• Eligiblity of Maternity leave after joining job

Sir,
I have joined my organisation (PSU) on 4th mar16, when I was 25 week pregnant. Expected date 9 june16. I want to take leaves(Eearned Leave) from 4th may 16 to 16th may 16, then halfpay leave 17 to 22 may. Then in continuation I want to start maternity leave from 23rd may, as By that time 80 days will be completed including leaves. Am I admissible for it? What will happen if my delivery occurs before 22nd during other leaves? Whether laid off word in law includes leaves also? If I am on without pay leave, will it be included in 80days calculation ?
Seema Singh.
Delhi
Asked 7 months ago in Constitutional Law from Delhi, Delhi
1.Female employees are eligible for 12 weeks (84 days) maternity leave, which can be availed by splitting the ML as 6 weeks' prenatal leave and 6 weeks' post natal leave. There is also a proposal before the Government to enhance it to 28 weeks.
2.Earned leave is leave earned by the employee after serving the employer satisfactorily for the given period. An employee will earn 2.5 days of earned leave for each and every month worked totalling to 30 days in a year.
3.Since you have joined this organisation very recently on 04th March 2016, you may not have that many EL to avail the same starting from 04-05-2016.  Therefore you can apply for earned leave which you are going to earn later by applying  for leave now, as per Fundamental Rules "LEAVE NOT DUE' and get sanction for the same from the Competent Authority.
4.You are eligible for 'LEAVE NOT DUE' and in case the delivery occurs before 22nd during other leave make an application to  the Competent Authority to treat your earlier leave as pre-natal leave under the maternity leave act. 
5. Even if you are under 'Leave without Pay', based on the medical certificate, you can request the competent authority to treat the same as 'Maternity leave' with full pay if the situation calls for it.
Shashidhar S. Sastry
Advocate, Bangalore
1232 Answers
59 Consultations
5.0 on 5.0
1)woman employee should have minimum 80 working days to her credit in last 12 months counting from start of maternity leave to be eligible for maternity benefits in that organization.

2) in your case you would have completed only 60 working days . as such you would not be eligible to take leave from 4th may onwards as desired by you 

3) you can take leave from 23rd may if period of 80 days have expired from date of your joining the organisation 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 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 Maternity Benefit Act of 1961.

2. Maternity Leave may be combined with leave of any other kind except Casual Leave. Any leave (including commuted leave up to 60 days and leave not due) may be taken without medical certificate up to one year in continuation of Maternity leave. 

3. If the delivery takes place before you avail the maternity leave then you can still avail the maternity leave if you fulfill the eligibility criteria.

4. Laid off does not include leave.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Woman employee should have minimum 80 working days to her credit in last 12 months counting from start of maternity leave to be eligible for maternity benefits in that organization. This law also stipulates that all working women are entitled for minimum 12 weeks of maternity leave. And at most 6 weeks may be taken before the day of delivery.  Large PSUs/Public limited companies, public /private sector banks and larger private sector companies grants maternity leaves to their women employees, varying from 90 days to 180 days. Some organizations also permit their women employees to extent leave upto one year (with or without pay). They even provide the facility to cover expenses during delivery in a good hospital for all employees. Any (outstanding) period of probation is suspended for the duration of protective leave or the formal commencement of maternity  leave. Probation is then resumed when the employee returns to work. If staff are employed on a fixed-term or  specified-purpose contract, any leave (or any other benefit) will end when the contract ends.  Any other kind of leave admissible including commuted medical leave that may be due to the employee may be granted in  continuation of maternity leave.
There is no very hard and fast rule for maternity leave calculation. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
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you cannot continue EL and HPL, you should take EL then join for 2 or 3 days thereafter again take HPL. it cannot be possible to exhaust all leaves at one time. maternity leave is special leave which you can take in continuous to HPL
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0
1. Before joining the PSU, the management of the PSU would have asked you to produce Medical  Fitness Certificate to ascertain the fitness and there would be a mention of your pregnancy of 25 weeks at that point of time and you would have submitted the same medical fitness certificate to the management of the PSU.
2.Based on the certificate and knowingly well that you are pregnant, the management of the PSU permitted you to report for the duty.
3.Based on the above, you can avail leave U/S. 10 even though you have not worked for 80 days immediately preceding the date of expected date of delivery as per Sec. 5(2) of the Maternity Benefit Act.
Shashidhar S. Sastry
Advocate, Bangalore
1232 Answers
59 Consultations
5.0 on 5.0
Can i take benefit of section 10 of the act even not have completed 80 days as per sec 5(2)?

You apply for  all types of leave before availing maternity leave to cover the 80 days period, wait for the sanctioning authority's approval, if it is not in your favor, you may plan to take it up legally afterwards.  
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
For illness arising out of child birth or miscarriage, as the case may be, one month leave with pay in addition to what is admissible (i.e, 12 weeks for child birth or 6 weeks for miscarriage) is to be given as per section 10. This is given subject to medical certificate only. This leave is not granted on any other ground but only on the medical ground and that also for illness connected with delivery or miscarriage, as the case may be. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
 under section 10 you can claim Additional leave with pay for upto 1 month on production of proof, revealing illness due to pregnancy, delivery, miscarriage, or premature birth  even if you have not completed period of 80 days 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0

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