Maternity Benifit (esic Or Company)

My wife is working in a private limited company. She is getting 12000/- net after cutting P.F & P.T. She is working since 5 years, 2 years back she get the increment in the salary of 9500/- to 12000/- and not coming in preview of ESIC. Now the ESIC Limit has changed from 10000/- to 15000/-. My question is whether she can get the Maternity Benefit from ESIC as she is 5 Months Pregnant and going for a maternity leave from October,2010. I have a doubt because I heard that ESIC benefit will be getting from the month of February,2011. Also ESIC is deducting from her salary from the month of May,2010. Whether ESIC Or Company has to give her 3 month leave & salary?

In her case, after re-coverage under ESI from May 2010, her first benefit period starts only from 1st Feb. 2011.Therefore, she is not entitled to claim Maternity Benefit under the ESI Act. However, according to Section 5A of the State Maternity Benefit Act 1961, she continues to be entitled to Maternity Benefit under the Maternity Benefit Act notwithstanding the application of ESI Act to her,until she becomes qualified to claim Maternity benefit under Section 50 of the ESI Act and Rule 56 of ESI (Central) Rules1950.Under Section 5(2) of the Maternity Benefit Act, a woman worker entitled to payment of Maternity benefit if she has worked in an establishment covered by the Act for a period of 70 days in the twelve months immediately preceding the expected delivery. The period of seventy days is made up of days on which she is actually worked and the days of lay-off and paid holidays during the period of 12 months.So, she can claim maternity benefit from the company under the State Maternity Benefit Act, 1961.

In her case, after re-coverage under ESI from May 2010, her first benefit period starts only from 1st Feb. 2011.Therefore, she is not entitled to claim Maternity Benefit under the ESI Act. However, according to Section 5A of the State Maternity Benefit Act 1961, she continues to be entitled to Maternity Benefit under the Maternity Benefit Act notwithstanding the application of ESI Act to her,until she becomes qualified to claim Maternity benefit under Section 50 of the ESI Act and Rule 56 of ESI (Central) Rules1950.Under Section 5(2) of the Maternity Benefit Act, a woman worker entitled to payment of Maternity benefit if she has worked in an establishment covered by the Act for a period of 70 days in the twelve months immediately preceding the expected delivery. The period of seventy days is made up of days on which she is actually worked and the days of lay-off and paid holidays during the period of said 12 months.

So she can claim the Maternity Benefit from the Company under the State Maternity Benefit Act, 1961.

When i asked company HR regarding this matter they said company has no responsibility toward paid salary they can only give 3 month leave as she is under ESIC Preview. They will try to get benifit from ESIC but not from company.

For those who are not covered under ESI and for those who are not eligible for the benefit under ESI, the employer is liable to pay the Maternity Benefit under the provisions of the State Maternity Benefit act, 1961. The relevant provisions of Section 5A and 5B are reproduced below. If the employer refuses to pay, the matter can be brought to the notice of the Inspector of Factories/Labour Commissioner for redressal.

Extracts from the Maternity Benefit Act:

5A. Continuance of payment of maternity benefit in certain cases.- Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees' State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.

5B. Payment of maternity benefit in certain cases.- Every woman-- (a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply; (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and

(c) who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act.