Background
The word ‘maternity’ in India is often associated with financial hardship. This makes it difficult for women in India to live their daily life as they are deprived of basic health care, which further leads to undue mental stress and unaffordability of basic care. In addition to the above, if the woman is in employment, juggling two contrasting environments, namely, work environment and childbirth is a daunting task.
In order to regulate employment and to provide benefits to certain women for a period before and after childbirth, the Parliament of India had notified the Maternity Benefit Act, 1961 (“Act”) on December 12, 1961. The Act does not extend to every establishment incorporated in India, as there are only a handful of establishments that fall under the ambit of the Act, however this Act extends to whole of India.[1]
Further, to ensure that the employers adhere to the Act, the government stipulated rights, duties, and liabilities which will be further understood through this article.
Applicability
If an establishment or a shop as defined under the respective laws employ 10 (ten) or more persons on any day in the preceding 12 (twelve) months will have to adhere to the stipulations under the Act.[2]
The wage paid to the employee is not a condition for the applicability of this Act, as the Act also applies to factory, mine or plantation or an establishment where the employee performs equestrian, acrobatic and other performance, including any establishment belonging to the Government.[3] Further, if the provisions of Employee State Insurance Act, 1948 are applicable to the establishment, then the provisions of the Maternity Benefit Act will not apply, except as given under Section 5A and Section 5B of the Act.[4]
The legislature has given State government the power to declare the applicability of the provisions of the Act to any other establishment or a class of establishments with the prior approval of the Central government vide a notification in the Official Gazette.[5]
Rights and duties of the employer
To understand the rights and duties of the employer, we have examined the provisions of the Act.
1. Eligibility to employ:
Section 4(1) of the Act[6] mandates that the employer shall not employ a woman during the six (6) weeks preceding her delivery or miscarriage or medical termination of pregnancy. The employer cannot oblige the worker to do any work which would require her to stand for long hours or do any work which is arduous thereby interfering with her pregnancy or having the potential to cause miscarriage or impact her health adversely.
By using the phrase ‘every woman’ in Section 5 of the Act[7], the legislature intended to extend benefits to all women (including unmarried women).[8] Further, for a woman to claim benefit, she should have worked for 80 (eighty) days in the 12 (twelve) months preceding her date of delivery, and the days she was temporarily laid off by the employer or was granted leave under any applicable law shall be taken into consideration when calculating the afore-mentioned 80(eighty) days.
2. Payment of maternity benefit:
As per Section 6(4) of the Act[9], once the woman serves her notice for maternity leave, the employer shall permit her to absent herself for the period for which she is claiming maternity benefit. Further, it is to be understood that the period for which benefits would be paid would be the period mentioned in the notice. This read in consonance with Section 5(3), makes it clear that the employer shall ensure that the permitted leave shall be for a maximum period of 8 (eight) weeks preceding her delivery date.[10]
3. Timeline(s) for payment of maternity benefit:
The law mandates that, maternity benefits claimed before delivery shall be paid in advance by the employer, provided proof of pregnancy is shown and if claiming post-delivery, the employer has to pay within 48 hours of production of proof evidencing delivery of a child by the woman.[11]
4. Payment of benefits on death of an employee:
The employer must pay benefits to the woman and if the woman is dead, to the nominee of the woman, and the legal representative if there is no such nominee.[12] This read with proviso to Section 5(3)[13], provides that if the woman dies during delivery and leaves a child behind, the employer shall still be liable to pay maternity benefit for the entire period following the date of delivery and if the child dies during the said period, then maternity benefit shall be calculated for the days up to and including the date of death of the child.
5. Medical bonus:
The employer would be liable for a medical bonus of Rs. 1000/- (Rupees One Thousand Only) if they fail to provide pre-natal and post-natal care, such as appropriate food based on the health conditions of the woman, healthy working surroundings, etc., to the employee free of charge.[14] Post the 2017 amendment, every establishment shall ensure they have a creche facility when there are fifty or more employees and the employer should intimate in writing to every woman at their initial employment with the company about the various benefits available to them.[15]
6. Dismissal or discharge of woman:
No employer can give a notice to dismiss/ discharge or directly dismiss/ discharge a woman: (i) during the period she absents herself from work, provided the absence is in accordance with the Act; and (ii) during period of pregnancy which would have otherwise enabled the woman to claim benefits and bonus under the Act. However, a woman entitled for maternity leave on account of her pregnancy has not yet commenced the period of leave, but was dismissed or discharged by the employee would not render her invalid for maternity benefits, as the employer would still be required to make payment of maternity benefit for whole of the period for which she could have availed benefit, had she not been terminated/discharged/dismissed.
Further, the employer can neither issue a notice which has the potential to vary the terms of employment to her disadvantage nor dismiss her for a period due to which the notice issued to her would expire in her absence.[16]
7. Deduction of wages:
The wages payable to a woman as normal and usual daily wages shall not have a deduction based on the nature of work, nor should the nursing breaks as allowed under the Act be considered for deduction of wages. If the employer intentionally deducts wages for the above-mentioned reasons, they can be liable for contravention under the Act.[17]
8. Right to appeal:
The Act gives the employer the right to challenge the decision of an officer appointed under Section 14 of the Act (“Inspector”) within thirty days.
9. Maintaining Registers:
As mandated under the Act, the employer shall duly prepare and maintain registers, records, and muster rolls as prescribed by the appropriate Government.[18]
Rights and duties of an employee
The Act offers a wide variety of rights to the employee and provides a platform for women to claim maternity benefits and to seek pre-natal and post-natal care at their workplace. Below discussed are the rights and duties of an employee.
1. Eligibility to work:
If a woman has had a miscarriage or medical termination of her pregnancy in six weeks immediately preceding her date of delivery, she shall not be eligible to work in any establishment.[19] However, if the woman does not disclose the above-mentioned and still applies for a job, the employer cannot be held liable under the Act as the employer had unknowingly employed a woman in the six weeks immediately following her day of delivery, miscarriage or medical termination of pregnancy[20], and since the initial act of employment would have been taken in good faith or in pursuance of this Act, no suit, prosecution or legal proceeding shall lie against the employer.[21]
2. Right not to perform certain tasks:
Unlike any other law, Maternity Benefit Act provides women with the option of not being employed in certain tasks without a deduction in their wages, provided they satisfy the stipulations given under the Act. When a pregnant woman makes a request or one is made on her behalf, she cannot be employed (during the period specified in Section 4(4) of the Act[22]), to do any work which is arduous or involves long hours of standing or the work might interfere with her pregnancy or normal development of the fetus or might cause miscarriage or affect her health adversely.[23]
3. Right to payment of maternity benefit:
As an employee, they are entitled to payment of maternity benefits, at a rate not below their average daily wage for the period of her absence, which includes her date of delivery as well. The rate of average daily wage is calculated based on the number of days she has worked immediately preceding her date of absence due to maternity. Further, to ensure that women are paid a basic amount as maternity benefit, the legislature has stipulated that the average wage should not be lower than Rs. 10/- (Rupees Ten only) or wage calculated as per the Minimum Wages Act, 1948.[24]
4. Maximum period for claiming maternity benefits:
The woman can claim maternity benefits only for the period as stipulated under the Act.[25] This ensures that the benefits under the Act are not misused. The period for claiming benefit is a total of 26 (Twenty-Six) weeks, wherein a maximum of 8 (Eight) weeks out of the total preceding her expected date of delivery can be claimed under the maternity benefit period. However, the previous timelines are applicable only if the woman has less than two surviving children, because the proviso provides that if the woman has two or more surviving children, the maximum period for claiming benefit shall be 12 (Twelve) weeks out of which maximum 6 (Six) weeks shall precede her date of delivery.[26]
5. Adoption of a child:
With the recent amendment in 2017[27], the legislature intended to grant rights to a mother who legally adopts a child below three months of age or a commissioning mother, but only for a period of 12 (Twelve) weeks from the date the child is handed over to the adopting mother.[28] This amendment can be interpreted to be a massive step towards innovation, promotion of women’s empowerment, and adaptation to the changing trends of the world when the working rights of women are concerned.
6. Benefits under certain cases:
The woman shall be entitled to payment of maternity benefit even if she is employed in a factory to which the Employees’ State Insurance Act, 1948 applies and if she satisfies the conditions under Section 5 of the Act.[29]
7. Notice for claiming maternity benefit:[30]
This is considered an essential duty for a woman if she is intending to claim benefits under the Act. The provisions necessitate that the employee shall give notice in writing to her employer stating that the benefit amount and any other entitlements under the Act be paid to her or a nominee, as mentioned in the notice. The employee has to declare that she will not be working in any other establishment for the period she is receiving maternity benefits from her employer.
If the woman is pregnant, she shall also state the date from which she would be absent from work, the maximum period for absence is 6 (Six) weeks before her date of expected delivery. Suppose, in a situation the employee fails to give the above-mentioned notice during her pregnancy, she give the notice only after her date of delivery.
In an unlikely situation, if the woman fails to give a notice under the Act, the non-submission shall not disentitle her from maternity benefits. There is recourse available to her through the Inspector as she may apply to him or the Inspector of his own motion can order the payment of the benefit within a specified period.
Thus, it is important to understand that even though it is not mandatory to give a notice immediately, the Delhi High Court in the case of Sunita Baliyan vs. Director Social Welfare Department Govt. of Nct of Delhi[31] held that “…..while the said provision does not mandate a woman to immediately intimate the employer of her pregnancy, for claiming benefit of the Act, it certainly calls upon her to give a notice in writing during her pregnancy as soon as possible after delivery….”
8. Pre-natal and post-natal care:
A woman entitled to maternity benefits under the Act shall also be entitled to pre-natal and post-natal care, free of cost. If the employer fails to provide the same, the employee shall be liable for a bonus of Rs. 1000/- (Rupees One Thousand Only)[32]
9. Miscarriage or medical termination of pregnancy or tubectomy operation:
In an unfortunate situation, such as miscarriage or medical termination of pregnancy or tubectomy operation, the woman on the production of adequate proof will be entitled to wages of two weeks in case of tubectomy operation[33]or six weeks immediately preceding her miscarriage or medical termination.
10. Illness due to pregnancy, delivery, premature birth, etc.:
Illness due to pregnancy, delivery, premature birth of the child, or any of the situations mentioned in Section 9/9A of the Act, entitles the woman to claim maternity benefit for an additional period of one month, provided adequate proof is shown to the employer.[34]
11. Nursing breaks:
Every woman returning from delivery has the right to two nursing breaks for nursing of the child provided the child is within (15) fifteen months of age.[35]
12. Disentitlement of maternity benefits:
Ideally, a woman who has been discharged or dismissed during the period of her pregnancy, would not render her invalid for maternity benefit or bonus, but where the dismissal is due to gross misconduct, the woman can be deprived of the maternity benefit by the employer vide a written order.[36]
However, if a woman is unhappy or unsatisfied with the decision of the employer to strip away the maternity bonus and benefits, she can appeal within 60(Sixty) days to an authority as prescribed by the Government. The decision on such appeal by the appropriate authority shall be final and binding.[37]
13. Right to make a complaint:
When it is evident to a woman that the maternity amount or any amount has been withheld by the employer or the employer has wrongly discharged or dismissed her, she can make a complaint to the Inspector. If the woman is not satisfied with the decision of the Inspector, they have the authority to challenge the decision within 30 (Thirty) days of such order.[38]
14. Forfeiture of benefit and cognizance of offence:
A woman entitled to maternity benefits presents herself at the workplace after her absence has been approved as per the Act, her presence will act as a forfeiture of the benefits under the Act.[39] Further, a woman aggrieved can file a complaint in any court of competent jurisdiction. However, the same has to be filed within one year from the date of commission of the alleged offence.[40]
Conclusion
Maternity Benefit is an ever-evolving field, and certain provisions of the act till recent times had not yet entirely adapted to the changing trends in the workplace for a woman. This Act needs to constantly be updated as there are a lot of physiological demands coupled with pregnancy and childbirth thereby making the benefits granted to a woman under this Act critical for their well-being and development. To ensure women and mothers are equally respected by their employers, this Act extensively lays down the duties and liabilities of an employer and penal provisions for non-compliance with the Act. This enables women to safeguard their rights at the workplace and helps them survive the complications of childbirth without worrying about the particulars of their work.
[1] Section 1, Maternity Benefit Act, 1961.
[2] Section 1(1)(b), Maternity Benefit Act, 1961.
[3]Section 1(1)(a), Maternity Benefit Act, 1961.
[4] Section 1(2), Maternity Benefit Act, 1961.
[5] Proviso to Section 1(1)(b), Maternity Benefit Act, 1961.
[6] Section 4, Maternity Benefit Act, 1961.
[7] Section 5(1), Maternity Benefit Act, 1961.
[8] X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Ors, (MANU/ SC/1257/2022).
[9] Section 6(4), Maternity Benefit Act, 1961.
[10] Section 3, Maternity Benefit (Amendment) Act, 2017
[11] Section 6(6), Maternity Benefit Act, 1961.
[12] Section 7, Maternity Benefit Act, 1961.
[13] Section 5(3), Maternity Benefit Act, 1961.
[14] Section 8(1), Maternity Benefit Act, 1961.
[15] Section 11, Maternity Benefit Act, 1961.
[16] Section 12(1), Maternity Benefit Act, 1961.
[17] Section 13, Maternity Benefit Act, 1961.
[18] Section 20, Maternity Benefit Act, 1961.
[19] Section 4(2), Maternity Benefit Act, 1961.
[20] Ibid at Note 7.
[21] Section 24, Maternity Benefit Act, 1961.
[22] Section 4(4), Maternity Benefit Act, 1961.
[23] Ibid at Note 6.
[24] Ibid at Note 7.
[25] Section 5, Maternity Benefit Act, 1961
[26] Ibid at Note 10.
[27] Maternity Benefit (Amendment) Act, 2017
[28] Section 5(4), Maternity Benefit Act, 1961
[29] Section 5B, Maternity Benefit Act, 1961
[30] Section 6, Maternity Benefit Act, 1961
[31] Sunita Baliyan vs. Director Social Welfare Department Govt. of Nct of Delhi, (MANU/DE/8950/2007).
[32] Ibid at Note 14.
[33] Section 9, Maternity Benefit Act, 1961; Section 9A, Maternity Benefit Act, 1961.
[34] Section 10, Maternity Benefit Act, 1961
[35] Section 11, Maternity Benefit Act, 1961
[36] Section 12(a), Maternity Benefit Act, 1961
[37] Section 12(b), Maternity Benefit Act, 1961
[38] Section 17, Maternity Benefit Act, 1961
[39] Section 18, Maternity Benefit Act, 1961
[40] Section 23, Maternity Benefit Act, 1961
Author: Shubham Tibrewala, Associate
Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at info@samistilegal.in
