1. Introduction

The purpose of the maternity benefit, which is granted to expectant mothers and mothers of newborns, is to make it easier for the woman to care for the kid. It includes completely paid leave from work during pregnancy as well as various benefits before and after the birth of the child. According to the 2014 decision in Mamta v. Employee State Insurance Corporation., maternity benefits must be paid by the employer since giving birth and caring for a child are fundamental rights of both the woman and the child.

2. History

The Convention of “Protection of Motherhood” adopted in 1919 was the earliest among the ILO Conventions. The Government of India stated in 1921 that a number of factors prevented the 1919 Convention from being adopted. In 1924, a private member of the legislature submitted a bill to the Central Legislative Assembly requesting that the government require firms to offer maternity benefits to female employees. The administration, on the other hand, rejected the Bill on the grounds that there was no need for such a Bill and that if legislation to that effect were to be approved, it may have a negative impact on women’s employment.

The Royal Commission on Labour emphasised the necessity for appropriate maternity laws in its recommendations, at the very least for women employed permanently in non-seasonal workplaces. The provincial governments took the initiative since the Indian government was slow to implement these recommendations. The Maternity Benefit Act was enacted by the Bombay government in 1926. Central Provinces, Madras, Uttar Pradesh, Bengal, and a few other provinces came after it. The length of the vacation, the amount of the reward, and the eligibility requirements varied slightly per province. The Maternity Benefit Act was created by the Central Government in 1961 in an effort to lessen the differences in maternity protection provided by various regional or State laws.

3. The Maternity Benefit Act 1961

The Act covers the entirety of India and is applicable to every factory, mine, and plantation, including any such establishments owned by the government, as well as to every facility where people are hired to conduct equestrian, acrobatic, and other displays. After the Mines Maternity Benefit Act of 1941 was repealed, the Act went into effect in mines on November 10th, 1963. Any other institution or class of establishments, whether industrial, commercial, agricultural, or otherwise, may be subject to all or any of the Act’s provisions, at the State government’s discretion. However, the State administration cannot do so without the Central administration’s consent and only after giving at least two months’ notice of its intention through a publication in the Official Gazette. The Act was amended on May 1, 1976 to extend the benefits to all women employees earning more than the wage ceiling in establishments covered by the E. S.I. Act.

a. Applicability

Section 2(1)(a) of the act stated that the Act applies to all establishments including factories, plantations, mines, government organizations, and shops covered under the ambit of law having 10 or more employees.

b. Eligibility

As per Section 5(2) of the Act, for a woman to be eligible for maternity benefits under the Act has to be employed for not less than 80 days in the welve months immediately preceding the expected delivery of the woman. The Period used to be of 160 days but the same was redeuced by virtue of 2017 amendment.  Subsequent judicial decision such as Glem Brook estate v. Platation office (2012) and Anuradha Arya v. Govt. Gil Sr. School (2107) have held that daily wage worker and contractual employees are also entitled to maternity benefits under the act.

c. Duration of leave

According to the Act’s requirements, the length of maternity leave varies depending on the situation.

i. 26 weeks, for a woman with up to 2 surviving children. The woman, at discretion, can take up to 8 weeks of maternity leave before the delivery and the remaining 18 weeks after the delivery.

ii. 2 weeks, for a woman already having 2 or more children. Herein, the woman, at discretion, can take up to 6 weeks of leave before the delivery and the remaining 6 weeks after the delivery of the child.

iii. 12 weeks, for a woman who has adopted a child below the age of 3 months from the date of handover of the child.

iv. 12 weeks, for a commissioning mother, i.e., a mother who puts her embryo in another woman (another woman is called the host/surrogate) from the day of handover of such child

v. 6 weeks, for a woman who has gone through miscarriage from the date of termination of pregnancy, on the production of proof, as mentioned in Section 6 of the Act.

vi. 2 weeks, for a woman who has gone through Tubectomy (family planning) from the date of the operation, on the production of proof under the ambit of Section 9(A) of the Act.

vii. 1 month, for women who suffer illnesses arising out of pregnancy, miscarriage, premature birth, delivery, medical termination, or tubectomy along with wages as per maternity benefits.

d. Benefits provided

Financial Benefits: In accordance with Section 5 (1), every woman is entitled to maternity benefits calculated at the rate of the average daily wage for the duration of her actual absence, that is, for the entire maternity leave (including the time leading up to the due date, the actual due date, and the time following the delivery).

Restriction on work: As per Section 4 of the Act, female employees cannot be employed to do work of arduous nature, involving long hours of standing, work likely to cause miscarriage and can adversely affect the health of the mother.

Nursing Breaks: In accordance with Section 11 of the Act, every woman is entitled to two nursing breaks of the appropriate length each day during the course of her employment, in addition to the permitted rest period, until the child is 15 months old.

Creche Facility: According to Section 11(A) of the Act (added through a 2017 amendment), every establishment with more than 50 employees is required to have a creche facility for the infant, and the mother should be allowed four visits to the creche per day, including the nursing breaks and the rest intervals that are permitted to her.

Work from Home: In accordance with Section 5(5) of the Act (as added by the 2017 amendment), the employer may permit the provision of work from home to such women after the completion of the maternity break if the job profile of the women so permits. The duration and circumstances of such labour are subject to mutual agreement between the employer and the employee.

Medical Bonus: If the employer does not offer prenatal and postnatal care at no cost as specified in Section 8(1) of the Act, the lady is entitled to compensation from the employer in the sum of Rs. 1000.

Preventing dismissal: According to Section 12 of the Act, it is illegal for an employer to fire an employee or deny them the right to receive the Act’s mandated maternity benefits. except where a female employee has engaged in serious wrongdoing.

e. Payment of benefits

As per the provisions of Section 6(5) of the Act, the amount for maternity benefits preceding the date of delivery shall be paid in advance and for the period after the delivery, the payment shall be made within 48 hours of production of proof.

f. Dismissal of mother

According to Section 12 of the Act, the employer may issue an order in writing to terminate the employee’s employment, revoke her bonus or maternity benefit, or both, in the event of egregious misbehavior. Although the Act doesn’t define the phrase, Section 28 gives states the authority to determine what constitutes egregious misconduct. In, National Tobacco Co. of India Ltd. and Ors v. Fourth Industrial Tribunal and Ors (1959) it was held that serious misconduct by itself is grounds for dismissal. There will be no room for victimization in a situation of extreme misconduct, and the employee might not be able to contest the decision.

g. Penalties

Section 21 and Section 22 deal with the penalties under the Act. Section 21 states that in case of failure of paying benefits or dismissal of mother, the employer shall have to face imprisonment of up to 3 months of and/or fine of up to Rs. 500/-. Section 22 states that on demand made by the inspector if the person fails to produce any registered document or conceals a document or prevents a person from appearing before the inspector then he shall be liable for imprisonment of up to 3 months and/or a fine of Rs. 500/-.

4. Conclusion

In conclusion, the Maternity Benefits Act of 1961 is a significant piece of legislation in India that aims to protect the interests and health of women employees during pregnancy and childbirth. The Act provides for a range of benefits such as paid leave, medical allowances, and job security to women employees during their maternity period. The Act has been amended several times to ensure that it remains relevant to the changing needs of women in the workforce. While the Act has been successful in improving the overall conditions for women employees, there is still a long way to go in terms of enforcing the Act’s provisions and promoting gender equality in the workplace. Nevertheless, the Act is an essential step towards creating a more inclusive and supportive work environment for women in India.

Author Bio

Qualification: Student- Others
Company: Institute of Law Nirma University
Location: Jodhpur, Rajasthan, India
Member Since: 23 Apr 2023 | Total Posts: 1

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