Objective and Importance of the Legislation
The Maternity
Benefits Act was enacted by the Parliament in 1961. The principle purpose of
this legislation is to regulate the employment of women in certain
establishments during certain periods before childbirth and to provide
maternity benefits.[2]
The Supreme
Court in Municipal Corporation of Delhi
v. Female Workers (Muster Roll)[3] has best explained the
importance of this legislation, as follows:
“The
Maternity Benefits Act, 1961 aims to provide all the facilities to a working
woman in a dignified manner, so that she may overcome the state of motherhood
honourably, undeterred by the fear of being victimised for forced absence
during the pre or post-natal period.”
“Further, the
Act also pursues the objective of the State to secure equal rights, for both
women and men, to adequate means of livelihood and equal pay for equal work, as
provided under Article 39 of the Constitution of India.[4] Article 42 of the
Constitution also provides that the State must endeavour to ensure just and
human conditions for maternity relief, towards which the Act is a major step.”
Scope of the Legislation
“The Act extends
to the entire territory of India.[5] It applies to every
establishment, including but not limited to factories, mines, plantations, along
with Government establishments, etc. The Act also applies to every shop or
establishment within the meaning of any law for the time being in a State, where
10 or more persons are or were employed on any day of the preceding 12 months.[6] The provisions of this Act
overlap some of the provisions of the Employees State Insurance Act, 1948 (ESI
Act). Hence, the Act is not applicable to any establishment where the
provisions of the ESI Act are applicable.[7]“
The Act
entitles all women to maternity benefits. The only criteria required to be
fulfilled is that the woman must have worked in an establishment for a period
of 80 days or more during the 12 months immediately preceding her expected date
of delivery.[8]
Section 27 of
the Act also allows certain flexibility to organisations in providing maternity
benefits, by allowing them to provide benefits that are more favourable than
those stipulated in the Act.[9] Thus, it can be said that
the Act provides for minimum standards of maternity benefits that must be
provided by any organisation.
Analysis of Important Provisions
The Act is a special legislation enacted for the purpose of
regulating the employment of women and provision of certain benefits to them
during a certain time period before and after child-birth.[10]
This is laid down in the preamble of the Act, giving a clear picture of what
the legislation aims to achieve.
Every Woman is Entitled to Maternity Benefits
“Section 4 of the Act prohibits an employer from knowingly
employing any woman in any establishment during the specific six weeks
immediately following the day of the delivery, miscarriage or medical
termination of the pregnancy. No woman is allowed to work in any establishment
during this period, out of her own volition, as well. No woman should be made
to do any work which may interfere with her pregnancy.[11] There
is no ambiguity in these provisions in order to secure the necessary protection
to women and their children, during the period before and after child birth.”
Section 5 of the Act entitles every woman to maternity
benefits, and her employer is liable for the payment to a woman worker at the
rate of average daily wages for the period of her actual absence, immediately
preceding and including the day of her delivery and for the next six weeks post
the day of delivery.[12]
“The minimum period for which maternity benefits must be
provided is twenty-six weeks, out of which not more than eight weeks shall account
for a period prior to her expected delivery.[13] The
2017 Amendment has inserted two more provisions in this section under which, a
woman who legally adopts a child below the age of three months or a
commissioning mother shall both, be entitled to maternity benefit for a period
of twelve weeks from the date child is handed over to her. However, if the
nature of her work permits her to work from home then the employer may allow
her to do so during the maternity benefit period.[14]“
“A woman is also entitled to appoint a nominee to which
maternity benefits are to be paid, whether in the case of her death or
otherwise, through a notice. This notice includes details such as the date from
which she will be absent and the date of the expected delivery.[15]“
Healthcare and well-Being of a Pregnant Woman
“Section 8 provides for a medical bonus of one thousand
rupees, if no pre or post-natal care is provided by the employer.[16]
In the case of a medical termination of pregnancy, miscarriage, tubectomy, or
any other illness, a woman is entitled to leave wages at the rate of maternity benefit
for the period as specified in the Act.[17]“
“Every woman who, after delivery of a child, returns to work is
allowed to take two breaks during her working hours, for nursing the child,
until the child attains the age of 15 months.[18]
The 2017 Amendment has also inserted Section 11-A, which provides for a creche
facility in or near every establishment having fifty or more employees. The employer
must allow at least four visits a day to the creche. Further, the establishment
has to intimate the available benefits to every woman in writing and
electronically at the time of their employment.[19]“
Safeguards and Penalties
“The Act prohibits dismissal of the woman or reduction of her
wages by the employer during the period in which benefits are availed in
compliance with the provisions of the Act.[20]
The Act mandates the maintenance of records, displaying an abstract of the
provisions of the Act, etc. in order to avoid exploitation by the employer.[21] The
Act has also laid down provisions for administration, enforcement and penalties
to be levied in contravention of its provisions.”
Judicial Interpretation - Importance of a Social Welfare Legislation
The courts of
law have generally interpreted the provisions of the Act in a manner to ensure
maximum benefit for women workers. This can be seen in the judgments cited
below hereinafter.
“The Delhi High
Court in Dr. Ankita Baidya v. Union of India &Ors.[22] noted that that the Act
is a piece of social welfare legislation, which means that it’s reach has to be
as expansive as possible.”
“In B. Shah v. Presiding Officer, Labour Court, Coimbatore[23], the doctrine of, beneficial
construction was conclusively and comprehensively discussed in relation to
social legislations. It was held that, while interpreting beneficial pieces of
legislations such as the Maternity Benefits Act, emphasis must be placed on its
objectives, which are to provide social justice to women workers employed in
certain work establishments. Vide this rule, a woman worker can nurse her
child, maintain the level of her previous efficiency and output by preserving
her energy as a worker.”
“The goal of
providing such benefits is to preserve the efficiency of the working women
which is beneficial to the long-term interest of both the employers and
employees.”
“The courts have
also liberally construed the provisions related to computation of ‘days of
leave’ and held that wages must be paid even for Sundays and other non-working
days, since it is the legislative intent to compensate a woman for the entire
period of her absence.[24]“
“In K.
Chandrika v. Indian Red Cross Society and Anr[25]
it was held that the employer is not
at freedom to terminate or remove the employee illegally through arbitrary
means even if the benefits are adequately allotted to the employees
consequentially. The court highlighted that the scheme of the Act increases the
economic burden on the employer who then tries to indulge in unwanted
activities such as lay-off, retrenchment or may try to evade the cost of crèche,
etc., which is illegal. While some of these shortcomings were resolved with the
2017 amendment, some newer shortcomings have resurfaced in the new labour codes
about to be enacted soon.”
Effect of the new Industrial Relations Code, 2019
The Code on Industrial Relations, which seeks to
subsume many labour laws, including the Maternity Benefits Act, brings to the fore
a major problem. Presently, the Act does not allow the dismissal of a woman
during her pregnancy, unless it is for reasons of gross misconduct. However,
section 68[26] of the new Code allows an
employer to dismiss a woman worker during her pregnancy, if the employer does
not deprive her of maternity benefits.
However, once a woman is dismissed, there will be no duty on
the employer to ensure the availability of a creche facility, and other costs
that would be incurred by the employer after the woman resumes her duty. The
Government, through the passing of this Bill, seeks to nullify the judgment
given in K. Chandrika[27], allowing
employers to dismiss pregnant women to save costs.
While the rest of the legislation remains largely the same,
this fallacy in the provisions of the new Code is severely detrimental to the
interests of the woman workers and must be resolved before the Bill is passed
in the Parliament.
Suggestions & Conclusion
The Maternity Benefits Act, as stated by the courts of law
on many occasions, is an important piece of social welfare legislation that
secures the socio-economic well-being of women through equity, rather that
equality. Childbearing involves much physical and mental stress which women go
through. In such a situation, it is only fair to ensure that they are not
deprived of their economic needs during this time, rather than subjecting them
to the same treatment as male workers. This legislation goes a long way in
ensuring true equality.
However, while India ranks quite high among other countries,
nations such as Canada, Japan and Germany offer greater amount of paid leaves
and maternity benefits to their workers, as can be seen in the following chart:[28]
In this chart, the UNDP measured the Gender Inequality Index
for various countries. In the above data, it was also found that Canada, Japan
and Germany have greater amounts of leaves and benefits provided to women
during the period of their pregnancy.
Based on this data, it is clear that there is a correlation
between gender equality and maternity benefits. It further shows that there is
still much room for improvement for India when it comes to gender equality.
Thus, India should look to other countries and their policies in order to
improve their own policies and take a greater step towards equality for
everyone.
[1] Vandana Kandari v. University of Delhi, (2010) 170 DLT 755
[2] Preamble, Maternity
Benefits Act, 1961.
[3] Municipal Corporation
of Delhi v. Female Workers (Muster Roll) 2000 I LLJ 846 (SC).
[4] Art. 39,
Constitution of India.
[5] Section 1, Maternity
Benefits Act, 1961.
[6] Section 2(1)(i),
Maternity Benefits Act, 1961.
[7] Section 5A, Maternity
Benefits Act, 1961.
[8] Section 5, Maternity
Benefits Act, 1961.
[9] Section 27,
Maternity Benefits Act, 1961.
[10] Preamble,
Maternity Benefits Act, 1961.
[11] Section 4, Maternity
Benefit Act, 1961.
[12] Section 5(1) of the Maternity
Benefit Act, 1961.
[13] Section 5, Maternity
Benefit Act, 1961.
[14] Maternity Benefits
(Amendment) Act, 2017.
[15] Section 6, Maternity
Benefit Act, 1961.
[16] Section 8, Maternity
Benefit Act, 1961.
[17] Section 9, 9A, 10,
Maternity Benefit Act, 1961.
[18] Section 11, Maternity
Benefit Act, 1961.
[19] Section 11-A, Maternity
Benefit Act, 1961.
[20] Section 12 and 13,
Maternity Benefit Act, 1961.
[21] Section 19, 20,
Maternity Benefit Act, 1961.
[22] Dr. Ankita Baidya v.
Union of India &Ors., W.P. (C) 8748/2018 & CM APPL.45209/2018
[23] B. Shah v. Presiding
Officer, Labour Court, Coimbatore, 1978 A.I.R SC 12.
[24] Parthasarathy M. v.
Deputy Commissioner of Labour (Appeals) and Ors. A.I.R 1986 SC 458
[25] K. Chandrika v. Indian
Red Cross Society and Anr., 131 (2006) D.L.T 585.
[26] Section 68, Industrial
Relations Code, 2019.
[27] Supra.
[28] Data sourced from Human
Development Report 2019, United Nations Development Programme, available at http://hdr.undp.org/en/content/2019-human-development-index-ranking (Last Visited Sept. 19,
2020).
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