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LABOUR AND INDUSTRIAL LAW

TOPIC: STUDY AND ANALYSE THE PROVISIONS IN THE ACT

REGARDING PAYMENT IN CASE OF DEATH, PAYMENT IN
MEDICAL BONUS, LEAVE FOR MISCARRIAGE, AND LEAVE
FOR ILLNESS AND NURSING BREAKS UNDER MATERNITY
BENEFIT ACT 1961 IN GULMA TEA ESTATE

Class Teacher
Dr Chandrani Das

NAME: ARKAPRAVA BHOWMIK

ROLL NO - 31
COURSE:LL.B. 3YEARS (3rd SEMESTER)

INDIAN INSTITUTE OF LEGAL STUDIES

2017
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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to Dr

Chandrani Das, Assistant professor in Law, Indian Institute of Legal Studies, for his guidance,

sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that she molded raw clay into whatever we are through his incessant

efforts and keen interest shown throughout the academic pursuit. It is due to his patient guidance that

I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information therein.

I express my regards to the Library staff for cooperating and making available the books for this

project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project

work.

Date:
_____________________
ARKAPRAVA BHOWMIK
LL.B (3rd Semester) Roll No: 31
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TABLE OF CONTENTS
___________________________________________________________
Acknowledgement…………………………………………………….………………………1

Research Methodology……………………………………….………………………………..3- 4
 Aims and Objectives………………………………………………..………………3
 Statement of Problem………………………………………………….…………..3
 Research Hypothesis……………………………….…………………….…………3
 Research
Questions…………………………………………….….……………..……………3
 Methodology of Research…………………………….……………….……………4
 Scope and Limitations…………………………………………………..……………4
 Review of Literature……………………………………..…………….……………4
 Mode of Citation…………………………………………………….………………4

Table of Cases……………………………………………………………….………………….5

Chapter – I: Introduction……………………………………………..……………………………6
Chapter II: Background………………..………………………………………………………..7-8

Chapter III: Recent Amendment………………………………………………………………..9-11

Chapter IV: Cases………………….…………………………………………………………..12-13
Chapter V:Field Visit………………………………………………………………………………14
Chapter VI Conclusion…………………………………………………………………………….15

Bibliography………………………………………………………………………………………..16
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RESEARCH METHODOLOGY
___________________________________________________________
A. AIMS AND OBJECTIVES
The aim of this paper is to analyze the to the Maternity Benefit Act 1961and study its
amendment in the year 2017.This project also strives find out how this act has particularly
benefitted the women in case of death , miscarriage, leave for illness and payment of bonus.

B. STATEMENT OF PROBLEM

The current systems do not give an equal chance to access and flourish. Though we have
various Laws /Statutes/Case laws, yet essential things are missed out and very few literates know the
proper meaning and nature of the said project Topic. As such many of us are still in dark as to what
the basic terminologies mean and why was it enacted. Also what is the current status of the said
Topic with respect its implementation.

C. RESEARCH HYPOTHESIS
1. Maternity Benefit Act is geared for the development and welfare of women.

2. Though the act has undergone amendment it still does not answer all the grey areas.

D. RESEARCH QUESTIONS

 How Maternity Benefit Act has contributed to the welfare of women?

 Who are eligible for Maternity Benefit?

 How the recent amendment has impacted further development of women?

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E. METHODOLOGY OF RESEARCH

“Methodology” implies more than simply the methods the researcher used to collect data. It is often
necessary to include a consideration of the concepts and theories which underlie the methods. The
methodology opted for the study on the topic is Analytical and Doctrinal. Doctrinal research in law
field indicates arranging, ordering and analysis of the legal structure, legal frame work and case laws
by extensive surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is operating. An extensive
attempt has been made in order to search for the quest with regard to the topic under this paper.
Though there is ample scope to highlight on the principle of good faith and duty of disclosure
according to different Statutes, but the scope of research work is limited to a particular area in search
of answer. Therefore, the researcher confines to the materials which are available and widely
accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws. Secondary sources would include books and
articles, reports and websites.

H. MODE OF CITATION
A Blue Book system of citation has been adopted throughout the project.
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TABLE OF CASES

1. AIR INDIA V. NERGESH MEERZA (1981)4SCC 335

2. Municipal Corporation of Delhi v. Female Workers(2000)

SCC 224

3. Shah vs. Presiding Officer, Labour Court, Coimbatore and

others(1977) 4 SCC 384.

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CHAPTER I – INTRODUCTION

A maternity benefit is one that 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. Maternity Benefits should aim to regulate employment of
women employees in certain establishments for certain periods before and after childbirth and
provides for maternity and certain other benefits.

Post Maternity, women work participation rate is negatively affected in labour market. It is important
to recognize that women participation in labour market has significantly increased in recent years,
particularly in urban areas. Further, most of the increase in women participation in labour market is
contributed by young women in urban areas. Since India is committed to creating a gender friendly
labour market environment, there is increasing realization to provide a conducive working
environment. Looking at the large number of women employment in broad occupational categories,
it was but natural to protect and safeguard their health in relation to Maternity and the children.[1]

The fundamental purpose for providing maternity benefits is to preserve the self-respect for
motherliness, protect the health of women, complete safety of the child etc. Due to the increasing
number of women employees in the government and private sector, it became necessary to grant
maternity leave and other maternity allowances to working women.

The objective of maternity benefits is to protect the dignity of “Motherhood” by providing the
complete & health care to the women & her child when she is not able to perform her duty due to her
health condition. There is need for maternity benefits so that a woman is to be able to give quality
time to her child without having to worry about whether she will lose her job and her source of
income.

1. Maternity Benefits: What are your Legal Rights? http://www.lawisgreek.com/maternity-benefits-what-are-

your-legal-rights, 09/08/2014.
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CHAPTER II - BACKGROUND

The Maternity Benefit Act, 1961 (“Maternity Act”):

1. Regulates employment of women in establishments before and after child-birth;

2. Provides for maternity leaves and certain other benefits such as leave for miscarriage or medical
termination of pregnancy, leave with wages for tubectomy operation, payment of medical bonuses
etc.;

3. Is applicable to factories, mines, the circus industry, plantations and shops and establishments
employing at least 10 employees (“Covered Establishments”), except female employees who are
covered under the Employees' State Insurance Act, 1948 (“ESI Act”);

4. Provides maternity benefits to female employees working in specified establishments and excludes
women in the unorganized sector;

5. Entitles female employees in Covered Establishments to receive maternity benefits if they have
worked with the employer for at least 80 days in the 12 months immediately preceding the date of
expected delivery (“Eligible Employee”).

In addition to the Maternity Act, certain other labour laws in India also provide for maternity
benefits. The ESI Act provides for payment of wages to an insured woman, during her 26 week
maternity leave. Women employed in newspapers or working as journalists are also entitled to
maternity leave of 3 months under the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955. Similarly, female employees working in factories are entitled to
3 months of maternity leaves with full wages under the Factories Act, 1948.

Over the past few years, there has been a continual demand to improve maternity benefits being
provided to female employees in order to ensure that infants are provided with wholesome and
proper care and nourishment. The Universal Declaration of Human Rights (UDHR) (1948)
pronounced the special rights of children for the first time by providing that “motherhood and
childhood are entitled to special care and assistance”. The General Assembly in 2003 opined that
“early childhood is a crucial period for the sound development of young children. Missed
opportunities during these early years cannot be made up at later stages of the child’s life.”

The first legally binding international document concerning child rights was the Convention on the
Rights of the Child, 1989, which was also ratified by India in 1992. The Convention required its
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member states to ensure to the maximum extent possible child survival and development, render
appropriate assistance to parents and legal guardians in the performance of their child rearing
responsibilities and ensure the development of institutions, facilities and services for the care of
children3. As per the standards set out by the International Labor Organisation (ILO) in the Maternity
Protection Convention, 2000, member states have been recommended to provide atleast 14 weeks of
maternity leave. The Maternity Protection Recommendation, 2000 of the ILO recommends a longer
period of 18 weeks for maternity leave.

The Sixth Central Pay Commission of India made a recommendation in 2015 to relax the period of
maternity leave to six months for Central Government employees, which was considered and
subsequently implemented. This was in line with the guidelines issued by the World Health
Organization7 as well as the Indian Ministry of Health and Family Welfare stating inter alia that a
baby needs to be nursed by the mother for a minimum period of six months. In a few States, the
respective State Governments have also relaxed the period of maternity leave for State Government
employees and have also provided for an additional child care leave for a period of 730 days
(approximately 2 years)in special circumstances, to look after their children when they are grappling
with serious diseases. Last year, fulfilling the electoral promise, the State of Tamil Nadu has
announced 9 months (270 days) of maternity leave for State government employees as opposed to
the earlier limit of 6 months (180 days)([2]

Other State Governments are also seeing demands from employee unions for a like change to be
implemented in their States. It is also interesting to note that a number of leading companies had
already voluntarily amended their policies prior to the Maternity Amendment Act to increase
maternity benefits and provide various new-age benefits such as adoption leaves, surrogacy leaves,
paternity leaves etc.

2. Women and Industrial Law: Maternity Benefit Act

1961, http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=580, 09/08/2014.
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CHAPTER III – RECENT AMENDMENT

The Maternity Benefit (Amendment) Act, 2016 (“Amendment Act”), which was passed by
Parliament on March 9th, 2017, introduced certain significant changes to the Maternity Benefit
Act, 1961 (“MB Act”). The Amendment Act received Presidential assent on March 27 th, 2017
and came into effect from April 1st, 2017 except for the provisions, that require an employer to
provide a creche facility. These are scheduled to become effective from July 1st, 2017.

Subsequent to the introduction of the Amendment Act and clarifications issued by the Ministry of
Labour and Employment on April 12th, 2017 (“Clarification”), several questions have been raised
by companies with respect to their obligations as employers under certain aspects of the Amendment
Act.

While our Firm has reached out to the Ministry of Labour and Employment requesting clarifications
on specific aspects that the Ministry may be contemplating, the purpose of this note is to share our
views on the Amendment Act / Maternity Act in the specific context of clarity being sought on
certain aspects.

Definition of “Woman” and Applicability of the Maternity Benefit Act

 Are benefits under the MB Act also applicable to consultants?

Section 3(e) of the Maternity Benefit Act defines “woman” as a woman employed, whether directly
or through any agency. While the Clarification does not go into specifics on this aspect, it seems that
given this definition, a woman engaged as an independent consultant would not have the benefit of
the MB Act. Needless to mention, in the light of certain judicial pronouncements, exceptions
involving certain types of consultant engagement may have to be examined.[3]

 Whether women who, as per the old law, have completed their 12 weeks of maternity
leave prior to April 1st, 2017, will be entitled to the enhanced benefit of 26 weeks of
maternity leave?

3. K. Lal Gauri and C. C. Holdren, Jr., “Pollutant effects on stone monuments”, Environmental
Science 8 Technology, Vol. 15, No. 4, 1981, pp 386-390
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Given the response provided in the Clarification, a woman employee who has completed 12 weeks of
maternity leave prior to April 1st, 2017 will not be entitled to the enhanced benefit of 26 weeks of
maternity leave.

Salient Features of the Act: (i) Maternity leave available to the working women to be increased from
12 weeks to 26 weeks for the first two children.

(ii) Maternity leave for children beyond the first two will continue to be 12 weeks.

(iii) Maternity leave of 12 weeks to be available to mothers adopting a child below the age of three
months as well as to the “commissioning mothers”. The commissioning mother has been defined as
biological mother who uses her egg to create an embryo planted in any other woman.

(iv) Every establishment with more than 50 employees to provide for crèche facilities for working
mothers and such mothers will be permitted to make four visits during working hours to look after
and feed the child in the crèche.

(v) The employer may permit a woman to work from home if it is possible to do so.

Manner of Taking the Enhanced Benefit

 Can the enhanced benefit of 26 weeks only be used in one stretch or could it be taken in a
staggered manner or in phases?

The Amendment Act only enhances the period of maternity benefit, without changing the manner in
which such maternity leave can be taken. Therefore, Section 5(3) of the Amendment Act which
prescribes that not more than eight weeks of maternity leave should be availed by the woman
preceding the date of her expected delivery, and the remaining eighteen weeks following the delivery
would still be relevant.

Adopting and Commissioning Mothers

 Will adopting and commission mothers be entitled to nursing breaks (or other equivalent
breaks), or are these only available to biological mothers?
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Since Section 11 of the Maternity Benefit Act has not been amended by the Amendment Act,
adopting and commissioning mothers will be not be entitled to nursing breaks. The only women
covered by Section 11 of the Maternity Benifit Act are those who have ‘delivered a child’.[4]

However, four visits to the creche would be available to adopting and commissioning mothers.

 When should the maternity benefit be paid to adopting and commissioning mothers?

A plain reading of Section 5(4) clearly provides that the benefit shall be paid to the adopting and
commissioning mothers from the date the child is handed over to the adopting mother or the
commissioning mother.

Work from Home

 Whether a woman employee is eligible to claim, as a matter of right, to work from home
(pursuant to expiration of maternity leave)?

The Amendment Act provides this as an option, and the criteria provided involves that (i) the nature
of work is such that a woman employee may work from home; (ii) the employer may allow so to a
woman employee (who has availed the maternity benefit); and (iii) for such period and on such
conditions as the employer and the woman may mutually agree.

Crèche Facility

 Every establishment with 50 or more employees is required to set up a creche facility.

Does this threshold of 50 employees includes both male and female employees?

The term “employee” has not been defined in the Maternity Benefit Act. The Maternity Benefit Act
is applicable to an establishment that has ten or more persons. Since, the Maternity Benefit Act or
Amendment Act has not revised this aspect, therefore, every place of business / establishment having
50 or more employees would be required to comply with this condition.

4. Press Information Bureau, Government of India, Labour and Employment, Promoting Welfare of
Workers, http://pib.nic.in/release/rel_print_page1.asp?relid=46881, 10/08/2014.
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CHAPTER 4 – CASES RELATED TO MATERNITY BENEFIT ACT

AIR INDIA V. NERGESH MEERZA

Facts: Under the relevant regulation of Air India Corporation (AIC) Act and Indian Airlines
Corporation (IAC) Act, there was a discrimination made between the conditions of retirement and
termination of service pertaining to air hostesses (AH) and those of male pursers (MP) forming part
of the same cabin crew and performing similar duties. These conditions were that an AH under AIC
retired from service:

(1) On attaining the age of 35 years, or

(2) On marriage, if it took place within four years of service, or

(3) On first pregnancy.

Fact in Issue: Whether this amounts to violation of Article 14 (right to equality) and Article 15 and
16 (no discrimination on basis of gender) of the Constitution?

Held: Stating that it is settled law that article 14 strikes at arbitrariness in state action and that the
principle of reasonableness “pervades Article 14 like a brooding omnipresence”, the court examined
all the three conditions separately.

1. In respect of condition (1) the court held that the age of retirement is to be fixed by the
management after taking into account various factors such as the nature of work, prevailing
conditions, practice prevailing in other establishment, etc. Without deciding whether 35 years
is the correct age for retirement, the court went on to strike at regulation 47. Under this
regulation the managing director (MD) had an uncontrolled and unguided discretionary
power to grant yearly extensions to the Air Hostesses till the age of 45. This unguided
discretion vested with the MD could easily result in his treating similarly placed Air
Hostesses differently and was therefore struck down. The result was that unless the
management amended the provision, all Air Hostesses would continue to retire at 45 years of
age and the MD would be bound to grant yearly extension as a matter of course, if the Air
Hostesses was medically fit.

2. So far as condition (2) was concerned, this condition was held to be constitutionally valid.
Having regard to the difficulties faced by both the parties, the court could not find any
constitutional infirmity in the provision requiring the Air Hostesses to serve the corporation
with complete dedication for the first 4 years.

3. So far as condition (3) was concerned the court took strong exception to it and held it to be
“grossly unethical” and as smacking of “deep rooted sense of utter selfishness at the cost of
all human values”. Having taken the Air Hostesses in service and after utilizing her services
for 4 years, to terminate her services if she becomes pregnant would amount to compelling
her not to have any children. The ability / capacity to continue to work after having children
is an individual matter and whether she would find it difficult to look after the children or not
is her personal matter which affects the Air Hostesses concerned and not the airline.
Pregnancy is not a disability; it is a “natural consequence of marriage” and any distinction
made on the ground of pregnancy is extremely unreasonable and manifestly arbitrary. This
condition was held to be unconstitutional as violative of article 14 and was struck down.
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4. Whether there was violation of article 15 (1) and 16 (2)?

Held: what article 15 (1) and 16 (2) prohibit is that the discrimination should not be made only and
only on the ground of gender. Discrimination on the basis of gender coupled with other
considerations is not prohibited.

Municipal Corporation of Delhi v. Female Workers[6]: In this case Union of Female Workers who
were not on regular rolls, but were treated as temporary workers and employed on Muster roll,
claimed that they should also get maternity benefit like regular workers. The court held that the
provisions of the Act would indicate that they are wholly in consonance with the Directive Principles
of State Policy, as set out in Article 39 and in other Articles, especially Article 42. A woman
employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it
would be detrimental to her health and also to the health of the fetus. It is for this reason that it is
provided in the Act that she would be entitled to maternity leave for certain periods prior to and after
delivery.

Shah vs. Presiding Officer, Labour Court, Coimbatore and others[7]: The question before the
Supreme Court was whether in calculating the maternity benefit for the period covered by Section 5
Sundays being wage less holiday should be excluded. Issues Raised before the Courts with
Reference to Maternity Benefit Act, 1961.

 The Apex Court in holding that Sundays must also be included, applied the beneficial rule of
construction in favor of the woman worker and observed that the benefit conferred by the Act
read in the light of the Article 42 of the Constitution was intended to enable the woman
worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve
her efficiency as a worker and maintain the level of her previous efficiency and output.
 During this period she not only cannot work for her living but needs extra income for her
medical expenses. In order to enable the woman worker to subsist during this period and to
preserve her health, the law makes a provision for maternity benefit so that the woman can
play her productive and reproductive roles efficiently.

5. (2000) SCC 224.

6. (1977) 4 SCC 384.
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CHAPTER V - FIELD VISIT EXPERIENCE

I visited the Gulma and Mohurgong Tea Estate to gather an insight how the benefits of
maternity benefit act trickles down to the grassroot level. I had the privilege of meeting the
welfare officer who welcomed my initiative and gave me some insight regarding the onset on
this big tea platation. At first Mohurgong and Gulma tea estate was divided into two parts
and were under two different administrators. On 26th January 1930 it was taken by Mr Amiya
Paul Chowdhury. Housing facilities within the estate reflect the welfare orientation of the tea
estate. Proper electicity facility is available to the labour quarter. 1538 houses out of which
918 are pacca and 620 are kaccha. A government run hindi medium primary school is all
present within its area There is a hospital within the boundary of Mohurgong and Gulma Tea
estste. All the workers of the estate receive free medicines in case of any disease or injury.
Critical patients are referred to North Bengal Medical College.

For a short amount of time I had the opportunity to talk to female workers of the estate. I
enquired about their knowledge regarding the Maternity benefit act. I gathered a mixed
feeling as some female workers did not possess any idea of it where as there were some
workers who had a rough knowledge about the benefits of the maternity benefit act. When I
discussed the issue with the welfare officer he said that the estate follows each and every
provision of the maternity benefit act. He also proposed to me that the respective authority
will conduct an awareness camp among the workers of the estate in matters pertaining to
labour welfare by distributing ICE materials. In short my visit was quite fruitful.
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CHAPTER VI -CONCLUSION

While India’s private sector employers lagged behind the government sector and many other
countries in terms of providing extended maternity benefits, with the enactment of the Maternity
Amendment Act, India has become one of the most progressive countries in terms of providing
maternity benefits. The Maternity Amendment Act is definitely a welcome step taken by the Indian
government enabling women to combine their professional and personal roles successfully and to
promote equal opportunities and treatment in employment and occupation, without prejudice to
health or economic security.

Although the Maternity Amendment Act is expected to benefit ~1.8 million women across the
country, the government seems to have overlooked the recommendation of the Sixth Central Pay
Commission and has left out a majority of the workforce that works in the unorganized sector in
India (estimated to be over 90% of the total workforce).

The Maternity Amendment Act has missed out the opportunity to introduce paternity leave and
possibly a chance to spread the message that the responsibility of running a family should be of both
the parents. Seems like we will need to wait longer for a ‘Maternity and Paternity Benefit Act.
Countries such as the UK, Singapore and Australia have introduced various categories of leaves
relating to child birth, including parental leave (enabling parents to share the parental leave in the
manner suitable for them), paternity leave, family leave etc. where both the parents receive the
benefit of leaves at the time of child birth. This, to an extent, helps parents to strike a balance
between their careers and personal life and also ensures that the child gets proper care and attention
from both the parents especially in his/her initial years of development. Although the steps taken by
the government is commendable, the government has missed out this opportunity to catch up with
such requirements.
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BIBLIOGRAPHY

A. PRIMARY SOURCES

I. STATUTES:

i. MATERNITY BENEFIT ACT 1961

B. SECONDARY SOURCES

I. BOOKS
 S. C Srivastava, Industrial Relations and Labour Laws 6th Revised
Edition , Vikas Publishing House,6th edition 2014

II. WEBSITES

- http://blog.mylaw.net/four-judgments-to-illustrate-the-supreme-courts-liberal-
approach-to-maternity-benefits/

- https://www.lawctopus.com/academike/the-need-for-maternity-benefits-for-women-
employee/