Class notes- social Security in India

Lecture- 6
Maternity Benefit Act, 1961
Motherhood is a very special experience in a woman’s life. A woman needs 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. That is where the concept of maternity leave and the
benefits it entails, comes in handy. The Maternity Benefits Act, 1961, gives her the
assurance that her rights will be looked after while she is at home to care for her child.
The object of the Act is to regulate the employment of women in certain
establishments for certain periods before and after childbirth and to provide for maternity
benefits and certain other benefits.
The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment)
Act, 2017 The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment
Act”) came into effect on April 1, 2017, and the provision with regard to crèche facility came
into effect with effect from July 1, 2017.

Constitutional Protection
Article 15(3) of the Indian Constitution empowers the State to make special provisions for
women.
Article 42 requires that the State shall make provision for securing just and humane
conditions of work and for maternity relief.

Applicability
The Act is applicable to establishments such as

• Factories, (“factory” as defined in the Factories Act, 1948),

• Mines (“mine” as defined in the Mines Act, 1952) and
• Plantations (“plantation” means a plantation as defined in the Plantations Labour
Act,1951).
The Maternity Benefit Act also applies to establishments belonging to Government and
establishments wherein persons are employed for the exhibition of equestrian, acrobatic
and other performances.
 The Act is also applicable to every shop or establishment defined under law, wherein
ten or more persons are employed on a day during the preceding twelve months and which
is applicable in relation to shops and establishments in a particular state.

Eligibility
A woman must be working as an employee in an establishment for a period of at least 80
days in the past 12 months to be entitled to maternity benefit under the provisions of the
Maternity Benefit Act.

Employment of, or work by women prohibited during certain periods

(1) No employer shall knowingly employ a woman in any establishment during the six weeks
immediately following the day of her delivery, [miscarriage or medical termination of
pregnancy].
(2) No woman shall work in any establishment during the six weeks immediately following
the day of her delivery [miscarriage or medical termination of pregnancy].
(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request
being made by her in this behalf, be required by her employer to do during the period
specified in sub-section (4) any work which is of an arduous nature or which involves long
hours of standing, or which in any way is likely to interfere with her pregnancy or the normal
development of the fetus, or is likely to cause her miscarriage or otherwise to adversely
affect her health.
(4) The period referred to in sub-section (3) shall be-
(a) the period of one month immediately preceding the period of six weeks, before the date
of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not
avail of leave of absence under section 6.

Maternity Benefit
The maximum period for which any woman shall be entitled to maternity benefit shall be
twenty-six weeks of which not more than eight weeks shall precede the date of her
expected delivery:

• Women having two surviving children will be eligible to get 26 weeks to leave and
• Women having more than two children will get 12-week leave from their working.
• If any women adopt a child then she will also get 12-week long maternity leave.
• ‘Commissioning mother’ and ‘Adopting mother’ will get the benefit of 12 weeks
maternity leave
• Organizations will also facilitate work from home conditions
 • Mandatory provision of Creche when introduced organizations having more than 50
employees.

Right to payment of maternity benefits

Every woman shall be entitled to, and her employer shall be liable for, the payment of
maternity benefit at the rate of the average daily wage for the period of her actual
absence, that is to say, the period immediately preceding the day of her delivery, the actual
day of her delivery and any period immediately following that day.
The average daily wage means the average of the woman's wages payable to her for
the days on which she has worked during the period of three calendar months immediately
preceding the date from which she absents herself on account of maternity

Notice of claim for maternity benefit and payment

Any woman employed in an establishment and entitled to maternity benefit under the provisions of
this Act may give notice in writing in such form as may be prescribed, to her employer, stating that
her maternity benefit and any other amount to which she may be entitled under this Act may be
paid to her or to such person as she may nominate in the notice and that she will not work in any
establishment during the period for which she receives maternity benefit.

Payment of maternity benefit in case of death of a woman

If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving
such maternity benefit or amount, or where the employer is liable for maternity benefit under the
second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the
person nominated by the woman in the notice given under section 6 and in case there is no such
nominee, to her legal representative.

Payment of medical bonus

Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her
employer a medical bonus, of Rs. 1000/- , if no pre-natal confinement and post-natal care is
provided for by the employer free of charge.

The Central Government may from time to time, by notification in the Official Gazette,
increase the amount of medical bonus subject to the maximum of Rs. 20,000/-.

Leave for miscarriage, etc.

In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such
proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a
period of six weeks immediately following the day of her miscarriage or, as the case may be, her
medical termination of pregnancy.]
Leave with wages for tubectomy operation
In case of tubectomy operation, a woman shall, on production of such proof as may be prescribed,
be entitled to leave with wages at the rate of maternity benefit for a period of two weeks
immediately following the day of her tubectomy operation.

Leave for illness arising out of pregnancy, delivery, premature birth of

child, [miscarriage, medical termination of pregnancy or tubectomy
operation
A woman suffering from illness arising out of pregnancy, delivery, premature birth of child,
[miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such
proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under
section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity
benefit for a maximum period of one month.

Nursing breaks
Every woman delivered of a child who returns to duty after such delivery shall, in addition to
the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the
prescribed duration for nursing the child until the child attains the age of fifteen months.

The Ministry of Women and Child Development recently, vide its office memorandum dated
2nd November 2018, issued the "National Minimum Guidelines for Setting up and Running
Crèches under Maternity Benefit Act, 2017 (the "Crèche Guidelines").

Features of the Crèche Guidelines

Interestingly, the Crèche Guidelines categorize certain norms as non-negotiable while others
as preferable norms. Briefly, the salient features are:

Group of Children - The crèche facility is for children of age groups of 6 (six) months to 6
(six) years of all employees including temporary, daily wage, consultant and contractual
personnel.

Distance of crèche- It should be located near/at the work place site or in the beneficiaries'
neighbourhood within 500 (five hundred) metres.

Timings- The crèche timings can be flexible depending on the working hours and timings of
the parents which should ideally mean for 8 (eight) to 10 (ten) hours.

Space- The crèche centre should have a minimum space of 10 (ten) to 12 (twelve) sq. ft. per
child to ensure that children can play, rest and learn.

Human Resource- There is a recommended adult child ratio with helpers, one crèche in
charge and one guard to be employed in a crèche unit of up to 30 (thirty) children.
Records- Requirement of maintaining stock registers and attendance registers for staff and
children and certain admission forms to be filled.

Monitoring and supervision- A Crèche Monitoring Committee to be set up comprising of

representation from the parents, one crèche in-charge, one crèche worker and one
admin/HR person.

Training- Prior to starting work with the children at the crèche, all the workers of the crèche
need to undergo a pre service training of 5-6 months.

There is an exhaustive list of norms and standards to be followed in a crèche on matters like
crèche environment, equipment, safety and protection, health and nutrition practices,
hygiene and sanitation practices and crèche activities.

A key aspect of these guidelines is the formulation of a Child Protection Policy as per the
sample policy provided which prescribes the appointment of a Complaints Committee to
investigate and address complaints relating to any child abuse.

Dismissal during absence of pregnancy

(1) When a 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 to give notice of discharge or dismissal on such a day that the notice will
expire during such absence, or to vary to her disadvantage any of the conditions of her
service.
(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the
woman but for such discharge or dismissal would have been entitled to maternity benefit or
medical bonus referred to in section 8, shall not have the effect of depriving her of the
maternity benefit or medical bonus:
PROVIDED that where the dismissal is for any prescribed gross misconduct, the employer
may, by order in writing communicated to the woman, deprive her of the maternity benefit
or medical bonus or both.
Any woman deprived of maternity benefit or medical bonus, or both, or discharged or
dismissed during or on account of her absence from work in accordance with the provisions
of this Act, may, within sixty days from the date on which order of such deprivation or
discharge or dismissal is communicated to her, appeal to such authority as may be
prescribed, and the decision of that authority on such appeal, whether the woman should or
should not be deprived of maternity benefit or medical bonus, or both, or discharged or
dismissed shall be final.]
No deduction of wages in certain cases
No deduction from the normal and usual daily wages of a woman entitled to
maternity benefit under the provisions of this Act shall be made by reason only of-
(a) the nature of work assigned to her.
(b) breaks for nursing the child allowed to her.

Appointment of Inspectors
The appropriate government may, by notification in the Official Gazette, appoint
such officers as it thinks fit to be Inspectors for the purposes of this Act and may define the
local limits of the jurisdiction within which they shall exercise their functions under this Act.

Forfeiture of maternity benefit

If a woman works in any establishment after she has been permitted by her
employer to absent herself under the provisions of section 6 for any period during such
authorized absence, she shall forfeit her claim to the maternity benefit for such period.