Maternity is natural and divine. In India, the underlying objective of the Maternity Benefit Act 1961 ("the Act") is to give full honour to the divine act of birth to with utmost care and dignity by regulating the employment of woman in certain establishment for a certain period.
Under the Act a woman, in the maternity period, is conferred with leave with full pay and benefits to the extent of 12 weeks. The Act is applicable to all the establishments employing 10 or more employees which include factories, mines, plantations, Central and State Government establishments, shops and establishments and local bodies. Any woman who has been working as an employee in the establishment for a period of at least 80 days within the past 12 months can claim the benefits under this Act.
The interpretation of this legislation and applicability has become complex particularly because from 1961 till now due to various health complications (pre and post-childbirth) it has become strenuous and difficult for a woman to give birth in the conventional way. Taking into consideration the various issues faced by the women during childbirth and the period leading up to it, Maternity Benefit Act 1961 was amended in 2017. The main development brought by the 2017 Amendment is that the maternity leave period has been enhanced from 12 weeks to 26 weeks. However, a woman who already has two or more surviving children is entitled to only 12 weeks maternity leave instead of 26 weeks. It is also important to note that these leaves can be taken maximum of 8 weeks prior to the childbirth and rest of the leaves can be availed after the childbirth.
There has been a significant change in the 2017 amendment by virtue of which a mandatory leave of 12 weeks have been provided to the commissioning mother (biological mother who uses her egg to create an embryo planted in any other woman) and adoptive mother from the date on which the child is being handed over to the mother. Another benefit which the Act provides is that it makes it mandatory for the employer to provide a crèche facility in an establishment employing 50 or more employees wherein the women employees would be entitled to visit four times during the working hours. It has also been made mandatory for the employer to apprise and educate the woman about her maternity benefits available to them at the time of appointment.
Availing Maternity Benefit : Notice Requirements
The most debatable point which has been taken to the court by the employer at various occasion and which has been explicitly and unambiguously settled by various courts of India is that, Under Section 6 of the Act, the woman who wishes to avail the benefit of the maternity leaves has to give a prior notice to the employer of her intentions to go on maternity leave. The Act, as per Section 6, very categorically provides that the woman can give notice either before or immediately after the delivery. The Act also clarifies that the failure to give notice under this section shall not disentitle a woman to the maternity benefit under this Act.
Considering the current situation of COVID-19, emphasis may be laid on the Amendment Act 2017 wherein it has introduced an enabling provision relating to "Work from Home" for women, which may be exercised after the expiry of the 26 weeks' leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.
Critical issue: Dismissal during maternity leave
It has been observed that employers have adopted the process of dismissing the services of an expectant woman employee either prior to availing the maternity leave or during the leave- this is strictly prohibited under Section 12 of the Act. It clearly restricts the employer from dismissal of a woman during absence or pregnancy or to give notice of termination of her services during or on account of such absence.
Section 17 and 21 of the Act provide for the relevant actions and appropriate remedy a woman can take against any violations of the Act. The aggrieved woman, within one year from the date on which the offence is alleged to have been committed can take actions under this Act.
The courts have, on various occasions, discussed and settled the law on maternity benefit. The Supreme Court in Municipal Corporation of Delhi vs Female Workers (Muster Roll) and Ors [S.L.P. (C) No. 12797 of 1998 Decided On: 08.03.2000] has held that the female workers working on Muster Roll/ ad-hoc/contractual basis should be given all the benefits under the Act. Similarly in Anshu Rani vs State of U P, (decided on 19 April, 2019), the Allahabad High Court has held that there cannot be any curtailment of maternity leave period as prescribed under the Act and it is the woman's rights to get six months maternity leave. The Courts are also taking cognizance of the matter related to Maternity Benefit Act in criminal proceedings. In Navneet Kumari vs Delhi Council For Child Welfare on 20-08-2018 Metropolitan Magistrate Court of New Delhi convicted the accused for the offence charged under section 21 of Maternity Benefit Act, 1961.
In a recent judgement pronounced on 01/05/2020 in Manisha Priyadarshini versus Aurobindo College-Evening & Ors, while dealing with an issue of non-renewal of contract of the Appellant who was on maternity leave and whose contract expired during Covid-19, the Delhi High Court has quashed the termination order dated 29.05.2019, issued by the College and also directed the college to appoint the appellant/petitioner forthwith to the post of Assistant Professor in the English Department on an ad-hoc basis till such time that the vacant posts are filled up through regular appointment.
Therefore, although the courts have been quick to address issues of maternity benefits and take strict action against employers found in violation of the Act, it is important to seek appropriate legal advice to fully understand the scope of the Act and your rights to avail the benefits under the Act. Bhanita Patowary regularly accepts litigation and advisory work in all matters of maternity laws, family laws and commercial law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.