Maternity Benefits for Ad Hoc Employees in Delhi Government Hospitals
A pregnant lady doctor is working on an ad hoc basis (every 89 days it gets extended) in a Delhi Government hospital. What are the maternity benefits she can avail? Will she be eligible to have 180 days of maternity leave after delivery? She has been working in the same hospital for the last two years but on an ad hoc basis. Under which law can she avail such leave, so that she can quote the same in the administration of the hospital?
Thanks,
CLM Reddy
From India, New Delhi
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A pregnant lady doctor is working on an ad hoc basis (every 89 days it gets extended) in a Delhi Government hospital. What are the maternity benefits she can avail? Will she be eligible to have 180 days of maternity leave after delivery? She has been working in the same hospital for the last two years but on an ad hoc basis. Under which law can she avail such leave, so that she can quote the same in the administration of the hospital?
Thanks,
CLM Reddy
From India, New Delhi
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You have mentioned that the lady doctor is working in a Delhi Government hospital. Therefore, in my opinion, it will be more appropriate to ascertain the following aspects before expressing any opinion:
1. What are the terms and conditions of employment for the said lady doctor engaged on an ad hoc basis? Is there any mention of provisions for maternity benefits under service conditions applicable to such employees engaged by the Delhi Government?
2. Further, it can be ascertained what the terms and conditions are for providing maternity benefits to the regular lady doctors of the said Delhi Government hospital.
It is further submitted that as per the provisions of the Maternity Benefits Act, 1961, the maximum period of entitlement for maternity benefit is 12 weeks, of which not more than 6 weeks shall precede the date of expected delivery - Section 5(3). In addition, there is also a provision for maternity leave for an extra period of one month due to illness arising out of pregnancy - Section 10.
3. I think the government cannot discriminate regarding the provision of maternity benefits to the said medical doctor merely on the plea that she is engaged on an ad hoc basis. In my opinion, it will be more appropriate for the said lady doctor to discuss the matter with the concerned officer dealing with the sanction of such leaves in her establishment.
From India, Noida
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9441. What are the terms and conditions of employment for the said lady doctor engaged on an ad hoc basis? Is there any mention of provisions for maternity benefits under service conditions applicable to such employees engaged by the Delhi Government?
2. Further, it can be ascertained what the terms and conditions are for providing maternity benefits to the regular lady doctors of the said Delhi Government hospital.
It is further submitted that as per the provisions of the Maternity Benefits Act, 1961, the maximum period of entitlement for maternity benefit is 12 weeks, of which not more than 6 weeks shall precede the date of expected delivery - Section 5(3). In addition, there is also a provision for maternity leave for an extra period of one month due to illness arising out of pregnancy - Section 10.
3. I think the government cannot discriminate regarding the provision of maternity benefits to the said medical doctor merely on the plea that she is engaged on an ad hoc basis. In my opinion, it will be more appropriate for the said lady doctor to discuss the matter with the concerned officer dealing with the sanction of such leaves in her establishment.
From India, Noida
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It is once again politely submitted that any clarification sought in these columns should be given according to the applicable provisions and not based on what is applicable in respective establishments or factories. Generally, such quotes confuse many new HR professionals who are just taking over responsibilities and face embarrassing situations when they only refer to what is practically going on and do not know or refer to the provisions of the law.
Maternity Benefits Under the Act
As far as this thread is concerned, the Act is very clear. According to the provisions of the Maternity Benefits Act 1961, the lady doctor is entitled to the payment of maternity benefits, i.e., a minimum leave of 84 days in light of the following provisions:
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.
No woman shall be entitled to maternity benefits unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.
In case of denial of payment by the employer on any pretext, the lady doctor can raise her claim as laid down under section 6 of the Act.
Regards,
P.K. Sharma
From India, Delhi
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Maternity Benefits Under the Act
As far as this thread is concerned, the Act is very clear. According to the provisions of the Maternity Benefits Act 1961, the lady doctor is entitled to the payment of maternity benefits, i.e., a minimum leave of 84 days in light of the following provisions:
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.
No woman shall be entitled to maternity benefits unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.
In case of denial of payment by the employer on any pretext, the lady doctor can raise her claim as laid down under section 6 of the Act.
Regards,
P.K. Sharma
From India, Delhi
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Government Hospital and Maternity Benefit Coverage
A government hospital is not covered by the Maternity Benefit Act or the ESI Act because it is not considered an establishment under Section 2 of the Act by any stretch of interpretation. Employees in government hospitals are governed by the rules applicable to their respective government service regulations.
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From India, Thiruvananthapuram
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A government hospital is not covered by the Maternity Benefit Act or the ESI Act because it is not considered an establishment under Section 2 of the Act by any stretch of interpretation. Employees in government hospitals are governed by the rules applicable to their respective government service regulations.
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From India, Thiruvananthapuram
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It's my strong view that a pregnant woman cannot be denied maternity benefits on the pretext that an establishment is not covered by the Act or due to the status and terms and conditions of employment. This is apparently a wrong interpretation.
In addition to Section 5 of the Act quoted by Mr. P.K. Sharma, Section 6 also adds clarity on the applicability and entitlement under the Act.
Section 6 in The Maternity Benefit Act, 1961:
6. Notice of claim for maternity benefit and payment thereof.
(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.
(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount. In any such case, an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.
To corroborate my stand, I think we should be guided by the Judgment of the Hon'ble Supreme Court in the MUNICIPAL CORPORATION OF DELHI (RESPONDENT) Vs. FEMALE WORKERS (MUSTER ROLL) AND AMR. Dated 8/3/2000. An extract of the relevant portion is as follows (which more or less parallels the query):
"These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between the Municipal Corporation of Delhi and the women employees (muster roll); and so read, these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages."
(Please see the case law in the attachment)
Therefore, the doctor by all means should be entitled to maternity benefits under the Act irrespective of the 'adhocism' of her employment or her terms of employment, which cannot overrule an Act of Parliament.
From India, Bangalore
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In addition to Section 5 of the Act quoted by Mr. P.K. Sharma, Section 6 also adds clarity on the applicability and entitlement under the Act.
Section 6 in The Maternity Benefit Act, 1961:
6. Notice of claim for maternity benefit and payment thereof.
(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.
(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount. In any such case, an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.
To corroborate my stand, I think we should be guided by the Judgment of the Hon'ble Supreme Court in the MUNICIPAL CORPORATION OF DELHI (RESPONDENT) Vs. FEMALE WORKERS (MUSTER ROLL) AND AMR. Dated 8/3/2000. An extract of the relevant portion is as follows (which more or less parallels the query):
"These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between the Municipal Corporation of Delhi and the women employees (muster roll); and so read, these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages."
(Please see the case law in the attachment)
Therefore, the doctor by all means should be entitled to maternity benefits under the Act irrespective of the 'adhocism' of her employment or her terms of employment, which cannot overrule an Act of Parliament.
From India, Bangalore
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I am very thankful to the Apex Management and others for advising, "It is once again politely submitted that any clarification sought in these columns should be provided according to the applicable provisions, not just what is applicable in their respective establishments or factories. Such quotes often confuse new HR personnel who are taking on responsibilities and may lead to embarrassing situations when they refer only to what is happening in practice without considering or referencing the provisions of the law."
In this regard, I would like to point out that in the offices of the Delhi Government, the Central Civil Services Rules have been adopted. Therefore, I am unsure if the provisions of the Maternity Benefit Act, 1961 are applicable in such cases. Section 26 of the Maternity Benefit Act, 1961 empowers the appropriate government to exempt any establishment from the purview of this Act, and Section 27 allows for the application of other rules if they are more favorable to the female employee.
The individual who started this discussion has not clearly stated which rules or service conditions are applicable to ad hoc employees in the Delhi Government Hospital where she works. She mentioned "180 days maternity leave," which is not provided for in the Maternity Benefit Act. The Central Civil Services (Leave) Rules allow for maternity leave for female employees up to 135 days in the case of pregnancy and 45 days in the case of miscarriage or abortion (Rule 43).
A similar topic was previously discussed on HRcite some years ago, with the citation provided below:
Maternity Benefit for Ad Hoc Employee in a Delhi Govt Hospital
URL: https://www.citehr.com/162274-matern...#ixzz34gInUm6V
Considering the above points, I believe that when expressing our views, we should also consider the applicable service conditions, rules, and regulations governing the employee's services in each case. Reiterating the provisions of The Maternity Benefit Act, 1961, or the ESI Act, 1948, which are not relevant to the case cited by the discussion initiator, serves no purpose. Therefore, I stand by the views I expressed in this thread in my remarks dated 12/06/2014. I welcome corrections from seniors or experts if my views are incorrect in any way.
Regards,
From India, Noida
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In this regard, I would like to point out that in the offices of the Delhi Government, the Central Civil Services Rules have been adopted. Therefore, I am unsure if the provisions of the Maternity Benefit Act, 1961 are applicable in such cases. Section 26 of the Maternity Benefit Act, 1961 empowers the appropriate government to exempt any establishment from the purview of this Act, and Section 27 allows for the application of other rules if they are more favorable to the female employee.
The individual who started this discussion has not clearly stated which rules or service conditions are applicable to ad hoc employees in the Delhi Government Hospital where she works. She mentioned "180 days maternity leave," which is not provided for in the Maternity Benefit Act. The Central Civil Services (Leave) Rules allow for maternity leave for female employees up to 135 days in the case of pregnancy and 45 days in the case of miscarriage or abortion (Rule 43).
A similar topic was previously discussed on HRcite some years ago, with the citation provided below:
Maternity Benefit for Ad Hoc Employee in a Delhi Govt Hospital
URL: https://www.citehr.com/162274-matern...#ixzz34gInUm6V
Considering the above points, I believe that when expressing our views, we should also consider the applicable service conditions, rules, and regulations governing the employee's services in each case. Reiterating the provisions of The Maternity Benefit Act, 1961, or the ESI Act, 1948, which are not relevant to the case cited by the discussion initiator, serves no purpose. Therefore, I stand by the views I expressed in this thread in my remarks dated 12/06/2014. I welcome corrections from seniors or experts if my views are incorrect in any way.
Regards,
From India, Noida
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I have found another old discussion on a similar subject on CiteHR, the citation of which is mentioned as follows: The Maternity Benefits Act - Civil Service. Submitted for information and consideration, please.
From India, Noida
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From India, Noida
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I am working in an IT/ITSM company in Pune for 4 years. I will be going on maternity leave. I have asked my HR manager about the payables and benefits during my leave. She verbally informed me that I will receive the basic of my salary for 84 days after the commencement of my maternity leave.
Maternity Benefit Act Inquiry
Please advise if my company is doing the right thing as I have come to know that full salary is payable to pregnant employees on a monthly basis as per the Maternity Benefit Act. Is the Maternity Benefit Act different for IT/ITSM companies? She has not given a written reply to my questions.
Looking for expert advice.
Thanks,
Sarita
From India, Mumbai
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Maternity Benefit Act Inquiry
Please advise if my company is doing the right thing as I have come to know that full salary is payable to pregnant employees on a monthly basis as per the Maternity Benefit Act. Is the Maternity Benefit Act different for IT/ITSM companies? She has not given a written reply to my questions.
Looking for expert advice.
Thanks,
Sarita
From India, Mumbai
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Understanding Maternity Benefits Under the Maternity Benefit Act, 1961
1. Section 5 of the Maternity Benefit Act, 1961, states that a woman employee is entitled to "payment of maternity benefit at the rate of the average daily wage." The term "average daily wages" is explained in the section's explanation as "the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months, immediately preceding..."
2. Further, the term "wages" is defined in section 2(n) of the said Act as "all remunerations paid or payable in cash... and includes (1) such cash allowances (including dearness allowance and house rent allowance)..., (2) incentive bonus, but does not include (i) any bonus other than incentive bonus, (ii) overtime earnings, etc..."
3. In view of the above, in my opinion, the employer is required to pay not only basic pay but also dearness allowance, house rent allowance, etc., and other allowances, if any, applicable in your case.
4. Further, for claiming such maternity benefit, some procedures have been laid down in the said Act. Upon receipt of the notice from a pregnant woman and such proof, the employer is required to pay the maternity benefit "in advance" as per Section 6(5).
5. In order to understand your rights and comply with the procedures under the above Act, I suggest you go through the Act and take action accordingly. A copy of the Act can be downloaded from the website of the Ministry of Labour & Employment, Govt. of India, or an updated copy can be purchased from law bookshops in your city.
6. To my knowledge, there is no separate Act applicable to employees in the IT sector.
Regards
From India, Noida
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1. Section 5 of the Maternity Benefit Act, 1961, states that a woman employee is entitled to "payment of maternity benefit at the rate of the average daily wage." The term "average daily wages" is explained in the section's explanation as "the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months, immediately preceding..."
2. Further, the term "wages" is defined in section 2(n) of the said Act as "all remunerations paid or payable in cash... and includes (1) such cash allowances (including dearness allowance and house rent allowance)..., (2) incentive bonus, but does not include (i) any bonus other than incentive bonus, (ii) overtime earnings, etc..."
3. In view of the above, in my opinion, the employer is required to pay not only basic pay but also dearness allowance, house rent allowance, etc., and other allowances, if any, applicable in your case.
4. Further, for claiming such maternity benefit, some procedures have been laid down in the said Act. Upon receipt of the notice from a pregnant woman and such proof, the employer is required to pay the maternity benefit "in advance" as per Section 6(5).
5. In order to understand your rights and comply with the procedures under the above Act, I suggest you go through the Act and take action accordingly. A copy of the Act can be downloaded from the website of the Ministry of Labour & Employment, Govt. of India, or an updated copy can be purchased from law bookshops in your city.
6. To my knowledge, there is no separate Act applicable to employees in the IT sector.
Regards
From India, Noida
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Maternity Benefit Act and Part-Time Employees
The Maternity Benefit Act is a women's welfare legislation. Although the employee is working on a part-time or ad hoc basis, you can extend the maternity leave as per your establishment's decision to a reasonable extent.
Regards
From India, Hyderabad
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The Maternity Benefit Act is a women's welfare legislation. Although the employee is working on a part-time or ad hoc basis, you can extend the maternity leave as per your establishment's decision to a reasonable extent.
Regards
From India, Hyderabad
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From your remarks, the question further arises whether DA is not being paid to you as a component of salary/wages. Please examine this aspect.
Inclusion of Dearness Allowance
I have already mentioned that the term "wages" also includes dearness allowance as per the provisions of the above Act.
Claiming Maternity Benefits
It is for you to claim the maternity benefit from the employer correctly as per the provisions of the said Act. In case the employer pays you less, then you can make further inquiries on the correctness of the payment of maternity benefit from the office of the labor inspector or authority of your area created under the above Act. To my knowledge, there are no separate special provisions in respect of the IT sector or in respect of any similar type of industries/units.
Regards
From India, Noida
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Inclusion of Dearness Allowance
I have already mentioned that the term "wages" also includes dearness allowance as per the provisions of the above Act.
Claiming Maternity Benefits
It is for you to claim the maternity benefit from the employer correctly as per the provisions of the said Act. In case the employer pays you less, then you can make further inquiries on the correctness of the payment of maternity benefit from the office of the labor inspector or authority of your area created under the above Act. To my knowledge, there are no separate special provisions in respect of the IT sector or in respect of any similar type of industries/units.
Regards
From India, Noida
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I think you must have examined section 3(n) - the definition of 'wages' as laid down in The Maternity Benefit Act, 1961. I am not aware of the components of the wages used in the wage system adopted in your establishment. It is for you to claim the benefit correctly from your employer.
In case, however, you feel that the employer has not made the payment correctly, you can file an application with the appropriate labor department authorities in your area.
From India, Noida
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In case, however, you feel that the employer has not made the payment correctly, you can file an application with the appropriate labor department authorities in your area.
From India, Noida
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