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Ravindran (Engineer)     17 August 2011

Maternity leave

My wife being a tempoary employee(Lecturer) working in a deemed university was denied  a maternity leave for 90 days when she applied. She was working in this institution for about 2 years. The university management rejected her leave letter and forcing her to apply for a resignation. Does the Indian Meternity act 1961 stand by our side if we decide to fight against the university management??? Experts please answer and thanks in advance for the same.



Learning

 20 Replies

Kamal Prasoon Sinha (Service)     17 August 2011

Dear Ravindran,

Your wife is eligible for maternity benefits under maternity benefits act 1961 which includes leaves with full wages for 12 weeks and Rs. 2000 as cash to be paid before going on leave.

The Maternity Benefits Act 1961 specifically says that 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 womann within forty eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

Your wife can approach the Deputy Labor Commssioner of your area along with a written compalint.

regards,

Kamal Prasoon

1 Like

(Guest)

Definitely, your wife was eligible for maternity leave.

BDRchandan (HEAD-HR)     09 September 2011

I am also looking for maternity benefit law but I didn't find in act that it is applicable on education institutions. will someone help me to provide documentry proof.

 

With Regards

BDRchandan (HEAD-HR)     09 September 2011

And one more thing experts...

 

That lady is lecturer not comes in workmen category!

 

How can she go to labour commissioner ?

Looking forward for your advise.

Kamal Prasoon Sinha (Service)     10 September 2011

 

 

Dear Roopchandani,

Educational institutions are covered under State's Shops and Commercial Establishments Act. All service/employment laws applicable to establishments registered under State's Shops and Commercial Establishments Act are applicable to eductaional institutions as such Maternity Benefit Act 1961 is also applicable. 

Lecturers are not workmen as per Industrial Dispute Act. 'Workman' word is not used in Maternity Benefit Act 1961 at all.

As far as Maternity Benefit Act 1961is concerned you need not to be a workman, all women employees who are not covered under ESI are by default covered under Maternity Benefit Act 1961.

If any employer denies maternity benefits to a woman employee, a complaint in Form no. 6 or 7 can be sent to the labor inspector. On receiving a complaint labor inspector will examine all records maintained by the employer which he considers to be relevant for making enquiry into the complaint and examine any person employed by the employer. After enquiry labor inspector will issue appropriate order to the employer.

Regards

Kamal Prasoon

 

BDRchandan (HEAD-HR)     13 September 2011

Dear Mr. Kamal,

 

First of all, I would like to thank you for your advise.

 

But still I have a querry in mind! You are saying that Educational Institutions are  covered under Shop n Establishment Act. We are at Pune (Maharashtra), I have gone thro THE BOMBAY SHOPS AND ESTABLISHMENTS ACT, 1948 WITH THE MAHARASHTRA SHOPS AND ESTABLISHMENTS RULES, 1961.

In schedule-II (exemptions), Section 4, it is clearly mentioned the "ESTABLISHMENTS PERTAINING TO ANY KIND OF EDUCATIONALS ACTIVITES ARE EXEMPTED UNDER THE PROVISIONS OF THE ACT. EXCEPTING THOSE WERE COACHING OR TUITION CLASSES ARE CONDUCTED BY INDIVIDUAL PERSONS OR BY INSTITUTIONS.

Looking ahead for your help Sir, Pl. throw some light on this issue.

With Best Regards,

 

Kamal Prasoon Sinha (Service)     13 September 2011

 

Dear Roopchandani,

I am also located in Pune.

You are right that educational institutions are exempted under section 4 of BSEA 1948, but there are judgements of several High courts and also of Supreme Court on this matter as it relates to the implementation of different labor laws. 

The latest judgement of Bomaby high Court in Amravati Nagar Vachanalaya vs State of Maharashtra (writ petition) will clear your doubts. 

Plz go through the attached judgement copy.

regards,

Kamal


Attached File : 3999 209130 37 bombay high court judgement.pdf downloaded: 308 times

BDRchandan (HEAD-HR)     14 September 2011

Dear Mr. Kamal,

 

Hope you will be fine and healthy. Thanks for everything.

 

I would also like to inform you that we are unaided private education institute.

 

I have gone through the judgement provided by you. In which clearly mentioned that "Thus, it was concluded that the teachers working primary schools which are receiving grant-in-aid  from the State Government and thus aided primary schools, gratuity is made payable. The same is also available to teachers of Government Schools. That leaves out only the schools which are unaided.

 

We are also unaided institution. Will you please clearfy my problem.

 

I have gone through the following laws but not clear which is applicable on us :

 

1)Industrial Dispute Act, 1947

2)Trade Union Act, 1926

3)Industrial Employment (Standing Orders) Act, 1946

4)Minimum Wage Act

5)Contract Labour Act

6)The Payment of Wages Act, 1936 

7)The Payment of Gratuity A ct, 1972

8)Workmens compensation Act, 1923

9)Maternity Benefit Act, 1961

10)Bonus Act

11)Provident Fund Act

12)National festival holidays act

I am little bit confused about the aforesaid acts.

 

Looking ahead for your help.

 

Thanks n regards

Kamal Prasoon Sinha (Service)     20 September 2011

 

1)Industrial Dispute Act, 1947 - NO

2)Trade Union Act, 1926 - NO

3)Industrial Employment (Standing Orders) Act, 1946 -NO

4)Minimum Wage Act - YES

5)Contract Labour Act - YES

6)The Payment of Wages Act, 1936  - YES

7)The Payment of Gratuity A ct, 1972 - YES

8)Workmens compensation Act, 1923 - NO

9)Maternity Benefit Act, 1961 - YES

10)Bonus Act - YES

11)Provident Fund Act - YES

12)National festival holidays act - may be not as hospital comes under emergency serves act. I am not sure.

Ruchi Choudhary (Manager-HR)     20 September 2011

Hi,

I have gone through the valuable comments by my friends...however, i would request you to download Maternity Benefit Act 1961 wherein it is written that no matter the employee is outsourced or on the rolls, will be covered...secondly, if it comes under shop and establishment act....she is 100% eligible for Maternity Benefit...

Moreover, you can use RTI to get the information from labour Commisioner office....

Thanks,

Ruchi

 

Kamal Prasoon Sinha (Service)     21 September 2011

Dear Ruchi,

You are right that MB Act talks about female employee, it does not diffrentiate female employees on ground of status of employment.

But for almost all labour laws related compliances if the relationship between employer and employee changes...applicability of labor laws also changes. 

As you have specially mentioned about outsourced job (employee/workers through a contractor or any third party), I would like to inform you that, here labor related compliances are addressed by the immediate employer and not the principal employer. It depends on claueses of the agreement signed between the principal employer and the contractor. Well it is the ultimate obligation of the principal employer to ensure that minimum regulatory compliances are met by the contractor.

If someone is working as Consultant / Professional on Retainership basis and is not a full time employee and also working for multiple employers/organizations, none of the employers are liable for meeting any of the statutory compliaces including maternity benefits.

Regards,

Kamal 
Pune

Ruchi Choudhary (Manager-HR)     21 September 2011

Dear Mr. Sinha,

As in this case, the lady is working as a tempoary employee(Lecturer) in a deemed university and according to the section 5 of Maternity Benefit Act, 1961..she is applicable for Maternity Benefit..

And both the contractor and university is liable for any Labour law violation as indirectly the employees are working for the university.

Regards,

Ruchi

Kamal Prasoon Sinha (Service)     22 September 2011

Dear Ruchi,

Temprory employment is a very vast term. A temprory employment can be a full time employment, a part time employment, can be an employment with multiple employers etc.

 

Here the liability of the employer changes according to employment contract agreed and signed between the employer and the employee.

regards,

Kamal

Eswari Rajesh (TL)     23 September 2011

Hi, I work in an IT company as a full time contractor. Our employer says that they do not have Maternity Leave Policy and Unpaid leaves also will not be given. I work in this concern for one year 7 months. Does Maternity Leave has any exception?


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