REALITY
OF WOMEN WORKERS UNDER THE MATERNITY BENEFIT ACT,
1961
By RADHIKA PRASAD,
BBA. LL.B; Sixth Semester,
Government Law College, Thrissur.
INTRODUCTION
India employing labor-intensive techniques
invites both men and women in every industry. Nevertheless, representation of
women in work field is hindered by many biological factors such as
menstruation, maternity and motherhood, child care, post-delivery care, etc.
Social security legislations thus aim to provide social security benefits to
workers during necessities happen. These legislations include The Workmen
Compensation Act, 1923, The Payment of Gratuity Act, 1972, The Maternity
Benefit Act, 1961 and others. The Maternity Benefit Act, 1961 preserves the
employment of women workers at the period of their motherhood and maternity
contingencies. In this article, the different aspects of the statute and the
present condition of its implementation is analyzed. There were 44 central laws
in India regarding the labor. These were later merged, amended and consolidated
into four important codes on 28th September, 2020 to remove the complexities.
These laws are replaced by four codes i.e., Code of wage, 2020, occupational
safety, health and working condition code, 2020, code on social security, 2020,
industrial relation code, 2020. Majority of the laws were enacted before the
independence. So were the Maternity Benefit Act, 1961.
The Maternity Benefit Act, 1961 received
the assent of President on 12th December, 1961. It contained 30 sections in
toto when it was enacted and amendments made addition of some sections and
repeal of others. The Maternity Benefit (Amendment) Bill, 2017 were later
introduced in both the houses and received the assent of President on 27th
March, 2017.
SIGNIFICANCE OF THE ACT
According to World Bank Estimates, out of
all countries, India is having one of the lowest female participations in
labor. The rate had fallen to 20.3 percent in 2019.[1]
" The act is established to regulate
the employment of women in certain establishments for a certain period before
and after childbirth and to provide for maternity benefit and certain other
benefits."
The act is as much as important as that of
upholding the dignity of motherhood. Sometimes, in a family, there might not be
enough sources of income if father alone goes to work. And, there are cases
where the conceiving mother is single. At such circumstances, if the woman is
not getting paid maternity leave, it is difficult for the mother and expecting
baby as well. Maternal malnutrition is also a matter of concern in this era.
UNICEF estimates that low birthweight affects more than twenty million newborns
every year[2].
Thus, the maternal leave has its significance among all the labor legislations.
Our constitution also expects just and
humane conditions at work place. The State is empowered to make provision for
securing just and humane conditions of work and for maternity relief.[3]
Article 11(2) of the Convention on the Elimination of all
forms of discrimination against women states that “ In order to prevent
discrimination against women on grounds of marriage or maternity and ensure
their effective right to work, States parties shall take appropriate measures.”
Article 11(2)(b) suggests to introduce
maternity leave with pay or with comparable social benefits without loss of
former employment, seniority or social allowances.[4]
·
APPLICABILITY OF THE ACT
As per section 2 of the Act, it is
applicable to every establishment being a factory, mine or plantation including
any such establishment belonging to Government and to every establishment
wherein persons are employed for the exhibition of equestrian, acrobatic and
other performances. It is also applicable to every shop or industrial,
commercial, agricultural or any other establishment where ten or more persons
are employed.
·
DURATION OF THE MATERNITY
LEAVE
The time period of paid maternity leave
was 12 weeks before the amendment in 2017. Later, it is extended to a period of
26 weeks in case of having first and second child. However, the women having
pregnancy for their third child cannot be availed the above said period.
Instead, the 12 weeks paid leave is granted for them as per section 5 of the
Act.[5]
The period of twelve weeks leave is also
granted to a commissioning mother and mother adopting a child below three years
and the same period is received for women facing miscarriage as provided under
section 9 of the Act. Work from home facility can also be availed after coming
to consensus with the employer of the women.[6]
·
IN CASE OF DEATH OF A
WOMEN
If the women are deceased before receiving
her entitled benefits of motherhood, the employer is liable to pay such
benefits to her nominee or legal representatives.[7]
·
DISMISSAL DURING
PREGNANCY
It is unlawful if the employer is allowed
to dismiss or discharge a women worker who takes absence during the period of
her pregnancy and is punishable unless there is a gross misconduct from the
part of the women worker.[8]
·
PENALTY IN CASE OF
CONTRAVENTION
If the employer acts out of the provisions
of the Act is punishable with imprisonment which may extend to three months, or
with fine which may extend to five hundred rupees or with both. The Court shall
recover the maternity benefit and pay the benefit to the person entitled to it
in case if the employer fails to grant to the person entitled to it.[9]
·
CRECHES FACILITY
As per section 11A, if the establishment
employs 50 or more women, such establishments mandatorily have creche
facilities and should allow the women workers to visit the creche four times a
working day.[10]
NOTABLE CASE LAWS
·
Municipal Corporation of
Delhi v. Female Workers (Muster Roll)[11]
; The issue raised before the tribunal was whether the women workers on muster
roll were entitled to get the maternity benefit. The court held that they are
entitled to get maternity benefits as regular workers and is important for
their health reasons.
·
Dr. Snehkiran Raghuvanshi
v. V. C. King George’s Medical University Gandhi Memorial and Others[12];
The petitioner filed a petition challenging the order in which the maternity
leave applied by the petitioner is denied. The court quashed the order by
allowing the petition and directed the petitioner to file a fresh petition
seeking the maternity benefit.
·
Ishwarya v. Director of
Medical Education and Others[13];
In this case it was decided that maternity leave cannot be denied and the
period of such leave cannot be excluded from the service period. If any rules
or regulations are passed in contrary to this, such rules or regulations are
deemed to be null and void.
·
Seema Gupta v. Guru Nanak
Institute[14];
The petitioner was given a period of 135 days maternity period against 180 days
as per her request. The respondent institute denied her request and threatened
her to take disciplinary action and terminated her from her post. The court
held the termination letter as arbitrary and quashed the same and added that
the petitioner is entitled to get her full salary and the respondent was
directed to reinstate the petitioner to her post.
·
Anshu Rani v. State of
U.P and Others[15];
In this case, it was held that the
maternity benefit should also be allowed to petitioner who works under
honorarium base.
SUGGESTIONS; PERSONAL
VIEW
The Act enables the
working women to feel free and have a stable income during the period of
pregnancy without having fear of discharge or dismissal from their employment.
The Act is a relief for single parents and the provisions are so clear even
providing provisions for creche facility and nursing breaks which are very
thoughtful from the part of Government.
However, the need for paternity leave is
underrated and legislations are minimal for providing the same for working men.
It would have been great if the same act could provide paternity benefits which
would lead to greater development.
Sometimes, it wouldn’t be
economical or justifiable for employers to grant 26 weeks of maternity leave
for every working women employee. It would be burdensome if the establishment
is running on loss.
This may also lead to the
losing of job opportunities for married or pregnant women in future.
CONCLUSION
The legislations
upholding the just and reasonable needs of human are paramount important for
the development of our Country. The Maternity Benefit Act, 1961, contributed to
the labor laws many positive impacts. However, minor shortcomings are there in
Act. The amendments are brought in for further development and clarifications.
The motherhood should not be a burden and the maternity benefits should be treated
as working women’s right. There should be constant reviews made to the Act to
make it updated with the changes happening in the industry.
[1] India’s female labor
participation rate falls to 16.1% as pandemic hits jobs; by Manoj Kumar; August
3, 2021.
[2] Maternal Nutrition;
preventing malnutrition in pregnant and breastfeeding women; www.unicef.org.
[3] Article 42 of The Constitution of India, 1949.
[4] United Nation’s
Convention on the Elimination of all forms of discrimination against women of
18th December, 1979.
[5] The Maternity Benefit
(Amendment) Act, 2017.
[6] The Gazette of India,
The Maternity Benefit (Amendment) Act, 2017, No. 6 of 2017, 27th
March, 2017.
[7] Section 7 of The
Maternity Benefit Act, 1961.
[8] Section 12 of The
Maternity Benefit Act, 1961.
[9] Section 21 of The
Maternity Benefit Act, 1961.
[10] Inserted section 11A by
The Maternity Benefit (Amendment) Act, 2017
[11] 2000 (2) SCR 171.
[12] Service Single No. 6532
of 2020.
[13] WP. No. 12660 of 2017,
judgement dated, 22nd December, 2017.
[14] 135 (2006) DLT 404.
[15] WP 3486 of 2019.
