Some Aspects of a Social Security Legislation

called The Maternity Benefit Act, 1961

- G Ojha

Objective
To regulate the employment of women in
certain establishments for certain periods
before and after child birth and to provide
for maternity and certain other benefits.

Scope .
It extends to the whole of India.

Application
Applies to a Mine, a Factory, a Plantation, any such
establishment of the Govt., & to every establishment
where persons are employed for exhibition of
equestrian, acrobatic & other performances.
It also applies to every shop/ establishment wherein
ten or more persons are employed or were employed
on any day of the preceding 12 months.

Provision regarding E.S.I. Act. 1948

The Act. does not apply to factory or other
establishments covered by ESI Act.
The Maternity Benefit Act,1961 was amended on
may 1,1976 to extend the benefits to all
women employees earning more than the
wage ceiling in establishments covered by ESI
Act 1948.

Entitlement
Any woman employee who has actually worked
in the establishment for a period of 160 days in
the 12 months immediately preceding the date
of her expected delivery.(80 days amended to
160 days in 1988)
For calculating days of work, the days of lay-off
and paid holidays will be taken into account.

Definitions
Child includes a still born child.
Maternity Benefit means the payment
referred to in sub-section(1) of section 5of the
Act.
Miscarriage means expulsion of the contents
of a pregnant uterus at any period prior to 26th
week of pregnancy but does not include
miscarriage punishable under the IPC.

Restrictions/ Prohibitions on work

I.

An employer is prohibited from knowingly employing a

woman during six weeks immediately following the day of
her delivery or miscarriage or MTP.

Likewise a woman is prohibited from working during the

six weeks following the day of Delivery/Miscarriage/MTP.
A pregnant woman is prohibited from doing the following
work even if she requests for it:I.

Any arduous work;

II. Any work involving long hours of standing;

III. Any work likely to interfere with her pregnancy or the
normal development of the foetus or to cause
miscarriage or adversely affect her health.

Restrictions/ Prohibitions on work

II.Two nursing breaks of prescribed duration to be given,

in addition to her regular rest intervals, to nurse the

child until it attains the age of 15 months. Each State
has its rules. in Maharashtra it is 15 Minutes.

An employer cannot reduce the salary on account of

light work assigned to her or for breaks taken to nurse
her child.
She cannot be discharged or dismissed on ground of
absence due to pregnancy, miscarriage, delivery or
premature birth nor can her service conditions be
altered to her disadvantage during this period.

Restrictions/ Prohibitions on work

III.
A pregnant woman employed cannot be transferred
against her will.
If a woman entitled to maternity benefits dies before
receiving her dues during the 6 weeks before delivery,
the maternity benefits is payable only for the days
upto & including the day of her death. If she dies
during delivery or during the following 6 weeks,
leaving behind a child, employer has to pay benefit for
the entire 6 weeks. But if the child also dies during the
period then only for the days upto and including the
death of the child.

Medical Bonus
Every woman entitled to maternity benefit shall also
be entitled to a medical bonus from her employer of
Rs. 2500/= if no pre-natal confinement and post-natal
care is provided by the employer free of charge.
(This was increased from Rs. 1000/= to Rs. 2500/= vide
Central Govt.s notification dated 11.08.2008)

Maternity Benefit
It is payable for the period of her actual absence
immediately preceding & including the day of her
delivery & for the six weeks immediately following that
day. The payment is @ average daily wages or the
minimum wage as specified in the Minimum Wages Act,
1948 or Re. 1 per day whichever is higher.
The average daily wages means the average of the
wages payable to her during three months immediately
preceding the day from which she absents herself on
account of maternity.
The maximum period of benefit is 12 weeks- 6
weeks prior & 6 weeks after the date of delivery.

Notice
To avail of the 6 weeks leave before expected delivery, a
notice must be given stating the date of absence from
work with a certificate of pregnancy. The Employer has
to pay the maternity benefit in advance.
For the 6 weeks leave from the date of delivery,
another notice should be sent with a certificate of
delivery. The employer has to pay to the employee or
her nominee maternity benefit within 48 hours of
receiving this notice. The failure to give this notice
does not disentitle the woman from benefit.

Leave for Miscarriage

In case of miscarriage or MTP, a woman is entitled to 6

weeks leave with pay from the day of miscarriage
subject to furnishing a certificate of miscarriage/MTP.

Tubectomy

After tubectomy, the employee will be entitled to 2

weeks paid leave following the day of her tubectomy.

Illness
On illness out of pregnancy, delivery, premature birth,
miscarriage, MTP or tubectomy, leave with wages for
a maximum period of one month admissible.

Forefeiture
An employee can be deprived of maternity benefit if :a. After going on maternity leave, she works in any
other establishment during the period she is
supposed to be on leave; and
b. During the period of her pregnancy she is dismissed
for any prescribed misconduct.

Penalties

If an employer fails to pay the maternity benefits

under this Act or discharges or dismisses such woman
during or on account of her absence from work, he
shall be punishable with imprisonment of 3 months
extending upto 1 year with fine of Rs. 2000/=
extending upto Rs. 5000/=

Administration
In Factories in all states ---- The Factory Inspectorate.
In Coal Mines ---- The Coal Mines Welfare
Commissioner.
In other than Coal Mines ---- D.G. of Mines Safety

Reports & Returns

The rules under this Central Law and State Laws

require the employers to furnish to the administering
authorities annual returns, showing the number of
workers covered, number of claims made and
amounts paid etc.

Some Case Laws I

Work on half days and the period during which the

worker was laid off should be included in days of
qualifying service.
(Ram Bahadur Thakur Vs. Inspector of Plantations 1989 II LLJ
20)

There is nothing in the Act which entitles only regular

woman employees to maternity benefit leave & not to
those on casual/daily or muster roll basis.
(Municipal Corpn. Of Delhi Vs. Female Muster Roll Workers
2000 LLR 449)

Some Case Laws II

If any woman of a regd. Trade Union or a regd. Voluntary
organization has been denied any of the benefits of the
Act, then she has the right to life a complaint in any court
of competent jurisdiction. But this right is subject to
applicability of the Act to that establishment under which
she works.
(Thomas Eapen Vs. Asstt. Labour Officer,1993 LLR 800, Kerala)

The Appr. Govt. on being satisfied with regard to grant of a

benefit , has the power to exempt an establishment or a
class of establishments, i.e. hospitals, nursing homes,
dispensaries from the operation of all or any of the
provisions of the Act. This exemption to remain in force as
long as it has not been cancelled by further notification.

Some Case Laws III

The Supreme Court held that the computation of maternity

benefits in case of a daily wage worker to be made for all
the days including Sundays & rest days which may be
wageless holidays upto 6 weeks preceding as also for all
the days falling within six weeks following the day of
delivery.
this being a beneficial piece of legislation, the
interpretation of law is in tune with social justice.
{B. Shah Vs. Labour Court, Coimbatore & others (1978-1-LLJ
29)}

Questions?

Thank you!