Maternity leave for offrole/ consultants
Hiral Thakore
(Querist) 13 June 2018
This query is : Resolved
Hello Sir,
I work with ICICI Securities as an off-role employee (Contractual) since 2015.
Currently I am 4 months pregnant and when I asked my reporting head about Maternity Leave, I was informed that Maternity Leave benefits are not applicable for off-role employees (Contractual).
Can someone help me confirm whether what I am being informed is genuine?
Looking forward to the assistance.
Ms.Usha Kapoor
(Expert) 14 June 2018
Maternity leave applies to contractual,Part time and Adhoc women employees with pay on par with regular women employees.
In a significant ruling, the Central Administrative Tribunal (CAT) has said that temporary, ad hoc and contract women employees are also entitled to maternity leave and consequent benefits akin to regular staff....
Cli9ck the following link for further information on this issue.
Read more at: http://www.livelaw.in/temprorary-ad-hoc-contract-staff-also-entitled-maternity-leave-cat-read-order
https://timesofindia.indiatimes.com/city/delhi/sc-sends-delhi-businessman-to-jail-for-running-factory-in-residential-area/articleshow/59714957.cms
R.Ramachandran
(Expert) 14 June 2018
If you are not on the rolls of ICICI Securities, then ICICI Securities are right in denying you the maternity leave.
I take it that you are getting your salary not from ICICI Securities directly, but from the Manpower Agency.
Therefore, at best, you may ask for the maternity leave benefits from the organization (manpower agency) in which you are enrolled and getting your monthly salary.
The decisions quoted by Ms. Usha Kapoor are not applicable in your case - for the simple reason that in those cases the fact situation is completely different. The employees are directly engaged (may be on contract basis) by the organizations and not through any outsourcing Agencies.
Hiral Thakore
(Querist) 14 June 2018
Hello Mam and Sir,
Thank you for the detailed inputs.
I'm being paid my monthly salary by ICICI Securities and my contract is directly with ICICI Securities and there isn't any third party in-between, but they hire resources on contract which they renew year on year.
I can share the copy of my contract/offer letter with you here for your review if needed. Please do let me know.
But in this situation based on your above inputs I understand that I'm eligible for maternity leave from ICICI Securities even though I'm off-role (contractual).
Please correct me if I'm wrong.
R.Ramachandran
(Expert) 14 June 2018
If you are directly on contract with ICICI Securities, IT IS TOTALLY WRONG TO SAY THAT YOU ARE OFF-ROLL. In fact you are ON-Roll of ICICI Securities but you are on contract employment and not on permanent employment of ICICI Securities.
Your mentioning Off-Roll only made me assume that you are not on the rolls of ICICI Securities and you are an employee on the rolls of an outsourcing agency.
In the fact situation revealed by you, you are certainly entitled for the benefits under the maternity Act.
You please give it in writing to ICICI Securities and request for grant of the benefit. They will not be in a position to reject your claim in writing. If they do, then you have to proceed legally against them.
Ms.Usha Kapoor
(Expert) 14 June 2018
After all my reply is correct Icici Security services or agency contractual employee' needs maternity eave with pay which she is entitled on par with regular employees;. My stand is vindicated.
Guest
(Expert) 14 June 2018
Only terms and conditions of your offer/ appointment letter can decide what exact is your position in the company. In legal parlance, Off Roll employment cannot be supposed to be a full time contractual employment.
So, better get your offer/ appointment letter examined in detail from some real service laws expert before you get more and more confused about legal position.
Guest
(Expert) 14 June 2018
Reference of a link of Times of India Story on "SC sends Delhi businessman to jail for running factory in residential area," as follows and quoted by Ms. Usha Kapoor is not understood, when the case does not relate to any factory in a residential area.
https://timesofindia.indiatimes.com/city/delhi/sc-sends-delhi-businessman-to-jail-for-running-factory-in-residential-area/articleshow/59714957.cms
Guest
(Expert) 14 June 2018
Reference of a link of Times of India Story on "SC sends Delhi businessman to jail for running factory in residential area," as follows and quoted by Ms. Usha Kapoor is not understood, when the case does not relate to any factory in a residential area.
https://timesofindia.indiatimes.com/city/delhi/sc-sends-delhi-businessman-to-jail-for-running-factory-in-residential-area/articleshow/59714957.cms
Guest
(Expert) 14 June 2018
Reference of a link of Times of India Story on "SC sends Delhi businessman to jail for running factory in residential area," as follows and quoted by Ms. Usha Kapoor is not understood, when the case does not relate to any factory in a residential area.
https://timesofindia.indiatimes.com/city/delhi/sc-sends-delhi-businessman-to-jail-for-running-factory-in-residential-area/articleshow/59714957.cms
Guest
(Expert) 14 June 2018
Reference of a link of Times of India Story on "SC sends Delhi businessman to jail for running factory in residential area," as follows and quoted by Ms. Usha Kapoor is not understood, when the case does not relate to any factory in a residential area.
https://timesofindia.indiatimes.com/city/delhi/sc-sends-delhi-businessman-to-jail-for-running-factory-in-residential-area/articleshow/59714957.cms
Hiral Thakore
(Querist) 14 June 2018
Hello Ramachandran Sir, Usha Mam,
Thank you for your kind inputs. It is of great assistance.
Hello Dhingra Sir,
Following your inputs I will surely get my Offer/ appointment letter examined by some real service law experts, but just to get your additional inputs within the offer/ appointment letter which I have from ICICI securities there are no clause mentioned about Maternity leaves. Additionally the contract duration is from 1st April till 31st March every year where they mention that I am entitle for 21 leaves annually, that's it!
Now when I approached my reporting manager for maternity leave - he got in touch with HR Legal Head who informed him that she is a retailer/ contractual/ freelance employee who cannot be eligible for paid maternity leave.
Additionally they now state that only thing I can do is to resign whenever my health does not support me to come to work or else they will terminate my contract when I stop coming to work from 8th/9th month of my pregnancy.
This I feel is a pressure situation which they try to create so I resign and they can safely terminate my contract.
Guest
(Expert) 14 June 2018
The only one word you have the need to check, whether your appointment letter mentions anywhere that you have been engaged as a freelance retailer or the like.
You may better intimate the employer in writing about your pregnancy along with doctor's report and intention to take maternity leave from some specific date, so that you may be able to get their written response as of an evidence in your case.
Guest
(Expert) 14 June 2018
The only one word you have the need to check, whether your appointment letter mentions anywhere that you have been engaged as a freelance retailer or the like.
You may better intimate the employer in writing about your pregnancy along with doctor's report and intention to take maternity leave from some specific date, so that you may be able to get their written response as of an evidence in your case.
Hiral Thakore
(Querist) 14 June 2018
Thank you Dhingra Sir for the inputs.
I am pretty sure that the appointment letter does mention a word consultant, but there is nothing mentioned like freelance/ retailer, but I will still check the same and confirm.
Even I have been assigned a consultant code which is: C709380 and within my salary bill which I need to claim every month the template states:
Professional fees for consultancy services provided from DAY1 of the month to DAY30 of the month and the paying company to whom salary bill is directed to is ICICI Securities.
R.Ramachandran
(Expert) 14 June 2018
I think they will be deducting tax at source (TDS) @ 10% each month. Please confirm.
Hiral Thakore
(Querist) 14 June 2018
Yes Ramachandran Sir - they deduct 10% TDS each month which we need to claim annually when filling ITR.
R.Ramachandran
(Expert) 15 June 2018
Dear Hiral Thakore,
In that case, you are not an employee from any angle whatsoever and therefore the Maternity Act benefit will not be available to you.
Had you been an employee of ICICI Securities, then they would have effected TDS under Sec. 192 of the Income Tax Act and not merely 10% under Sec. 194-J.
You are like a retainer Advocate, Consultant etc. and not an employee. Therefore the Maternity Act benefit will not be available to you.
Hiral Thakore
(Querist) 15 June 2018
Hello Ramachandran Sir,
Your inputs helped me a lot. Thanks.
One question I have is then am I eligible for Maternity Leave as per:
http://www.livelaw.in/temprorary-ad-hoc-contract-staff-also-entitled-maternity-leave-cat-read-order
R.Ramachandran
(Expert) 15 June 2018
No. For the simple reason, that you do not belong to any of the category mentioned in your last post and the link cited by you.
Assume for a while, I am an Advocate. Retained by a Company. While being so retained by the Company, I have some personal inconveniences which forbids me from performing my retainership functions. What will I do, I will dissociate myself from the retainership to the period during which it is not convenient to me. There is no question of granting any leave (maternity or otherwise) in that case.
Hiral Thakore
(Querist) 15 June 2018
But in that case aren't there any laws applicable for maternity leave in case of women workers when they work as a retainer?
Working as a consultant/ retainer should not leave a women out of any maternity benefits as it's a due right of a women worker.
R.Ramachandran
(Expert) 15 June 2018
You are right. As of now there are no laws applicable for maternity leave in case of women workers when they work as a retainer.
When you say that "Working as a consultant/ retainer should not leave a women out of any maternity benefits as it's a due right of a women worker" - It is your WISH. That is yet to materialise.
Hiral Thakore
(Querist) 15 June 2018
OK. Thank you for the guidance and inputs.
Highly appreciate!
Hiral Thakore
(Querist) 25 June 2018
Hello Dhingra Sir,
Following your inputs from one of your responses, we got the offer letter examined by service law expert last week Saturday and he also narrated to us Maternity Benefit Act, 1961 and amendments as made to it in April 2017.
The expert informed us to give a written application to the organization requesting maternity leave as the act is applicable to every Indian women worker which involves consultants as well with an only condition that she should have worked for 80 days or more in last 12 months within same organization.
Please help us with your inputs for additional guidance.
