Can My Contract Override Maternity Benefits in a Government-Based Job?

Good morning all. I have joined a government-based sector as a contract employee for one year (extendable). At the time of joining, I was 5 months pregnant. I worked for 4 months and took maternity leave for 5 months until January 2018. I received my salary from a Mumbai-based consultancy. Initially, I applied for Maternity Benefits (MB) through my consultancy. After discussing with their team, they informed me that I am eligible and requested me to send documents for approval by my company.

Later, they emailed me, "Talk to your office." I approached my office (immediate employer) for Maternity Benefits. They mentioned that I am outsourced, and no one in this organization receives Maternity Benefits. They stated that my contract does not include such eligibility, and they are paying salary for replaced candidates. They are unwilling to consider the Maternity Benefit Act of 2017.

Is the Maternity Benefit Act applicable to all organizations?

Can a company's contract override Maternity benefits?

Please visit your nearest regional labor commissioner's office with a written complaint. Your problem will be solved as you are eligible for medical benefits if you are not covered under ESI. You are coming under the definition of an employee under the Medical Benefits Act.

PF only deducting. If I complain, is there a possibility of termination? Already, two women are on the waiting list after completing maternity leave. They are saying currently there is no vacancy. If a vacancy is available, we will call. For contract employees, is there a chance of termination after maternity leave?

Eligibility for Maternity Leave and Benefits

Firstly, you are eligible for maternity leave and other benefits as per the Maternity Benefit Act.

Legal Liability of the Contractor

Secondly, your organization, i.e., the contractor, has a legal liability to pay.

Addressing Threats of Termination

Thirdly and most importantly, in the face of a threat of termination, the legal remedy is to inform the Local Labour Office. You can also bring this to the notice of the Women's Commission, both at the State level and National level. They are known to respond fast and effectively in such matters. The law protects women's rights, and service conditions cannot be adversely affected due to maternity leave. Therefore, you do not have to take it lying low. After the 2017 amendment, it is the employer's responsibility to spread awareness of women's rights as per the Act to its employees. Any practices that breach the law are punishable.

Dear Selvi,

What is the type of that "Govt.-based sector" you've mentioned? Is it a shop, factory, mine, or plantation? When PF is deducted, does it mean it is EPF or GPF?

If the MB Act applies to the establishment that outsourced your services, you are entitled to maternity benefits. You can file a complaint against both.

Dear Anitha, your quick response is nice. The maternity benefit provided for under Section 5(1) of the Maternity Benefit Act, 1961, is considered wages as per the definition under the Payment of Wages Act, 1936. Therefore, the vicarious liability imposed on the Principal Employer under Section 21(1) of the Contract Labour (Regulation and Abolition) Act, 1970—which adopts the definition of "wages" under the Payment of Wages Act, 1936 by reference—is equally applicable to the maternity benefit payable to a contract laborer. That's why I suggested filing a claim against both the contractor and the Principal Employer.

Regarding the question of providing employment to a woman employee upon the expiry of maternity leave, the employer cannot deny her re-employment on the grounds of no vacancy created by the appointment of a substitute in her place during her maternity leave. This period is to be treated as continuous service as per Section 25-B of the Industrial Disputes Act, 1947.

I think the issue regarding the eligibility of maternity benefits for contractual staff engaged in government units/PSUs has been discussed on CiteHR many times. Although I could not locate all such threads, an online link to one of these discussions is provided below for your information:

https://www.citehr.com/521552-matern...ml#post2216261

I believe the decisions of the Honorable courts, as mentioned in these threads, will definitely guide you on your rights concerning claims under the Maternity Benefit Act, 1961.

Thank you.

Dear Selvi, you are eligible for the maternity benefit at first sight. Your employer cannot deny the applicability of the MB Act for various reasons, if not directly but implored through the principal employer on whose establishment work is carried on. The amount of benefit depends upon your job, since your job contract is expiring on completion of one year! Your case is completely different as you do not have any clause. But in general, in good organizations, they put special clauses to avoid pregnancy during the tenure of this type of contractual job.