Introduction
Article 42 of the Constitution of India states that the State shall make provision for securing just and humane conditions of work and for maternity relief. The Maternity Benefit Act, 1961 regulates the employment of women in factories, mines, the circus industry, plantations and shops or establishments employing 10 or more persons except the employees who are covered under the Employees’ State Insurance (ESI) for certainperiods before and after childbirth and provides for maternity and other benefits. The Employees’ State Insurance Act, 1948 (ESI Act) which also provides for maternity and certain other benefits.
The coverage under the ESI Act is, however, at present restricted to factories and certain other specified categories of establishments located in specified areas. The Maternity Benefit Act, 1961 still applicable to women employees employed in establishments which are not covered by the ESI Act, as also to women employees, employed in establishments covered by the ESI Act, but who are out of its coverage because of the wagelimit. Under the Maternity Benefit Act, 1961, women employees are entitled to maternity benefit at the rate of average daily wage for the period of their actual absence up to 12 weeks due to the delivery. In cases of illness arising due to pregnancy, etc., they are entitled to additional leave with wages for a period of one month. They are also entitled to six weeks maternity benefit in case of miscarriage. The Maternity Benefit Act, 1961 provides that every woman entitled to maternity benefit shall also be entitled to receive from her employer medical bonus. The Maternity Benefit Act, 1961 also makes certain other provisions to safeguard the interest of pregnant women workers.
Therefore, it is essential for the students to be familiar with the general principles of maternity benefit stipulated under the Act.
Article 39(e) &(f) of the Constitution of India provides that the State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Maternity Benefits are aimed to protect the dignity of motherhood by providing for the full and healthy maintenance of women and her child when she is not working. The Maternity Benefit Act, 1961 is applicable to mines, factories, circus industry, plantations, shops and establishments employing ten or more persons. It can be extended to other establishments by the State Governments.
“Appropriate Government” means in relation to an establishment being a mine or an establishment wherein persons are employed for the exhibition of equestrian acrobatic and other performances the Central Government and in relation to any other establishment the State Government. { Section 3(a)} “Child” includes a stillborn child. { Section 3(b)}
“Employer” means – (i) in relation to an establishment which is under the control of the government a person or authority appointed by the government for the supervision and control of employees or where no person or authority is so appointed the head of the department;
(ii) in relation to an establishment under any local authority the person appointed by such authority for the supervision and control of employees or where no person is so appointed the chief executive officer of the local authority;
(iii) in any other case the person who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs and entrusted to any other person whether called a manager managing director managing agent or by any other name such person; { Section 3(d)}
“Establishment” means –
(i) a factory;
(ii) a mine;
(iii) a plantation;
(iv) an establishment wherein persons are employed for the exhibition of equestrian acrobatic and other performance;
(iva) a shop or establishment; or
(v) an establishment to which the provisions of this Act have been declared under subsection (1) of section 2 to be applicable{ Section 3(e)};
“Maternity benefit” means the payment referred to in subsection (1) of section 5 { Section 3(h)};
“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 allowances) 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) overtime 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; { Section 3(n)}
Employment of work women during certain periods
Section 4 of the Act provides that no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. It also specifies that no women shall work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.
It may be noted that if a pregnant women makes request to her employer, she shall not be given to do during the period of one month immediately preceding the period of six weeks, before the date of her expected delivery, any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
Right to payment of maternity benefits
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.
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, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948or ten rupees, whichever is the highest.
A woman shall be entitled to maternity benefit if she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.
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. If 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. 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. 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.
Notice of claim for maternity benefit
Section 6 deals with notice of claim for maternity benefit and payment thereof. As per the section any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in prescribed form, to her employer, stating that her maternity benefit and any other amount to which
she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.
In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery. Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof, that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within fortyeight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
Nursing breaks
Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.
Abstract of Act and rules there under to be exhibited As per section 19 an abstract of the provisions of this Act and the rules made there under in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.
Registers
Every employer shall prepare and maintain such registers, records and musterrolls and in prescribed manner under section 20 of the Act.
Penalty for contravention of Act by employer
Section 21 provides that 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 the Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees. However, the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment. If any employer contravenes the provisions of the Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under the Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both. Where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity
benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person
entitled thereto.
AIR India v Nargesh Merza
In the above case the removal from the job an air hostess arbiraily of an air hostess/AH by the authority after rendering of services by the air hostess was highly scrutinized by the apex court, the apex court took the view that the action taken is an insult to motherhood and an act of ‘naked despotism.’
The first part of this Regulation has become redundant in view of the Notification dated 12.4.80, referred to above, but the latter part which gives the General Manager a blanket power to retain an AH till the age of 40 years, still remains. As, however, the bar of marriage is gone, the Rules of 1972 which empower the General Manager to retain an AH in service will have to be read as a power to retain an AH upto the age of 40 years. Thus, the Notification as also the Rules suffer from two serious constitutional infirmities which are present in the case of Regulation 46 framed by the A.I. The clauses regarding retirement and pregnancy will have to be held as unconstitutional and therefore struck down. Secondly, for the reasons that we have given in the case of A.I. AHs that Regulation 46 contains an unguided and uncontrolled power and therefore suffers from the vice of excessive delegation of powers, on a parity of reasoning the power conferred on the General Manager to retain an AH upto the age of 40 years will have to be struck down as invalid because it does not lay down any guidelines or principles. Furthermore, as the cases of A.I. AHs and I.A.C. AHs are identical, an extension upto the age 45 in the case of one and 40 in the case of other, amounts to discrimination inter se in the same class of AHs and must be struck down on that ground also.
Thus, the court struck down the same
Conclusion
The maternity benefits act has been in line of providing care and taking care of the woman that takes the role of mother in the scoiety, mother is taken as sacred in this country and it is a medical fact that it is amlost difficult to do work which involves rigorous labor or work which requires long hours of standing.
The act has been passed only in the same regard.
And it is taken care of that the health of the ought to be mother must not be affected in amy manner, the health of the child and the health of the mother is extremely important and the state is under a duty to protect the mother from the same.
It has been noted by even by the noble prize winning author Rabindranath Tagore,
that does anyone know the soft, sweet freshnesss that is there on the baby’s limbs does anyone know where it came from, yes, when the mother was a young girl it lay pervading her heart in tender and silent.
Bibliography
1. P.K. Padhi, Industrial and Labor Laws
2. S.C. Srivastva, Labor and Industrial laws
3. S.N. Mishra, Industrial relations and Labor Laws
