Maternity benefits for all women

By Rakesh Shukla

Thousands of women all over India earn daily wages as 'muster-roll' employees.
Though they work without a break in service they are not made permanent, and are not
entitled to maternity leave and other benefits. A Supreme Court judgment in the
Municipal Corporation of Delhi versus Female Workers case in 2000, changed all that

Employing people on daily wages as muster-roll employees for work that is permanent
and perennial is a widespread practice in our country. A necessary concomitant of
being a muster-roll employee is the denial of equal wages and the various benefits that
are available to regular employees doing the same work. In fact, this would appear to
be the employer's objective -- offering people daily wages even for work that is on-
going and permanent.

Unfortunately this practice is followed not only by private companies and corporations
but also by the state and its instruments which, according to the law, ought to behave
like 'model' employers.

The Municipal Corporation of Delhi has a large number of people, including female
workers, on its muster rolls. They are made to work in this capacity for years, even
though the work they do is of a perennial nature. The duties they perform and the
responsibilities they undertake are exactly the same as those of regular employees.
Women are employed in difficult jobs like construction, road maintenance and digging
trenches. They have to work right through their pregnancy and soon after they deliver a
child; being muster-roll employees they are not entitled to maternity leave or the
benefits that are available to regular female workers of the corporation.

The issue of maternity leave for muster-roll female employees was taken up by the
Delhi Municipal Workers' Union. It was referred to the Industrial Tribunal which directed
the corporation to extend maternity benefits to muster-roll female employees who had
been in continuous service for three or more years. Management at the corporation
approached the high court against the tribunal's order and the matter finally reached
the Supreme Court. It was decided in 2000. The judgment is reported as Municipal

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Corporation of Delhi versus Female Workers (Muster Roll) [(2000) 3 SCC 224].

The corporation contended that the provisions of the Maternity Benefit Act, 1961, or the
Central Civil Services (Leave) Rules, were not applicable to muster-roll female workers
as they were employed only on daily wages. In support of its contention, the
corporation argued that muster-roll employees were not entitled to any benefits even
under the Employees' State Insurance Act. In addition, it advanced the view that the
provisions of the Maternity Benefit Act had not been applied or extended to the
corporation. It further argued that, in any case, the benefits contemplated by the
Maternity Benefit Act could be extended only to workmen in an "industry", not to the
municipal corporation's muster-roll women employees.

The Supreme Court examined the case and the provisions of the Maternity Benefit Act
in the context of the Preamble, Fundamental Rights and Directive Principles of the
Constitution, as well as the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW). The court observed that the Preamble
promises social and economic justice. It noted that Article 14 provides that the state
shall not deny any person equality before law or the equal protection of laws within the
territory of India. Article 15, while prohibiting discrimination on grounds of religion, race,
caste and sex, permits the state to make special provisions for women and children.

The judgment then refers to Part IV of the Constitution containing the Directive
Principles of State Policy. Article 39 enjoins the state to secure adequate means of
livelihood to men and women, equal pay for equal work, and the health and strength of
workers. Article 42 directs the state to make provision for securing just and humane
conditions of work and for maternity relief. Article 43 places a duty on the state to,
through legislation or economic organisation, secure a living wage, decent standard of
life and full enjoyment of leisure and social and cultural opportunities for all workers.

Section 5 of the Maternity Benefit Act dealing with the right to payment of maternity
benefit declares that every woman shall be entitled to, and her employer shall be liable
for, the payment of maternity benefits at the rate of the average daily wage for the
period of her absence -- the period immediately preceding delivery, the actual day of
delivery and the period immediately following that day. A minimum period of 80 days'
work in the 12 months preceding the date of expected delivery has been prescribed for
entitlement to the benefit. A maximum of 12 weeks has been prescribed as the period
for which a woman is entitled to maternity benefits.

Examining the various clauses of the Maternity Benefit Act, the court noted that
Section 3 (h) defines "woman" as "a woman employed, whether directly or through any
agency, for wages in any establishment". According to Section 3 (n), "'wages' means

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all remuneration paid or payable in cash to a woman". If no prenatal confinement or
post-natal care is provided free of charge by the employer, then Section 8 provides for
medical bonus to a woman entitled to maternity benefits. Section 9 provides for six
weeks' leave with wages in case of a miscarriage or medical termination of pregnancy,
and Section 9 A for two weeks' leave in case of a tubectomy operation. Section 10
provides for further leave of one month in case of illness arising out of a miscarriage,
medical termination of pregnancy or a tubectomy operation.

Section 11 provides for nursing breaks till the child attains the age of 15 months.
Section 12 prohibits the dismissal of a woman employee during or on account of her
absence on maternity leave. It also stipulates that the conditions of her service cannot
be changed to her disadvantage during her absence. Section 21 makes an employer
who fails to pay maternity benefit or discharges or dismisses a woman employee
during or on account of her absence, punishable with a minimum of three months'
imprisonment extendable to one year and a fine of between Rs 2,000 and Rs 5,000.
Section 27 provides that the Maternity Benefit Act shall have effect notwithstanding
anything inconsistent in any other law, award or agreement. However, it leaves room
for the woman employee to have an agreement with the employer granting her rights
and privileges that are more favourable than the entitlements under the Act.

The court observed that the provisions of the Maternity Benefit Act are in consonance
with the Directive Principles of State Policy, particularly Article 42 of the Constitution,
which directs the state to make provisions for just and humane conditions of work and
for maternity relief. The Act provides for maternity leave as a woman employee at the
time of advanced pregnancy cannot be compelled to undertake hard labour, as this
would be detrimental to her health and to the health of the foetus. The court declared
that there was no provision in the Act that laid down that only regular women
employees would be entitled to maternity leave and not those working on a casual
basis or on the muster-rolls on a daily-wage basis.

The court rejected outright the management's contention that directions to extend
maternity benefits to muster-roll employees could not be given as the Act had not been
applied to the corporation. The court said this was not in line with the constitutional
goals of providing social and economic justice to all citizens of the country. Addressing
the corporation's argument that the Act could only be extended to "workmen" in an
"industry" the court declared that the construction activities of the municipal corporation
and the digging of trenches, laying and repairing of roads would fall within the definition
of "industry" and that persons employed, including those on the muster-rolls, would be
"workmen". According to domestic law, the provisions of the Maternity Benefit Act were
held to be applicable to the corporation's muster-roll employees.

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Adverting to international covenants and treaties to which India is a signatory, the court
examined the provisions of CEDAW which direct states to take all measures to
eliminate discrimination against women in the field of employment and, in particular,
the right to protection of health and safety in working conditions, including the
safeguarding of the function of reproduction. The court took note of specific provisions
directing measures to introduce maternity leave with pay, without loss of employment,
seniority or allowances; prohibit dismissals on grounds of pregnancy or maternity
leave; and provide special protection to women during pregnancy in types of work
harmful to them.

The judgment declares that the principles contained in the provisions of CEDAW have
to be read into the contract of service between the Municipal Corporation of Delhi and
its muster-roll women employees. These employees were declared to be entitled to the
benefits under the Maternity Benefit Act on grounds that the CEDAW principles were
part of their contract of service.

The court directed that the Delhi Municipal Corporation comply with the tribunal's order
to issue a notification extending benefits of the Maternity Benefit Act to muster-roll
employees who had been in service for three or more years. In the meantime, benefits
under the Act were to be provided to the corporation's women muster-roll employees.

Although the judgment directs the Delhi Municipal Corporation to extend benefits under
the Maternity Benefit Act to its muster-roll women employees, the principle laid down
would be applicable to other establishments as well. The judgment thus constitutes a
basis to demand and get maternity benefits for thousands of muster-roll women
employees who earn daily wages in hundreds of concerns all over the country. The
tribunal in the present case has directed extending maternity benefits to women who
have been in employment for three years. However, as the Maternity Benefit Act
specifically lays down the criteria of having worked for 80 days, women who have
worked for 80 days in the 12 months preceding the date of expected delivery in any
establishment would be entitled to maternity benefits, according to the law enunciated
in the case.

(Rakesh Shukla is a Supreme Court advocate)

InfoChange News & Features, February 2006

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