LABOUR

LAW
`

SUBMITTED BY

NAME - JYOTI BHUTIA

COURSE - B.A LLB (FIVE YEARS)
R. NO. - 02

DR. D.Y.PATIL DEEMED TO BE UNIVERSITY, NERUL, NAVI

MUMBAI
1
TOPIC. -

REALITY OF
WOMEN
WORKERS
UNDER THE
MATERNITY
BENEFIT ACT,
1961.

2
 INDEX

TOPIC PAGE
NO.
1. INTRODUCTION 4
2. REASONS FOR NEED OF 5-6
MATERNITY BENEFITS
3. CASE STUDY: AIR INDIA V. 7-8
NERGESH MEERZA
4. MATERNITY BENEFITS AND 9
INDIAN CONSTITUTION
5. MATERNITY BENEFIT ACT, 1961 10-11
6. ISSUES RAISED BEFORE THE 12
SUPREME COURT WITH
REFERENCE TO THE MATERNITY
BENEFIT ACT, 1961 AND JUDICIAL
RESPONSE
7. CONCLUSION 13

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 INTRODUCTION

Labour laws are the one dealing with employment laws in any organization – whether it is a
manufacturing organization or trading organization or shops and establishment. The labour
laws address the various administrative rulings (such as employment standing orders) and
procedure to be followed, compliance to be made and it address the legal rights of, and
restrictions on, working people and their organizations. As such, the labour laws mediate in
many aspects of the relationship between trade unions, employers and employees. In other
words, Labour law defines the rights and obligations as employees, union members and
employers in the workplace.

Comprising half the population, women make up a crucial chunk of the workforce.
Employment demands the need to balance work and child-bearing and child-rearing
responsibilities. The Constitutional framework endeavours to provide equality to women in all
walks of life. In furtherance of this pursuit, the Maternity Benefit Act, going along the lines of
the International Labor Organisation, aims to grant maternity protection to women. The
Maternity Benefit Act of 1961 and the very recent amendment of 2017 ensure active
participation in economic activities post maternity. The gradual change that society has
undergone demands that women have not become vulnerable during the fragile phase of
pregnancy. Hence, the Maternity Benefit Act ensures that a woman has equal protection to
employment during pregnancy so that it does not impact women, their productivity or
economic growth.

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 REASONS FOR NEED OF MATERNITY BENEFITS

Economic dependence of women is what gives rise to their subordination in society today.
Hence to remove such subordination and to lay the foundation of equality women too must be
made economically independent and must take an active role in all sectors of business today.
To support such initiative the Government must provide some conditions which are suitable
for the needs of women.

Among the problems faced by women in the economic sphere of life discrimination resulting
from their biological role in nature of childbearing is one. To curb such problem and protect
the economic rights of women there is need for maternity benefits for a female employee.
Women are entitled to these benefits as the child bearing process is intensely painful and can
cause bodily damage. This may severely affect the future work of the woman as an employee
and decrease her productivity so there is a need for maternity benefits for the women worker.

To safeguard working women and their rights to remain self-reliant and economically
independent, maternity benefits are required. A just social order can be achieved only when
inequalities are obliterated and everyone is provided what, is legally due. When who constitute
almost half of the segment of our society have to be honoured and treated with dignity at places
where they work to earn their livelihood. Whatever be the nature of their duties, their avocation
and the place where they work; they must be provided all the facilities to which they are
entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever
is needed to facilitate the birth of child to a woman who is in service, the employer has to be
considerate and sympathetic towards her and must realize the physical difficulties which a
working woman would face in performing her duties at the work place while carrying a baby
in the womb or while rearing up the child after birth.

Historically, maternity has been treated as a state of disability in women workers from
undertaking any work during the few weeks immediately preceding and following child birth.
With the emergence of the system of wage labour in the industrial undertakings, many
employers tended to terminate the services of the women workers when they found that
maternity interfered with the performance of normal duties by women workers. Many women
workers, therefore, had to go on leave without pay during this period in order to retain their
employment.

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Many others had to bear a heavy strain to keep their efficiency during the periods of pregnancy,
which was injurious to the health of both, the mother and the child. To remove this hardship of
the women workers, the concept of maternity benefit is needed in order to enable the women
workers to carry on the social function of child; bearing and rearing without undue strain on
their health and loss of wages.

The vast majority of women want to have children at some time in their lives. The economic
arrangements which were there earlier required them to compromise their career and family
goals. Hence, although women have taken enormous strides toward gender equity at work, as
long as traditional gender ideologies and assumptions (i.e., sex-typed stereotypes, roles, and
status beliefs) linger, they won’t have been able to continue in the business unless there is
maternity benefits provision.

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 CASE STUDY: 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.

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.

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.
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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.

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.

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 MATERNITY BENEFITS AND INDIAN CONSTITUTION

The rights and privileges for the betterment of women are: right to equality in law [Article 14],
right to social equality [Article 15], right to social equality in employment [Article 16] right to
adequate means of livelihood [Article 39 (a)], right to equal pay for equal work [Article 39
(d)], right that the health and strength of workers both men and women are not abused [Article
39 (e)], right to just and humane conditions of work and maternity relief [Article 42], and right
to improvement in employment opportunities and conditions of the working women [Article
46].

Article 15(3) of the Indian Constitution empowers the State to make special provisions for
women. The main object of Article 15(3) is based on “protective discrimination” keeping in
view the weak physical position of women. The reason is that “women’s physical structure
and the performance of maternal functions places her at a disadvantaged position in the struggle
for subsistence, and her physical well-being becomes an object of public interest and care in
order to preserve the strength and vigor of the race.” This provision has enabled the State to
make special statutory provisions exclusively for the welfare of women.

Article 21, Right to Life and Personal Liberty is not merely a right to protect one’s body but
the guarantee under this provision contemplates a larger scope. Right to Life means the right
to lead meaningful, complete and dignified life. It does not have restricted meaning. It is
something more than surviving or animal existence. The meaning of the word life cannot be
narrowed down and it will be available not only to every citizen of the country. Therefore, the
State must guarantee to a pregnant working woman all the facilities and assistance that she
requires while protecting her employment as well as her own and her child’s health.

The Directive Principles of State Policy contained in Part IV of the Constitution of India, under
Article 41 requires the State to make effective provision for securing the right to work and to
education and Article 42 requires that the State shall make provision for securing just and
humane conditions of work and for maternity relief. “Since Article 42 specifically speaks of
“just and humane conditions of work” and “maternity relief”, the validity of any service rule
and of an executive or administrative action in denying maternity benefit has to be examined
on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for
determining the legal efficacy of the service rule and of the action complained of.”

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 MATERNITY BENEFIT ACT, 1961

The Object of the Act is to protect the dignity of motherhood and the dignity of a new person’s
birth by providing for the full and healthy maintenance of the woman and her child at this
important time when she is not working.

Benefits under the Act:

Cash Benefits

 Leave with average pay for six weeks before the delivery
 Leave with average pay for six weeks after the delivery
 A medical bonus if the employer does not provide free medical care to the woman
 An additional leave with pay up to one month if the woman shows proof of illness due to
the pregnancy, delivery, miscarriage or premature birth
 In case of miscarriage, six weeks leave with average pay from the date of miscarriage.

Non Cash Benefits/Privilege

 Light work for ten weeks (six weeks plus one month) before the date of her expected
delivery, if she asks for it
 Two nursing breaks in the course of her daily work until the child is 15 months old
 No discharge or dismissal while she is on maternity leave
 No change to her disadvantage in any of the conditions of her employment while on
maternity leave
 Pregnant women discharged or dismissed may still claim maternity benefit from the
employer.

Under the Maternity Benefits Act, 1961 the condition levied is that the female employee should
have served the institution for a minimum period of 80 days in 12 months preceding the date
of expected delivery. Also, the Act has undergone regular amendments with the recent one
being in 2008. Here, the minimum medical bonus in case of inability of employer to provide
free medical care to pregnant women employee was raised from Rs 25 to Rs.1000 extending
to Rs. 20000.

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The Act provides for 12 weeks of paid leave as maternity leave and 6 weeks in case of
miscarriage or termination of pregnancy. In addition to the provisions for leave and cash
benefits, the Act also makes provisions for matters like light work for pregnant women 10
weeks prior to her delivery, nursing breaks during daily work till the child attends age of 15
months, etc.

The Act serves as a protective umbrella as it restricts termination of service of a pregnant

woman employee except on grounds of misconduct. Moreover, it imposes punishment for a
period of minimum three months or fine extending to Rs. 5000 on the employer, in the event
of any failure to provide maternity benefits to female employees.

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 ISSUES RAISED BEFORE THE SUPREME COURT WITH
REFERENCE TO THE MATERNITY BENEFIT ACT, 1961 AND
JUDICIAL RESPONSE

Municipal Corporation of Delhi v. Female Workers: 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: 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.

Performance of the biological role of child bearing necessarily involves withdrawal of a woman
from the workforce for some period.

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 CONCLUSION

After analysing various provisions of the 1961 Act and related cases it can be concluded that
Maternity Benefit Act, 1961 is a boon for the working women in the sense that they don’t have
job insecurity during their maternity period. But there are certain shortcomings of the Act
which needs to be looked upon. Firstly, the duration of leave must be extended in order to allow
a mother to fully recover and recuperate as well as efficiently nurse her new born child. Within
this, the duration of post natal period must be extended keeping in mind factors like rise in
number of late marriages, caesarean births, nuclear families and increasing urbanization. In the
44th Indian Labour Conference, held in February, 2012, it has been recommended that
Maternity Leave under the Maternity Benefit Act be increased from the present level of 12
Weeks to 24 Weeks.

Secondly, The MBA does not comply with international standards and there are huge gaps in
its implementation as the entire responsibility of the Act rests with the employer. Placing the
entire burden of providing maternity benefit on the employer is akin to giving him an incentive
to not provide any benefit at all. Thus, the cost of maternity protection should be shared
amongst different agencies through some form of social insurance scheme or general taxation.

Thirdly, the responsibility of child care is often singularly put upon women. This reinforces
patriarchal notions and stereotypes and also enhances the discrimination they face from
employers. In order to reduce these factors, the Act should also make a provision for paternity
leave and follow a more egalitarian approach. Also, protection should be available to persons
who adopt children.

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