she can surrender leave days from her credit and potentially receive EL encashment if approved by the Management.

Regards,
D. Gurumurthy
H.R. & I R Consultant.

As per the act, an employee has to work for 240 days in the previous calendar year to be eligible to earn leave. If he/she has crossed 240 days, then one day is earned for every 20 days worked.

For the calculation of the 240 days, you can include the maternity leave period. However, when calculating earned leave, which is 1 day for every 20 days worked, there is no need to consider the maternity period.

Please correct me if I am wrong.

Regards,
S. Ram Kumar

An employee who has worked for a period of not less than 180 days in the last twelve months will be provided with maternity leave of 12 weeks with salary. Hope I answered your query.

Regards,
Kannan R
[Phone Number Removed For Privacy Reasons]

Mr. JS Malik's interpretation is wrong. You need to take 12 weeks of maternity benefit into consideration when calculating leave:

ANNUAL LEAVE WITH WAGES

Explanation 1: For the purpose of this sub-section:
(a) Any days of layoff, by agreement or contract or as permissible under the standing orders;
(b) In the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and

In terms of the explanation to sec. 79, the period of maternity leave is to be included only for the purpose of computing 240 days to determine the eligibility of an employee to avail annual leave but not for determining the leave that is actually earned by a worker during the calendar year. If you read the explanation further, it says that a worker shall not earn any leave for the days she is on maternity leave or any other leave availed or the period of lay-off in the relevant calendar year.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

As far as Earned Leave/Privilege Leave Calculation is concerned, the following things need to be considered for eligibility:

• Casual leave
• Authorized strike
• On ESI leave/maternity leave
• Medical leave

These factors are in accordance with the Factories Act. Furthermore, Form 15 Leave register may be referred to.

Regards,
V.SUBBARAO
[Phone Number Removed For Privacy Reasons]

I have the same doubt in EL calculation. When a person avails EL for 1 month, should we consider the EL period of one month while calculating EL for the next year? A small war is going on in our hospital regarding this. Please help us.

Waiting for your valuable reply.

Regards,
Prathap.T, HR Executive
PES Hospital, Kuppam
[Phone Number Removed For Privacy Reasons]

Dear Pratap, If you read my post of 13th April (see above), your doubt stands clarified.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Leave Eligibility and Calculation According to the Factories Act

If any employee goes on earned leave for one month, the same period should be considered for leave eligibility. Those who worked for 240 days are eligible for 12 days in a year. If an employee worked for 230 days, they are not entitled to Earned Leave (E.L.). However, if they availed one month of E.L., medical leave, layoff, or casual leave, then they become eligible for Earned Leave. Earned Leave should be calculated based on worked days, i.e., 230 days. These calculations are according to the Factories Act.

Regards,
V. Subbarao
[Phone Number Removed For Privacy Reasons]

Earned Leave Calculation

Earned leave is calculated based on worked days only. According to the Factories Act, 240 days should be worked. If he worked for 300 days, calculate based on 300 days to be divided by 20. Leave entitlement is for eligibility purposes only.

Regards,
V. Subbarao
[Phone Number Removed For Privacy Reasons]

As far as I know, for the purpose of computation of the earned leave period, i.e., 240 days in a calendar year, the total period of maternity leave availed by a female employee shall be considered. However, for the calculation of payment towards earned leave, the maternity leave period shall not be accounted for. Hope I am right.

Regards,
PVVB.KUMAR
SENIOR MEMBER

Issues Involved in Leave Calculation

There are three issues involved:

• Eligibility criteria for Earned Leave - Inclusions and exclusions.
• Calculation - Inclusions and exclusions.
• Availing leave.

Maternity leave availed, whether under the act or under ESI, shall be included for the purpose of calculating eligibility criteria under all applicable legislations (be it the Factories Act, Mines Act, Shops and Establishments Act, Plantations Act, etc.). However, for calculating the number of days earned, such maternity leave shall be excluded.

One can avail only one type of leave at a time, and I do not think the doubt is on this.

Thanks,
Sivasankaran