MATERNITY BENEFIT ACT 1961

Prof. Jayashree KhandareAsst. Prof.BVDU New Law College, Pune

Meaning of maternity benefit “ A payment (maternity allowance) made

to a pregnant women who usually works but does not qualify for statutory pay.”

Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence.

Objective of maternity benefit

It aims to regulate the employment of women in certain periods before and after the birth of child

To provide for maternity benefits including maternity leave ,wages , bonus , nursing breaks etc.

To protect the dignity of motherhood and the dignity of a new person by providing for full and healthy maintenance of the women and her child at this important time when she is not working.

Applicability of this act Every factory , mine or plantation

(including those belonging to government) and

To every shop or establishment wherein 10 or more

persons are employed.

Important Definition Section 2(j) “Miscarriage”

Miscarriage means expulsion of the contents of a pregnant uterus at ay period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage the causing of which ins punishable under the Indian Penal Code (45 of 1860);

Section 2(o) “Woman”Woman means a woman employed, whether directly or through any agency, for wages in any establishment.

Who is Entitled to Maternity BenefitO Every woman employee, whether employed directly or

through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.

O The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.

O For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.

O There is neither a wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in.

Condition For Clamming Benefit

Must actually work for 80 days in 12 months immediately preceding her date of delivery

Should intimate the employer seven weeks before her delivery date about the leave period

Can take advance payment for 6 week leave before delivery

Can take payment for 6 week leave after child birth within 48 hours after submitting the proof.

Benefits provided in this act cash benefits

84 days leave with pay

A medical bonus of Rs.1,000-(As Per latest amendment)

An additional leave with pay up to one month

In case of miscarriage Six weeks leave with average pay

Non cash benefits Light work for 10 weeks ( 6 weeks plus

1 month) before delivery

2 Nursing breaks of 15 minutes until the child 15 months old.

No discharge or dismissal while on maternity leave.

Leave For Miscarriage & Tubectomy Opration

In case of miscarriage : Leave with wage @ of maternity benefit ,

for a period of 6 weeks

Tubectomy operation: Leave with wages @ of maternity benefit

for a period of 2 weeks.

Dismissal during absence of pregnancy Any discharge or dismissal of a women

during pregnancy for absence is unlawful. Women is entitled to maternity

benefit/medical bonus. In case of gross misconduct the employer

in writing can communicate her about depriving such benefit.

Within 60 days from date of deprivation of maternity benefit, any women can appeal to the authority prescribed by law.

Appointment of Inspectors:

The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to by Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their function under this Act.

Powers and duties of InspectorsAn Inspector may, subject to such restrictions or conditions as may

be prescribed, exercise all or any of the following powers, namely: -

O enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection;

O examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment:

Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself

O require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received from them under this Act; and

O take copies of any registers and records or notices or any portions thereof.

Duties of Employers

Important obligations of employers under the Act are:

O To pay maternity benefit and/or medical bonus and allow maternity leave and nursing breaks to the woman employees, in accordance with the provisions of the Act.

O Not to engage pregnant women in contravention of section 4 and not to dismiss or discharge a pregnant woman employee during the period of maternity leave.

Right of Employees

Important rights of an employee are:

O To make a complaint to the Inspector and claim the amount of maternity benefit improperly with held by the employer.

O To appeal against an order of the employer depriving her of the maternity benefit or medical bonus or dismissing or discharging her from service, to the competent authority, within 60 days of the service of such order.

Penalty for contravention of act

Imprisonment with minimum period of 3 months to maximum of 1 year

Fine from Rs 2000 to Rs 5000.

Municipal Corporation of Delhi v. Female Workers  (2000) SCC 224.

In this case Union of Female Workers who were not on regular rolls, but were treated as temporary workers and employed on Muster roll, claimed that they should also get maternity benefit like regular workers. The court held that the provisions of the Act would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, especially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the fetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery.

Shah vs. Presiding Officer, Labour Court, Coimbatore and others (1977) 4 SCC 384.

 The question before the Supreme Court was whether in calculating the maternity benefit for the period covered by Section 5 Sundays being wage less holiday should be excluded. Issues Raised before the Courts with Reference to Maternity Benefit Act, 1961.

O The Apex Court in holding that Sundays must also be included, applied the beneficial rule of construction in favor of the woman worker and observed that the benefit conferred by the Act read in the light of the Article 42 of the Constitution was intended to enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output.

O During this period she not only cannot work for her living but needs extra income for her medical expenses. In order to enable the woman worker to subsist during this period and to preserve her health, the law makes a provision for maternity benefit so that the woman can play her productive and reproductive roles efficiently.

O Performance of the biological role of child bearing necessarily involves withdrawal of a woman from the workforce for some period.

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