If the female employee said before going on maternity leave that she'll join after leave then denies joining the company?

Regarding maternity leave salary:

1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case, can the company deny giving her salary?

2. Does the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leave?

3. Can the female employee quit the job and get maternity leave by stating that she will not join the company after maternity leave?

Please help me out with the above cases. Thank you.

Dear Himanshi Rajput,

Had you gone through the historical background of the passing of the Maternity Benefit Act, 1961, and given some deep thought about the provisions of the Act entitling a woman employee to the various benefits under the Act, perhaps you would not have raised the above questions.

The Maternity Benefit Act, 1961, was passed by the Indian Parliament in tune with the various conventions of the International Labor Organization on maternity benefit protection and Article 42 of the Constitution of India. Therefore, once the establishments come within the purview of the Act, it is the duty of its employer to implement the provisions of the Act in its letter and spirit.

The right to maternity benefits under the Act is based only on the length of the past service rendered by a woman in the establishment. Therefore, there cannot be any condition to serve in the establishment after availing the benefits.

Regarding the disbursement of salary for the period of absence due to maternity, you can refer to sec. 6(5) of the Act.

In view of the above legal position, I think that your questions do not deserve consideration.

Dear Himanshi Rajput,

Can you please confirm in what capacity you have raised this post? Are you an employer or an HR professional? If the latter, then what is your qualification? Have you read the Maternity Benefit Act, 1961? Is it that you are an employee who is applying for maternity leave?

By reading your post, one can very well capture the undertone of your post or the grouse behind it. It appears that in your company, a female employee was to avail of maternity leave. You had a regret of losing the company's funds because of the disbursement of the salary while on maternity leave. You felt that the funds are recoverable provided she commits her employment on the expiry of her maternity leave. It appears that the employee had committed her employment before proceeding on maternity leave and on completion of it, she backed out. Now you wish to withhold her maternity leave benefits.

The senior member, Mr. Umakanthan, has given a reply to your post. Let me add my two cents. Your grouse stems out of the lack of your awareness of the Maternity Benefit Act, 1961. The act is 60 years old, and the courts at various levels have given verdicts that explain the genesis of the social security called maternity benefit. Alas, you had read a few court verdicts.

The payment of maternity benefits to eligible women employees is a social obligation. While profit-making is a sole objective of the business enterprises in the capitalistic world, the government makes labor laws so that businesses partake part of their profit for the welfare of the society in general and their employees in particular. If the social obligation thrust on the business enterprises is removed, then capitalism will convert into hedonism. Are the business enterprises prepared to face the consequences of this hedonistic world?

Anyway, replies to your questions are as below:

1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can the company deny giving her salary?

Reply: - Eligibility of maternity leave and continuation of the employment are two separate things. These should not be linked at all. Secondly, the woman employee should have been paid the salary as and when her maternity leave progressed? If you have put on hold the disbursement of her salary thinking the lump sum amount can be paid once she resumes her duties, then it is a gross violation of the MBA, 1961. Therefore, in simple words, you cannot deny her salary.

2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves?

Reply: - Under provisions of which labor law would you like to make an agreement with the woman employee? May I remind you that India is still a free country, and "forced employment" is illegal? The employee serves the company as long as he/she wishes.

3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave?

Reply: - Of course, yes. The woman employee has every right to quit the employment whenever she wishes.

Final comments: - It is sad to note that the members do not possess a modicum of knowledge of the labor laws. 74 years after independence, India continues to grapple with the pre-1947 mindset or even the mindset of the 19th century. Is this how India will become a superpower?

Thanks,

Dinesh Divekar

Hello @Dinesh Divekar,

I am an employee...

Dear colleagues,

The legal obligation to grant maternity leave/benefits to eligible female employees under the provisions of the MB Act, 1961, is undeniable and non-negotiable. However, the woman employee in question seems to have pre-decided to quit the job after availing the maternity leave by giving false promises. Is this in good taste? The reasons for her inability to rejoin are not known. If it is due to health reasons or simply to look after her newborn, then it is perhaps understood. But if she has chosen to join another company for better prospects, then the question of morality comes into sharp focus.

The woman should feel morally committed to work for at least six more months in normal circumstances after being away from work for six months after availing benefits under the Act, particularly when she gives her promise to do so before proceeding on maternity leave.

By quitting the job in this casual manner, she has shown scant regard for her words and put the employer at a great loss of resources - time, money, and perhaps of an able, performing hand.

I am aware that such issues of morality have no place in the corporate world. It cuts on both sides as there is no dearth of unscrupulous employers who show high-handedness by refusing maternity leave or finding ways to even terminate her services just to deprive her of the benefits or to scuttle the legal and moral obligations.

I am raising this for whatever worth it is.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

Dear members,

The right of maternity leave for eligible female employees has been granted to them by the Maternity Benefit Act of 1961. It is a constitutional entitlement provided to eligible women. Yes, when a woman takes maternity leave, it does increase business costs. However, employers are expected to plan their business operations so that these costs are offset elsewhere.

Therefore, eligible women should not feel that by granting them maternity leave, their employers have done them a favor. In return, it is their moral obligation not to terminate their employment. The entitlement to maternity leave and the decision to continue employment are two separate matters, and the former should not impact the latter.

India is a sovereign country, and there is no place for feudal customs. Business owners are not aristocrats and should not view maternity leave as a "noblesse oblige" gesture extended to pregnant employees by them.

Thanks,

Dinesh Divekar

Dear Himanshi Rajput,

Q1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case, can the company deny giving her salary?
Ans: No

Q2. Does the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leave?
Ans: No

Q3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave?
Ans: She can do so as the act is silent.

I appreciate the question raised by a fellow member. I can understand the kind of management s/he/they are dealing with, and the efforts to convey the basic principle of maternity benefits to the management really deserve recognition. Having said that, maternity benefits are constitutional provisions and cannot be denied or deemed fit to be denied in any form under any circumstances. Businesses have to factor in these costs during the budgetary planning process. Regardless of the applicability of CSR norms, institutions have to take self-cognizance of the legal and social framework and contribute. Please remember that healthy motherhood leads to much higher productivity in jobs.

Best, Amol Nakve

Question 1:
Company cannot deny her salary.

Question 2:
Not required.

Question 3:
She has no obligation to rejoin the company even though she has utilized maternity benefits provided by the company. She has simply exercised her rights.

However, the majority of companies in India are small and rely on the monthly income they generate. In such cases, it is important not only to abide by the law but also to uphold certain ethical standards as expected from employees working in small companies.

The HR professionals go through a lot of difficult and dynamic situations. Being a labor and employment lawyer for 18 years and in my close association with the corporates, I have always seen the companies facing one of such situations.

Though there is a bar on the employer under the Maternity Benefit Act, 1961, from terminating the female employee while being on maternity leave, there is no such compulsion upon the female employees to continue in the employment after availing maternity leave. Therefore, employment statutes being benevolent laws favor the employees.

Accordingly, the responses to the questions are as follows:

1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can the company deny giving her salary?

NO

2. Do the female employees have to give a statement on stamp paper that she'll definitely join the company after her maternity leave?

NO. Demanding such a document is also against the provisions of the Indian Contract Act, 1872. Furthermore, there cannot be any contract or agreement to supersede the provisions of the law.

3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave?

YES.

Maternity benefits are in accordance with the Maternity Benefit Act, 1961 in conjunction with the International Labour Organization. This act provides maternity benefits to the working mother or a pregnant female employee in an organization by granting them paid maternity leave. Denial of salary during her period of maternity leave (in case she chooses not to return to work) is a violation of the law as per the Maternity Benefit Act of 1961. Payment of salary during maternity leave and the resumption of duties after childbirth are two separate matters that must be adhered to by the organization in accordance with the Act.

You must be aware of how many types of leaves are there in India?

Dear All,

I am not an HR person nor an expert in labor law; I am simply a small entrepreneur trying to update myself on labor law, and this site is very helpful for that purpose. Now, coming to the question on ML. I have seen a few members behaving very aggressively, as if the questioner, Ms. Rajput, has committed a crime. She may not be aware of the law, which is why she raised a question on this platform. One member mentioned that even after 75 years of independence, people are still not aware of the law. Is it a crime not to know all the laws? I believe this platform was created with the purpose of raising awareness about the law and sharing questions regarding labor law. Some members have provided answers to the point, and I appreciate all of them. My humble request is not to demoralize the questioner.

I have no intention of hurting anyone. Please forgive me if anyone feels that my answer is hurtful.

Wishing all of you a Happy Makar Sankranti.

Dear Indu 182,

Thanks for your greetings on the occasion of Makar Sankranti. I reciprocate the greetings.

It may be noted that this is a public forum, and the queries raised on the forum are bound to come under public scrutiny. One should be prepared for such scrutiny.

Secondly, when a person enters into the fray of entrepreneurship, one is expected to keep oneself abreast of the labor laws. This is a basic requirement. The trouble with the current times is that raising unicorns has been romanticized a lot. Entrepreneurship does not just end with raising funds and having an innovative idea. The business owner must abide by the labor laws too. They would not be doing a favor by doing so. It is their duty.

The US or the European countries have grown because of the strong implementation of the labor laws. Can one ever think that such a crazy idea of the denial of payment to a woman employee occurring to an entrepreneur from the US or Europe?

You have written that "One of the members wrote that even after 75 years of independence still, people are not aware of the law. Is it a crime not to know all the law?" The answer to your question is yes, it is a crime not to know the law. Aristotle has mentioned the importance of the laws 2,500 years ago. Following is his famous quote:

"At his best, man is the noblest of all animals; separated from law and justice he is the worst."

The trouble with India is that the violation of the labor laws is so rampant that it has desensitized us. We have learned to live with the fact that the laws are meant to remain only on paper. The practical implementation of the laws, whether labor laws or any other laws, is a big joke. Notwithstanding this dichotomy, the average citizen is fed a dream of making India a superpower or a US$ 5 trillion economy. Nevertheless, hardly anyone understands that the exploitation of labor will make that dream a pipe dream!

Thanks,

Dinesh Divekar