The Maternity Benefits Act,1961
The Maternity Benefit Act, aims to regulate the employment of women. The provisions of the Maternity Benefit Act, 1961 are of utmost importance since it governs important aspects of expectant working mothers and places certain obligations on employers that needs to be followed by law.
The Maternity Benefit Act, aims to regulate of employment of women employees in certain establishments for certain periods before and after child birth and provides for maternity and certain other benefits.
The Act extends to the whole of India and is applicable to:
- Every factory, mine or plantation (including those belonging to Government) and
- An establishment engaged in the exhibition of equestrian, acrobatic and other performances, irrespective of the number of employees, and
To every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months.
The State Government may extend the Act to any other establishment or class or establishments; industrial, commercial, agricultural or otherwise.
However, the Act does not apply to any such factory/other establishment to which the provisions of the Employees’ State Insurance Act are applicable for the time being.
But, where the factory/establishment is governed under the Employee's State Insurance Act, and the woman employee is not qualified to claim maternity benefit under section 50 of that Act, because her wages exceed Rs. 3,000 p.m. (or the amount so specified u/s 2(9) of the ESI Act), or for any other reason, then such woman employee is entitled to claim maternity benefit under this Act till she becomes qualified to claim maternity benefit under the E.S.I. Act.
WHAT IS MATERNITY BENEFIT?
Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence.
Period For Which Benefit Allowed
The maximum period for which any woman shall be entitled to maternity benefit shall be 12 weeks in all whether taken before or after childbirth. However she cannot take more than six weeks before her expected delivery.
Prior to the amendment of 1989, a woman employee could not avail of the six weeks’ leave preceding the date of her delivery; she was entitled to only six weeks leave following the day of her delivery. However, by the above amendment, the position has changed. Now, in case a woman employee does not avail of six weeks’ leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period, i.e. preceding and following the day of her delivery does not exceed 12 weeks.
Who is Entitled to Maternity Benefit
- Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.
- The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration.
- For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted.
- There is neither a wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in.
Notice For Maternity Benefit
A woman employee entitled to maternity benefit may give a notice in writing (in the prescribed form) to her employer, stating as follows:
- that her maternity benefit may be paid to her or to her nominee (to be specified in the notice);
- that she will not work in any establishment during the period for which she receives maternity benefit; and
that she will be absent from work from such date (to be specified by her), which shall not be earlier than 6 weeks before the date of her expected delivery.
The notice may be given during the pregnancy or as soon as possible, after the delivery.
On receipt of the notice, the employer shall permit such woman to absent herself from work after the day of her delivery. The failure to give notice, however, does not disentitle the woman to the benefit of the Act.
Restriction on Employment of Pregnant Women
- No employer should knowingly employ a woman during the period of 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. Besides, no woman should work in any establishment during the said period of 6 weeks.
- Further, the employer should not require a pregnant woman employee to do an arduous work involving long hours of standing or any work which is likely to interfere with her pregnancy or cause miscarriage or adversely affect her health, during the period of 1 month preceding the period of 6 weeks before the date of her expected delivery, and any period during the said period of 6 weeks for which she does not avail of the leave.
Discharge or Dismissal to be Void
When a pregnant 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 give notice of discharge or dismissal in such a day that the notice will expire during such absence or to vary to her disadvantage any of the conditions of her services.
Dismissal or discharge of a pregnant woman shall not disentitle her to the maternity benefit or medical bonus allowable under the Act except if it was on some other ground.
LEAVE FOR MISCARRIAGE AND ILLNESS
In case of miscarriage or medical termination of pregnancy, a woman shall, on production of the prescribed proof, be 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.
LEAVE FOR TUBECTOMY OPERATION
In case of tubectomy operation, a woman shall, on production of prescribed proof, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of operation.
LEAVE FOR ILLNESS
Leave for a maximum period of one month with wages at the rate of maternity benefit are allowable in case of illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy or tubectomy operation.
Every woman entitled to maternity benefit shall also be allowed a medical bonus of Rs. 250, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.
Duties of Employers
Important obligations of employers under the Act are:
- To pay maternity benefit and/or medical bonus and allow maternity leave and nursing breaks to the woman employees, in accordance with the provisions of the Act.
- Not to engage pregnant women in contravention of section 4 and not to dismiss or discharge a pregnant woman employee during the period of maternity leave.
Right of Employees
Important rights of an employee are:
- To make a complaint to the Inspector and claim the amount of maternity benefit improperly with held by the employer.
- To appeal against an order of the employer depriving her of the maternity benefit or medical bonus or dismissing or discharging her from service, to the competent authority, within 60 days of the service of such order.
Penalties For Contravention of Act by Employer
For failure to pay maternity benefit as as provided for under the Act, the penalty is imprisonment upto one year and fine upto Rs. 5000. The minimum being 3 months and Rs. 2000 respectively.
For dismissal or discharge of a woman as provided for under the Act, the penalty is imprisonment upto one year and fine upto Rs. 5000. The minimum being 3 months and Rs.2000 respectively.
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