My wife was working in a Private Ltd tution classes from 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 you do not have to come from February. Even without giving a notice period for one month, which is suggested in the contract she terminated my wife from her job. Also she advised her to submit a back dated resignation letter which she refused to do and asked her boss to issue a termination letter. However, its been 2 weeks now and they have not provided the termination letter yet.
I wanted to know if this is legal for the company to terminate her when is pregnant. Is the company liable to pay maternity benefits? Does the MBA Act 1961 come into place as the company doesn't deduct ESI. Also , please suggest if we are entittled to maternity benefits and one month salary as they didn't issue a notice period?
From India, Pune
3I wanted to know if this is legal for the company to terminate her when is pregnant. Is the company liable to pay maternity benefits? Does the MBA Act 1961 come into place as the company doesn't deduct ESI. Also , please suggest if we are entittled to maternity benefits and one month salary as they didn't issue a notice period?
From India, Pune
Did the employee intimate the fact of pregnancy to employer?
Actions of employer are wrong.
Ask the employee to complain to Labour Commissioner of the area with full facts of the case.
Non deduction of ESIC and PF does not affect entitlement to Maternity Benefits.Non decuation of PF is also an offence.
From India, Pune
Actions of employer are wrong.
Ask the employee to complain to Labour Commissioner of the area with full facts of the case.
Non deduction of ESIC and PF does not affect entitlement to Maternity Benefits.Non decuation of PF is also an offence.
From India, Pune
Hello Nathrao,
Employee had advised her employer regarding pregnancy and her employer had told she can leave and re-join anytime she wants. Employee had also told her employer that she will work until March 2018 but in Jan, her employer said do not come from February. I believe she was terminated as the employer knew that 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, the company is not deducting pf and esi? I was indeed going to complain to the labor commissioner. Can we schedule appointment with the commissioner directly or we need to go through an advocate?
From India, Pune
Employee had advised her employer regarding pregnancy and her employer had told she can leave and re-join anytime she wants. Employee had also told her employer that she will work until March 2018 but in Jan, her employer said do not come from February. I believe she was terminated as the employer knew that 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, the company is not deducting pf and esi? I was indeed going to complain to the labor commissioner. Can we schedule appointment with the commissioner directly or we need to go through an advocate?
From India, Pune
Dear Friend Anish,
It's very wise that she did not given back dated resignation at the same asked employer to issue termination letter & i think they will not dare to do so.
I suggest you should inform employer that due to specific reason unable to join duty along with (Doctor certificate that she's pregnant) and will be on leave and only resume duty after (as per MB) & keep conversation in written especially thru mail as a proof.
Under Section 12 of the M.B. Act, 1961 it is emphasized that any dismissal or discharge of a women during the pregnancy is unlawful and such employer can be punished under Section 21 of the Act.
Further i would suggest to given in written complaint LC of respective region against the employer along with valid proof.
Pls. refer below Q&A..
Q: How can a woman employee claim for its maternity benefit?
A: Woman who is employed in an establishment and entitled to maternity benefit under the provisions of this Act will have to give notice in writing to her employer stating her claims for maternity benefit and the amount to which she may be entitled under the Act may be paid to her or her nominee. The pregnant woman will have to state date from which she will be absent from work, which will not be a date earlier than six weeks from the date of her expected delivery. If a woman has not given the notice while she was pregnant she may give such notice as soon as possible after the delivery. On receipt of the notice the employer shall permit such woman to be absent from work during the period for which she receives maternity benefit.
Q:What is the provision relating to prohibition for dismissal for woman employee during absence due to pregnancy?
A: A woman who is absent from work in accordance to the provisions of Maternity Benefit Act, it is unlawful of her employer to discharge or dismiss her during that period of absence. Or a notice of discharge or dismiss is issued to her on such a day that the notice will cause disadvantage to her in conditions of service is unlawful.
Woman can be dismissal or discharged from her service in case if the dismissal is caused for any prescribed gross misconduct. For which employer may inform her by order in writing that she will be deprived from the maternity benefit of medical bonus or both. However, woman to whom such notice is communicated within sixty days from the day of such order communicated to her can make an appeal to such authority as may be prescribed. Decision of that authority on such appeal will be final.
Q: What are the provisions for punishment or penalty for employer who contravenes these laws?
A: If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, shall be punishable with imprisonment which extend to 1 year or with fine which may extend to Rs. 5000 or with both.
Hope this will be helpful information for you..
From India, Rohtak
It's very wise that she did not given back dated resignation at the same asked employer to issue termination letter & i think they will not dare to do so.
I suggest you should inform employer that due to specific reason unable to join duty along with (Doctor certificate that she's pregnant) and will be on leave and only resume duty after (as per MB) & keep conversation in written especially thru mail as a proof.
Under Section 12 of the M.B. Act, 1961 it is emphasized that any dismissal or discharge of a women during the pregnancy is unlawful and such employer can be punished under Section 21 of the Act.
Further i would suggest to given in written complaint LC of respective region against the employer along with valid proof.
Pls. refer below Q&A..
Q: How can a woman employee claim for its maternity benefit?
A: Woman who is employed in an establishment and entitled to maternity benefit under the provisions of this Act will have to give notice in writing to her employer stating her claims for maternity benefit and the amount to which she may be entitled under the Act may be paid to her or her nominee. The pregnant woman will have to state date from which she will be absent from work, which will not be a date earlier than six weeks from the date of her expected delivery. If a woman has not given the notice while she was pregnant she may give such notice as soon as possible after the delivery. On receipt of the notice the employer shall permit such woman to be absent from work during the period for which she receives maternity benefit.
Q:What is the provision relating to prohibition for dismissal for woman employee during absence due to pregnancy?
A: A woman who is absent from work in accordance to the provisions of Maternity Benefit Act, it is unlawful of her employer to discharge or dismiss her during that period of absence. Or a notice of discharge or dismiss is issued to her on such a day that the notice will cause disadvantage to her in conditions of service is unlawful.
Woman can be dismissal or discharged from her service in case if the dismissal is caused for any prescribed gross misconduct. For which employer may inform her by order in writing that she will be deprived from the maternity benefit of medical bonus or both. However, woman to whom such notice is communicated within sixty days from the day of such order communicated to her can make an appeal to such authority as may be prescribed. Decision of that authority on such appeal will be final.
Q: What are the provisions for punishment or penalty for employer who contravenes these laws?
A: If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, shall be punishable with imprisonment which extend to 1 year or with fine which may extend to Rs. 5000 or with both.
Hope this will be helpful information for you..
From India, Rohtak
If matter is not resolved by the company immediately and MB benefits not paid, directly approach the Labour Commissioner with full details of the case-employment details.Contract copy etc
No need of advocate presently.
From India, Pune
No need of advocate presently.
From India, Pune
Dear colleague,
Pl check first whether the institution she worked is registered under the Maharashtra Shops and Establishment Act/ Rules and if yes , the MB 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 togetherwith the doctor's certificates as required. Don't resign or accept termination letter. Let her inform the employer also that she is proceeding on maternity leave 8 weeks prior to due date of delivery and balance 18 weeks after delivery.
The employer will dare not take action of termination when he is informed of your pregnancy / maternity leave in writing and if he does , law is completely on your side and nothing to worry. You revert to this forum for further advice if and when the employer takes further action.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
Pl check first whether the institution she worked is registered under the Maharashtra Shops and Establishment Act/ Rules and if yes , the MB 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 togetherwith the doctor's certificates as required. Don't resign or accept termination letter. Let her inform the employer also that she is proceeding on maternity leave 8 weeks prior to due date of delivery and balance 18 weeks after delivery.
The employer will dare not take action of termination when he is informed of your pregnancy / maternity leave in writing and if he does , law is completely on your side and nothing to worry. You revert to this forum for further advice if and when the employer takes further action.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
If the employee is permanent, it obviously means she is entitled for 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 can not terminate employee without appropriate reason to do so.Also appropriate notice period be served.It is important to note that if the employee has intimated to employer well in advance about the pregnancy and asked the leave there of under the maternity benefits grounds then employer can not ask resignation from employee just because she is pregnant and employer looking out for escaping from grant of maternity benefits.
However it is suggested that employee should have enough evidence to prove she is a permanent employee before approaching to concerned labour authority.
Advice seek help from lab our office or a lawyer for further action.
From India, Vadodara
However in this case if the employer simply can not terminate employee without appropriate reason to do so.Also appropriate notice period be served.It is important to note that if the employee has intimated to employer well in advance about the pregnancy and asked the leave there of under the maternity benefits grounds then employer can not ask resignation from employee just because she is pregnant and employer looking out for escaping from grant of maternity benefits.
However it is suggested that employee should have enough evidence to prove she is a permanent employee before approaching to concerned labour authority.
Advice seek help from lab our office or a lawyer for further action.
From India, Vadodara
Dear professional colleague,
To be eligible for Maternity benefit under the M.B.Act, following condition 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 an outright illegal.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
To be eligible for Maternity benefit under the M.B.Act, following condition 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 an outright illegal.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
Dear Vinayak,
Thank you for your valuable reply. How to find out whether the institution is registered under Maharashtra Shops and establishment Act? It was started as a tuition center which they turned it into a private ltd company. The name also says ______ Classes Pvt Ltd.
From India, Pune
Thank you for your valuable reply. How to find out whether the institution is registered under Maharashtra Shops and establishment Act? It was started as a tuition center which they turned it into a private ltd company. The name also says ______ Classes Pvt Ltd.
From India, Pune
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Legal Clarification on Maternity Leave.pdf