Legal action to claim maternity and gratuity - company never paid me my maternity salary

Hello everyone,

I worked as an assistant manager in the hospitality industry (five-star hotel) for 5 years and 5 months. During this time, I went on maternity leave twice. The first was from January 2020 to September 2020, and the second was from October 2022 to February 2023. However, my company did not pay me my maternity salary. Now, even though I left the company in August 2023, they have not paid me my gratuity either. I want to know how I can avail myself of my benefits even after resigning from my company and how I can claim them.

Thank you.

Eligibility for Maternity Benefit

You are eligible for Maternity Benefit. In fact, you can claim it now if the claim is not overdue for more than 3 years (Limitation Act). Even after that, you can make a claim to the Labour Commissioner of your area, providing a reason for not filing the claim on time. It is at his discretion whether to accept the late application.

Maternity Leave and Service Continuity

Maternity Leave is not (in most cases) considered a break in service as specified in the Gratuity Act. Therefore, despite being on maternity leave and not physically coming to work, you were still employed by the company, and your period of service includes those days.

Eligibility for Gratuity

Since you have worked for more than 5 years, you are eligible for gratuity. You need to file a gratuity claim first with the company in Form J. If they do not respond or provide it within 30 days, you can file a complaint with the relevant authority, which would be the Labour Commissioner or Chief Labour Commissioner of the area where you worked.

You will have to file a complaint in Form N (for recovery of gratuity with the intervention of the Controlling Authority). Before that, please ensure that:

You were in continuous service for five years. The period of absence due to pregnancy shall be taken out separately, but any other long leaves for which you were given a charge sheet, warning letters, or any kind of disciplinary action taken shall be considered an interruption of service.

You were supposed to get maternity leave with salary for six months, but you said it was unpaid and that too for five months. That is illegal on their part. What was the status of maternity leave for the first childbirth? Was that a paid one? Also, I believe that the second spell of leave was not for your third child. Please confirm.

Madhu-ji, Just to clarify, are you saying that gratuity will not be applicable for the period when the employee was on maternity leave? So in this case, will she get gratuity for 4.5 years (assuming she took 6 months leave twice)?

No, gratuity will be applicable for all paid leaves, including maternity leaves. Even the unpaid leaves (if the first leave exceeds six months) shall be counted as continuous service if no disciplinary action was taken against the employee for that absence. I was trying to ask whether there were any periods of absence for which disciplinary action was taken against her. Absolutely, the maternity leave period will be considered as a service period for all purposes, including gratuity.

I was continuously employed from February 2018 to August 2023. None of my maternity leaves were paid. When I inquired about this, they stated that since there is no leave policy in the company, they are not obliged to pay any maternity leave salary. During this period, I also contracted COVID during the second wave and was on leave from April 26, 2021, to May 31, 2021, without receiving any support from the company. Now, due to a financial crisis, I have requested them to clear my dues, but they are refusing to do so. Please help or guide me on how I can claim my dues.

You need to follow the process as we have outlined above. You are eligible for maternity leave. It is not a choice of the company but a mandatory requirement of the law.

About COVID

There was an order from the central government making it mandatory for employers to pay for COVID sick leave if they were asked to come to work during that period. However, it may not be possible to claim that now.

Regarding Gratuity

You are definitely eligible.

Saswata Banerjee Sir, just one last help I will be needing from your end, sir. Can you please guide me step by step on where I should start my claiming process for my maternity leave salary and for gratuity? It would be a great help, sir. Thanks in advance for the advice on my previous post by you and Madhu Sir.

Go through both the acts and rules. There are forms there which you need to print, fill, and submit.

Relevant Authority

The relevant authority (if your company refuses to pay) is the Commission of Labour or the Chief Commissioner of Labour. If there is a specific officer, he will guide you to that person.

Making a Claim

First, make the claims in writing to the company with reference to the acts and sections, asking them to clear the amount in 15 days. If they refuse in writing or if they do not respond in 15 days, go to the commissioner's office with the forms and the response/correspondence with the employer.

It is unfortunate that the Classification body, the Hotel & Restaurant Approval & Classification Committee (HRACC), which has given the hotel a five-star rating, has not gone through the records of the hotel or conducted any audits to determine compliance with basic labor laws. Non-compliance with labor laws will likely manifest in the attitude of the staff who interact with the guests, a matter of significant concern for HRACC.

Moving forward, in line with Banerjee's remarks, I would like to mention that the proper authority for addressing complaints related to maternity leave and medical bonuses is the officer of the state labor department. Rather than approaching the Commissioner, seek out the officer responsible for enforcing labor laws in your area to assist you in filing a complaint. Given that the rules are established by individual states, there may not be a standardized form, but the overseeing officer can provide guidance on the process.

I do not know how old this data is, but the Shramseva website of the MP government says that the person you need to contact is the Deputy Labour Commissioner. The address and phone number can be found on page 2 of the link below:

http://shramsewa.mp.gov.in/Portals/2..._Us%284%29.pdf