MATERNITY
BENEFIT ACT, 1961
(No. 53 of
1961)1
[12th.
December, 1961]
An Act to regulate the employment of women in certain
establishment for certain
period before and after child-birth and to provide for
maternity benefit and certain
other benefits.
Be it enacted by Parliament in the Twelfth Year of the
Republic of India as follows: -
1. Short
title, extend and commencement. –
(1) This Act
may be called the Maternity Benefit Act, 1961.
(2) It
extends to the whole of India 2[* * *]
(3) It shall come into force on such date as
may be notified in this behalf in the Official Gazette, --
3[(a)
in relation to mines and to any other establishment wherein persons are
employed for the exhibition of equestrian, acrobatic and other performances, by
the Central Government, and]
(b) in relation to other establishments in s
State, by the State Government.
NOTES. – This Act came into force in relation to
mines in the territories to which it
extends on the 1st. November 1963 – Vide S.O.
No. 2920, dated 5th. October, 1963,
published in the Gazette of India, Part
II, Sec. 3 (ii), dated 12th. October, 1963. This Act
came into force in the whole of Uttar Pradesh with effect
from 22nd. February 1974, vide notification No. 512 (V)-2/36-5-13
(V) 72, dated 22nd. February 1974.
2. Application
of Act. –
(1) It applies in the first instance, to every
establishment being a factory, mine or plantation 4[including any such
establishment belonging to Government and to every establishment wherein
persons are employed for the exhibition of equestrian, acrobatic and other
performances]: Provided that the State Government may, with the approval of the
Central Government, after giving not less than two months’ notice of its
intention of so doing, by notification
1. Received
the assent of the President on the 12th. December, 1961 and published in the
Gazette of India, Extraordinary, dated 13th. December 1961. For Statement of
Objects and Reasons see Gazette of India, Extraordinary, Part II,
dated 6th. December 1960.
2. Words
“except the State of Jammu and Kashmir” omitted by Act 51 of 1970, Sec. 2 and
Sch.
3. Subs.
by Act 52 of 1973, Sec. 2, w.e.f. 1-3-1975 – Vide notification No. S.O. 113A
(E), dated 27-2-1975.
4. Subs.
by Aci 52 of 1973, S.3.
In the official on In the official Gazette, declare
that all or any of the provisions of this
Act shall apply also to any other establishment or class
of establishments, industrial,
commercial, agricultural or otherwise.
(2) 5[Save
as otherwise provided in 6[sections 5A and 5B] nothing contained in this
Act] shall apply to any factory or other establishment to which the provisions
of the
Employees’ State Insurance Act, 1948 (84 of 1948), apply
for the time being.
3. Definitions.
-- In this Act, unless the context otherwise
requires, --
(a) “appropriate
Government” means in relation to an establishment being a mine 7[or an
establishment where persons are employed for the exhibition of equestrian, acrobatic
and other performances], the Central Government and in relation to any other
establishment, the State Government;
(b) “child”
includes a still-born child;
(c) “delivery”
means the birth of a child;
(d) “employer”
means –
(i) in
relation to an establishment which is under the control of the Government, a
person or authority appointed by the Government for the
supervision and
control of employees or where no person or authority is
so appointed, the
head of the department;
(ii) in
relation to an establishment which is under any local authority, the person
appointed by such authority for the supervision and
control of employees or
where no person is so appointed, the chief executive
officer of the local
authority;
(iii) in any
other case, the person who are the authority which has the ultimate
control over the affairs of the establishment and where
the said affairs are
entrusted to any other person whether called a manager,
managing director,
managing agent, or by any other name, such person;
[8(e) “establishment” means –
(i)
a factory;
(ii)
a mine;
(iii)
a plantation;
(iv)
an establishment wherein persons are employed
for the exhibition of
equestrian, acrobatics and other performances; or
5. Subs.
by Aci 21 of 1972, S.2.
6. Subs.
by Act 53 of 1976, sec. 2, for “section 5A”. Act 53 of 1976 came into force
w.e.f. 1-5-1976 – Vide notification No. S.O. 337 (E), dated 30-4-1976.
7. Added
by Act 52 of 1973, S. 4.
8. Subs.
by Act 52 of 1973, S. 4.
(v)
an establishment to which the provisions of
this Act have been declared under sub-section (4) of section 2 to be
applicable;]
(vi)
“factory” means a factory as defined in
clause (m) of section 2 of the Factories
Act,
1948 (63 of 1948);
(g) “Inspector”
means an Inspector appointed under section 14;
(h) “maternity
benefit” means the payment refereed to in sub-section (1) of section 5;
(i) “mine”
means a mine as defined in clause (j) of section 2 of the Mines Act, 1952
(35 of 1952)
(j)
“miscarriage” means expulsion of the contents of a pregnant uterus at ay period
prior to or during the twenty-sixth week of
pregnancy but does not include any
miscarriage the causing of which ins
punishable under the Indian Penal Code (45
of 1860);
(k)
“plantation” means a plantation as defined in clause (f) of section 2 of the
Plantations Labour Act, 1951 (69 of 1951);
(l) “prescribed”
means prescribed by rules made under this Act;
(m) “State
Government” in relation to a Union territory, means the Administrator
thereof;
(n) “wages”
means all remuneration paid or payable in cash to a woman, if the terms
of the contract of employment, express or
implied, were fulfilled and includes –
(1) such cash allowances (including dearness
allowance and house rent
allowance) as a woman is for the time being entitled to;
(2) Incentive bonus; and
(3) the money value of the concessional supply of
foodgrains and other
articles,
but does not include –
(i)
any bonus other than incentive bonus;
(ii)
overtime earnings and any deduction or
payment made on account of
fines;
(iii)
any contribution paid or payable by the
employer to any pension fund
or
provident fund or for the benefit of the woman under any law for the time being
in force; and
(iv) any gratuity payable on the termination
of service;
(o) “woman”
means a woman employed, whether directly or through any agency, for
wages in any establishment.
NOTES. – Sec 3 (f). – A factory does not include a
mine subject to the operation of
the Mines Act, 152, or a railway running-shed.
Sec. 3 (j) – The
definition of miscarriage is similar to the definition as given in Sec. 2
(14-B) of the Employees’ State Insurance Act, 1948.
3. Employment
of, or work by, women prohibited during certain period. –
(1) No employer shall knowingly employ a woman
in any establishment during the six weeks immediately following the day of her
delivery or her miscarriage.
(2) No woman
shall work in any establishment during the six weeks immediately
following the day of her delivery of her
miscarriage.
(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 foetus, 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) at 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.
5. Right to payment of maternity benefit. –
(1) Subject to the provisions of this Act, 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 immediately preceding and including the day of her delivery
and for the six weeks immediately following that day.
Explanation. – For
the purpose of this sub-section, 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, or one rupee
a day, whichever is higher.
(2) No woman shall be entitled to maternity
benefit unless she has actually worked in an establishment of the employer from
whom she claims maternity benefit for a period of not less than one hundred and sixty days in
the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of one hundred and
sixty days aforesaid shall
not apply to a woman who has immigrated into the State of
Assam and was pregnant at the time of the immigration.
Explanation: - For
the purpose of calculating under this sub-section the days on
which a woman has actually worked in the establishment,
the days for which she has
been laid-off during the period of twelve months
immediately preceding the date of her
expected delivery shall be taken into account.
(3) The
maximum period for which any woman shall be entitled to maternity benefit shall
be twelve weeks, that is to say, six weeks up to and including the day of her
delivery and six weeks immediately following that day:
Provided that where a woman dies during this period, the
maternity benefit shall
be payable only for the days up to and including the day
of her death:
Provided further that where a woman, having been
delivered of a child dies during
her delivery or during the period of six weeks
immediately following the date of her
delivery, leaving behind in either case the child, the
employer shall be liable for the
maternity benefit for the entire period of six weeks
immediately following the day of her delivery but if the child also dies during
the said period, then for the days up to and
including the day of the death of the child.
NOTES. – The term “week” means a cycle of
seven days including Sundays;
B. Shah V. Presiding Officer, A.I.R.
1978 S. C. 12.
9[5-A. Continuance of payment of maternity benefit in
certain cases. -- Every woman
entitled to the payment of maternity benefit under this
Act shall, notwithstanding the
application of the Employees’ State Insurance Act, 1948
(34 of 1948), to the factory or
other establishment in which she is employed, continue to
be so entitled until she
becomes qualified to claim maternity benefit under Sec.
50 of that Act.]
10[5-B. Payment of maternity benefit in certain cases.
-- Every woman –
(a) who
is employed in a factory or other establishment to which the provisions of
the Employees’ State Insurance Act, 1948 (34 of 1948),
apply;
(b) whose
wages (excluding remuneration for overtime work) for a month exceed
the amount specified in sub-clause (b) of clause (a) of
section 2 of that Act; and
(c) who
fulfils the conditions specified in sub-section (2) of section 5, shall be
entitled to the payment of maternity benefit under this
Act].
6. Notice of claim for maternity benefit and payment
thereof. –
(1) 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.
(2) In the
case of a woman who is pregnant, such notice shall state the date from which she
will be absent from work, not being a date earlier than six weeks from the date
of her expected delivery.
9 Ins. By Act 21 of 1972, S. 3.
10 Ins. By Act 53 of 1976, S. 3.
(3) Any woman
who has not given the notice when she was pregnant may give such
notice as soon as possible after the delivery.
(4) On receipt
of the notice, the employer shall permit such woman to absent herself from the
establishment until the expiry of six weeks after the day of her delivery.
(5) The amount
of maternity benefit for the period preceding the date of her expected
delivery shall be paid in advance by the employer to the
woman on the production of
such proof as may be prescribed that the woman is
pregnant, and the amount due for the subsequent period shall be paid by the
employer to the woman within forty-eight hours of production of such proof as
may be prescribed that the woman has been delivered of a child.
(6) The
failure to give notice under this section shall not disentitle a woman to
maternity benefit or any other amount under this Act if she is otherwise
entitled to such benefit or amount and in any such case an Inspector may either
of his own motion or on an application made to him by the woman, order the
payment of such benefit or amount
within such period as may be specified in the order.
NOTES. – See also Sec. 50 of the Employees’
State Insurance Act, 1948, for conditions under which a woman becomes qualified
to claim maternity benefit under this Act.
7. Payment or 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.
8. 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
twenty-five rupees, if no pre-natal confinement and post-natal care is provided
for by the employer free of charge.
9. Leave for miscarriage. --
In case of miscarriage, 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.
10. Leave for illness arising out of pregnancy, delivery,
premature birth of child, or
miscarriage. –
A woman suffering illness arising out of pregnancy,
delivery, premature birth of child or miscarriage 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.
11. 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.
12. Dismissal during absence or pregnancy. –
(1) Where 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 of 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
to
the woman, deprive her of the
maternity benefit or medical bonus or both.
(b) Any woman deprived of maternity benefit
or medical bonus or both may, within sixty days from the date on which the order
of such deprivation 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 benefits or medical bonus
or both, shall be final.
(c) Nothing contained in this sub-section
shall affect the provisions contained in sub- section (1).
13. 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 by
virtue of the provisions contained in sub-
section (3) of section 4 : or
(b) breaks for nursing the child allowed to
her under the provisions of section 11.
14. Appointment of Inspectors. –
The appropriate Government may, by notification inthe
Official Gazette, appoint such officers as it thinks fit to by
Inspectors for the purposes of this Act and may define the local limits of the
jurisdiction within which they shall exercise their function under this Act.
15. Powers and duties of Inspectors. –
An Inspector may, subject to such restrictions or conditions
as may be prescribed, exercise all or any of the following powers, namely: -
(a) enter at all reasonable times with such
assistants, if any, being persons in the
service of the Government or any local or other public
authority as he thinks fit, any premises or place where women are employed or
work is given to them in an
establishment, for the purposes or examining any
registers, records and notices
required to be kept or exhibited by or under this Act and
require their production
for inspection;
(b) examine any person whom he finds in any
premises or place and who, he has
reasonable cause to believe, is employed in the
establishment:
Provided that no person shall be compelled under this
section to answer any
question or give any evidence tending to incriminate
himself:
(c) require the employer to give information
regarding the names and addresses of
women employed, payments made to them, and applications
or notices received
form them under this Act; and
(d) take copies of any registers and records
or notices or any portions thereof.
16. Inspectors to be public servants. –
Every
Inspector appointed under this Act shall be deemed to be a public servant
within the meaning of section 21 of the Indian Penal Code (45 of 1860).
17. Power of Inspector to direct payments to be made. –
(1) Any woman
claiming that maternity benefit or any other amount to which she is entitled
under this Act and any person claiming that payment due under section 7 has
been improperly withheld, may make a complaint to the inspector.
(2) The
Inspector may, of his own motion or on receipt of a complaint referred to in
sub- section (1), make an enquiry or cause an inquiry to be made and if
satisfied that payment has been wrongfully withheld, may direct the payment to
be made in accordance with his orders.
(3) Any person
aggrieved by the decision of the Inspector under sub-section (2) may,
within thirty days from the date on which such decision
isCOMMUNICATED to
such person, appeal to the prescribed authority.
to
such person, appeal to the prescribed authority.
(4) The
decision of the prescribed authority where an appeal has been preferred to it
under sub-section (3) or of the Inspector where no such
appeal has been preferred, shall
be final.
(5) Any amount
payable under these sections shall be recoverable as an arrear of lane
revenue.
18. 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, he shall forfeit her claim to
the maternity benefit for such period.
19. Abstracts of Act and rules thereunder to be
exhibited. –
An abstract of the provisions of this Act and the rules
made thereunder in the language or languages of the
locality shall be exhibited I a conspicuous place by the
employer in every part of the
establishment in which women are employed.
20. Registers, etc. –
Every employer shall prepare and maintain such registers,
records and muster-rolls and in such manner as may be prescribed.
21. Penalty for contravention of Act by employers. –
If any employer contravenes the provisions of this Act or
the rules made there under he shall be punishable with imprisonment which may
extend to three months, or with fine which may extend to five hundred rupees,
or with both; and where the contravention is of any provision regarding maternity
benefit or regarding payment of any other amount and such maternity benefit or
amount has not already been recovered, the court shall in addition recover such
maternity benefit or amount as if it were a fine, and pay the same to the
person entitled thereto.
22. Penalty for obstructing Inspector. –
Whoever fails to produce on demand by the Inspector any
register or document in his custody kept in pursuance of this Act or the rules
made thereunder or CONCEALS or
prevents any person from appearing before or being examined by an Inspector,
shall be punishable with imprisonment which may extend to three months, or with
fine which may extend to five hundred rupees or with both.
23. Cognizance of offences. –
(1) No prosecution for an offence punishable
under this Act or any rule made thereunder shall be instituted after the expiry
of one year from the date on which the offence is alleged to have been
committed and no such prosecution shall be instituted except by, or with the
previous sanction of, the Inspector;
Provided that in computing the period of one year
aforesaid, the time, if any,
taken for the purpose of obtaining such previous sanction
shall be excluded.
(2) No court
inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall
try any such offence.
NOTES. – Sections 21 to 23 deal with
penalties under the Act and procedure to try offences committed under this Act.
24. Protection of action taken in good faith. –
No suit, prosecution or other legal proceeding shall lie
against any person for anything which is in good faith done or intended to be
done in pursuance of this Act or of any rule or order made thereunder.
25. Power of Central Government to give directions. –
The Central
Government may give such directions as it may deem necessary to a State
Government regarding the carrying into execution the provisions of this Act and
the State Government shall comply with such directions.
26. Power to exempt establishments. –
If the appropriate Government is satisfied that having
regard to an establishment or a class of establishments providing for the grant
of benefit which are not less favourable than those provided in this Act, it is
necessary so to
do, it may, by notification in the Official Gazette, exempt
subject to such conditions and
restrictions, if any, as may be specified in the
notifications, the establishment or class of
establishments from the operation of all or any of the
provisions of this Act or of any rule made thereunder.
27. Effect of laws and agreements inconsistent with this
Act. –
(1) The
provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law or in the terms of any award, agreement or
contract of service, whether made before or after the coming into force of this
Act:
Provided that where under any such award, agreement,
contract of service or
otherwise, a woman is entitled to benefits in respect of
any matter which are more
favourable to her than those to which she would be
entitled under this Act, the woman
shall continue to be entitled to the more favourable
benefits in respect of that matter,
notwithstanding that she is entitled to receive benefit
in respect of other matters under
this Act.
(2) Nothing
contained in this Act shall be construed to preclude a woman from entering into
an agreement with her employer for granting her rights or privileges in respect
of any matter, which are more favourable to her than those to which she would
be entitled under this Act.
28. Power to make rules. –
(1) The appropriate Government may, subject to
the condition of previous publication and by notification in the Official Gazette, make
rules for carrying out the purposes of this Act.
(2) In
particular, and without prejudice to the generality of the foregoing power,
such
rules may provide for –
(a) the
preparation and maintenance of registers, records and muster rolls;
(b) the
exercise of powers (including the inspection of establishments) and the
performance of duties by Inspectors for the
purposes of this Act;
(c) the
method of payment of maternity benefit and other benefits under this Act in so
far as provision has not been made therefore
in this Act;
(d) the form
of notices under section 6:
(e) the
nature of proof required under the provisions of this Act;
(f) the
duration of nursing breaks referred to in section 11;
(g) acts
which may constitute gross misconduct for purposes of section 12;
(h) the
authority to which an appeal under clause (b) of sub-section (2) of section 12
shall lie, the form and manner in which such
appeal may be made and the
procedure to be followed in disposal thereof;
(i) the
authority to which an appeal shall lie against the decision of the Inspector
under section 17; the form and manner in
which such appeal may be made and the
procedure to be followed in disposal thereof;
(j) the form
and manner in which complaints be made to Inspectors under sub-
section (1) of section 17 and the procedure
to be followed by them when making
inquiries or causing inquiries to be made
under sub-section (2) of that section;
(k) any other
matter which is to be, or may be, prescribed.
(3) Every rule made by the Central Government
under this section shall be laid as soon as may be after it is made, before
each House of Parliament while it is in session for a total period of thirty
days which may be comprised in one session 11[or in two or more successive
sessions, and if, before the expiry of the session immediately following the session
or the successive session, aforesaid,] both Houses agree in making any modification
in the rule or both houses agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
29. Amendment of Act 69 of 1951. –
In section 32 of Plantation Labour Act, 1951, --
(a) in sub-section (1), the letter and brackets
“(a)” before the words “in the case of
sickness,” the word “and” after the words “sickness
allowance”, and clause (b)
shall be omitted.
(b) In sub-section (2), the words “or maternity”
shall be omitted.
30. Repeal. –
On the
application of this Act. –
(i)
to mines, the Mines Maternity Benefit Act,
1941 (19 of 1941); and Maternity Benefit Act, 1929 (Bom. Act VII of 1929), as
in force in that territory, shall stand repealed. 11 Subs. by Act 52 of
1973, S. 5.
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