This article is written by Ruhi Kanakia, a student from ILS Law College, Pune, pursuing B.A.LLB. The article explains the rights of women under the Maternity Benefit Act, 1961, and the obligation of the State to ensure these rights.
Table of Contents
Introduction
In India, the percentage of women engaged in employment is a mere 26.97%. This, in turn, means that 3 out of every 4 women are not employed, or are not actively seeking any employment activities. In order to fuel female participation and engage more women in the workforce, the Centre implemented the Maternity Benefit Act, 1961, in order to ignite the representation of women in the employment sector.
The maternity benefits for women
The Maternity Benefit Act, 1961 [‘Act’] which entails various benefits given to pregnant women employees and workers, was passed as a way to provide relief to women struggling to balance their work and household/family duties. In a bird’s-eye view of the total number of women employed in a broad spectrum of occupational sectors, an increase in the number of employed women mandated the passing of a law that protects and safeguards the rights of women in terms of their maternity health and childcare. In the era preceding Independence, an array of women were made to work in mines, do strenuous activities, and work night shifts while being pregnant, which affected their health and caused prenatal complications. The Act was passed relieving women of such apprehensions and, in turn, establishing concepts such as maternity leaves with wages, payment of maternity benefits as defined under Section 3(h) of the Act, nursing breaks, rights against the deduction of wages, etc., thus implementing a drastic improvement to their conditions. The Act was amended in 2017 on the recommendations of the Indian Labour Commission, thereby, giving additional rights to women regarding maternity health, which surpassed standards of care given by countries in Europe and Asia regarding maternity health and benefits.
Rights of the women under the Maternity Act
The Act incorporates the rights and benefits that women are entitled to receive while employed, whether directly or through any agency, for wages in any establishment.
Employee’s rights
Any woman as an employee of the establishment that she is part of, can exercise her rights under the Act, if she becomes eligible to do so. Section 4 and 5 delve into the rights that women have as solely being an employee of an organization.
No work during certain periods: Subpart (1) and (2) of Section 4 inter alia provide that the employer cannot employ any woman, or engage her in any work if already an employee in such organization, within the duration of 6 [six] weeks immediately after her delivery date/ miscarriage/ medical termination of the pregnancy.
Exemption from strenuous work: If a woman requests to do so, the employer must, for a certain period of time, exempt her from engaging in any strenuous, arduous, tiring, or lengthy activity that may affect her wellbeing and maternity health [Section 4(3)]. Such periods include:
- the period of one month immediately before the date of her expected delivery;
- any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under Section 6 of the Act.
Dismissal during absence: No employer can dismiss, discharge, or fire a woman during the period of absence as taken in accordance with the provisions of the Act. If she is discharged and dismissed at the time wherein she would have been applicable for the maternity benefit, such benefit would still be applicable to her. If in case such an employer does deprive women of the maternity benefit, such women have a remedy, by appealing to a prescribed authority, whose say in the matter is final. [Section 12]
Overriding Power of Contract: If, in an event that any woman, has signed an agreement/contract or received an arbitral award, etc., and the provisions for maternity benefit in such agreement/contract/award are more favourable to her than those which she is entitled to receive in accordance with the Act, then she shall be entitled to the more favourable benefits under the agreement/contract/award. [Section 27]
Maternity Benefit: Sections 5, 6, and 7 provide for the right that women have to receive maternity benefit from their employers. In accordance with Section 5(2), a woman can only claim maternity benefit from an employer after completing a minimum period of 80 [eighty] days in the employment of the establishment from whom such benefit is being claimed, in the twelve months immediately preceding the date of her expected delivery. Such benefit is available to any woman working in the employment of the establishment, irrespective of the contract she has with the establishment.
This was laid down in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. In this case, the Municipal Corporation of Delhi granted maternity benefits only to the regular female workers, and denied it to female workers on the muster roll, and not regularised. The Court held that in accordance with Articles 14 and 15 of the Constitution “labour to whichever sector it may belong in a particular region and in a particular industry will be treated on an equal basis.” (Hindustan Antibiotics Ltd. v. Workmen (1967). Thus, it was held that all women shall be entitled to receive maternity benefits from the establishment.
- Payment of Maternity Benefit: Every woman has the right to be paid maternity benefits from her employer at the rate of her average daily wage, for the entirety of the period wherein she has remained absent from employment, by taking leave in accordance to the provisions of the Act.
- Time Period for Maternity Benefit: The maximum period for which any woman would be eligible to receive such maternity benefit shall be 26 [twenty-six] weeks, of which only a maximum of 8 [eight] weeks can be counted before the date of expected delivery. If a woman has 2 or more surviving children, then the benefit extends to only a period of 12 [twelve] weeks of which a maximum of 6 [six] weeks can be counted preceding her delivery date. In calculating the number of days viable to receive maternity benefit, the Act also includes the holidays as being included in such calculation.
The question of the time period of maternity benefit was brought up in B. Shah vs. Presiding Officer Labour Court, Coimbatore, and Ors. The issue that arose in court was whether Sundays, being wageless holidays, should be included in the calculation of the maternity benefit period.
It was held by the Supreme Court that the benefit that was conferred by the Maternity Benefit Act, read with Article 42 of the Indian Constitution, was directed to help women to not only safeguard her maternity rights but also preserve her effectiveness as an employee and keep her efficiency level stable. She, therefore, requires any amount that may become payable to her, in lieu of the medical expenses and wellbeing of the child. The law makes maternity benefit compulsory so as to help women balance their employment and reproductive roles efficiently. Thus, the court, in accordance with the rule of beneficial construction, stated that Sundays would be included in the said period.
- In case of death: If a woman dies in the duration of the period of maternity leave as mentioned hereinabove, the maternity benefit applicable to her shall only be calculated till the date of her death. If the woman dies after giving birth to the child, and thus resulting in the survival of the child, then the entirety of the maternity benefit would be payable. If the child dies during the period when maternity benefit is applicable to the mother, then the employer is expected to pay such maternity benefit applicable up to the date of the child’s death. Such payments after the death of the woman shall be made to the person nominated by the woman in the notice given under Section 6 (1) of the Act, and, in case there is no such nominee, to her legal representative.
- Method to claim maternity benefit: In order to be applicable to claim such maternity benefit as provided for under this Act, any woman looking to access this right has to submit a notice to her employer in accordance with the form prescribed by the establishment she is employed with. Such notice should consist of the following:
- The maternity benefit and any other amount she might be entitled to under this Act;
- The name of the person to whom such amounts should be paid;
- A confirmation that she will not work in the establishment in the duration of receiving such maternity benefits;
- The date of commencement of her absence from employment.
The employer is to pay such maternity benefit to the woman in advance, after the production of evidence from the woman stating she is pregnant.
- Failure to provide notice: The Act gives another right to women that condones the failure to provide such aforesaid notice. Such failure does not exempt a woman from receiving the benefit but provides that the order by an inspector after reviewing an application for the payment of the benefit can make the woman eligible for the payment of maternity benefit.
Wages
As stated in Section 5 of the Act, the women claiming maternity benefits are to be paid their ‘average daily wages’ in the duration of their absence. Such ‘wages’ constitute varied amounts that are further detailed under Section 3(n) of the Act. Such wages include the cash allowances/income a woman is entitled to, at the prevailing time, dearness allowances, house-rent allowances, incentives/bonuses, the concession of food and other articles provided by the employer.
Right against the deduction of wages: An employer cannot deduct the wage of a woman employee entitled to maternity benefit by reason of the nature of work assigned to her, breaks taken to nurse her child, or any other reason attributed to her maternal and post-delivery health/status.
Leaves
The provisions regarding the right to maternity leaves are entailed under Sections 9, 9A, and 10. These provisions, in turn, provide for the following conditions circling the right to maternity leaves.
Right to leave in case of miscarriage/abortion: A woman who has suffered a miscarriage or underwent the medical termination of her pregnancy has a right to ask for a paid leave at the rate of maternity benefit, on the production of evidence of such happening for a period of 6 [six] weeks immediately after the day of such happening.
Right to Leave in case of a Tubectomy: A woman who has undergone a tubectomy operation has a right to ask for a paid leave at the rate of maternity benefit, on the production of evidence of such happening, for a period of 2 [two] weeks immediately after the day of such operation.
Right to Leave for illness arising out of pregnancy: A woman suffering from any illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy or a tubectomy shall have the right to ask for a paid leave at the rate of maternity benefit, in addition to the period of authorized absence already provided under Section 5 and 6, in accordance with the provisions of this Act, on the production of proof of such illness.
Other benefits
In addition to the benefits and rights as mentioned above, the Act also provides for some miscellaneous benefits to women, to further help in the safeguarding and well being of her maternity health and status.
Maternity Benefit and Adopted Children: If a woman legally adopts a child below the age of 3 [three] months, or is a commissioning mother [added as Section 3 (b)(a) by the Maternity Benefit (Amendment) Act, 2017], she is entitled to maternity benefit for a period of 12 [twelve] weeks from the date the child is handed over to her. [Section 5(4)]
Work From Home: The women entitled to maternity benefit under this Act have the provision of undertaking the work of the establishment at their own homes if the nature of work allows them to do so and the employer consents to the same. [Section 5(5)]
Nursing Breaks: After the period of maternity benefit has concluded when the woman commences her employment again, in addition to the break timings given to her, she has a right to receive two breaks in the course of the day that are prescribed for the nursing of her child, for a set period of time until her child reaches the age of 15 [fifteen] months. [Section 11]
Crèche facility: In furtherance of the rights provided, the women also have access to the provision of a crèche facility four times a day including the break timings given to her, if the employment establishment falls within the category that mandates the provision of a crèche facility. [Section 11 A]
Medical Bonus: A woman entitled to maternity benefit from an employer, is also entitled to a medical bonus from such an employer consisting of Rs. 1000/- [Rupees One Thousand Only] in an event that no prenatal or postnatal care is provided by such an employer for free. [Section 8]
Applicability of the Act
The applicability of the Act can be understood in a two-part sense, i.e. the applicability to an establishment, and the applicability to a woman claiming such benefit under the Act. The establishments which are bound to abide by the guidelines of the Act are:
- Mines;
- Factories;
- Plantations;
- Establishments displaying acrobatic and other performances;
- Shops and/or establishments as defined under the Shops and Establishments Act of the state;
- Any such establishments having 10 [ten] or more people who are, or were employed within it in the preceding 12 [twelve] months;
- Any other establishment, as may be notified by the Central/State Government to be included under the ambit, vide an official gazette.
All such establishments are required to follow its duties as laid down under the Act. These establishments thus fall under the ambit of ‘applicability’ vis-a-vis the provisions of the Act. It, however, does not apply to any other factory, wherein other maternity benefit laws apply, such as the Employees State Insurance Act, 1948.
Another feature that corresponds with the applicability of the Act, is the category of women who can claim such benefits under the Act. In accordance with Section 5(2) of the Act, any woman who has been employed for a continuous period of 80 [eighty] days in the 12 [twelve] months immediately preceding her date of delivery with the establishment from which she is seeking such benefit, is entitled to receive the benefit. Any and all women falling under this category are provisioned to claim maternity benefit from their employer as under this Act, irrespective of the type of contract she may have with such establishment.
Additionally, Sections 5A and 5B of the Act also lay down certain inclusive provisions for women seeking this benefit. Section 5A provides for the continuance of maternity benefit to a woman irrespective of the application of the Employees State Insurance Act, 1948 until she becomes qualified to be entitled to maternity benefit as stipulated under Section 50 of the 1948 Act.
Section 5B states that a woman is applicable to receive benefits under the act if employed with a factory to which the 1948 Act applies, whose wages per month exceed the provisions under Section 2(9)b of the 1948 Act, and who fulfils any other condition mentioned in that Act.
The obligation of the States
The foundations of duties and responsibilities of the government are enshrined in the Constitution of India. It holds paramount importance and is regarded as the backbone of any other legislation prevailing in our country today.
Article 42 of the constitution provides for the just and humane conditions of work and maternity relief. It states that the State shall make provisions for securing just and humane conditions of work and for maternity relief. Thus, the responsibility of ensuring maternity rights to the citizens lies in the hands of the State. As a general practice, the Centre issues central legislation with powers given to the States to amend and constitute rules for the same in the respective territories, and such is the practice for the Maternity Benefit Act, 1961 as well. Therefore, the Government of India, as well as the State Governments, becomes liable and responsible to protect maternity rights of women in the country. In order to affect the employment of women in myriad sectors of employment in periods before and after childbirth, the Parliament passed the Maternity Benefit Act, 1961. This was done with an objective to reduce gender inequality, discrimination, unfair practices, and other maladies that existed due to gender disparity in the country. It is the State’s obligation to manoeuvre the laws in a manner so as to improve the conditions of the citizens and protect their health and well being. In pursuance of this duty, the State passed the Act, to regulate the participation of women in the working sector.
Before the Act, the Bombay Government passed the Maternity Benefit Act of 1929 in a response to the Trade Union movement, which compelled them to make security laws for women labourers to improve their working conditions during pregnancy.
The increasing understanding of the obligation of the State in assuring maternity benefits was established in the case of . Mrs. Bharti Gupta vs. Rail India Technical and Economical Services Ltd. [RITES] and others In this case, the Court held that the nature and provisions of benefits for women during and after childbirth had been laid down in the Act. The Act is a social and benevolent law and because of its objective, it had to include the establishments of RITES as falling within its purview. RITES is an instrument of the State, as laid down by Article 12 of the Constitution and is thus, under the ambit of Part 3 of the Constitution. Thus, RITES had to follow the provisions of the Act and did not have any leverage to be exempted from such duties.
The concepts of maternity rights and gender equality, as we see today, have stemmed from various international human rights legislation and treaties such as the International Covenant on Economic, Social and Cultural Rights of 1996. The International Labour Organization on many occasions has highlighted the importance of extending maternity protection and promoting a balance in the work and personal life of the women. In response to the 1975 seating and the 2004 seating of the ILO, the Indian Parliament amended the preexisting Maternity Benefit Act in 2017, to make it more inclusive and at par with international standards.
Compliance requirements for employers
In light of the provisions laid down in the Act, the employer has certain duties and compliances to accord to, regarding the maintenance of the wellbeing of the establishment as well as of the women workers employed therein. The employer must follow the prescribed conditions in order to do so. These include:
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Sr. No. |
Section No. |
Provision |
Compliance |
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‘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 the production of such proof, as may be prescribed, that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof, as may be prescribed, that the woman has been delivered of a child.’ |
Maternity Benefit preceding delivery- to be paid in advance on proof of pregnancy. Maternity Benefit after delivery- to be paid within 48 [forty-eight] hours of production of proof of the delivery. |
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|
2. |
7 |
Payment of maternity benefit in case of death of a woman—If a woman entitled to maternity benefit or any other amount under this Act dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and, in case, there is no such nominee, to her legal representative. |
In case of death of the woman – the employer has to pay the maternity benefits to the notified person or to her legal representative. |
|
3. |
8 |
‘Payment of medical bonus.—(1) Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of one thousand rupees if no pre-natal confinement and post-natal care is provided for by the employer free of charge’ |
In case no prenatal or postnatal care can be provided by the employer- payment of Rs. 1000/- as a medical bonus. |
|
4. |
9. 9A, 10 |
Grant of leave |
|
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5. |
11 A |
Crèche facility.—(1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities: Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her. |
If an establishment has more than 50 [fifty] employees-
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6. |
11 A (2) |
Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act. |
At the time of initial appointment – intimate all women in writing or electronically of all benefits under this Act. |
|
7. |
12 |
When a 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 to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. |
The employer cannot dismiss/discharge a woman during the absence in accordance with this Act. |
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8. |
Abstract of Act and rules thereunder to be exhibited—An abstract of the provisions of this Act and the Rules made thereunder 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. |
An abstract of the Act and the corresponding state rules have to be exhibited in the local language/Hindi and English in a visible common area of the establishment wherever women are employed. |
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9. |
Registers, etc.—Every employer shall prepare and maintain such registers, records and muster rolls and in such manner as may be prescribed. |
To maintain a register and muster roll of all women employees in a prescribed manner. |
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10. |
—– |
Review and revise the Maternity Benefit policies to fit the new provisions of the 2017 amendment. |
Challenges for employers
In contrast to situations in other nations, India is considered to be disadvantageous on the part of the employers’ obligations. This is because the prevailing legislation on maternity benefits, that is the Maternity Benefit Act, 1961, puts the burden of payment of wages, to the women claiming maternity benefit, completely on the employers. In most other countries, such financial burden is shared by the employer and the state, however, this, unfortunately, is not the method India decided to adopt. This indirectly leads to the reduced employment of women in many establishments. This transverse reaction stems from the fact that since companies and establishments have to pay for maternity benefit themselves without any state aid, the profit to loss ratio would indicate that hiring male counterparts would ineffectually be more feasible, than making extra payments for women under such Act. Thus, this challenge to employers is a challenge for women seeking employment as well.
In an attempt to improve such conditions, the government, as stated here below, has drafted a scheme called the Maternity Leave Incentive Scheme, 2018, in order to assist the employers in providing maternity benefit to the women workers.
Additionally, many SMEs (Small and Medium Enterprises) cannot practically afford a six to nine-week leave that they are obligated to grant their employees, as this would adversely affect the growth of the company; and hiring cheap temporary workers to fill in the vacancy caused due to availing maternity benefits also becomes unaffordable.
The employers could also face the challenge of women misusing the provisions of the Act for their own benefit, by availing the maternity benefits and leaving the said employment immediately after the period for maternity benefit has passed, thus, causing a great waste of resources for the employer.
Further, many difficulties in establishing creches for women and their children also arise due to matching standards of quality of the creche, as well as establishing one in a convenient location.
These, along with myriad other moral and legal challenges faced by the employer, make it difficult to comply with and be legally correct in carrying out the provisions of this Act.
Alternative laws that provide maternity benefits in India
In addition to the provisions of the Maternity Benefits Act, 1861, there are many legislations that contain provisions regarding maternity benefit and health. These legislations, though not centrally focused on prescribing rights to women during and after pregnancy, contain particular sections that give an insight into the same in the context of the legislation.
The Employees State Insurance Act, 1948, is one such legislation that acts in correspondence with the Maternity Benefits Act and helps in safeguarding the health of women. This Act, in Section 46 (1) (b) provides for periodical payments given to a woman employee insured under this Act in an event of miscarriage, sickness, operations, etc. arising out of pregnancy/premature birth/miscarriage, etc. Section 56(3) of this Act provides for medical benefits to a woman who is qualified to claim maternity benefit from the employer. It also provides for the establishment of organizations by the State and Central Government that provide certain benefits to employees in case of sickness or maternity. Similar to the Maternity Benefit Act, this Act also provides for the right against dismissal, punishment, and discharge of an employee by the employer during the period of her absence from employment due to illness arising from pregnancy, thus, rendering the employee unfit to work.
The Maternity Benefit (Mines And Circus) Rules, 1961 is another prevailing legislation that is an offshoot of the Maternity Benefit Act and prescribes various procedures and compliances to be followed by employers of such establishments while dealing with maternity health. It provides for the establishment of creches, maternity leave, muster rolls, breaks for nursing a child, payment of maternity benefit, etc. It is mainly directed, as its namesake, to the women working in mines or circuses.
Another legislation that consists of a maternity safeguarding clause is the Central Civil Services Rules of 1972. These rules, which are applicable to government servants working in the Civil Service, consist of a structured and detailed clause on Maternity Leave. It provides for maternity leave of 135 days to the female government servants, in the duration of which, she is paid the leave salary which is equal to the pay while working in the service. It also provides for a maternity leave not exceeding 45 days in an event of a miscarriage.
The Mines Act, 1952 provides for a maternity leave clause for any number of days not exceeding twelve weeks, for women who take part in the management, control, supervision or direction of a mine or of any part thereof.
The Factories Act, 1948 has a similar provision regarding maternity leave, which provides for maternity leave for any number of days not exceeding twelve weeks, for women who work in a factory. Further, the Act also contains a provision that makes it compulsory for the Factories that employ more than 30 [thirty] women, to maintain a suitable room for the use by the children of such women, who are under the age of 6 [six] years.
Further, the Plantations Labour Act, 1951 also provides for the facilities of maternity benefits and creches for women who work on plantation fields. It states that any plantation having employed more than 50 [fifty] women, is mandated to provide a facility for the children of such women to use until the age of 6 [six] years. The act entails that every woman is entitled to obtain a maternity allowance by the employer at the prescribed rate.
Additionally, in an attempt to tackle the above-mentioned problem, the Government, in 2018, proposed a Scheme called the Maternity Leave Incentive Scheme, 2018 which provided for the reimbursement of 7 [seven] week’s wages to the employers who employ women workers and provide maternity benefit to them for 26 weeks of paid leave. However, this scheme is still currently in the draft stage and requires due consultation and approval to become a full-fledged plan to increase the percentage of women workers and employees in India.
Conclusion
The Maternity Benefit Act, 1961 as well as the Amendment of 2017, have proved to be a boon, as well as a bane to the country and its economy. However, the Government has played its part in matching international standards of maternity rights via these legislations so that the gender neutrality and efficiency of work is maintained in the country. It properly safeguards the rights of women and maternity and provides for the basic foundations of health and safety.
References
- lhttps://www.mondaq.com/india/employee-benefits-compensation/759036/the-maternity-leave-incentive-scheme-2018-blessing-in-the-pipeline-for-working-women-in-india
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