Maternity benefit in case of outsourced employees

sumana (Querist) 18 October 2012 This query is : Resolved
Dear Sirs,

I would like to know that :-
1) if any employee who is working in a PSU as an outsourced employee, and is inthe pay roll of the Consultancy company, - Can she claim the maternity benefit? If yes then to whom ? the PSU or the Consultancy ? Pls elucidiate ....

2) In case of employees who are serving Govt. organisation in contractual employement of one year (the contract gets automatically renewed year by year) with a consolidated salary. Are these kind of employees eligible to claim maternity benefit ? Will they have to leave the job for the sake of their pregnancy or delivery ? Pls eluciate these above two queries. thanks.

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Guest (Expert) 18 October 2012
Academic query. Be specific to your own problem, if any. What is your concern with the maternity benefit?

Two types of query, one for the employees of the consultancy company wit PSU and the other about contractual employees in Government employees, learly reveals that you are neither an employee of the consultancy company nor working in Government organisation.

sumana (Querist) 19 October 2012
Dear Mr. Dhingra,

this is not a academic query. its purely personal. I have seen in your profile that you have dealt with service related matters earlier. Will you pls enrich me with you valuable knowledge on this two different queries pls. ? I want to know what the rule is actually. you must have dealt with cases regarding with contractual employees. you must be knowing all these problems faced inthe workplace. Kindly treat this matter with importance. this is a problem faced by one of my very dear freind who has asked me for solution. As i am not aware of the remedy i am at your door.

What is the rule of maternity benefit in case of outsourced employees as well as contractual employees with State Govt with a consolidated salary?

I hope this time you will not write something which is not answer to my query.

with a lot of thanks

sumana (Querist) 19 October 2012
I am repeating my two earlier queries for your kind perusal once again :-

1) if any employee who is working in a PSU as an outsourced employee, and is in the pay roll of the Consultancy company, - Can she claim the maternity benefit? If yes then to whom ? the PSU or the Consultancy ? Pls elucidiate ....

2) In case of employees who are serving Govt. organisation in contractual employment of one year (the contract gets automatically renewed year by year) with a consolidated salary. Are these kind of employees eligible to claim maternity benefit ? Will they have to leave the job for the sake of their pregnancy or delivery ?

Guest (Expert) 19 October 2012
Dear Sumana,

There is no use of repeating queries once, twice or severally. The position is not going to change. General queries without discussing any specific problem is nothing but only academic queries.

Sorry to inform you, I do not prefer to reply examination like test questions, as I am neither a law student to answer examination questions in an examination hall, nor any querist has the right to put me to his/her test. If the querist does not want to discuss problem with me while he/she expets me to help that means the quesrist exhibits only the element of distrust. In such cases of distrustful circumstances, he or she does not enjoy any right to ask for my help.

Further, when you are asking question about two different employees, i.e., (1) employee of a consultancy company in a PSU, and (2) employee of a Government organisation, your friend cannot be expected to be an employee of both the organisations at a time. So, where is the question of the query being a personal query?

Sudhir Kumar, Advocate (Expert) 19 October 2012
Principal employer has to ensure that all dues under labout laws are given to the employees or else he has to bear. In case of labour dispute both will be answerable.

Plase refer to some provision sof Contral Labour act

S/7. REGISTRATION OF CERTAIN, ESTABLISHMENTS.

(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment :

Provided that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.

(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed.

COMMENTS

(i) Contravention of the provisions of section 7 is an offence; Deena Nath v. National Fertilizers, 1992 LLR 46.

(ii) An establishment of Contract Labour required registration under section 7 of the Act; Anapal v. J.S.E.B., 2003 (2) LLJ 335 (Jhar).

S/12. LICENSING OF CONTRACTORS. -

(1) With effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.

(2) Subject to the provisions of this Act, a licence under sub-section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed.

COMMENTS

(i) Both conditions of obtaining a certificate of registration and employing labour through a licensed contractor by the principal employer must be satisfied; Food Corporation of India Workers' Union v. Food Corporation of India, 1990 LLR 589 (Guj).

(ii) The employees engaged by a contractor to run a canteen for a company do not become employees of the company if the contractor fails to register the contract with the appropriate authorities; General Labour Union (Red Flag) v. K.M. Desai, 1990 LLR 208 (Bom).

(iii) Licensing is only a regulatory measure and it does not create any privilege; Steel Authority of India v. Steel Authority of India Contract Workmen’s Union, (1990) 64 FLR 573 (Karn).

(iv) No special qualification is required for a person who seeks a licence; Steel Authority of India v. Steel Authority of India Contract Workmen’s Union, (1990) 64 FLR 573 (Karn).

S21. RESPONSIBILITY FOR PAYMENT OF WAGES. -

(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.

(2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.

(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer.

(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.

COMMENTS
If the contractor fails to pay wages to his employees engaged by him, the principal employer will be liable to pay the same; Cominco Benani Zinc Ltd. v. Pappachan, 1989 LLR 123 (Ker).

For wages refer to Provisions of Payment of Wages Act

s/2 (vi) "wages" means all remuneration (whether by way of salary allowances or otherwise) expressed in terms of money or capable of being so expressed which would if the terms of employment express or implied were fulfilled by payable to a person employed in respect of his employment or of work done in such employment and includes -
(a) xx xx xx xx
(b) xx xx xx xx
(c) xx xx xx xx
(d) xx xx xx xx
(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force, but does not include -

(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court;

(2) the value of any house-accommodation or of the supply of light water medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;

(3) any contribution paid by the employer to any pension or provident fund and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d).
SO THE LEAVE SALARY OF MATERNITY PERIOD IS ALSO PART OF WAGES.

Also refer to Maternity benefit Act

S/3 (n)

(n) “Wages” means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes-

(1) Such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to,

(2) Incentive bonus, and

(3) The money value of the concessional supply of foodgrains and other articles, but does not include-

(i) Any bonus other than incentive bonus;

(ii) Over-time earnings and any deduction or payment made on account of fines;

(iii) Any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and

(iv) Any gratuity payable on the termination of service;

S/27

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act:

Provided that where under any such award, agreement, contract o service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect o any matter which are more favourable to her than those to which she would be entitled under this Act.

Raj Kumar Makkad (Expert) 02 December 2012
Nothing seems to be added after forwarding the relevant law position by both the experts.

Maternity benefit in case of outsourced employees

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