Hello everyone, I need an urgent suggestion/help regarding maternity paid leave for a fixed-term contractual employee in a private company. I joined this company on 7th May 2018 with a 1-year contract agreement as a Consultant (Manager), which is subject to renewal before expiry on 6th May 2019. The payment is consolidated after a 10% TDS deduction, and company mediclaim policy coverage & others facilities are the same as a permanent employee.
I have applied for maternity leave of 26 weeks from 18th March 2019 (at the 36th week of pregnancy - EDD - 6th April 2019) to 16th September 2019. However, my contract will expire on 6th May 2019. I spoke with the SVP who informed me that he can approve the leave up to 6th May 2019 as he could not assign me to any long-term project. Therefore, there is no hope for the renewal of the contract as I will not be present at the time of contract expiry. I am waiting for the final decision from HR. If they are firm on this, I will only receive 7 weeks of maternity benefit, but I will lose my job after the contract ends and also forfeit 19 weeks of maternity benefit.
My queries are:
1. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) a right for women employees/fixed-term contract employees or not?
2. What is my stand to claim the benefit or eligibility of claiming the benefit?
3. Can non-renewal of a fixed-term contract be considered as dismissal of the contract? Does it need to be renewed by the authority or by law?
4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights?
5. If I do not receive the full benefit, what should be the next step to claim my rights?
Kindly advise/suggest regarding these matters as soon as possible.
From India, Secunderabad
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I have applied for maternity leave of 26 weeks from 18th March 2019 (at the 36th week of pregnancy - EDD - 6th April 2019) to 16th September 2019. However, my contract will expire on 6th May 2019. I spoke with the SVP who informed me that he can approve the leave up to 6th May 2019 as he could not assign me to any long-term project. Therefore, there is no hope for the renewal of the contract as I will not be present at the time of contract expiry. I am waiting for the final decision from HR. If they are firm on this, I will only receive 7 weeks of maternity benefit, but I will lose my job after the contract ends and also forfeit 19 weeks of maternity benefit.
My queries are:
1. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) a right for women employees/fixed-term contract employees or not?
2. What is my stand to claim the benefit or eligibility of claiming the benefit?
3. Can non-renewal of a fixed-term contract be considered as dismissal of the contract? Does it need to be renewed by the authority or by law?
4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights?
5. If I do not receive the full benefit, what should be the next step to claim my rights?
Kindly advise/suggest regarding these matters as soon as possible.
From India, Secunderabad
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Please find the reply to your queries below:
1. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) a right for women employees/fixed-term contract employees or not?
As per the recent judgment from the Delhi High Court, maternity leave is applicable only until the last date of the contract in the case of contractual employment.
2. What is my stand to claim the benefit or eligibility of claiming the benefit?
You are not eligible after the completion of the contract.
3. Non-renewal of fixed-term contract can be considered as dismissal of the contract? Does it require renewal by the authority, or does it have to be renewed by law?
No, it is not compulsory for renewal unless mentioned in your current contract.
4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights?
Your rights are to maternity leave until the last day of your existing contract.
5. If I do not get the full benefit, what should be the next step to claim my rights?
The answer is available in the details provided above.
Thank you.
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3841. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) a right for women employees/fixed-term contract employees or not?
As per the recent judgment from the Delhi High Court, maternity leave is applicable only until the last date of the contract in the case of contractual employment.
2. What is my stand to claim the benefit or eligibility of claiming the benefit?
You are not eligible after the completion of the contract.
3. Non-renewal of fixed-term contract can be considered as dismissal of the contract? Does it require renewal by the authority, or does it have to be renewed by law?
No, it is not compulsory for renewal unless mentioned in your current contract.
4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights?
Your rights are to maternity leave until the last day of your existing contract.
5. If I do not get the full benefit, what should be the next step to claim my rights?
The answer is available in the details provided above.
Thank you.
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Important Case Law of High Court Delhi under Maternity Benefit (Amendment) Act 2017
Artiben R Thakkar (Dr.) - Petitioner
Vs.
Delhi Pharmaceutical Sciences and Research University & Anr - Respondent
A challenge is from the petitioner employee to the action of the respondent declining maternity leave for 26 weeks on the ground that the petitioner's employment ended on 15th May, which was extended to 30th June. The Court held that:
1. Full maternity leave of 26 weeks, in terms of the amended Act, could not be extended to the petitioner because her contractual period ended.
2. As a special case, her contractual period was extended till the end of the academic session. There is neither precedent nor justification to extend such benefit to a contractual employee.
3. The respondent cannot be called upon to extend the contractual period to ensure that the petitioner avails full maternity leave.
4. Benefits attached to a service come to an end once the term is complete.
The Honorable Court also observed that it is an elementary rule of service jurisprudence that benefits attached to service come to an end upon completion of the tenure; hence, there is no substance in the petition and therefore it is dismissed.
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Artiben R Thakkar (Dr.) - Petitioner
Vs.
Delhi Pharmaceutical Sciences and Research University & Anr - Respondent
A challenge is from the petitioner employee to the action of the respondent declining maternity leave for 26 weeks on the ground that the petitioner's employment ended on 15th May, which was extended to 30th June. The Court held that:
1. Full maternity leave of 26 weeks, in terms of the amended Act, could not be extended to the petitioner because her contractual period ended.
2. As a special case, her contractual period was extended till the end of the academic session. There is neither precedent nor justification to extend such benefit to a contractual employee.
3. The respondent cannot be called upon to extend the contractual period to ensure that the petitioner avails full maternity leave.
4. Benefits attached to a service come to an end once the term is complete.
The Honorable Court also observed that it is an elementary rule of service jurisprudence that benefits attached to service come to an end upon completion of the tenure; hence, there is no substance in the petition and therefore it is dismissed.
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Whether the person is on fixed term or permanent basis,she is employed women and eligible for MB subject to fulfilment of other conditions of the Act.
From India, Thiruvananthapuram
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From India, Thiruvananthapuram
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Hi Manoj, here, you referred to a case that I think does not perfectly match her situation because she is working on a project (short-term/long-term), and her contract is not based on class sessions like the Artiben R Thakkar (Dr.) case.
Reference for Maternity Leave for Contract Employees
I have another reference. Please go through the link: https://www.livelaw.in/temprorary-ad...at-read-order/. The CAT observed that while temporary, ad hoc, or contract employees do not enjoy the same benefits as regular employees, the request for maternity leave stood on a different footing.
Regards,
Dr. Ganguly
From India, Champapet
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Reference for Maternity Leave for Contract Employees
I have another reference. Please go through the link: https://www.livelaw.in/temprorary-ad...at-read-order/. The CAT observed that while temporary, ad hoc, or contract employees do not enjoy the same benefits as regular employees, the request for maternity leave stood on a different footing.
Regards,
Dr. Ganguly
From India, Champapet
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You can check this case similar to your case.
https://www.obhanandassociates.com/b...ual-employees/
Decision by the Court
The Court was of the view that maternity benefits are not merely a statutory benefit or a benefit flowing out of an agreement. This form of benefit is attached to the dignity of a woman. Justice A. Muhamed Mustaque, while tracing the history of the Court, placed reliance on Mini vs. Life Insurance Corporation of India and Rakhi P.V. and Others vs. State of Kerala & Another ("Rakhi's Case"), wherein it was held that a woman cannot be compelled to choose between motherhood and employment.
The Court further negated the contention of the Respondents, which stated that since the Petitioner is a contractual employee, the Petitioner could claim a maximum of fifteen days of casual leave during the tenure of one year and abstention from duty on account of medical conditions of maternity.
The Court stressed on Rakhi's Case, wherein it was held that women employees working on a contractual basis cannot be denied maternity leave. The court stated that, "In Rakhi's case (supra), it was held that a woman employee cannot be denied maternity benefits merely because her status is a contractual employee. Therefore, the University is bound to grant such benefits notwithstanding anything contained in the agreement of contract."
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https://www.obhanandassociates.com/b...ual-employees/
Decision by the Court
The Court was of the view that maternity benefits are not merely a statutory benefit or a benefit flowing out of an agreement. This form of benefit is attached to the dignity of a woman. Justice A. Muhamed Mustaque, while tracing the history of the Court, placed reliance on Mini vs. Life Insurance Corporation of India and Rakhi P.V. and Others vs. State of Kerala & Another ("Rakhi's Case"), wherein it was held that a woman cannot be compelled to choose between motherhood and employment.
The Court further negated the contention of the Respondents, which stated that since the Petitioner is a contractual employee, the Petitioner could claim a maximum of fifteen days of casual leave during the tenure of one year and abstention from duty on account of medical conditions of maternity.
The Court stressed on Rakhi's Case, wherein it was held that women employees working on a contractual basis cannot be denied maternity leave. The court stated that, "In Rakhi's case (supra), it was held that a woman employee cannot be denied maternity benefits merely because her status is a contractual employee. Therefore, the University is bound to grant such benefits notwithstanding anything contained in the agreement of contract."
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