Am I Really Not Eligible for Maternity Leave as an Outsourced Employee? Urgent Clarification Needed

Dear Sir or Madam,

My name is Savita Patial, and I am currently working at the Cantonment Hospital 14GTC Subathu (Solan) as a GNM. I am eight months pregnant, and when I inquired about my maternity leave with the hospital staff and office members, they informed me that as an outsourced personnel, I am not eligible for maternity benefits.

Could you please confirm if this information is accurate? I am in urgent need of clarification as it is crucial for me to know if I am entitled to this benefit.

Thank you.

Dear member, I think "Cantonment Hospital" means it is under the Ministry of Defence, Government of India. Further, what is the full meaning/form of "GNM"? Since when have you been working at the above hospital?

Further, how many staff are working on a contract basis in the said hospital? Are such contracts through any contractor or agency?

If the contract is through any "contractor" or agency, please specify whether you have submitted any claims for maternity benefits to the said contractor/agency.

In case there is no outside contractor or agency, have you entered into any terms and conditions with the employer-hospital management? If so, what are the provisions of compliance with labor laws, including the Maternity Benefit Act, 1961, in the said terms and conditions? Hope you will submit complete details.

I have been working here since July 1st, 2014. The full meaning of GNM is General Nursing Midwifery. There are three people working on a contract basis, and the contract is through a contractor. I have submitted an application for maternity leave in the office, but the office staff said that as an outsourced person, I am not eligible for maternity benefits. The outside contractor is named Uttam Business. The CEO mentioned that if I have any proof that outsourced personnel can receive maternity benefits, I should provide it. However, I do not have any proof. Can you please assist me?

Dear member, please confirm whether the hospital is under the Ministry of Defense, Government of India. How many total employees are working in this hospital (approximately), including contractor employees?

Terms and Conditions of Appointment

There must be some terms and conditions of your appointment through the contractor. Please check if there is any mention in the said terms and conditions regarding maternity benefits and compliance with other labor laws. Kindly inquire from your contractor about your entitlement for maternity benefits.

Maternity Leave Entitlement for Contractual Workers

The Maternity Act is applicable to all pregnant women, regardless of whether they are contractual workers or direct employees of the company. Therefore, you can apply for maternity leave with pay. You are entitled to 6 weeks of leave with pay before your expected date of delivery and additional weeks of leave after the birth of your child, all with wages (if you have completed 80 days of service under the Maternity Act).

Please write a letter to your company's HR department and submit it along with your medical certificate. Make sure to clearly state your expected date of delivery. If you are covered under ESIC, please visit the ESIC office to obtain a leave certificate, which should then be submitted to your company's HR for approval.

If your leave is not granted by your company, please visit your nearest Labour Office and submit a letter to the Labour Commissioner regarding this matter.

Regards,
Ashish Shaw
[Email Removed For Privacy Reasons]

I would like to share my views in this regard as below:

1. You are definitely eligible for maternity benefits irrespective of whether you are a contract or direct employee.

2. You should submit the application to your contractor (direct employer) instead of your principal employer. As advised by other members, for safety, you may submit one copy to them also.

3. In the case of the Maternity Benefits Act, any agreement that obstructs or restricts these benefits shall be null and void as per Section 27 of the Maternity Benefits Act 1961. It states: "Effect of laws and agreements inconsistent with this Act.- The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any other law or in the terms of any award, agreement, or contract of service, whether made before or after the coming into force of this Act. Provided that where, under any such award, agreement, contract of service, or otherwise, a woman is entitled to benefits more favorable than those under this Act, she shall continue to be entitled to the more favorable benefits, notwithstanding that she is entitled to benefits under this Act for other matters."

4. Failure to provide such benefits by the employer is a cognizable offense. The penalty shall be as per Section 22: "Penalty for contravention of Act by employer.- If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or charges or dismisses such woman during or on account of her absence from work according to the provisions of this Act, he shall be punishable with imprisonment not less than three months but which may extend to one year, and with a fine not less than two thousand rupees but which may extend to five thousand rupees. The court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or a fine only in lieu of imprisonment. If any employer contravenes the provisions of this Act or the rules made thereunder, he shall be punishable with imprisonment up to one year, or with a fine up to five thousand rupees, or with both. Where the contravention is regarding maternity benefit or payment of any other amount, and such maternity benefit or amount has not been recovered, the court shall recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto."

5. If your employer is still not providing the benefits under this act and asking you to prove your eligibility, ask them to first refer to the act. If something wrong happens to you or your baby's life due to the same, then all responsibility will fall on your contractor and principal employer. Alternatively, inform them that you will file a case with the regional Labour commission.

Regards,
Tushar Swar
ACHRM, MBA-HR, D.L.L (Hons)

Even though you are outsourced, you are entitled to maternity benefits. If you are outsourced, it means you have been engaged through an agreement by an outside agency to work. They are your employer, and you are entitled to maternity benefits. If your employer fails to provide maternity benefits, you can claim the same from your principal employer.

Regards,
Raju

Dear advisers, my office members are saying to provide them with written proof that an outsourced person is eligible for maternity benefits. So, please, can you advise me on which clause of the maternity act I can find information to satisfy them?

Thank you.

Dear Savita,

Please refer to the Maternity Benefit Act of 1961 and its applicability clause. This act is applicable to all establishments. As you are a contract employee, Uttam Business is responsible for making your payment for 12 weeks as maternity benefit. However, if they fail to make the payment, the hospital is liable to make the payment as the principal employer.

Thank you.

Dear Ms. Savita,

Motherhood is a moment to cherish and delight. It is considered a blessing from God. Please accept my congratulations first.

Coverage Under the Maternity Benefit Act

Now let's come to your query. First, we need to determine if your principal place is covered under the Maternity Benefit Act or not. Being a Cantonment hospital, it is an establishment belonging to the Government. So, as per Section 2 Application of the Act, it is well covered under the Act. Please see the section below:

Application of Act

2. Application of Act.- (1) It applies, in the first instance,--

(a) to every establishment being a factory, mine, or plantation, including any such establishment belonging to the Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic, and other performances;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months: Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural, or otherwise.

(2) Save as otherwise provided in sections 5A and 5B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being.

So, as per the above Section, if you are not already covered under the ESI Act, your establishment is comfortably covered under the Maternity Benefit Act.

Definition of an Employer

Now, let's see what is the definition of an Employer as per the Act:

(d) "employer" means--

(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

There also seems to be no problem that would disentitle you from receiving benefits under the act.

Eligibility for Maternity Benefits

Finally, let's see who is entitled to receive benefits under this Act and whether you are covered under it or not. This Act applies to women, and the definition of a woman is given under Section 2 (O) of the Act. The section is reproduced below:

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

So, as per all definitions, you are covered under the Act. Show this to your immediate employer (i.e., contractor) and inform them that you are eligible for the benefits under the act. If they do not respond, please contact the chief officer of the hospital as per the definition of an employer above. You are very well covered and eligible for maternity benefits, for sure.

I hope you got the information you needed. Feel free to revert in case of any doubt.

Regards