Maternity Benefit Act,1961 ( Case Laws )  - Maternity leave and Eligibility, (THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017)

It was during the first International Labour Conference (ILO), in 1919 that, the first convention on maternity protection (Convention No.3) was adopted. Significantly, the adoption of the International Labour Organisation (ILO) workers with Family Responsibilities Convention, 1981 marked the recognition that “a change in the traditional role of men as well as the role of women in society and in the family is needed, to achieve full equality between men and women”, as stated in the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979.

The 44th Session of Indian Labour Conference (ILC), has recommended for enhancing maternity leave under Maternity Benefit Act, 1961 from existing twelve weeks to twenty-four weeks. This recommendation has been reiterated during 45th and 46th Session of ILC. The Ministry of Women and Child Development and other stakeholders has also requested to enhance maternity benefit under the Maternity Benefit Act, 1961.Based on the recommendations of ILC and requests from the various quarters and the deliberations during the Tripartite Consultations with stakeholders, it has been decided to amend the Maternity Benefit Act, 1961.  Object

The Maternity Benefit Act, 1961, protects the employment of women during the time of maternity and entitles them to a full paid absence from work to take care for the child. The amendments in 2017 seeks to increase maternity leave period to 26 weeks in all establishments, including private sector.

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017

NO .6 OF 2017

The amendment  extends the period of maternity leave from 12 to 26 weeks. However, this increase in maternity leave does not apply to women with two or more surviving children. Such women will be entitled to 12 weeks of leave.

The government has stated that the amendment extend the period of maternity leave to 26 weeks to ensure maternal care to the child during early childhood. It has also noted that such early care is essential for the growth and development of the child.13 This objective could be defeated if sufficient maternity leave is not given in the case of a third born child. Currently under the 1961 Act, the minimum maternity leave of 12 weeks applies in all cases, regardless of the number of previous children.

Maternity benefit act 1961 salient features - Gist

Section 5 provides, inter alia, as under :

"5. Right to payment of maternity benefit - (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation - For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rates of wages fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

Explanation - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

Section 5 (3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:

Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery;

PROVIDED FURTHER that where 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:

[PROVIDED ALSO that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.]

Section 5A provides that if the Employees' State Insurance Act, 1948 is applied or becomes applicable to the establishment where a woman is employed, such woman shall continue to be entitled to receive the maternity benefits under this Act so long as she does not become qualified to claim maternity benefits under Section 50 of that Act.

It may be stated that Section 50 of the Employees' State Insurance Act, 1948 provides as under :

"50. Maternity benefit - The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may

be given, the rates and period thereof shall be such as may be prescribed by the Central Government."

Section 5B of the Maternity Act speaks of payment of maternity benefit in certain cases. Section 6 provides notice of claim for maternity benefit and payment thereof. Section 8 provides that every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of 1000 rupees, if no pre-natal confinement or post-natal care is provided by the employer free of charge.

All female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis entitled to maternity leave : Allahabad High Court

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Dr. Rachna Chaurasiya Vs. State of U.P. and others passed

Civil Misc. Writ Petition No.24627 of 2017.

Division Bench of this Court directed the State Government to grant maternity leave to all female with full pay of 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis. State respondent was further directed to grant Child Care Leave of 730 days to all female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis having minor children with the rider that the child should not be more than 18 years of age or older.

Maternity leave should not be kept apart or excluded from service period of woman employee : The High Court of Madras 

U. Ishwarya Vs. Director of Medical Education, Directorate of Medical Education and Others

 W.P. No.12660 of 2017

Court decided and had also dealt with in great detail theory of motherhood. It is held in the aforesaid judgement that maternity leave cannot be denied and the period of maternity leave should not be kept apart or executed from service and maternity leave  excluded from the period of service is “null and void”.

Imposed cost of ₹ 50,000 on employer for terminating an ad-hoc employee after applying maternity benefit:  Delhi High Court

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MANISHA PRIYADARSHINI Vs AUROBINDO COLLEGE - EVENING & ORS

LPA 595/2019 & C.M.Applns.49913-14/2019

Facts of the case

• • The appellant/petitioner was working as an ad-hoc  Assistant  Professor in   affiliated college.

  • She had requested  the  respondent College  for  grant  of  maternity  leave  along with  all  other  eligible  benefits  under  the  Maternity Benefit  Act,  1961, From 14.01.2019 till   24.05.2019. But the college did not resondt her request.

  • she  reiterated her request  on  16.01.2019,seeking  permission  to proceed on maternity leave from 21.01.2019 onwards.

  • On  03.02.2019,  the  appellant/petitioner  was  blessed  with  a  daughter prematurely.

  • However,  on  24.05.2019,  when  she  reported to  the  college for joining  her  duties.

  • College informed her on 29.05.2019,that here was no question of her joining back  on duty  as she was terminated from service.

Court Held that

"we decline to accept that as a legitimate ground for denying extension of tenure to the  appellant/petitioner. Such  a justification offered  by  the  respondents for  declining  to  grant  an  extension  to  the appellant/petitioner as  she  had highlighted her need for leave due to her pregnancy and confinement would tantamount  to  penalizing a woman  for  electing to become  a  mother while still employed   and thus pushing   her   into   a   choice less   situation   as motherhood would be equated with loss of employment. This is violative of the basic principle of equality in the eyes of law. It would also tantamount to depriving her of the protection assured under Article 21 of the Constitution of India of her right to employment and protection of her reproductive rights as  a  woman.  Such  a  consequence  is therefore absolutely  unacceptable  and goes against the very grain of the equality principles enshrined in Articles 14and 16".

While directing the College to reinstate the Professor within one week, the Court imposed a cost of ₹50,000

Supreme Court Upholds Cost of Rs. 50,000 On the Delhi University College For Dismissing a Professor While On Maternity Leave

Special Leave to Appeal (C) No(s).7369/2020

"Having a child is no reflection on a woman's professional ability, whether she is in the Army, Navy, judiciary, teaching or bureaucracy. We will not allow termination on this ground", observed the Bench.

The Court accordingly, dismissed the Appeal and upheld the cost of Rs. 50,000 which had been imposed on the college while noting that the Respondent must have spent quite a sum in fighting the might of the college. Further, imposition of cost was a good way of reducing frivolous litigation.

In case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave : Bombay High Court.

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Dr.Ms.Pooja Jignesh Doshi Vs The State of Maharashtra and another.

WRIT PETITION NO. 1665  OF 2015.

Facts of the case

Petitioner chose the route of surrogacy and the surrogate mother gave birth to a baby girl on5 November 2012.

Petitioner sought maternity leave to take care of the surrogate child, which was denied by the respondent on the ground that the Leave Rules and the policy governing the Rules do not permit maternity leave for a surrogate child.

Court Held that

Referring to the judgements dated 22 July 2015 in Writ Petition No.3288 of 2015 Dr. Mrs. Hema Vijay Menon vs. State of Maharashtra, a Division Bench of this Court relying upon a decision of the Delhi High Court dated 17 July 2015 in the case of Rama Pande vs. Union of India in WP(C) 844/2014, held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave.  The mother being entitled to maternity leave and the father paternity leave.

The Petitioner is held entitled to the relief sought for interms of prayer clause [C]; being that the Earned Leave and Half-pay Leave availed of by her should be entered in the record as maternity leave for the purposes of the leave account and that the said leave availed by the Petitioner during various intervals be converted into maternity leave. 

Contractual Employees also entitled to Maternity Benefits, Kerala High Court

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Rasitha C.H. Vs State of Kerala & Anr

WP(C).No. 5507 of 2018

The Kerala High Court recently reiterated that women-employees are entitled to maternity leave, regardless of whether their employment is contractual or otherwise.

Allowing a petition filed by 35-year old Rasitha, who was denied maternity leave by the Calicut University on the ground that the terms of her contract did not envision the grant of such leave, Justice A Muhamed Mustaq held,

“The maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement. This court consistently held that it is attached with the dignity of a woman…. it was held that a woman employee cannot be denied maternity benefits merely because her status is a contractual employee. Therefore, the University is bound to grant such benefits notwithstanding anything contained in the agreement of contract.”

In view of these observations, the Court allowed Rasitha’s plea and directed the Calicut University to pay maternity benefits due to the Rasitha, as applicable in the case of other employees of the University, within two months.

Rakhi P.V. and Others V. State of Kerala & Another [2018 (2) KHC 251

It was held that a woman employee cannot be denied maternity benefits merely because her status is a contractual employee. And held that a women cannot be compelled to choose between motherhood and employment.

Section 3. Definitions In this Act, unless the context otherwise requires-

(a) "appropriate government" means, in relation to an establishment being a mine, 7[or an establishment where in persons are employed for the exhibition of equestrian, acrobatic and other performances], the Central Government and in relation to any other establishment, the State Government;

(b) "child" includes a still-born child;

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017 - NO .6 OF 2017

(ba) “commissioning mother” means a biological mother who uses her egg to create an embryo implanted in any other woman;’

(c) "delivery" means the birth of a child;

(d) "employer" means-

(i) in relation to an establishment which is under the control of the government a person or authority appointed by the government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

(e) "establishment" means-

(i) a factory;

(ii) a mine;

(iii) a plantation;

(iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performance;

(iva) a shop or establishment; or

(v) an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable;]

(f) "factory" means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(g) "inspector" means an Inspector appointed under section 14;

(h) "maternity benefit" means the payment referred to in sub-section (1) of section 5;

(ha) "medical termination of pregnancy" means the termination of pregnancy permissible under the provisions of Medical Termination of Pregnancy Act, 1971;]

(i) "mine" means a mine as defined in clause (j) of section (2) of the Mines Act, 1952 (35 of 1952);

(j) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);

(k) "plantation" means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);

(l) "prescribed" means prescribed by rule made under this Act;

(m) "State Government", in relation to a Union territory, means the Administrator thereof;

(n) "wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes-

(1) such cash allowances (including dearness allowance and house rent allowances) as a woman is for the time being entitled to,

(2) incentive bonus, and

(3) the money value of the concessional supply of food grains and other articles but does not include-

(i) any bonus other than incentive bonus;

(ii) over-time earnings and any deduction or payment made on account of fines;

(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the

     time being in force; and

(iv) any gratuity payable on the termination of service;

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

Section 4. Employment of, or work by women prohibited during certain periods

(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, [miscarriage or medical termination of pregnancy].

(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy].

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.

(4) The period referred to in sub-section (3) shall be-

(a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;

(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

Section 5. Right to payment of maternity benefits

[(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.]

Explanation: For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest]. (2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity  benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery: 

PROVIDED that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. 

Explanation : For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017

Section 5 (3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:

Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery;

PROVIDED FURTHER that where 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:

[PROVIDED ALSO that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.]

Comment: The provisions of S. 5 of the Act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefits for a maximum period of twelve weeks which is split up into two periods viz. pre-natal and post-natal. The first one i.e. pre-natal or ante-natal period is limited to the period of woman's actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is post-natal compulsory period consists of six weeks immediately following the day of delivery. B. Shah v. Presiding Officer, Labor Court Coimbatore, AIR 1978 SUPREME COURT .

(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of  twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

Mother Is Entitled To Maternity Leave Of For 3rd Child If She Doesn't Have Custody Of Other 2 Children: Madras High Court

The case of the petitioner is that she was working as an English Teacher in Government Higher Secondary School. Before joining the Government service, the petitioner was already married in 2006. From the said wedlock, two children were born in 2007 and 2011 respectively. Subsequently, due to estrangement between them, they fell out of each other and finally they were legally separated in the year 2017. The two children born from the said wedlock are in the custody of the petitioner's former husband.

The petitioner got married to one . Due to conceivement from the second wedlock, the petitioner applied for grant of maternity leave to the authorities concerned for nine months (17.08.2021 and 13.05.2022) towards pre-and-post-natal care. The third respondent vide his proceedings dated 28.08.2021, rejected the request of the petitioner, quoting Fundamental Rule 101(a), applicable to State Government servants stating eligibility for grant of maternity leave is available only to women employees having only two surviving children and there is no provision for grant of maternity leave for the third child on account of her remarriage.

learned counsel for the petitioner has reiterated the facts briefly. The learned counsel initially contended that as far as the Government service is concerned, the petitioner was giving birth for the first time, as the earlier two children were born from the first wedlock, prior to her entering into the Government service in 2012. Therefore, the claim of the petitioner ought to have been construed as a first child as far as the Government service is concerned for extending the benefit of the maternity leave to her.

The Court was informed that recently, the Government has issued G.O.Ms.No.84, Human Resources Management (FR-III) Department, dated 23.08.2021, further enhancing the maternity leave from 9 months (270 days) to 12 months (365 days). This Court is appreciative of the State Government's studied sensitivity towards the motherhood and its deep understanding of the importance of wholesome rearing and fostering of new born child. Maximizing the maternity benefit under the said GO is a reflection of sublime concern of the Government towards the well being of its women employees.

Court 

The semantic construct of the expression “having surviving children” must be taken to mean that the woman Government servant seeking the benefit must have custody of the  children. 

This is one of the peculiar cases wherein as a fallout of divorce from the first marriage, the petitioner had to part with the custody of her two children born from the first wedlock. Therefore, in the entirety of the facts and circumstances of the case, it cannot be, today, said that the petitioner is having two surviving children at all. In these circumstances, a purposive and meaningful reading of the provisions and its implementation is a constitutional obligation cast upon the authorities, considering the peculiar and singular facts and the circumstances of the case. The Court therefore holds that the petitioner is deemed to have not having two surviving children, inviting disqualification for claiming the maternity benefit.

The respondents are directed to sanction maternity leave to the petitioner for the period from 11.10.2021 till

10.10.2022 as admissible in terms of the latest G.O.Ms.No.84, Personnel and Administrative Reforms (FR.III) Department, dated 23.08.2021.

Woman Employee have right To Claim Maternity Leave For Period Of Six (6) Months: Allahabad High Court

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Anshu Rani v. State of U.P. And 2 Others

WRIT - A No. - 3486 of 2019

Facts of the case

• • Petitioner was initially appointed on the post of Anudeshak / instructor teacher. on 20.07.2013.

  • an application dated 26.9.2018 was submitted by the petitioner

  • before the Block Education Officer as well as the District Basic Education Officer, Bijnor to grant her maternity leave from 1.10.2018 to 31.3.2019.

  • But, the District Basic Education Officer, Bijnor granted maternity leave to the petitioner only for 90 days, i.e., 1.10.2018 to 29.12.2018 with honorarium. The request was made by the petitioner to grant her maternity leave for 180 days, according to Maternity Benefit Act, 1961, but no response from respondent. Thereby this Writ petition was filed.

  • A counter affidavit was filed contended that the maternity leave was rightly granted only for a period of 90 days since it is not possible in law to grant maternity leave to the petitioner for a period of 180 days in view of the Government Orders dated 20.11.2017 and

  • 3.1.2018.

Court held that

Court besides referring to Article 14 of the Indian Constitution (Right to equality), place reliance on the decision of the Supreme Court  in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and another 2000 (3) SCC 224, wherein the Supreme Court had held that

"A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their  avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in per forming her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised

for forced absence during the pre or post-natal period."

"In view of the facts as narrated above, it is clear that the petitioner is entitled for maternity leave for period of six months"

In the facts and circumstances of the case, a mandamus is issued directing the respondent No.2/District Basic Education Officer, Bijnor to provide the petitioner maternity leave with honorarium with effect from 30.12.2018 to 31.3.2019.

Section 5A. Continuance of payment of maternity benefit in certain cases

Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees' State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.]

Section 5B. Payment of maternity benefit in certain cases 

Every woman-

(a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply;

(b) whose wages (excluding remuneration for over-time work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and

(c) who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act.]

 Section 6. Notice of claim for maternity benefit and payment thereof

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.

[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.]

(5) 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 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. (6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

 Section 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.

Section 8. Payment of medical bonus

Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus, of Rs. 1000/- , if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

The Central Government may from time to time, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of Rs. 20,000/-.

Section 9. Leave for miscarriage, etc.

In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.]

Section 9A. Leave with wages for tubectomy operation

In case of tubectomy operation, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.]

Section 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, [miscarriage, medical termination of pregnancy or tubectomy operation]

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, [miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

Section 11. Nursing breaks

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017 -NO .6 OF 2017

Section 11A - Créche facility

(1) Every establishment having fifty or more employees shall have the facility of creche 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.

(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.

The Ministry of Women and Child Development recently, vide its office memorandum dated 2nd November 2018, issued the "National Minimum Guidelines for Setting up and Running Crèches under Maternity Benefit Act, 2017 (the "Crèche Guidelines").

Features of the Crèche Guidelines

Interestingly, the Crèche Guidelines categorize certain norms as non-negotiable while others as preferable norms. Briefly, the salient features are:

Group of Children - The crèche facility is for children of age groups of 6 (six) months to 6 (six) years of all employees including temporary, daily wage, consultant and contractual personnel.

Distance of crèche- It should be located near/at the work place site or in the beneficiaries' neighbourhood within 500 (five hundred) metres.

Timings- The crèche timings can be flexible depending on the working hours and timings of the parents which should ideally mean for 8 (eight) to 10 (ten) hours.

Space- The crèche centre should have a minimum space of 10 (ten) to 12 (twelve) sq. ft. per child to ensure that children can play, rest and learn.

Human Resource- There is a recommended adult child ratio with helpers, one crèche in charge and one guard to be employed in a crèche unit of up to 30 (thirty) children.

Records- Requirement of maintaining stock registers and attendance registers for staff and children and certain admission forms to be filled.

Monitoring and supervision- A Crèche Monitoring Committee to be set up comprising of representation from the parents, one crèche in-charge, one crèche worker and one admin/HR person.

Training- Prior to starting work with the children at the crèche, all the workers of the crèche need to undergo a pre service training of 5-6 months.

There is an exhaustive list of norms and standards to be followed in a crèche on matters like crèche environment, equipment, safety and protection, health and nutrition practices, hygiene and sanitation practices and crèche activities.

A key aspect of these guidelines is the formulation of a Child Protection Policy as per the sample policy provided which prescribes the appointment of a Complaints Committee to investigate and address complaints relating to any child abuse.

Section 12. Dismissal during absence of pregnancy

(1) 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.

(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:

PROVIDED that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]

(c) Nothing contained in this sub-section shall effect the provisions contained in sub-section (1).

Section 13. No deduction of wages in certain cases

No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of-

(a) the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or

(b) breaks for nursing the child allowed to her under the provisions of section 11.

Section 14. Appointment of Inspectors

The appropriate government may, by notification in the Official Gazette, appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their functions under this Act.

Section 15. Powers and duties of Inspectors

An Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely:-

(a) enter at all reasonable times with such assistants, if any, being person in the service of the government or any local or other public authority, as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes of examining any register, records and notices required to be kept or exhibited by or under this Act and require their production for inspection;

(b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment;

PROVIDED that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself;

(c) require the employer to give information regarding the names and addresses of women employed, payments made to them and applications or notices received from them under this Act; and

(d) take copies of any registers and records or notices or any portions thereof.

Section 16. Inspectors to be public servants

Every Inspector appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 17. Power of Inspector to direct payments to be made

(1) Any woman claiming that-

(a) maternity benefit or any other amount to which she is entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld;

(b) her employer has discharged or dismissed her during or on account of her absence from work in accordance with the provisions of this Act, may make a complaint to the Inspector.

(2) The Inspector may, of his own motion or on receipt of a complaint referred to in sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that-

(a) payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders;

(b) she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may pass  such orders as are just and proper according to the circumstances of the case.]

(3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such person, appeal to the prescribed authority.

(4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final.

(5) Any amount payable under this section shall be recoverable by the Collector on a certificate issued for that amount by the Inspector as an arrear of land revenue.

Section 18. Forfeiture of maternity benefit

If a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorized absence, she shall forfeit her claim to the maternity benefit for such period.

Section19. 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.

Section 20. Registers, etc.

Every employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed.

Section 21. Penalty for contravention of Act by employer

(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees:

PROVIDED that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment.

(2) If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both:

PROVIDED that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.]

Section 22. Penalty for obstructing Inspector

Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment which may extend to [one year], or with fine which may extend to five thousand rupees, or with both.

Section 23. Cognizance of offences

(1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organization registered under the Societies Registration Act, 1860 (21 of 1860) or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed.

(2) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.]

Section 24. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made thereunder.

Section 25. Power of Central Government to give directions

The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of the provisions of this Act and the State Government shall comply with such directions.

Section 26. Power to exempt establishments

If the appropriate government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefits which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt, subject to such conditions and restrictions, if any, as may be specified in the notification, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder.

Section 27. Effect of laws and agreements inconsistent with this Act

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act:

PROVIDED that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

Uttarakhand High Court Strikes Down Rule Denying Maternity Leave For Third Child As Unconstitutional

Read judgement Below

Writ Petition No. 1778 of 2015 (S/S)

Smt. Urmla Masih  Versus State of Uttarakhand & another

The Uttarakhand High Court on Monday struck down as unconstitutional a State rule denying maternity leave to female government employees for their third child. The order was issued by Justice Rajiv Sharma on a petition filed by one Ms. Urmla Masih, challenging the second proviso to Fundamental Rule 153 of the Financial Hand Book of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand. The proviso disentitled from maternity leave female government employees who have two or more living children.

Ms. Masih had applied for maternity leave for almost five months in 2015, but had been denied the same on the ground that maternity leaves can only be granted for the first two children and not for the third child.

Allowing the petition, the Court opined that the proviso runs contrary to Section 27 of the Maternity Benefit Act, 1961, which gives primacy to the Act when it comes to laws and agreements inconsistent with its provisions. It further ruled that the proviso goes against the letter and spirit of Article 42 of the Constitution of India, which stipulates that the State shall make provision for securing just and humane conditions of work and for maternity relief.

Furthermore, Justice Sharma relied on the judgment in the case of Ruksana v. State of Haryana & others, wherein Punjab and Haryana High Court had struck down a similar Punjab Civil Services rule, which denied the benefit of maternity leave on the birth of a third child.

The petition was therefore allowed, with Justice Sharma ruling, “Thus, this Court is also of the considered view that second proviso of Fundamental Rule 153 is not in conformity with Section 27 of the Maternity Benefit Act, 1961 and is also against the spirit of Article 42 of the Constitution of India.

Accordingly, the writ petition is allowed. The proviso Second of the Fundamental Rule 153 of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand is declared ultra vires and unconstitutional and the same is struck down.”

Section 28. Power to make rules

(1) The appropriate government may, subject to the condition of previous publication and by notification in the Official Gazette, make rules for carrying out the purpose of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the preparation and maintenance of registers, records and muster-rolls;

(b) the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act;

(c) the method of payment of maternity benefit and other benefits under this Act insofar as provision has not been made therefor in this Act;

(d) the form of notices under section 6;

(e) the nature of proof required under the provisions of this Act;

(f) the duration of nursing breaks referred to in section 11;

(g) acts which may constitute gross misconduct for purposes of section 12;

(h) the authority to which an appeal under clause (b) of sub-section (2) of section 12 shall lie; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof;

(i) the authority to which an appeal shall lie against the decision of the Inspector under section 17; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof;

(j) the form and manner in which complaints may be made to Inspectors under sub-section (1) of section 17 and the procedure to be followed by them when making inquiries or causing inquiries to be made under sub-section (2) of that section;

(k) any other matter which is to be, or may be prescribed.

(3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions, aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 29. Amendment of Act 69 of 1951

In section 32 of the Plantations Labor Act, 1951-

(a) in sub-section (1), the letter and brackets "(a)" before the words "in the case of sickness", the word "and" after the words "sickness allowances" and clause (b) shall be omitted;

(b) in sub-section (2), the words "or maternity" shall be omitted.

Section 30. Repeal

On the application of this Act-

(i) to mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and

(ii) to factories situate in the Union territory of Delhi, Bombay Maternity Benefit Act, 1929 (Bombay Act VII of 1929); as in force in that territory, shall stand repealed.

Lack of uniformity across labour laws related to maternity benefits

Currently, there are various labour laws that provide maternity benefits to women in different sectors. These laws differ in their coverage, benefits and financing of the benefits. The Second National Commission on Labour (2002) had recommended rationalisation of various labour laws with regard to providing social security, including maternity benefits. Table 3 below details the various labour laws that provide maternity benefits.

Deloitte declares 26 weeks of maternity leave for women employees; PWC, EY, KPMG to follow suit

The labour ministry is busy putting the amended Maternity Benefit Act together that would entitle working women in private sectors to 26 weeks of maternity leave from the existing 12, the big four consulting firms have already taken a leap. While Deloitte has declared 26 weeks of maternity leave for its woman employees, PricewaterhouseCoopers, EY and KPMG are in the process of finalising such policies. A severe crunch of woman employees at the top has pushed these companies to not only extend the maternity leave benefit, but also in introducing a slew of other initiatives to retain the valuable resource.

EY has decided to rate male and female employees on two separate bell curves from this year. "This would ensure that there is no unconscious bias as rating of women would be equated with men. Also, we will have the same number of promotions for women as there are for men. To be piloted for the first time in India, EY is also working out a programme called 'Maternal Coaching', where all the women at the leadership and senior positions will be trained to coach other women in their teams before and after maternity leave on not quitting the job.

PwC is planning to retain women who leave for maternity with an 'umbilical cord' of up to seven years or so. This would allow women on maternity leave to be on the rolls of the company without actively working and without pay. "Though this is in the pipeline, they intend to offer all the training and updates to the women who go on maternity leave so that they are connected with the firm.

Maternity benefits curtails post-maternity attrition of women employees

MUMBAI: Several organisations have over the last few years introduced new policies to curtail attrition among women employees post maternity. Between 2003 and 2010, according to Avtar, a diversity and inclusion consulting firm, over 48% of employed women under 30 years of age dropped out of the workforce due to maternity and childcare. It's a challenge organisations are facing head-on. From flexi-work to phase back programmes, no stone has been left unturned.

The hard work is finally paying off. Organisations are witnessing a gradual reduction in attrition levels among women employees post maternity.

Over the last three years, Maersk Group India has seen a steady decline in attrition among women employees post maternity from 30-33% in 20132014 and 24-26% in 2015 to 7% so far in 2016. IBM India, on the other hand, has reduced attrition among women employees by 10% in the last two years, while at Cummins, a return-to work programme called `Reboot' launched in May 2016 has already seen a positive outcome.

A little over one year after India increased the maternity leave benefit to 26 weeks from 12 weeks, a survey said the move could be counterproductive to the cause of a diverse workplace in certain sectors unless other support measures are also undertaken.

According to a survey on the costs and benefits of the new regulations by leading employment services company TeamLease, at least 26 per cent of the 350 startups and small and medium enterprises (SMEs) that responded said they will prefer hiring a male candidate, given the cost of the six-month maternity leave benefit. About 40 per cent of respondents said they will hire women but will consider whether such a cost is worth the candidate. However, 39 per cent of organisations said the move will have a positive impact and will lead to a happier workforce but 35 per cent of the respondents said that the six-month maternity leave will impact both cost and profitability. “While many of the startups and SMEs are progressive, a significant number seems to be considering the consequences of this regulation.” Plus, even when organisations do have a policy of non-discrimination in hiring, the recruiting manager could take a short-term view. Therefore, just changing the law is not enough; reinforcements are needed at multiple levels.

ET BureauUpdated: May 01, 2018,