Hi All,
What does "12 months preceding the date of her expected delivery" mean in maternity leave policy? Does it mean that she has to work in an organization for a complete year to get her maternity benefits? And if she has completed her 80 working days in an organization but has not completed 1 year, will she be eligible for the benefits of maternity paid leave?
Thanks,
From United States, New York
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What does "12 months preceding the date of her expected delivery" mean in maternity leave policy? Does it mean that she has to work in an organization for a complete year to get her maternity benefits? And if she has completed her 80 working days in an organization but has not completed 1 year, will she be eligible for the benefits of maternity paid leave?
Thanks,
From United States, New York
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Hi Partner,
For eligibility for maternity leave in India, the employee does not need to complete 1 year to receive her maternity benefits. This requirement simply means that she must have completed at least 80 paid days after joining the company to qualify for maternity leave.
Now, let's consider a scenario where the employee has been on unpaid leave for a significant period within the last 12 months before the expected delivery date, resulting in her not completing the required 80 paid days. In such a situation, an issue arises.
The terms and conditions regarding maternity leave in India are somewhat similar to the FMLA policy in the US, although not identical.
From India, Bengaluru
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61For eligibility for maternity leave in India, the employee does not need to complete 1 year to receive her maternity benefits. This requirement simply means that she must have completed at least 80 paid days after joining the company to qualify for maternity leave.
Now, let's consider a scenario where the employee has been on unpaid leave for a significant period within the last 12 months before the expected delivery date, resulting in her not completing the required 80 paid days. In such a situation, an issue arises.
The terms and conditions regarding maternity leave in India are somewhat similar to the FMLA policy in the US, although not identical.
From India, Bengaluru
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The question is whether one has to complete one year (12 months) in order to be eligible for maternity benefits in India and if it is available to one who has joined a few months back and having worked for 80 days? Which is more important? 12 months of service or 80 days of working? If only 80 days of service will qualify for maternity benefits, then what is the meaning of the qualifying phrase, "during 12 months"?
Under the ESI Scheme, it is mandatory that she should have worked for two contribution periods (each contribution period is 6 months in duration and as such one year). From the above, my interpretation is that 80 days of working and a service of 12 months immediately preceding the date of delivery are mandatory for maternity benefits. A lady who joined three months back and has worked for 80 days will not be eligible for benefits. Whereas, a lady who joined 12 months back but has been on leave without pay for various days but has a total of 80 paid days during this 12 months will be eligible for maternity benefits as per the Act.
From India, Kannur
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Under the ESI Scheme, it is mandatory that she should have worked for two contribution periods (each contribution period is 6 months in duration and as such one year). From the above, my interpretation is that 80 days of working and a service of 12 months immediately preceding the date of delivery are mandatory for maternity benefits. A lady who joined three months back and has worked for 80 days will not be eligible for benefits. Whereas, a lady who joined 12 months back but has been on leave without pay for various days but has a total of 80 paid days during this 12 months will be eligible for maternity benefits as per the Act.
From India, Kannur
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Dear Friends,
Mr. Madhu is correctly saying, 80 days' working and a service of 12 months immediately preceding the date of delivery are mandatory for maternity benefits. A lady who joined three months back and has worked for 80 days will not be eligible for benefits. However, a lady who joined 12 months back but has been on leave without pay for various days but has a total of 80 paid days during this 12 months will be eligible for maternity benefits as per the Act. Along with the confirmation notice before pregnancy is mandatory, accordingly, the counting will be taken into consideration.
Maternity Benefits
Maternity Benefit is payable to an Insured Woman in the following cases subject to contributory conditions:
- Confinement - payable for a period of 12 weeks (84 days) on production of Form 21 and 23.
- Miscarriage or Medical Termination of Pregnancy (MTP) - payable for 26 weeks (182 days) from the date following miscarriage on the basis of Form 20 and 23.
- Sickness arising out of Pregnancy, Confinement, Premature birth - payable for a period not exceeding one month on the basis of Forms 8, 10, and 9.
In the event of the death of the Insured Woman during confinement leaving behind a child, Maternity Benefit is payable to her nominee on production of Form 24 (B). Maternity benefit rate is 100% of average daily wages.
Regards, Dr. PBS KUMAR
(For my special interest, I posted in Telugu and Hindi languages also for our HR fraternity friends)
From India, Kakinada
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Mr. Madhu is correctly saying, 80 days' working and a service of 12 months immediately preceding the date of delivery are mandatory for maternity benefits. A lady who joined three months back and has worked for 80 days will not be eligible for benefits. However, a lady who joined 12 months back but has been on leave without pay for various days but has a total of 80 paid days during this 12 months will be eligible for maternity benefits as per the Act. Along with the confirmation notice before pregnancy is mandatory, accordingly, the counting will be taken into consideration.
Maternity Benefits
Maternity Benefit is payable to an Insured Woman in the following cases subject to contributory conditions:
- Confinement - payable for a period of 12 weeks (84 days) on production of Form 21 and 23.
- Miscarriage or Medical Termination of Pregnancy (MTP) - payable for 26 weeks (182 days) from the date following miscarriage on the basis of Form 20 and 23.
- Sickness arising out of Pregnancy, Confinement, Premature birth - payable for a period not exceeding one month on the basis of Forms 8, 10, and 9.
In the event of the death of the Insured Woman during confinement leaving behind a child, Maternity Benefit is payable to her nominee on production of Form 24 (B). Maternity benefit rate is 100% of average daily wages.
Regards, Dr. PBS KUMAR
(For my special interest, I posted in Telugu and Hindi languages also for our HR fraternity friends)
From India, Kakinada
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Sorry, I wish to differ from the contention of Mr. Madhu. Initially, I was also of the same opinion, focusing my attention predominantly on the point of subsistence of the contract of employment between the employer and the employee for the determination of continuous service in every labor law prescribing a period of service of 12 months or a certain minimum number of days actually worked within the said 12 months.
In this regard, I would like to quote sections 25-B of the ID Act, 1947, and 2-A of the P.G Act, 1972, which are to a large extent similar in content and scope of interpretation to sec. 5(2) of the Maternity Benefit Act, 1961. The phrase "Continuous service" commonly occurring in all the above three sections in order to be rendered must no doubt presuppose a contract of employment. However, we all would unhesitatingly admit that a contract of employment between a master and servant is not the same thing as rendering continuous service. The two are not synonymous. The emphasis in the same phrase finding place in all the above enactments aiming to provide a certain statutory benefit to the working class exclusively at the cost of the employer is, therefore, not on the contract of employment subsisting for a period of 12 months but on the certain minimum number of days worked by the employee only.
ESI being a scheme of contribution by both the employer and employee cannot be compared with the benefits of retrenchment compensation, gratuity, and maternity benefit.
In this connection, I would quote the following decision of the honorable Supreme Court in MOHANLAL v BHARAT ELECTRONICS Ltd [AIR 1981 SC 1253]:
"Section 25-B(2) comprehends a situation where a workman is not in employment of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backward from the relevant date, i.e., the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25-B and Chapter V-A."
No doubt that the above ratio decidendi squarely applies to the issue of qualifying service for maternity benefit also.
"The 12 months immediately preceding the date of her expected delivery" mentioned in the section indicates the maximum stretch of her employment in the establishment within which the qualifying period of service has to be reckoned by taking into consideration of the interruptions mentioned in the explanation to the section as non-interruptions. Thus, a legal fiction is created by the Act to adopt a beneficial construction in tune with the following observations of the Apex Court in Workmen of Dimakuchi Tea Estate v Dimakuchi Tea Estate:
"The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the legislature has in view."
Since the provisions of the Maternity Benefit Act, 1961, are wholly in consonance with the Directive Principles of State Policy contained in Article 39 and in other Articles, especially Article 42 of the Constitution, holding that 12 months of employment from the expected date of delivery and not a mere stretch of 80 days within the said 12 months, whether continuous or intermittent, is a precondition for claiming the maternity benefit would defeat the very purpose of this beneficial legislation.
From India, Salem
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In this regard, I would like to quote sections 25-B of the ID Act, 1947, and 2-A of the P.G Act, 1972, which are to a large extent similar in content and scope of interpretation to sec. 5(2) of the Maternity Benefit Act, 1961. The phrase "Continuous service" commonly occurring in all the above three sections in order to be rendered must no doubt presuppose a contract of employment. However, we all would unhesitatingly admit that a contract of employment between a master and servant is not the same thing as rendering continuous service. The two are not synonymous. The emphasis in the same phrase finding place in all the above enactments aiming to provide a certain statutory benefit to the working class exclusively at the cost of the employer is, therefore, not on the contract of employment subsisting for a period of 12 months but on the certain minimum number of days worked by the employee only.
ESI being a scheme of contribution by both the employer and employee cannot be compared with the benefits of retrenchment compensation, gratuity, and maternity benefit.
In this connection, I would quote the following decision of the honorable Supreme Court in MOHANLAL v BHARAT ELECTRONICS Ltd [AIR 1981 SC 1253]:
"Section 25-B(2) comprehends a situation where a workman is not in employment of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backward from the relevant date, i.e., the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25-B and Chapter V-A."
No doubt that the above ratio decidendi squarely applies to the issue of qualifying service for maternity benefit also.
"The 12 months immediately preceding the date of her expected delivery" mentioned in the section indicates the maximum stretch of her employment in the establishment within which the qualifying period of service has to be reckoned by taking into consideration of the interruptions mentioned in the explanation to the section as non-interruptions. Thus, a legal fiction is created by the Act to adopt a beneficial construction in tune with the following observations of the Apex Court in Workmen of Dimakuchi Tea Estate v Dimakuchi Tea Estate:
"The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the legislature has in view."
Since the provisions of the Maternity Benefit Act, 1961, are wholly in consonance with the Directive Principles of State Policy contained in Article 39 and in other Articles, especially Article 42 of the Constitution, holding that 12 months of employment from the expected date of delivery and not a mere stretch of 80 days within the said 12 months, whether continuous or intermittent, is a precondition for claiming the maternity benefit would defeat the very purpose of this beneficial legislation.
From India, Salem
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