Sir/Madam,
Can a pregnant woman be replaced (not retrenched) by any other contract labor in a service contract? If no, then in a service contract, if work is to be performed with 10 manpower, how can it be possible with only 9 manpower? What is the remedy for the principal employer?
Thank you.
From India, Faridabad
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Can a pregnant woman be replaced (not retrenched) by any other contract labor in a service contract? If no, then in a service contract, if work is to be performed with 10 manpower, how can it be possible with only 9 manpower? What is the remedy for the principal employer?
Thank you.
From India, Faridabad
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If the pregnant woman is the employee of the contractor and proceeds on maternity leave, the principal employer is entitled to have her replaced by another employee of the contractor. The contractor is liable to extend maternity benefits to his employee.
From India, Faridabad
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59From India, Faridabad
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Very good morning, Mittal sir. Generally, problems arise with petty contractors. They are saying that if the principal employer does not pay them, how will they be able to pay their wages? In that case, there is always a chance that the small contractor may dismiss the female employee. Grievances or complaints may arise, leading to legal complications.
From India, Faridabad
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From India, Faridabad
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Dear Shyam,
Before arriving at the answer for your query regarding who is liable to give maternity benefit under the Maternity Benefit Act, 1961 to a contract labor, whether the principal employer or the contractor, one has to look into the definitions of the terms "maternity benefit," "woman" under sections 3(h) and 3(o) of the MB Act, 1961 respectively in conjunction with the restrictions on employment imposed under section 4 and other benefits provided for under sections 8, 9, 9-A, 10, 11, and 13 and take a decision in totality of the actual meaning and purpose of all the sections.
If analyzed in this backdrop, by virtue of the definition under section 3(o):
Firstly, a woman contract labor also becomes entitled to all the maternity benefits contemplated under the MBA, 1961, had she worked in the establishment for a minimum period of 80 days in the 12 months period preceding the date of her expected delivery.
Secondly, she also becomes entitled to claim the benefits of the restrictions on working conditions including nursing breaks.
Thirdly, in case of application of the ESI Act, 1948 to the employee, the liability under section 40 of the Act to pay the contributions in the first instance falls on the principal employer.
Fourthly, all the above put together fasten the vicarious liability imposed under section 21(4) of the CLRA Act, 1970 on the principal employer to pay the maternity benefit to a female contract labor.
Finally, the resultant inconvenience caused to the principal employer or the contractor mentioned in the post pales into insignificance as the costs of these statutory benefits and the alternative arrangement to ensure the continuous flow of the contract work automatically merge with the entire cost of the contract.
Therefore, both the principal employer and the contractor shall have the insight and foresight to include such statutory contingencies in their contract for service.
From India, Salem
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Before arriving at the answer for your query regarding who is liable to give maternity benefit under the Maternity Benefit Act, 1961 to a contract labor, whether the principal employer or the contractor, one has to look into the definitions of the terms "maternity benefit," "woman" under sections 3(h) and 3(o) of the MB Act, 1961 respectively in conjunction with the restrictions on employment imposed under section 4 and other benefits provided for under sections 8, 9, 9-A, 10, 11, and 13 and take a decision in totality of the actual meaning and purpose of all the sections.
If analyzed in this backdrop, by virtue of the definition under section 3(o):
Firstly, a woman contract labor also becomes entitled to all the maternity benefits contemplated under the MBA, 1961, had she worked in the establishment for a minimum period of 80 days in the 12 months period preceding the date of her expected delivery.
Secondly, she also becomes entitled to claim the benefits of the restrictions on working conditions including nursing breaks.
Thirdly, in case of application of the ESI Act, 1948 to the employee, the liability under section 40 of the Act to pay the contributions in the first instance falls on the principal employer.
Fourthly, all the above put together fasten the vicarious liability imposed under section 21(4) of the CLRA Act, 1970 on the principal employer to pay the maternity benefit to a female contract labor.
Finally, the resultant inconvenience caused to the principal employer or the contractor mentioned in the post pales into insignificance as the costs of these statutory benefits and the alternative arrangement to ensure the continuous flow of the contract work automatically merge with the entire cost of the contract.
Therefore, both the principal employer and the contractor shall have the insight and foresight to include such statutory contingencies in their contract for service.
From India, Salem
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Nothing more to add with the above. Learned members advised. I just clarify on...
If the "petty contractors denying to pay MB benefits," it means it is itself a violation and inviting a legal case by those petty contractors along with the Principal Employer.
See, we are all human race living with Nature. We should accept Rain, Summer, Winter, etc., natural events. Likewise, humans have to marry, and women having pregnancy, delivering children. These are all natural events. One (even a factory) has to accept and follow and bear the natural inconveniences with a smile and supportive tendencies. I hope you understand with a broad mind.
That's all. Right.
From India, Nellore
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If the "petty contractors denying to pay MB benefits," it means it is itself a violation and inviting a legal case by those petty contractors along with the Principal Employer.
See, we are all human race living with Nature. We should accept Rain, Summer, Winter, etc., natural events. Likewise, humans have to marry, and women having pregnancy, delivering children. These are all natural events. One (even a factory) has to accept and follow and bear the natural inconveniences with a smile and supportive tendencies. I hope you understand with a broad mind.
That's all. Right.
From India, Nellore
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