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Amresh
Women and Industrial Law : Maternity Benefit Act 1961
Economic dependence of women is what gives rise to their
subordination in society today. Hence to remove such subordination and
to lay the foundation of equality women too must be made economically
independent and must take an active role in all sectors of business
today. To support such initiative the Government must provide some
conditions which are suitable for the needs of women.
Problems faced by women in the economic sphere of life are
mostly relating to unequal wages and discrimination resulting from their
biological role in nature of childbearing. To curb such problems and
protect the economic rights of women the legislature introduced the
Equal Remuneration Act 1976 and the Maternity Benefit Act of 1961.
Maternity benefits were first recognized when the Maternity
Protection Conference was held by the International Labour Organization
in 1919. In a case in 1977, B. Shah v. P.O. It was held that women need
to be withdrawn from the workforce during pregnancy and after the birth
also they need the steady income for medical expenses etc. and
therefore to preserve her health law should make provisions for
maternity benefit so women can ensure their productivity as well as
reproductivity.
A maternity benefit is one that 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. The
Maternity Benefit Act aims to regulate of employment of women employees
in certain establishments for certain periods before and after
childbirth and provides for maternity and certain other benefits.
The Maternity Benefit Act is applicable all across the whole
Union of India and is pertinent to every factory, mine or plantation
including those belonging to Government, irrespective of the number of
employees, and to every shop or establishment wherein 10 or more persons
are employed or were employed on any day of the preceding 12 months.
Women can claim benefits under the act everywhere except in factories
and other establishments where the Employee’s State Insurance Act is
applicable. Sec.2 of this Act lays down its applicability where it
states that this act must be followed in all Governmental establishments
such as factories, mines, and other plantations where people are
employed for the exhibition of equestrian and acrobatic skills. Also it
applies to shops or any state owned stores or markets where at least ten
people are employed and the person must have been working for at least
12 months to avail of the maternity benefits.
Women are eligible to gain benefits under the act if the
woman employee, whether employed directly or through a contractor, 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. The qualifying period of 80 days does not apply to a woman who
may have immigrated into the State of Assam and was pregnant at the
time of immigration. There is no wage ceiling for coverage under the Act
nor there is any restriction as regards the type of work a woman is
engaged in. 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.
Section 4 of this act states when women are prohibited to
work under certain circumstances- firstly, within six weeks that
immediately follow the day of delivery, miscarriage or termination of
pregnancy, secondly, no employer should knowingly employ them within the
six weeks of above circumstances, thirdly, pregnant women on request by
employer are not allowed to do any work which involves standing for
long hours or any activity which may be harmful to the fetus. The time
period for this will be one month preceding the expected delivery date
or any period during the six weeks when she is not to be working but
does not avail of this leave. In the B.Shah v. P.O. case it was held
that 100% wages were to be provided for all days of leave as well as
benefits such a Sundays and rest days as wages were being given for
actual number of working days missed.
Section 5-A guarantees women the security of tenure during
such period of leave. Their employer will continue to pay her wages even
though she is unable to attend work.
In case 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. In case the woman dies during the delivery or within a
short period after it then the employer is liable for the entire period
but if the child dies then for the days up to and including the date of
death of the child. The loss of both wife and child can be very
emotionally scarring and the husband will be paid the compensation of
maternity benefit.
Women who work strenuous hours during the course of their
employment can develop stressful tendencies. When they reach a certain
age they are expected to start a family and due to their hectic
schedules they develop complications while conceiving. Hence for a
certain period of time women should be allowed their personal rights to
give birth to healthy children and take care of the infants till a
certain period of time while getting support from their employing
establishment as medical expenses as well as costs of taking care of
newborn children are expensive.
Maternity benefit is paid in certain cases:
a) to
women who are employed in factories or other institutions where the
provisions of the Employees’ State Insurance Act apply
b) whose wages for a month exceed the amount specified in sub clause (9) of sec.2 of the Act
c) who fulfills the conditions specified in sub section (2) of sec.5
shall be entitled to the payment of maternity benefit under this Act.
Under sec.6 a Notice of claim for maternity benefit must be
provided. A woman employee entitled to maternity benefit may give a
notice in writing (in the prescribed form) to her employer, stating as
follows:
i. that her maternity benefit may be paid to her or to her nominee (to be specified in the notice);
ii. that she will not work in any establishment during the period for which she receives maternity benefit; and
iii. that
she will be absent from work from such date (to be specified by her),
which shall not be earlier than 6 weeks before the date of her expected
delivery.
The
notice may be given during the pregnancy or as soon as possible, after
the delivery. On receipt of the notice, the employer shall permit such
woman to absent herself from work after the day of her delivery. The
failure to give notice, however, does not disentitle the woman to the
benefit of the Act.
Discharge or dismissal during maternity leave is considered
to be void. When a pregnant woman absents herself from work in
accordance with the provisions of this Act, it shall be unlawful for her
employer to discharge or dismiss her during, or on account of, such
absence, or give notice of discharge or dismissal in such a day that the
notice will expire during such absence or to vary to her disadvantage
any of the conditions of her services. Dismissal or discharge of a
pregnant woman shall not disentitle her to the maternity benefit or
medical bonus allowable under the Act except if it was on some other
ground.
Women are entitled to these benefits as the child bearing
process is intensely painful and can cause bodily damage. This may
severely affect the future work of the woman as an employee and decrease
her productivity. Hence a certain amount of time, usually six weeks is
given for recovery and nursing of the newborn child. Such leave may also
be extended in special cases related to pregnancy such as miscarriage
or termination of pregnancy. Special provisions are made for miscarriage
–‘In case of miscarriage or medical termination of pregnancy, a
woman shall, on production of the prescribed proof, be entitled to leave
with wages at the rate of maternity benefit, for a period of 6 weeks
immediately following the day of her miscarriage or medical termination
of pregnancy’ as per sec.9
of the Maternity Benefits Act. For a Tubectomy operation as well
prescribed proof must be provided and two weeks leave will be provided
by the employer. Leave for a maximum period of one month with wages at
the rate of maternity benefit are allowable in case of illness arising
out of pregnancy, delivery, premature birth of child, miscarriage or
medical termination of pregnancy or tubectomy operation. Every woman
entitled to maternity benefit shall also be allowed a medical bonus of
Rs. 250, if no pre-natal confinement and post-natal care is provided for
by the employer free of charge.
For women who return to their services with the employing
agency after the leave provided a special provision for two breaks in
the working day for a prescribed period of time for nursing the child
till the age of fifteen months. This gives women a feeling of
convenience as they do not have extra hassles of running home from time
to time or the inconvenience of losing their status of employment.
The main authority on this Act is the Central Government
which determines the extent of Act and makes rules to enforce it. Its
main aims are to give directions to the State Government regarding
execution of the act, and where the appropriate Government is the
Central Government, to make rules for carrying out the provisions of
this act, to exempt establishments from any or all provisions of the
act. Where the appropriate government is the State Government, to make
rules for the purpose of carrying out the provisions of this act, to
exempt establishments from any or all provisions of the act. The duty of
the Inspector appointed is to implement and enforce the provisions of
the act and to hear complaints regarding payment of maternity benefit.
He or she can enter at reasonable times with assistants, any premises
where women are employed, examine any person, require the employer to
give information regarding women employees, take copies of registers or
records, order payments to be made.
Failure to pay maternity benefits or discharge or
unemployment of woman due to maternity will result in imprisonment of
the employer for not less than three months which may extend to one year
and a fine of rupees two thousand which may extend to five thousand.
For contravening the provisions of this Act and obstructing the
Inspector from viewing registers and documents can also result in
imprisonment of one year and fine of rupees five thousand.
It is seen that there are provisions for women who do
undergo inconvenience at a stage when they are starting families and are
given many benefits such as paid leave etc. This is however not enough
as many employers do not hire married women or dismiss them before
pregnancy. The Act provides some protection to women economically
especially today in an age where single mothers are becoming more
prevalent it gives them stability in their lives to have their wages and
the security of returning to a steady job. My personal views are that
this Act is not enough to guarantee women equality and economic security
but it is definitely a starting step and though there are several
bridges to cross, the first step has been initiated and in today’s
progressing world the future for women’s equality shines brightly.
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