This article is written by Akshita Rohatgi, a student at GGSIP University, New Delhi. This exhaustive article covers the impact of the Maternity Benefits Act,1961, and the judgment Preeti Singh v. State of UP on Section 153 of the U.P. Financial Handbook.
It has been well recognized that the economic empowerment of women is required for the development of any nation. This is especially significant in South Asian ones, where their participation in the workforce is abysmally low. Female workforce participation in India rests at a meagre 20.8%. This is widely recognized as a major reason for the slow growth of the country.
However, simply giving better opportunities to women is unlikely to erase the effects of centuries of discrimination. Even in an idealistic case where the genders are provided with the same opportunities in the economic sphere, discrimination in family life, social sphere, and stereotypes about weaker capabilities of women would continue to exist.
To rectify the problem, we need empowerment schemes based on the principle of affirmative action- one that recognizes the lack of a level playing field. Maternity benefits are one way of doing that. The average family unit in India still views the mother as the nurturer and the father as the breadwinner, and while progress is being made, it is slow and unlikely to go away anytime soon. As an interim relief, maternity benefits are needed to ensure that women are not forced to leave their jobs if they bear a child.
Maternity Benefit Act, 1961: an insight
The Maternity Benefits Act, 1961 law that allows female employees paid leaves from work. The purpose of the law is to allow the newly- designated mother to care for herself and her newborn child.
The Act applies to shops or establishments that employ more than ten people on any given day. It is also applicable to government-controlled factories, mines and plantations, and those that employ acrobatic, equestrian, or other such performers. Its application can also be extended to other establishments by the state governments.
However, it does not extend to employees covered by the Employees State Insurance Act, 1948, since the Act already covers maternity benefits.
Further, in the case of Delhi, the Act applies to all establishments, including commercial establishments covered under the Delhi Shops and Establishments Act, 1954. However, this applies to establishments save for the ones already covered by the Employees State Insurance Act.
The eligibility criterion for women
A woman must have been working under the given establishment for at least 80 days in the past year (12 months) to be eligible for benefits under this Act. In case of death of the woman, the benefit would be paid only up to the date of death. In case of the child’s death, the benefit will be extended till the date of death. The Act also allows women to negotiate more favourable terms, than the act allows.
The maternity leave, under the Maternity Benefits (Amendment) Act, 2017, was increased from 12 to 26 weeks. The benefits may be availed up to 8 weeks before delivery, and the remaining after childbirth. However, in case the woman has two or more than two surviving children, the duration of leave would be reduced to only 12 weeks. For those adopting a child below the age of three months or surrogate mothers, 12 weeks of leave may be availed.
Further, after the expiry date, the employers may grant women a ‘work from home’ option, depending on the nature of the work and the employer. For establishments that employed 50 or more people, a creche or childcare facility was made mandatory.
The amendment allowed a medical bonus of Rs. 3,500. Additionally, a benefit of Rs. 6,000 was provided for pregnant women and lactating mothers, under the National Food Security Act, 2013.
The provision in case of inconsistency
Section 27 of the Act provides a route for what would happen in case another law contrasts with its provisions. The Act would prevail over any provisions of the legislation inconsistent with it.
Other Acts offering maternity benefits
Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955
This Act offers 12 weeks of maternity leave to a woman working in a newspaper establishment. Concerning eligibility, the woman must be employed for at least a year of service and must produce a medical certificate from an authorized medical practitioner. The employer, at their discretion, may extend this to 3 months from the date of start of the leave, or six weeks from the same, whichever is earlier. The Act also provides for maternity leave in cases of miscarriage or abortion, however, it must not exceed six weeks.
Employee State Insurance Act, 1948
This Act applies to those earning less than Rs. 21,000 per month, for 26 weeks. It covers non- government factories. Thus, it is for the benefit of those women who work in low-income jobs. Additionally, it contains a provision to extend its application to other establishments, provided they employ more than 20 people. Several states have availed of this option, extending applications to places like shops, hotels, etc. The Act also provides for payment of an additional Rs. 5,000 in confinement (labour resulting in a living child, or labour after 26 weeks of the pregnancy), where necessary medical facilities are not available under the Employee State Insurance Scheme.
Factories Act, 1948
The Factories Act, 1948, applies to all factories that use power and employ ten or more workers; or do not use power and employ 20 or more workers [Section 2(m)]. Section 79 allows maternity leave along with maternity benefits for 12 weeks. The Employee State Insurance Act and the Maternity Benefits Act supplement the working of this act.
The case: Preeti Singh v. State of UP and ors.
Facts of the case
In the given case, the respondents granted the petitioner maternity till the date of 28th December 2019. Later, the petitioner filed for another maternity leave, from 17th March 2021 to 12th October 2021.
This was rejected a day before the leave was to come into effect, on 16th March 2021. The ground cited was that the next leave was sought before the two year period of the earlier leave being up.
Uttar Pradesh Financial Handbook contains U.P. Fundamental Rules made by the governor of the state. Rules under it are also called ‘Subsidiary Rules’. It is framed under Section 241 (2) (b) of the Government of India Act, 1935.
Section 13 of the Uttar Pradesh Fundamental Rules deals with provisions of maternity leave. The respondents relied on Section 153(1) of Uttar Pradesh’s Financial Handbook. The provision was inserted by the Uttar Pradesh Fundamental Rules 56 (Amendment and Validation) Act, 1975. It stipulated that there must be a minimum period of two years between the first and second maternity leave. Unless so, the second leave can not be granted.
The petitioner submitted that the issue in dispute in the present case had already been decided by Allahabad High Court in Richa Shukla v. State of U.P 2019. This contention was not disputed by the respondents- the state.
Smt. Richa Shukla v. State of U.P. and ors.(2019)
The Allahabad High court’s 2019 judgement in Smt. Richa Shukla v. State of U.P. and others was reiterated in the present case. The facts of this case are largely similar to Preeti Singh. The employer denied maternity leave to his employee based on Section 153 of the U.P. Financial Handbook. The court denied this contention, relying on Section 27 of the Maternity Benefits Act, 1961, The provision stipulates that the 1961 Act would prevail over laws inconsistent with it, irrespective of whether the inconsistent law is made before or after it.
Findings of the Court
The Court relied on Smt. Richa Shukla v. State of U.P. in the given case, quoting extensively from it.
The Court reiterated Section 5 of the Maternity Benefits Act. The provision entitles every employer to be liable to women who avail maternity benefits i.e., paying her the average daily wage for the period of her absence.
It also laid down that women would not be entitled to maternity benefits if they have not worked in the employer’s establishment for at least 80 days in the past 12 months (provided the woman immigrated to Assam, and was pregnant at the time of immigration). This was the only limitation in this context. There was no parallel provision in the Act as the UP Handbook.
Most importantly, Section 27 of the Act states that provisions of the 1961 act shall override anything inconsistent with it. Thus, the stipulations in Rule 153(1) of UP’s Financial Handbook would be overridden by the Act.
The Court concluded that the respondent committed a patent error in relying on the Financial Handbook. Consequently, it granted the petitioner her prayer.
The Hon’ble High Court’s judgement sets a precedent for similar cases under the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955. The judgement may be relied on in future cases where Section 153 of the U.P. Financial Rules is used to nullify maternity benefits under the Union legislation. This would be considered to be legally unsound as Section 16 of the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 has a similar saving clause as the Maternity Benefit Act. Thus, a denial of maternity leave under Section 153 of the U.P. Financial Rules would not be allowed.
The Allahabad High Court judgements reiterated the importance of maternity leaves. It denied the employer’s attempt at looking at loopholes in the law to deny women this leave, acknowledging the special hurdles she faces because of the patriarchal society. Additionally, it gave precedence to the Maternity Benefit Act, which aims at gender justice, instead of the one limiting its scope and consequently denying its objective. Thus, this judgement upholds values of equity and affirmative action, allowing women to be able to participate in the workforce more freely. It is another tiny step to rectifying our skewed sex ratio in labour participation of women in India.
However, the judgement also highlights how employers try to look for loopholes out of paid maternity leave benefits. This is a unique problem in India, as maternity benefit laws in most other countries place the onus on the government to provide maternity benefits. This is the case in Australia, Canada, and France. In India, the employers are to provide them. This is a significant critique of the Maternity Benefits Act. This causes employers to keep looking for ways to avoid complying with the provisions of the Act- the cost of paying wages during the 26 weeks and, in some facilities, the cost of maintaining a creche facility.
In many cases, employers shy away from hiring women employees to avoid this scenario. It is estimated that around 11 Lakh to 18 Lakh jobs for women will be lost in the four years pursuing the implementation of this act. This provision, in such cases, ends up acting to the detriment of the objective of the act. This makes a powerful case for governments offering Maternity Benefits, or in the least, sharing the cost with employers.
The judgement in Preeti Singh v. State of Uttar Pradesh and ors. (2021) makes it clear that the provision of a minimum duration of two years between maternity leaves is not mandatory to avail benefits. It also reiterates an important principle of constitutional law by giving precedence to the provision that categorically lays down that it would prevail over others.
In the future, there is a possibility that Section 153 of the U.P. Financial Rules may be challenged in the court for being inconsistent with the provisions of the Maternity Benefit Act. The argument of the state-level rule being inconsistent with a central law may also be invoked. The plea might be invoked to strike down the parts of the U.P. rules inconsistent with the central law as unconstitutional.
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