Regarding maternity leave salary
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
Please help me out in above cases. Thank you
From India, New Delhi
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
Please help me out in above cases. Thank you
From India, New Delhi
Dear Himanshi Rajput,
Had you gone through the historical back ground of passing of the Maternity Benefit Act, 1961 and given some deep thoughts about the provisions of the Act entitling a woman employee to the various benefits under the Act, perhaps, you would not have raised the above questions.
The Maternity Benefit Act,1961 was passed by the Indian Parliament in tune with the various conventions of the International Labor Organization on maternity benefit protection and Article 42 of the Constitution of India. Therefore, once when the establishments comes within the purview of the Act, it is the duty of its employer to implement the provisions of the Act in its letter and spirit.
The right to maternity benefits under the Act is based only on the length of the past service rendered by a woman in the establishment. Therefore, there cannot be any condition to serve in the establishment after availing the benefits.
Regarding disbursement of salary for the period of absence due to maternity, you can go through sec.6(5) of the Act.
In view of the above legal position, I think that your questions do not deserve consideration.
From India, Salem
6018Had you gone through the historical back ground of passing of the Maternity Benefit Act, 1961 and given some deep thoughts about the provisions of the Act entitling a woman employee to the various benefits under the Act, perhaps, you would not have raised the above questions.
The Maternity Benefit Act,1961 was passed by the Indian Parliament in tune with the various conventions of the International Labor Organization on maternity benefit protection and Article 42 of the Constitution of India. Therefore, once when the establishments comes within the purview of the Act, it is the duty of its employer to implement the provisions of the Act in its letter and spirit.
The right to maternity benefits under the Act is based only on the length of the past service rendered by a woman in the establishment. Therefore, there cannot be any condition to serve in the establishment after availing the benefits.
Regarding disbursement of salary for the period of absence due to maternity, you can go through sec.6(5) of the Act.
In view of the above legal position, I think that your questions do not deserve consideration.
From India, Salem
Dear Himanshi Rajput,
Can you please confirm in what capacity you have raised this post? Are you an employer or an HR professional? If the latter, then what is your qualification? Have you read the Maternity Benefit Act, 1961? Is it that you are an employee who is applying for maternity leave?
By reading your post, one can very well capture the undertone of your post or the grouse behind it. It appears that in your company, a female employee was to avail of maternity leave. You had a regret of losing the company's funds because of the disbursement of the salary while on maternity leave. You felt that the funds are recoverable provided she commits her employment on the expiry of her maternity leave. It appears that the employee had committed her employment before proceeding on maternity leave and on completion of it, she backed out. Now you wish to withhold her maternity leave benefits.
The senior member, Mr Umakanthan, has given a reply to your post. Let me add my two cents. Your grouse stems out of the lack of your awareness of the Maternity Benefit Act, 1961. The act is 60 years old, and the courts at various levels have given verdicts that explain the genesis of the social security called maternity benefit. Alas, you had read a few court verdicts.
The payment of maternity benefits to eligible women employees is a social obligation. While profit-making is a sole objective of the business enterprises in the capitalistic world, the government makes labour laws so that businesses partake part of their profit for the welfare of the society in general and their employees in particular. If the social obligation thrust on the business enterprises is removed, then capitalism will convert into hedonism. Are the business enterprises prepared to face the consequences of this hedonistic world?
Anyway, replies to your questions are as below:
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can the company deny giving her salary??
Reply: - Eligibility of maternity leave and continuation of the employment are two separate things. These should not be linked at all. Secondly, the woman employee should have been paid the salary as and when her maternity leave progressed? If you have put on hold the disbursement of her salary thinking the lump sum amount can be paid once she resumes her duties, then it is a gross violation of the MBA, 1961. Therefore, in simple words, you cannot deny her salary.
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
Reply: - Under provisions of which labour law would you like to make an agreement with the woman employee? May I remind you that India is still a free country, and "forced employment" is illegal? The employee serves the company as long as he/she wishes.
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
Reply: - Of course, yes. The woman employee has every right to quit the employment whenever she wishes.
Final comments: - It is sad to note that the members do not possess a modicum of knowledge of the labour laws. 74 years after independence, India continues to grapple with the pre-1947 mindset or even the mindset of the 19th century. Is this how India will become a superpower?
Thanks,
Dinesh Divekar
From India, Bangalore
Can you please confirm in what capacity you have raised this post? Are you an employer or an HR professional? If the latter, then what is your qualification? Have you read the Maternity Benefit Act, 1961? Is it that you are an employee who is applying for maternity leave?
By reading your post, one can very well capture the undertone of your post or the grouse behind it. It appears that in your company, a female employee was to avail of maternity leave. You had a regret of losing the company's funds because of the disbursement of the salary while on maternity leave. You felt that the funds are recoverable provided she commits her employment on the expiry of her maternity leave. It appears that the employee had committed her employment before proceeding on maternity leave and on completion of it, she backed out. Now you wish to withhold her maternity leave benefits.
The senior member, Mr Umakanthan, has given a reply to your post. Let me add my two cents. Your grouse stems out of the lack of your awareness of the Maternity Benefit Act, 1961. The act is 60 years old, and the courts at various levels have given verdicts that explain the genesis of the social security called maternity benefit. Alas, you had read a few court verdicts.
The payment of maternity benefits to eligible women employees is a social obligation. While profit-making is a sole objective of the business enterprises in the capitalistic world, the government makes labour laws so that businesses partake part of their profit for the welfare of the society in general and their employees in particular. If the social obligation thrust on the business enterprises is removed, then capitalism will convert into hedonism. Are the business enterprises prepared to face the consequences of this hedonistic world?
Anyway, replies to your questions are as below:
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can the company deny giving her salary??
Reply: - Eligibility of maternity leave and continuation of the employment are two separate things. These should not be linked at all. Secondly, the woman employee should have been paid the salary as and when her maternity leave progressed? If you have put on hold the disbursement of her salary thinking the lump sum amount can be paid once she resumes her duties, then it is a gross violation of the MBA, 1961. Therefore, in simple words, you cannot deny her salary.
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
Reply: - Under provisions of which labour law would you like to make an agreement with the woman employee? May I remind you that India is still a free country, and "forced employment" is illegal? The employee serves the company as long as he/she wishes.
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
Reply: - Of course, yes. The woman employee has every right to quit the employment whenever she wishes.
Final comments: - It is sad to note that the members do not possess a modicum of knowledge of the labour laws. 74 years after independence, India continues to grapple with the pre-1947 mindset or even the mindset of the 19th century. Is this how India will become a superpower?
Thanks,
Dinesh Divekar
From India, Bangalore
Dear colleagues,
The legal obligation to grant maternity leave/ benefits to eligible woman employee under the provisions of MB Act, 1961, is undeniable and non- negotiable. But the woman employee in question, seems to have pre- decided to quit the job after availing the ML by giving false promise . Is it in good taste? The reasons for her inability to rejoin are not known. If it is on health grounds or simply to look after new- born , then it is perhaps understood. But if she has chosen to join another company for better prospects, then the question of morality comes into sharp focus.
The woman should feel morally committed to work for at least six more months in the normal circumstances, after being away from work for six months after availing of benefits under the Act. Particularly when she gives her promise to do so before proceeding on ML.
By quitting the job in this casual manner, she has shown scant regard for her words and put employer to a great loss of resources- time, money and perhaps of able , performing hand.
I am aware that such issues of morality have no place in the corporate world. It cuts on both the sides as there is no dearth of unscrupulous employers who show high handedness by refusing the ML or find ways to even terminate her services just to deprive her of the benefits or to scuttle the legal and moral obligations.
I am raising this for whatever worth it is
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
The legal obligation to grant maternity leave/ benefits to eligible woman employee under the provisions of MB Act, 1961, is undeniable and non- negotiable. But the woman employee in question, seems to have pre- decided to quit the job after availing the ML by giving false promise . Is it in good taste? The reasons for her inability to rejoin are not known. If it is on health grounds or simply to look after new- born , then it is perhaps understood. But if she has chosen to join another company for better prospects, then the question of morality comes into sharp focus.
The woman should feel morally committed to work for at least six more months in the normal circumstances, after being away from work for six months after availing of benefits under the Act. Particularly when she gives her promise to do so before proceeding on ML.
By quitting the job in this casual manner, she has shown scant regard for her words and put employer to a great loss of resources- time, money and perhaps of able , performing hand.
I am aware that such issues of morality have no place in the corporate world. It cuts on both the sides as there is no dearth of unscrupulous employers who show high handedness by refusing the ML or find ways to even terminate her services just to deprive her of the benefits or to scuttle the legal and moral obligations.
I am raising this for whatever worth it is
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Dear members,
The right of maternity leave to the eligible woman employee has been conferred to her by Maternity Benefit Act, 1961. It is a constitutional entitlement conferred to the eligible woman. Yes, when a woman avails of maternity leave, it increases the business cost. However, the employers are expected to plan their business so that this cost gets absorbed somewhere else.
Therefore, eligible women need not feel that by sparing them for the maternity leave, their employers have done a favour to them and to return the favour, it is their moral obligation not to cease the employment. The entitlement of maternity leave and the decision to continue with the employment are two separate things and the former need not have bearing on the latter.
India is a sovereign country and feudal lords have no place. The business owners are not aristocrats. They cannot consider maternity leave a noblesse oblige extended to the pregnant employee by them.
Thanks,
Dinesh Divekar
From India, Bangalore
The right of maternity leave to the eligible woman employee has been conferred to her by Maternity Benefit Act, 1961. It is a constitutional entitlement conferred to the eligible woman. Yes, when a woman avails of maternity leave, it increases the business cost. However, the employers are expected to plan their business so that this cost gets absorbed somewhere else.
Therefore, eligible women need not feel that by sparing them for the maternity leave, their employers have done a favour to them and to return the favour, it is their moral obligation not to cease the employment. The entitlement of maternity leave and the decision to continue with the employment are two separate things and the former need not have bearing on the latter.
India is a sovereign country and feudal lords have no place. The business owners are not aristocrats. They cannot consider maternity leave a noblesse oblige extended to the pregnant employee by them.
Thanks,
Dinesh Divekar
From India, Bangalore
Dear Himanshi Rajput,
Q1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
Ans: No
Q2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
Ans: No
Q3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave.
Ans 3: She can do so as the act is silent.
From India, Mumbai
Q1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
Ans: No
Q2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
Ans: No
Q3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave.
Ans 3: She can do so as the act is silent.
From India, Mumbai
I appreciate the question raised by a fellow member. I can understand the kind of management s/he/they dealing with and the efforts to convey the basic principle of maternity benefits to the management is really deserved the cap. Having said that, maternity benefits are the constitutional provisions and can not be denied and deem fit to be denined in any form under any circumstances. Business has to factor these cost while budgetary planing process. Irrespective of applicability of CSR norm, institutions has to take the self cognizance of the legal and social framework and contribute. Please remember that healthy motherhood leads to much higher productivity in jobs.
Best
Amol Nakve
From India, Mumbai
Best
Amol Nakve
From India, Mumbai
Question 1:
Company cannot deny her salary
Question 2:
Not required
Question 3:
She has no obligation to join back the company though she has availed maternity benefits from the company. She has just utilised her rights.
However, majority of companies in India are small, sustain on monthly income they generate. In such cases it is not just law but some ethics should be followed by employees working in such small companies.
From India, Bengaluru
Company cannot deny her salary
Question 2:
Not required
Question 3:
She has no obligation to join back the company though she has availed maternity benefits from the company. She has just utilised her rights.
However, majority of companies in India are small, sustain on monthly income they generate. In such cases it is not just law but some ethics should be followed by employees working in such small companies.
From India, Bengaluru
The HR professionals go through a lot of difficult and dynamic situations. Being a labour and employment lawyer for 18 years and in my close association with the corporates I have always seen the companies facing one of such situations.
Though there is a bar on the employer under the Maternity Benefit Act, 1961 from terminating the female employee while being on maternity leave, there is no such compulsion upon the female employees to continue in the employment after availing maternity leave. Therefore, employment statutes being benevolent laws favours the employees.
Accordingly, the responses to the questions are as follows:
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
NO
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
NO. Demanding such a document is also against the provisions of the Indian Contract Act, 1872. Furthermore, there cannot be any contract or agreement to supersede the provisions of law.
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
YES.
Though there is a bar on the employer under the Maternity Benefit Act, 1961 from terminating the female employee while being on maternity leave, there is no such compulsion upon the female employees to continue in the employment after availing maternity leave. Therefore, employment statutes being benevolent laws favours the employees.
Accordingly, the responses to the questions are as follows:
1. If the female employee said before going on maternity leave that she'll join after leave then denies joining the company after maternity leave... In that case can company deny to give her salary??
NO
2. Do the female employee have to give a statement on stamp paper that she'll definitely join the company after her maternity leaves??
NO. Demanding such a document is also against the provisions of the Indian Contract Act, 1872. Furthermore, there cannot be any contract or agreement to supersede the provisions of law.
3. Can the female employee quit the job and get maternity leave by saying that she'll not join the company after maternity leave??
YES.
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