Maternity Benefit / paid Leave For Fixed-term Contractual Employee

Hello everyone,

I need an urgent suggestion/help regarding maternity paid leave for a fixed-term contractual employee in a private company. I joined this company on 7th May 2018 with a 1-year contract agreement as a Consultant (Manager), which is subject to renewal before expiry on 6th May 2019. The payment is consolidated after a 10% TDS deduction, and company mediclaim policy coverage & others facilities are the same as a permanent employee.

I have applied for maternity leave of 26 weeks from 18th March 2019 (at the 36th week of pregnancy - EDD - 6th April 2019) to 16th September 2019. However, my contract will expire on 6th May 2019. I spoke with the SVP who informed me that he can approve the leave up to 6th May 2019 as he could not assign me to any long-term project. Therefore, there is no hope for the renewal of the contract as I will not be present at the time of contract expiry. I am waiting for the final decision from HR. If they are firm on this, I will only receive 7 weeks of maternity benefit, but I will lose my job after the contract ends and also forfeit 19 weeks of maternity benefit.

My queries are:

1. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) a right for women employees/fixed-term contract employees or not?
2. What is my stand to claim the benefit or eligibility of claiming the benefit?
3. Can non-renewal of a fixed-term contract be considered as dismissal of the contract? Does it need to be renewed by the authority or by law?
4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights?
5. If I do not receive the full benefit, what should be the next step to claim my rights?

Kindly advise/suggest regarding these matters as soon as possible.

Hi,

Please find the reply to your queries below:

1. How can I avail full maternity leave? Is maternity leave (paid leave of 26 weeks) right for women employees/fixed-term contract employees or not? - As per the recent judgment from the Delhi High Court, maternity leave is applicable only until the last date of the contract in the case of contractual employment.

2. What is my stand to claim the benefit or eligibility of claiming the benefit? - Not eligible after the completion of the contract.

3. Non-renewal of fixed-term contract can be considered as dismissal of the contract? Does it require renewal by the authority, or does it have to be renewed by law? - No, it is not compulsory for renewal unless mentioned in your current contract.

4. As per the Maternity Benefit Act, Labor Law, or other Government of India acts, what are my rights? - Your rights are of maternity leave until the last day of your existing contract.

5. If I do not get the full benefit, what should be the next step to claim my rights? - The answer is available in the details provided above.

Thank you.

Important Case Law of High Court Delhi under Maternity Benefit (Amendment) Act 2017

Artiben R Thakkar (Dr.) - Petitioner
Vs.
Delhi Pharmaceutical Sciences and Research University & Anr - Respondent

A challenge is from the petitioner employee to the action of the respondent declining maternity leave for 26 weeks on the ground that the petitioner's employment ended on 15th May, which was extended to 30th June. The Court held that:
1. Full maternity leave of 26 weeks, in terms of the amended Act, could not be extended to the petitioner because her contractual period ended.
2. As a special case, her contractual period was extended till the end of the academic session. There is neither precedent nor justification to extend such benefit to a contractual employee.
3. The respondent cannot be called upon to extend the contractual period to ensure that the petitioner avails full maternity leave.
4. Benefits attached to a service come to an end once the term is complete.

The Honorable Court also observed that it is an elementary rule of service jurisprudence that benefits attached to service come to an end upon completion of the tenure; hence, there is no substance in the petition and therefore it is dismissed.

Whether the person is on a fixed-term or permanent basis, she is an employed woman and eligible for maternity benefits subject to fulfillment of other conditions of the Act.

Manoj Sir,

Kindly share the soft copy of the judgment on the above thread - Cite HR fraternity academic interest.

Regards,

For more information, you can contact our payroll department at https://www.prolifichr.com/manpower-payroll-outsourcing.

Thank you.

Neither do I wish to hurt anyone's feelings nor am I against the entitlement of any benefits. What I observed from the presentation of the post is that it is a well-planned attempt to claim maternity benefits. The Expected Date of Delivery (EDD) is 6th April 2019, just one month before the expiry of the contract.

Nowadays, we find cases where some women join organizations while being aware that they are pregnant but do not disclose it at the time of joining. They then start inquiring about their benefits and rights, even though they have not completed six months of service.

In our daily lives, how many of us consider providing benefits to our maid servants who take a maximum of 2 to 3 months leave for their delivery based on their financial conditions? Some poor women even start working after just 2 months because they are concerned about their families' livelihood. The answer is likely over 95% no.

We give birth to our children for our own needs and not for society. Therefore, we should pray to God for a safe delivery and a healthy child; the rest of the things are secondary in life.

Please excuse me if anyone's feelings are hurt by my post.

Previously, employers were comfortable with 12 weeks of Maternity Leave (ML). The government should have amended ML to 13 weeks with pay and an additional 13 weeks of authorized leave without pay to look after the child's health.

Regards, Suresh

Hi Suresh,

What I understood from your comment is that you are a little disturbed with maternity benefits for women. From the post, it is clear that the lady found out about her pregnancy after joining (simple mathematical calculation reveals the truth), so it was not well planned. Every woman in this country has the same rights. She has the right to fight against it as the employer is still benefiting from her efficiency, and she is still performing. The act is straightforward in many cases with proper justification. Now, the question is, if the employer is hiring someone to replace this lady or continuing the project she was working on, then she should file a case against the employer and the person making this decision because of her pregnancy. Private organizations can be very cunning and should be dealt with firmly. Thanks, Suresh, for showing your interest in understanding the mentality surrounding this issue.

Hi Manoj,

Here, you referred to a case that I think does not perfectly match her situation because she is working on a project (short term/long term), and her contract is not based on class sessions like Artiben R Thakkar (Dr.) case.

I have another reference. Please go through the link: https://www.livelaw.in/temprorary-ad...at-read-order/. The CAT observed that while temporary, ad hoc, or contract employees do not enjoy the same benefits as regular employees, the request for maternity leave stood on a different footing.

Regards,
Dr. Ganguly

Please read the following Kerala High Court judgments:

1. Rasitha C H v. State of Kerala
2. Rakhi PV v. State of Kerala
3. Mini V v. LIC

Thank you.