• Maternity leave

Can maternity leave be granted to a female employee (Senior Resident Doctor) working in a Delhi Govt hospital after 1 month (30 days) of joining on the post. The Senior Resident  doctor is a tenure post for 3 years maximum on regular basis.   Senior residents post is governed under the Residency scheme of Govt of India. Plz advise. 
Asked 11 months ago in Labour from Delhi, Delhi
1) In terms of letter No. A.12026/9/88-CHS dated 2.11.1998 issued by Government of India, Ministry of Health & Family Welfare (Department of   Health),    the    Medical    Officer    appointed on 
monthly wage (contract) basis were entitled to same benefit   of   leave    and   maternity    leave    as    are
 admissible to the Medical Officer appointed on regularly basis

2) all Medical Officers appointed on monthly wage (Contract) basis would be entitled to the same pay scale and allowances and also the same benefits of leave, maternity leave, increment on the completion of one year service and other benefits of service conditions as are admissible to the Medical Officers appointed on regular basis in the pay scale of Rs.700-1300 (revised) their first appointment. The days on which they did not actually discharge the duty on account of artificial break etc. at the end of every 90 days, the same will be treated as leave to which the applicants will be entitled at par with the regular medical officers. Such Medical Officers shall be continued in service till regular appointments are made to these posts. The appointment of such Medical Officers will be outside CHS

3) dehi govt by order dated 16./6/11 bearing no file no 7/misc/2010/H&FW/4738-42 has held that maternity leave for 60 days for doctors appointed on contract is permissible during one contract 

4) there is no requirment that doctor should have worked for 80 days 
Ajay Sethi
Advocate, Mumbai
21816 Answers
1137 Consultations
5.0 on 5.0
If the post is permanent there there no minimum time limit for applying for maternity leave. however in the case of temporary job time limit is there.
Devajyoti Barman
Advocate, Kolkata
4612 Answers
48 Consultations
4.9 on 5.0
Dear Querist
As per Maternity Benefit Act-1961 Women employees are eligible for maternity leaves of 180 days for maximum two surviving children. Maternity leaves can be combined with any other kind of leaves including CCL and can be taken without medical certificate up to one year in continuation. These leaves cannot be debited against leave account and the period of leave will be included in service period for increment and pension. The women employee will be given full pay during the leave period. But one should be careful not to join office back during maternity leave period as this leave can be taken in one spell at a stretch. If woman employee joins back before completing her maternity leave, it automatically gets cancelled.

Read Section 5
5. Right to payment of maternity benefits.— 13 [
(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.] Explanation.—For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, 1[the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest].
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 14 [eighty days] in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 14 [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation.—For the purpose of calculating under the sub-section the days on which a woman has actually worked in the establishment 3[the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
15 [(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:] Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death: 15 [Provided further that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.]
Nadeem Qureshi
Advocate, New Delhi
3369 Answers
125 Consultations
4.8 on 5.0
1. Every female employee is entitled to receive maternity benefit if she works for a continuous period of 80 days in the twelve months immediately preceding the date of her expected delivery. If the woman employee is not covered under the ESI Act, 1948 then in that case she is eligible to have maternity benefit under this Maternity Benefit Act of 1961.
If you fulfill the above parameters you are entitled to maternity leave.

2. For claiming maternity benefit you are to serve notice under section 6 of the Maternity Benefit Act, 1961 in the format as prescribed in your State Rules along with the certificate of the doctor regarding pregnancy on you employer.
Ashish Davessar
Advocate, Jaipur
17477 Answers
426 Consultations
5.0 on 5.0
In Dr. Shilpa Sharma vs The Chairman New Delhi Municipal Council AIR 2011, it is held by the court that maternity leave is a fundamental right and it cannot be rejected merely on procedural matter. 

Air India v. Nergesh Meerza AIR 1988;  Javed v. State of Haryana AIR 2003; Sureme court has held that granting of  maternity leave cannot be rejected on technical ground.

You should apply for the leave and if it is rejected by the authority file writ before high court. 
Shivendra Pratap Singh
Advocate, Lucknow
2635 Answers
38 Consultations
4.9 on 5.0
As per the circular, the senior resident doctors are entitled for all kinds of leave as are admissible temporary government employees.  However the senior residents whether they are working in the pre or para clinical or clinical departments are not entitled to any vacation.
The circular No. is S.11014/3/91/ME(P) dt. 5.6.1992 by GOI, MOH & FW
T Kalaiselvan
Advocate, Vellore
12723 Answers
120 Consultations
5.0 on 5.0

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