My wife was working in a Private Ltd tuition classes for the past 3 years. She is a permanent employee. The company is not deducting PF nor ESI. She is 6 months pregnant now. In the last week of January, out of the blue, her boss came and said she does not have to come from February. Even without giving a one-month notice period, which is suggested in the contract, her boss terminated my wife from her job. Also, she advised her to submit a backdated resignation letter, which she refused to do, and asked her boss to issue a termination letter. However, it's been 2 weeks now, and they have not provided the termination letter yet.
I wanted to know if it is legal for the company to terminate her when she is pregnant. Is the company liable to pay maternity benefits? Does the MBA Act of 1961 come into place as the company doesn't deduct ESI? Also, please suggest if we are entitled to maternity benefits and one month's salary as they didn't issue a notice period.
From India, Pune
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7I wanted to know if it is legal for the company to terminate her when she is pregnant. Is the company liable to pay maternity benefits? Does the MBA Act of 1961 come into place as the company doesn't deduct ESI? Also, please suggest if we are entitled to maternity benefits and one month's salary as they didn't issue a notice period.
From India, Pune
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Did the employee inform the employer about the pregnancy?
The actions of the employer are incorrect.
Advise the employee to file a complaint with the Labour Commissioner in the area, providing all the relevant details of the case.
The non-deduction of ESIC and PF does not impact the entitlement to Maternity Benefits. Non-deduction of PF is also considered an offense.
From India, Pune
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The actions of the employer are incorrect.
Advise the employee to file a complaint with the Labour Commissioner in the area, providing all the relevant details of the case.
The non-deduction of ESIC and PF does not impact the entitlement to Maternity Benefits. Non-deduction of PF is also considered an offense.
From India, Pune
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Hello Nathrao,
An employee had advised her employer regarding her pregnancy, and her employer had told her she could leave and re-join anytime she wants. The employee had also informed her employer that she would work until March 2018, but in January, her employer said not to come from February. I believe she was terminated as the employer knew they would have to provide maternity benefits.
The company has more than 20 employees, and out of that, only 9 are permanent. Is it because of this that the company is not deducting PF and ESI? I was indeed going to complain to the labor commissioner. Can we schedule an appointment with the commissioner directly, or do we need to go through an advocate?
From India, Pune
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An employee had advised her employer regarding her pregnancy, and her employer had told her she could leave and re-join anytime she wants. The employee had also informed her employer that she would work until March 2018, but in January, her employer said not to come from February. I believe she was terminated as the employer knew they would have to provide maternity benefits.
The company has more than 20 employees, and out of that, only 9 are permanent. Is it because of this that the company is not deducting PF and ESI? I was indeed going to complain to the labor commissioner. Can we schedule an appointment with the commissioner directly, or do we need to go through an advocate?
From India, Pune
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Dear Friend Anish,
It's very wise that she did not give a backdated resignation but instead asked the employer to issue a termination letter, and I think they will not dare to do so. I suggest you inform the employer that, due to a specific reason (unable to join duty, accompanied by a doctor's certificate stating she's pregnant), she will be on leave and will only resume duty after (as per MB). Keep the conversation in writing, especially through email, as proof.
Under Section 12 of the M.B. Act, 1961, it is emphasized that any dismissal or discharge of a woman during pregnancy is unlawful, and such employers can be punished under Section 21 of the Act. Furthermore, I suggest filing a written complaint with the Labour Commissioner of the respective region against the employer along with valid proof.
Please refer to the Q&A below:
Q: How can a woman employee claim her maternity benefit?
A: A woman employed in an establishment and entitled to maternity benefits under this Act must give written notice to her employer stating her claim for maternity benefits. The amount she may be entitled to under the Act can be paid to her or her nominee. The pregnant woman must state the date from which she will be absent from work, which cannot be earlier than six weeks from the expected delivery date. If the woman did not give notice during pregnancy, she may do so as soon as possible after delivery. Upon receipt of the notice, the employer must permit the woman to be absent from work during the period for which she receives maternity benefits.
Q: What is the provision relating to the prohibition of dismissal for a woman employee during absence due to pregnancy?
A: It is unlawful for an employer to discharge or dismiss a woman who is absent from work in accordance with the Maternity Benefit Act. A notice of discharge or dismissal that would disadvantage the woman in terms of her conditions of service is also unlawful. Dismissal or discharge is permissible only in cases of prescribed gross misconduct, for which the employer must inform the woman in writing that she will be deprived of maternity benefits, medical bonus, or both. The woman, if notified within sixty days of such an order, can appeal to the prescribed authority. The decision of that authority on the appeal will be final.
Q: What are the provisions for punishment or penalty for an employer who contravenes these laws?
A: An employer who fails to pay any maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work as per this Act shall be punishable with imprisonment up to 1 year, a fine up to Rs. 5000, or both.
Hope this information is helpful for you.
From India, Rohtak
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It's very wise that she did not give a backdated resignation but instead asked the employer to issue a termination letter, and I think they will not dare to do so. I suggest you inform the employer that, due to a specific reason (unable to join duty, accompanied by a doctor's certificate stating she's pregnant), she will be on leave and will only resume duty after (as per MB). Keep the conversation in writing, especially through email, as proof.
Under Section 12 of the M.B. Act, 1961, it is emphasized that any dismissal or discharge of a woman during pregnancy is unlawful, and such employers can be punished under Section 21 of the Act. Furthermore, I suggest filing a written complaint with the Labour Commissioner of the respective region against the employer along with valid proof.
Please refer to the Q&A below:
Q: How can a woman employee claim her maternity benefit?
A: A woman employed in an establishment and entitled to maternity benefits under this Act must give written notice to her employer stating her claim for maternity benefits. The amount she may be entitled to under the Act can be paid to her or her nominee. The pregnant woman must state the date from which she will be absent from work, which cannot be earlier than six weeks from the expected delivery date. If the woman did not give notice during pregnancy, she may do so as soon as possible after delivery. Upon receipt of the notice, the employer must permit the woman to be absent from work during the period for which she receives maternity benefits.
Q: What is the provision relating to the prohibition of dismissal for a woman employee during absence due to pregnancy?
A: It is unlawful for an employer to discharge or dismiss a woman who is absent from work in accordance with the Maternity Benefit Act. A notice of discharge or dismissal that would disadvantage the woman in terms of her conditions of service is also unlawful. Dismissal or discharge is permissible only in cases of prescribed gross misconduct, for which the employer must inform the woman in writing that she will be deprived of maternity benefits, medical bonus, or both. The woman, if notified within sixty days of such an order, can appeal to the prescribed authority. The decision of that authority on the appeal will be final.
Q: What are the provisions for punishment or penalty for an employer who contravenes these laws?
A: An employer who fails to pay any maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work as per this Act shall be punishable with imprisonment up to 1 year, a fine up to Rs. 5000, or both.
Hope this information is helpful for you.
From India, Rohtak
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If the matter is not resolved by the company immediately and MB benefits are not paid, directly approach the Labour Commissioner with full details of the case, including employment details and contract copy. There is no need for an advocate presently.
From India, Pune
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From India, Pune
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(Fact Checked)-The user reply is correct. It is advisable to approach the Labour Commissioner if the issue is not resolved by the company regarding maternity benefits and termination without notice. (1 Acknowledge point)
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Dear colleague,
Please check first whether the institution she worked at is registered under the Maharashtra Shops and Establishment Act/Rules. If yes, the Maternity Benefit Act applies since there are more than 10 persons employed.
Please follow the procedure given in the Q.A above regarding intimating the employer regarding maternity along with the doctor's certificates as required. Do not resign or accept a termination letter. Let her inform the employer also that she is proceeding on maternity leave 8 weeks prior to the due date of delivery and the remaining 18 weeks after delivery.
The employer will dare not take action of termination when informed of your pregnancy/maternity leave in writing, and if he does, the law is completely on your side and there is nothing to worry about. Please revert to this forum for further advice if and when the employer takes further action.
Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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Please check first whether the institution she worked at is registered under the Maharashtra Shops and Establishment Act/Rules. If yes, the Maternity Benefit Act applies since there are more than 10 persons employed.
Please follow the procedure given in the Q.A above regarding intimating the employer regarding maternity along with the doctor's certificates as required. Do not resign or accept a termination letter. Let her inform the employer also that she is proceeding on maternity leave 8 weeks prior to the due date of delivery and the remaining 18 weeks after delivery.
The employer will dare not take action of termination when informed of your pregnancy/maternity leave in writing, and if he does, the law is completely on your side and there is nothing to worry about. Please revert to this forum for further advice if and when the employer takes further action.
Regards, Vinayak Nagarkar HR Consultant
From India, Mumbai
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(Fact Checked)-The user reply contains accurate information regarding the rights of the pregnant employee under the law. The advice on informing the employer about maternity leave, not accepting termination, and seeking legal support if needed is correct. (1 Acknowledge point)
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If the employee is permanent, it obviously means she is entitled to all the benefits like PF/ESIC/gratuity/leave with wages/national holidays/maternity leave benefits/weekly offs/overtime benefits, etc.
However, in this case, if the employer simply cannot terminate the employee without an appropriate reason to do so, also an appropriate notice period should be served. It is important to note that if the employee has intimated the employer well in advance about the pregnancy and asked for leave under the maternity benefits grounds, then the employer cannot ask for resignation from the employee just because she is pregnant and the employer is looking to escape from granting maternity benefits.
However, it is suggested that the employee should have enough evidence to prove she is a permanent employee before approaching the concerned labor authority. Seek advice from the labor office or a lawyer for further action.
From India, Vadodara
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However, in this case, if the employer simply cannot terminate the employee without an appropriate reason to do so, also an appropriate notice period should be served. It is important to note that if the employee has intimated the employer well in advance about the pregnancy and asked for leave under the maternity benefits grounds, then the employer cannot ask for resignation from the employee just because she is pregnant and the employer is looking to escape from granting maternity benefits.
However, it is suggested that the employee should have enough evidence to prove she is a permanent employee before approaching the concerned labor authority. Seek advice from the labor office or a lawyer for further action.
From India, Vadodara
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Dear professional colleague,
To be eligible for Maternity benefit under the M.B. Act, the following conditions are required to be fulfilled:
1. The M.B. Act should be applicable to the establishment.
2. The woman employee in such establishment should have worked for 80 days prior to the expected date of delivery.
3. If the above is fulfilled, no condition of being permanent or otherwise is required.
4. The woman employee who is eligible for M.B. cannot be terminated by an employer during pregnancy, which is outright illegal.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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To be eligible for Maternity benefit under the M.B. Act, the following conditions are required to be fulfilled:
1. The M.B. Act should be applicable to the establishment.
2. The woman employee in such establishment should have worked for 80 days prior to the expected date of delivery.
3. If the above is fulfilled, no condition of being permanent or otherwise is required.
4. The woman employee who is eligible for M.B. cannot be terminated by an employer during pregnancy, which is outright illegal.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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(Fact Checked)-The user reply is mostly correct. However, the Maternity Benefit Act, 1961, does not require a woman to have a specific employment status (permanent or otherwise) to be eligible for maternity benefits. The Act only mandates that a woman should have worked for 80 days in the 12 months preceding the expected date of delivery to qualify for maternity benefits. The termination of a pregnant woman during her pregnancy is indeed illegal as per the Maternity Benefit Act. (1 Acknowledge point)
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Dear Vinayak,
Thank you for your valuable reply. How can I determine whether the institution is registered under the Maharashtra Shops and Establishment Act? It was initially established as a tuition center which later transformed into a private limited company. The name also indicates ______ Classes Pvt Ltd.
From India, Pune
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Thank you for your valuable reply. How can I determine whether the institution is registered under the Maharashtra Shops and Establishment Act? It was initially established as a tuition center which later transformed into a private limited company. The name also indicates ______ Classes Pvt Ltd.
From India, Pune
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(Fact Checked)-The information provided is correct. It is important to verify the registration under the Maharashtra Shops and Establishment Act for further clarity. (1 Acknowledge point)
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Please advise on how to determine if the MB Act applies to the institution. The employer has reduced its permanent employees to less than 10, and I suspect it is because she does not want to provide PF and other ESI benefits.
From India, Pune
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From India, Pune
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(Fact Checked)-The Maternity Benefit Act, 1961 applies to all establishments, regardless of the number of employees. The employer is obligated to provide maternity benefits to female employees. The reduction in the number of employees does not exempt the employer from complying with the Act. (1 Acknowledge point)
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CiteHR.AI
(Fact Checked)-The user reply contains accurate information regarding the Maternity Benefit Act, 1961. It correctly states the provisions related to maternity benefits, prohibition of dismissal during pregnancy, and penalties for non-compliance. The user also provides sound advice on how to proceed in this situation. Well done! (1 Acknowledge point)