25. Maternity Benefit Legislation – Industrial Relations, Trade Unions, and Labour Legislation, 2nd Edition

Chapter 25

Maternity Benefit Legislation

Chapter Objectives

This chapter will enable students to:

  1. Understand the importance of maternity benefit legislation
  2. Describe the growth of maternity benefit legislation in India
  3. Explain the eligibility conditions, rate and duration of maternity benefit payable under the Maternity Benefit Act, 1961
  4. Understand the working of the Maternity Benefit Act, 1961, and its limitations

Objectives of Maternity Benefit Legislation

Maternity disables a woman worker from undertaking any work during the few weeks immediately preceding and following childbirth. In order to protect the health of the mother and the child, it is necessary that she be freed from being engaged in work during this period. With the emergence of the system of wage labour in industrial undertakings, many employers tended to terminate the services of the women workers when they found that maternity interfered with the performance of normal duties by them. Many women workers, therefore, had to go on leave without pay during this period in order to retain their employment; many others had to bear a heavy strain to keep their efficiency during the periods of pregnancy, which was injurious to the health of both the mother and the child.

Maternity benefit legislation was undertaken in order to enable the women workers to carry on the social function of childbearing without undue strain on their health and loss of wages. Therefore, maternity benefit legislation, in general, aims at providing payment of cash maternity benefit for a certain period before and after confinement, grant of leave and certain other related facilities.

GROWTH OF MATERNITY BENEFIT LEGISLATION IN INDIA

An effort to get maternity benefit legislation enacted in the country was made by N. M. Joshi in 1924. That year, he introduced a bill in the Legislative Assembly prohibiting the employment of women in factories, mines and tea estates immediately before and after confinement and also making provisions for maternity allowance by local governments from a maternity fund. The maternity fund was to be raised by subscriptions from employers. ‘The Bill was rejected by the Assembly as the Government of India thought that the time was not sufficiently ripe for such a measure.’1 Later, Bombay (now Maharashtra) took the lead by enacting the first Maternity Benefit Act in the country in 1929. Madhya Pradesh followed suit and enacted a similar law in 1930. The Royal Commission on Labour (1929) examined the two Acts and recommended enactment of similar laws all over the country.

Subsequently, maternity benefit Acts came to be enacted in other provinces like Madras (1934), Mysore (1937, 1959), Uttar Pradesh (1938), Bengal (1939), Punjab (1943), Assam (1944), Bihar (1945, 1947), Orissa (1953), Rajasthan (1953) and Kerala (1957). The application of the Acts has been reviewed from time to time and necessary modifications introduced.

The State Maternity Benefit Acts varied in scope, qualifying conditions, the periods and rates of benefit. In general, the Acts applied to factories with certain exceptions. Thus, in Andhra Pradesh, Assam, Kerala, Maharashtra, M.P., Orissa, Punjab and Rajasthan, the Acts covered women employees in all regulated factories, but the Bihar Act exempted cotton, jute pressing, cane and sugar. In most cases, seasonal factories had been excluded from the purview of the Acts. The Acts of Assam and Kerala covered women workers in plantations also. The West Bengal Act had also been extended to tea factories and plantations in the state. The central Maternity Benefit Act, 1961, repealed and replaced all these state Acts.

Central Acts

The first central measure providing for maternity protection was the Mines Maternity Benefit Act, 1941. The Act, which applied to mines, provided for payment of maternity benefit to women workers at the rate of half a rupee per day for a period up to 4 weeks of absence before and 4 weeks after delivery. The Act also prohibited employment of women workers during 4 weeks following the date of delivery of a child and provided for 1 month of authorized absence or leave before confinement. A woman was entitled to maternity benefit after completing 6 months’ service preceding the date of delivery. A woman attended to by a qualified midwife at the time of delivery was entitled to a bonus in addition to the maternity benefit. An amending Act of 1945 extended the prohibition of employment of women working underground from 4 weeks to 6 weeks after confinement. Employment of women working underground could be permitted for more than 4 hours a day during the period of 10 weeks following 6 weeks, if a crèche was provided in the mine. Underground women workers, after completing 90 days of service, were entitled to maternity benefit at the rate of 6 a week for 10 weeks immediately preceding the date of delivery and 6 weeks following it. The rate of benefit in other cases was enhanced from half a rupee to 12 annas a day. In 1963, the Mines Maternity Benefit Act was replaced by the central Maternity Benefit Act, 1961.

The question of maternity protection was brought under the purview of the ESI Act, 1948. The Act provides for periodical payments to an insured woman at the prescribed rate and for a prescribed period in case of confinement or miscarriage or sickness arising out of pregnancy confinement, premature birth of a child or miscarriage2 (for details, see Chapter 26). A woman is entitled to maternity benefit under the Act after fulfilling the minimum contributory conditions. In areas where the ESI Act, 1948, is in force, the employers are generally absolved of their responsibility under the Maternity Benefit Act.

The Plantation Labour Act, 1951, also provided for payment of maternity allowance to women workers in plantations but with the adoption of the central Maternity Benefit Act, these provisions have ceased to operate.

In 1961, the central government enacted the central Maternity Benefit Act with a view to reducing disparities in the existing maternity benefit Acts. The Act repeals the Mines Maternity Benefit Act, 1941, the provisions of maternity protection under the Plantation Labour Act, 1951, and replaced all state maternity benefit Acts. The Act is in force all over the country. The new enactment incorporates relevant provisions of the International Labour Organization’s (ILO’s) Conventions in this regard, although India has not formally ratified them. The ILO Conventions relating to maternity protection are: Maternity Protection Conventions (No. 3), 1919; (No. 103), 1952; and (No. 183), 2000 (for details, see Chapters 23 and 32).

The main provisions of the Act as a mended till date are summarized in the following sections.

CENTRAL MATERNITY BENEFIT ACT, 1961 (MAIN PROVISIONS)

Scope

The Act applies to (i) every establishment being a factory, mine or plantation including any such establishment in which persons are employed for the exhibition of equestrian, acrobatic and other performance, and (ii) every shop and establishment within the meaning of any law relating to shops and establishments in force in a state in which 10 or more persons are employed or were employed on any day of the preceding 12 months.

The state government, with the approval of the central government, may extend all or any provisions of the Act to any other establishment—industrial, commercial, agricultural or otherwise. However, giving at least 2 months’ prior notice by notification in the official gazette is necessary.

The Act does not generally apply to any factory or other establishment to which the provisions of the Employees’ State Insurance Act (ESI), 1948, in regard to maternity benefit apply. However, even where the provisions of the ESI Act are in operation, women employees will be entitled to maternity benefit under this Act in the following cases:

  1. So long as the woman employee does not become qualified to claim maternity benefit under the ESI Act; and
  2. Where the wages of the woman employee for 1 month exceed the wage-ceiling fixed by the central government [Sec. 2 (9) (b)] which is presently 15,000 per month, but she must fulfil the eligibility conditions under this Act [Secs. 2, 5, 5 A, 5 B].

Some Important Definitions

Some important definitions under the Act are reproduced in Box 5.1.

Box 25.1

SOME IMPORTANT DEFINITIONS UNDER THE MATERNITY BENEFIT ACT, 1961

Appropriate Government: Means, in relation to an establishment being a mine or an establishment wherein 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 [Sec. 3 (a)].

Establishment: Means a factory, a mine, a plantation, an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, a shop or establishment or an establishment to which the provision of the Act have been made applicable [Sec. 3 (e)].

Wages: Means all remuneration paid or payable in each to a woman, if the terms of contract of employment, express or implied, were fulfilled and includes:

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

  2. Incentive bonus.

  3. Money value of the concessional supply of food grains and other articles, but does not include:

    1. Any bonus other than incentive bonus

    2. Overtime earnings and any deduction or payment made on account of fines

    3. Any contribution paid or payable to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force

    4. Any gratuity payable on the termination of service.

Miscarriage: Means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code [Sec. 3 (j)].

Medical Termination of Pregnancy: Means the termination of pregnancy permissible under the provisions of Medical Termination of Pregnancy Act, 1971 [Sec. 3 (ha)].

Qualifying Conditions

A woman is entitled to maternity benefit if she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than 70 days in the 12 months immediately preceding the date of her expected delivery. The qualifying period of 70 days does not apply to a woman who has immigrated into the state of Assam and was pregnant at the time of immigration. For the purpose of calculating the days on which the woman has worked, the days on which she was laid off or was on holidays authorized under law during the period of 12 months immediately preceding the date of her expected delivery, are to be taken into account [Sec. 5 (2)].

Rate and Duration of Maternity Benefit

A woman is entitled to maternity benefit from her employer at the rate of the average daily wage for the period of her actual absence subject to a maximum period of 12 weeks of which not more than 6 weeks should precede the date of her expected delivery. For this purpose, 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, or the minimum rate of wages fixed or revised under the Minimum Wages Act, 1948, or 10, whichever is higher. Where a woman dies during the period, maternity benefit is payable only for the days up to and including the day of her death. In case a woman, having delivered of a child, dies during her delivery or during the period immediately following the date of her delivery, leaving behind in either case a child, the employer is required to pay maternity benefit for the entire period, but in case the child also dies during the period, maternity benefit is payable for the days up to and including the day of the death of the child [Sec. 5 (1), (3)].

Continuance of Payment of Maternity Benefit in Certain Cases

Every woman, entitled to of maternity benefit under this Act, is to continue to be so entitled even in factories or establishments where the Employees’ State Insurance Act, 1948, has been applied until she becomes qualified to claim maternity benefit under the ESI Act, 1948, or receives wages more than the ceiling fixed under it [Secs. 5 A, 5 B].

Medical Bonus

Prior to 2008, every woman entitled to maternity benefit under the Act was also entitled to receive from her employer a medical bonus of 250 if no pre-natal confinement and post-natal care was provided by the employer free of charge. The Maternity Benefit (Amendment) Act, 2008, empowers the central government to enhance the amount of medical bonus within every three years, subject to the maximum of 20,000. Accordingly, the amount was raised to 1,010 with effect from 15 April 2008, and then to 2,500 with effect from 11 August, 2008 [Sec. 8].

Claim and Payment of Maternity Benefit

A woman entitled to maternity benefit may give notice in writing to her employer stating that her maternity benefit and any other amount to which she is entitled, may be paid to her or to a person nominated by her and that she will not work during the period for which she receives maternity benefit. In case of a pregnant woman, the notice must state the date, not earlier than 6 weeks from the expected date of delivery, from which she intends to absent herself from work. If a woman fails to give the notice during her pregnancy, she may do so, as soon as possible, after the delivery. On receipt of the notice, the employer must permit the woman to absent herself from the establishment during the period for which she receives the maternity benefit.

The amount of maternity benefit for the period preceding the expected date of delivery is to be paid in advance, but a proof of pregnancy is required. The amount due for subsequent period is to be paid within 48 hours of production of the proof that the woman has delivered of a child. The failure to give notice, however, does not disentitle a woman to maternity benefit or any other amount if she is otherwise entitled to it. An Inspector appointed under the Act may either of his own motion or on application made to him by the woman order the payment of the benefit or amount within a specified period [Sec. 6]. Where a woman entitled to maternity benefit or any other amount under the Act dies before receiving it, the employer is required to pay the same to the person nominated by her in the notice, and in case there is not such nominee, to her legal representative [Sec. 7].

Restriction on Employment of Women during Certain Periods

The Act prohibits the employer from knowingly employing a woman in any establishment during the 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. Similarly, a woman worker is not allowed to work in any establishment during the period of 6 weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. The employer may, on the request of a pregnant woman, employ her (i) during the period of one month immediately preceding the period of 6 weeks before the expected date of delivery, or (ii) during the aforesaid period of 6 weeks before the expected date of delivery (for which the pregnant woman does not avail of leave of absence) but, in no case, such a woman is to be employed during the period mentioned above on 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 [Sec. 4].

Forfeiture of Maternity Benefit

If a woman works in any establishment after she has been permitted by her employer to absent herself in accordance with the provisions of the Act for any period during the authorized absence, she forfeits her claim to the maternity benefit for the period [Sec. 18].

Other Provisions

Leave for Miscarriage

In case of miscarriage or medical termination of pregnancy, a woman is entitled to leave with wages at the rate of maternity benefit for a period of 6 weeks immediately following the day of her miscarriage or medical termination of pregnancy, but a prescribed proof is required [Sec. 9].

Leave for Illness due to Pregnancy, Delivery and Others

A woman suffering from illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy or tubectomy operation is, on the production of prescribed proof, entitled to leave with wages at the rate of maternity benefit for a maximum period of one month in addition to the period of absence allowed [Sec. 10].

Nursing Breaks

Every woman who returns to duty after the delivery of a child is to 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 15 months. These breaks are in addition to the interval for rest allowed to her [Sec. 11].

Dismissal During Absence of Pregnancy

The Act prohibits the employer from discharging or dismissing a woman during or on account of her authorized absence or varying to her disadvantage any of the conditions of her service during the period. The employer is also not allowed to give notice of discharge or dismissal which expires during the period of her absence.

In case a woman is discharged or dismissed at any time during her pregnancy (not during authorized absence), she is ordinarily not to be deprived of the maternity benefit or medical bonus. However, 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. Any woman thus deprived of the maternity benefit or medical bonus or discharged or dismissed during or on account of her absence may, within 60 days from the date on which the order of deprivation, discharge or dismissal was communicated to her, appeal to the prescribed authority whose decision will be final [Sec. 12].

Deduction from Wages Not Allowed in Certain Cases

No deduction from the normal or usual daily wages of a woman entitled to maternity benefit is to be made by reason only of: (a) non-arduous nature of work assigned to her under the Act, or (b) breaks for nursing of child allowed to her [Sec. 13].

Effects of Laws and Agreements Inconsistent with the Act

The provisions of the Act even if these are inconsistent with the provisions of any other law, terms of any award, agreement or contract of service, whether made before or after the coming into force of the Act.

However where under any award, agreement, contract of service or otherwise, a woman is entitled to benefits which are more favourable to her than which she is entitled to under the Act, the woman is to continue to be entitled to the more favourable benefits. The Act does not 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 the Act [Sec. 27].

Power to Exempt Establishments

If the appropriate government is satisfied that having regard to an establishment providing for the grant of benefits which are not less favourable than those provided under the Act, it may exempt the establishment from the operation of all or any provisions of the Act and the rules framed under it [Sec. 26].

Inspectors

The appropriate government may appoint officers as Inspectors for the purposes of the Act and may define the local limits of the jurisdiction within which they are to perform their functions. The powers and functions of the Inspector are described in Box 25.2.

Box 25.2

POWERS OF INSPECTORS UNDER THE MATERNITY BENEFIT ACT, 1961

An Inspector is empowered to (i) enter along with assistants any premises or place where women are employed for the purpose of examining registers, records, notices, and so on, (ii) examine persons employed in the establishment, (iii) require the employer to furnish specified information and (iv) take copies of registers, records and notices. The Inspector is a public servant within the meaning of Indian Penal Code. The Inspector is also empowered to decide complaints relating to withholding of maternity benefit, other amount, discharge or dismissal, and pass necessary order. A person aggrieved by the decision of the Inspector may appeal to the prescribed authority within 30 days. The amount payable under the Act is recoverable as an arrear of land revenue [Sec. 14–17]

Certain Obligations of the Employers

The employer is required to exhibit an abstract of the provisions of the Act and the rules framed under it in the language of the locality in a conspicuous place in every part of the establishment in which women are employed. Every employer is required to prepare and maintain prescribed registers, records and muster rolls in the prescribed manner [Sec. 19–20].

Cognizance of Offences and Others

Any aggrieved woman, an office-bearer of a registered trade union of which the woman is a member or a voluntary organization registered under the Society Registration Act, 1860, or an Inspector appointed under the Act, may file a complaint relating to an offence under the Act in any court of competent jurisdiction. Such a complaint can be filed before the expiry of one year from the date on which the offence is alleged to have been committed. No court inferior to that of a metropolitan magistrate or a magistrate of the first class is empowered to try an offence under the Act.

A suit, prosecution or other legal proceeding does not lie against any person for anything done in good faith or intended to be done in pursuance of the provisions of the Act or rules framed under it [Sec. 23–24].

Penalties

Penalties for offences under the Act are described in the Box 25.3.

Box 25.3

PENALTIES UNDER THE MATERNITY BENEFIT ACT, 1961

  1. Failure to pay the amount of maternity benefit under the Act or wrongfully discharging or dismissing a woman during or on account of her absence from work is punishable with imprisonment which will not be less than 3 months but which may extend to one year or with fine from 2,000 to 5,000 [Sec. 21 (1)].

  2. Failure to produce register or document demanded by the Inspector or concealing or preventing any person from appearing before or being examined by the Inspector is punishable with imprisonment which may extend to one year or with fine which may extend to 5,000 or with both [Sec. 22].

  3. Contravention of other provisions of the Act or the rules by the employer is punishable with imprisonment which may extend to one year or with fine which may extend to 5,000 or with both [Sec. 21 (2)].

Power of the Central Government to Give Directions

The central government may give necessary directions to the state government regarding carrying into execution the provisions of the Act and the state government is required to comply with such directions [Sec. 25].

Power to Make Rules

The power to make rules under the Act vests both in the central and state governments in their respective jurisdictions [Sec. 28].

Maternity Benefit Where Employees’ State Insurance Act is in Force

In factories or establishments where the Employees’ State Insurance Act is in force, the employers are absolved of their liability under the Maternity Benefit Act, except where the woman employee is not qualified to claim maternity benefit under the Act or receives wages more than the wage-ceiling fixed under it [Secs. 5A and 5B; and Sec. 61 of the ESI Act, 1948].

Administration

The central government is responsible for the administration of the Act in mines and establishments wherein persons are employed for the exhibition of equestrian, acrobatic and other performances. The central government has entrusted the administration of the Act in mines to the Director General of Mines Safety and to the Chief Labour Commissioner in respect of other establishments mentioned above. The administration of the Act in factories, plantations and other establishments is done by the state governments. In the states, the factory inspectorates are generally entrusted with the enforcement of the Act in factories.

WORKING

The figures relating to the average number of women employed in establishments covered under the Maternity Benefit Act, 1961, the number of claims accepted and paid, the total amount of maternity benefit paid and the average amount of benefit paid per claim during 1976–2006 are shown in Table 25.1. As the figures relate only to establishments furnishing returns, they give only a broad idea of the working of the Act.

 

Table 25.1 Number of Women Workers Covered and Maternity Benefit Paid Under Maternity Benefit Act, 1961 (1976–2006)

 

Source: Compiled on the basis of data published in Government of India, Ministry of Labour, Various issues of Indian Labour Year Book and Pocket of Labour Statistics.

 

Table 25.1 shows that there has been a gradual increase in the average amount of maternity benefit paid per accepted claim during the course of years under reference, particularly from 1988 onwards, the year in which the rates were made more liberal. The average amount of maternity benefit paid per claim in factories was merely 529 in 1976, which increased to about 4,500 in 1991 and more than 10,000 since 2000 onwards (except in 2002). If these figures are compared to the figures of payment made per confinement (see Table 25.2 and Chapter 26), it will be found that women employees in the establishments covered under the Maternity Benefit Act, 1961, have been in receipt of maternity benefit in higher amount in comparison to the amount received by their counterparts in establishments covered under the ESI Act, 1948. One of the reasons behind the lower amount paid per claim under the ESI Act could be the fixation of a wage-ceiling under the Act, the revision of which involved much time. No such wage-ceiling has been fixed under the Maternity Benefit Act, 1961, in regard to its coverage, implying that women employees in higher wage-groups also get maternity protection under the Act, which is not possible under the ESI Act.

 

Table 25.2 Average Amount of Maternity Benefit Paid per Claim Under the Maternity Benefit Act, 1961 and ESI Act, 1948 (1991–2007)

Year Average amount of maternity benefit paid under Maternity Benefit Act (factories)
Paid per (confinement) (in factories) under ESI Act
1991
4,520
2,081
1992
5,404
2,265
1993
3,632
2,395
1994
4,338
3,270
1995
6,823
3,564
1996
5,915
4,021
1997
6,109
4,855
1998
7,390
6,297
1999
9,146
6,297
2000
13,095
6,787
2001
15,891
7,612
2002
6,585
8,149
2003
15,015
8,432
2004
14,732
8,581
2005
19,636
10,247
2006
37,408
10,635
2007
11,902

 

Source: Compiled on the basis of the data published in Government of India, Ministry of Labour, Various issues of Indian Labour Year Book and Pocket Book of Labour Statistics. See also Table 25.1.

 

CHART 25.A: Average Amount of Maternity Benefit Paid per Confinement in Factories Under Maternity Benefit Act, 1961 and ESI Act, 1947, (See Table 25.2)

 

As the wage-rates in plantations and mines (other than coal) have been lower than those prevalent in factory establishments, it is natural that women employees in these classes of establishments are in receipt of maternity benefit at lower rates. There has, however, been gradual increase in the average amount of maternity benefit paid per claim even in these two classes of industry. The amount of maternity benefit paid per claim in plantations stood at between 2,000 and 3,000 in most of the years under reference. It is a little surprising that in 2006, a woman employee in factory establishment received more than 13 times the amount paid to her counterpart in plantations. In mines (other than coal), the average amount of maternity benefit per claim generally varied between 600 and 2,900. Figures for maternity benefit paid in mines are not available from 1998 onwards.

An Assessment

  1. Like the Employees’ Compensation Act, the Maternity Benefit Act is based on the principle of employer’s liability to pay. In many countries of the world, and even in India under the Employees’ State Insurance Act, provision for maternity benefit has been made on the principle of social insurance. Under the insurance scheme, both the employers and women workers are obligated to pay contributions. Such an arrangement will not only lighten the burden on the employers, but will also be conducive to the provision of maternity benefit on an improved scale and medical care during the period of confinement. So long as maternity benefit is not covered under an insurance scheme by enlarging the application of the ESI Act or other measures, a maternity benefit fund may be established which could be raised by contributions from the employers, women workers and suitable grants from the government. Of late, ambitious schemes of maternity grant have been launched by the Government of India and many state governments for women below poverty line, and substantial amount of money is spent on their welfare. As such, a grant from the government towards financing of maternity benefit for women workers will be helpful in its provision on a more consistent and improved basis.
  2. Imposition of a legal liability on the employers for providing maternity benefit in an amount and on a scale considered as high by many employers along with additional statutory requirements has produced adverse effects on the employment of women. Even the Gajendragadkar Commission (first NCL) admitted that placing the responsibility on the employers for the provision of maternity benefit has ‘led to a tendency among some employers not to employ married women and even discharge women workers on signs of pregnancy.’2 To deal with the problem the Commission Recommended, ‘A scheme of Central Fund may be evolved for maternity benefit on the lines suggested for workmen’s compensation.’3 Although the Act prohibits wrongful dismissal or discharge of women workers during pregnancy and the Equal Remuneration Act, 1976, prohibits discrimination of women in matters of employment and other conditions of service (see Chapter 19) the situation has not materially improved. The creation of a maternity benefit fund may contribute to the checking of the tendency to some extent.
  3. Unlike the ESI Act, the Maternity Benefit Act does not provide for medical care of women workers during period of confinement. A medical bonus is provided under the Act but the amount is too meagre to meet the medical expenses during the period. Such a facility can be provided out of the fund recommended above and responsibility for its implementation may be entrusted to the ESI Corporation or a similar body.
  4. The amount of maternity benefit payable under the Act is linked to the wages of women workers. As there are differences in the wages of women workers even in the same establishment, not to speak of wage disparities as between industries or establishments, the quantum of maternity benefits paid to women workers vary widely. As a matter of fact, the need for prenatal as well as postnatal medical care of women workers in different wage-groups is not appreciably dissimilar. As such, there is the need to bring about certain measure of uniformity in the rates which could be done by specifying a few slabs for squeezed wage-groups.
  5. The government is empowered to extend the provisions of the Act even to establishments, commercial, agricultural and others not specified in the Act. Many state governments have extended the Act to a number of establishments including agriculture and construction. This has resulted in financial burden on small employers and has created difficulties in enforcement.
  6. The administrative arrangement for the enforcement of the Act has not been commensurate with the dimension of the coverage of the Act. The inspectors and appellate authorities appointed under the Act have to look after the enforcement of other labour laws also. As such, the violation of the provisions of the Act has become a regular feature.

Time has now come to adopt a comprehensive insurance scheme of maternity benefit covering all categories of women workers. The fund for the scheme should be raised from the contributions of the employers and women workers and sufficiently supplemented by state grants. The fund should be utilized not only for payment of maternity benefit, but also for medical care during the period of confinement.

It will be relevant here to make a mention of the salient features of the Maternity Protection Convention (No. 183) adopted by ILO in 2000. The Convention provides for a period of maternity leave of not less than 14 weeks which will ordinarily include a period of 6 weeks’ compulsory leave after childbirth. The Convention also provides for additional period of leave in the case of illness, complications or risk of complications arising out of pregnancy or childbirth. The Convention further suggests provision of medical benefits which will include prenatal, childbirth and postnatal care, as well as hospitalization care, when necessary. An important feature of the Convention is provision of cash benefits through compulsory social insurance or public funds. ‘An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer’s specific agreement …’ except in certain specified cases. The Convention also provides for protection of employment, and prohibits discrimination as a result of maternity. Breastfeeding mothers are to be allowed one or more daily breaks or daily reduction of hours of work to breastfeed their children. Representatives of organizations of employers and workers are to be consulted before giving effect to certain provisions of the Convention. Although, the Government of India has not ratified any of ILO’s Conventions relating to maternity protection, they have influenced maternity benefit legislation in the country and may do so in future.

The second National Commission on Labour (2002) has recommended significant changes in the field of maternity protection legislation in the country. The Commission has recommended the extension of the Maternity Benefit Act and its application to all women workers, and has also suggested a separate maternity benefit legislation for women workers in the unorganized sector.4

SUMMARY
  1. Provincial governments, particularly Bombay, Madhya Pradesh and Madras were pioneers in enacting maternity benefit legislation in the country. Soon, many other provinces followed suit. The first central measure was Mines Maternity Benefit Act, 1941, followed by the Employees’ State Insurance Act, 1948, and Plantation Labour Act, 1951. The ESI Act, 1948, is based on the principle of social insurance and provides for the payment of maternity benefit on the fulfilment of prescribed contributory and other conditions. The coverage of the Act has also been narrow (for details see Chapter 26). With a view to ensuring uniformity in the scattered state or central maternity benefit Acts, the central Maternity Benefit Act, 1961 was passed. The Act repealed and replaced all the existing maternity benefit laws. Like all the earlier maternity benefit laws, the Maternity Benefit Act, 1961, is also based on the principle of employer’s liability to pay.
  2. The Maternity Benefit Act, 1961, has a very wide coverage. It is applicable to factories, mines, plantations and shops and establishments employing 10 or more persons, and vests in the government extensive powers to extend its application to any other classes of industries and establishments. The Act does not ordinarily apply to establishments covered under the ESI Act, 1948, but in certain cases, the Act is also made applicable to them.
  3. The qualifying condition is a minimum of 70 days of work in the preceding 12 months. The maternity benefit is payable for 12 weeks of which not more than six weeks must precede the expected date of delivery. Maternity benefit is payable at the normal rate of wages, or at rate fixed under the Minimum Wages Act, 1948. The Act also provides for a minimum of 2,500 as medical bonus. Women workers entitled to maternity benefit are also to be given facilities of leave in the event of miscarriage and illness during confinement and nursing breaks.
  4. The Act prohibits the dismissal of a woman worker on account of her authorized absence and imposes restrictions on her employment during certain periods and on arduous work.
  5. Other provisions of the Act relate to: manner of determining claims, protection of wages, inspection and administration, penalties and cognizance of offences.
  6. The main deficiencies related to the Act and its working are: (i) it being based on the principle of employer’s liability rather than social insurance, (ii) inadequacy of the amount of maternity benefit in a wide number of cases, (iii) absence of provision of medical care and (iv) limited effectiveness in enforcement.
QUESTIONS FOR REVIEW
  1. Give an account of the growth of maternity benefit legislation in India and explain the factors leading to the enactment of the Maternity Benefit Act, 1961.
  2. Explain the coverage, qualifying conditions and the rate and duration of maternity benefit payable under the Maternity Benefit Act, 1961. What additional facilities are to be given to women workers during maternity?
  3. Discuss the provisions of the Maternity Benefit Act, 1961, relating to protection of women workers against dismissal, restrictions on their employment and protection of wages during maternity.
  4. Explain the limitations of the Maternity Benefit Act, 1961, and suggest measures for improvement.
KEY TERMS

 

Appropriate government

Establishment

Wages

Miscarriage

Medical termination of pregnancy

Case Study 1

Is a woman employee entitled to maternity benefit for wageless holidays?

The Inspector under the Maternity Benefit Act, 1961, made an order providing for the payment of maternity benefit to a woman worker for wageless holidays falling in a week during 12 weeks as provided under the Act. The order of the Inspector was challenged in appeal. The court held that prior to the delivery, the woman worker was not prohibited from working and that she was entitled to be paid at the rate of the average daily wage for the period of her actual absence. The expression ‘actual absence’ emphasizes the fact that it covers only working days. It cannot be said that a worker is absent on holiday. Maternity benefit is given for a period and the maximum period is reckoned with reference to the date of delivery—six weeks before and six weeks after delivery—and ‘week’ is to be understood in terms of working day week only. The provision relating to the method of finding out average daily wage and the period of actual absence preceding the date of delivery give an indication that maternity benefit for the period is to be calculated only for the actual working days in a week excluding wageless holidays. Hence, the order of the Inspector to the extent it provided for payment of maternity benefit to a woman worker for wageless holidays in a week during the twelve weeks provided for under the Act is quashed. [Malayalam Plantations Ltd., Cochin Ltd., v. Inspector of Plantations, Mundakayam and Others, 1975(30) FLR 149=AIR 1975 Ker. 86=1975(47) FJR 66]

Questions

Can an employer, on his own, make payment of maternity benefit to a woman worker for the wageless holidays intervening the periods of 6 weeks before and 6 weeks after the delivery?

Is a woman worker entitled to maternity benefit for 8 weeks prior to the date of delivery and 4 weeks after delivery making a total of 12 weeks?

Is a woman worker entitled to maternity benefit for the days on which she worked for wages during the period of 12 weeks of authorized absence?

Can an employer in any condition employ a pregnant woman worker during the period of 6 weeks preceding the expected date of delivery for which she does not avail of leave of absence?