Maternity and paternity leave is protected time that an employee can take off to care for their newborn or newly adopted child. The Maternity Benefit Act, 1961 is an act essentially providing for the regulation of employment for an expecting mother for a particular time period before and after child birth.The act identifies and acknowledges the basic benefits anticipated from an employer for an employee who is an expecting mother.
Gone are the days when it was only men who would go out, work and earn. Whereas the women would be at home, taking care of the household and depend on the men functioning as the bread earners.
Today, women are equally independent and educated as men. Though, we do need to abide by the law of nature, a woman by the will of God has to be a mother. Being a mother requires her to be available for her child, emotionally and physically. Even the government has recognised this; giving rise to the enactment of Maternity Benefit Act in 1961.
The act identifies and acknowledges the basic benefits anticipated from an employer for an employee who is an expecting mother.
The act essentially provides for the regulation of employment for an expecting mother for a particular time period before and after child birth. The act extends to the whole of India.
The law applies-
(a) to factory, mine or plantation including such establishments belonging to the government or an establishment requiring physical labour, skills or performances.
(b) shops or establishments where more than 10 people are employed or were employed on any day in the preceding twelve months. The state government, with the approval of the central government, after giving a notice of atleast two months decide that the provisions of the act may apply to any other establishment.
(c) 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 (34 of 1948), apply for the time being.
Maternity benefits granted by law:
The law is fundamentally present to safeguard the interests of a mother, immediately before and after child birth. In case of infringement of those interests, the law also provides the remedies for the employee adversely affected.
The law provides:
- No woman will be asked to work in an employment for six weeks immediately preceding her delivery or miscarriage.
- Every woman will be entitled to the maternity benefits in terms of wages as prescribed in the act.
- A woman shall only be entitled to the maternity benefits under this act only if she has worked for the employer for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
- The maximum number of leaves that a woman is entitled to under the act is 12 weeks.
- A woman will not be allowed to do such work that can harm her or her child's health during pregnancy.
- The law provides same benefits to women who have a miscarriage or tubectomy.
- A woman suffering from illness arising out of pregnancy, delivery, premature birth of child (Miscarriage, medical termination of pregnancy or tubectomy operation) be entitled, in addition to the period of absence allowed to her leave with wages at the rate of maternity benefit for a maximum period of one month.
An insured woman may be disqualified from receiving maternity benefit if she fails without good cause to attend for or to submit herself to medical examination when so required. She may, however, refuse to be examined by if the doctor or mid wife is not a female. If an insured woman is disqualified as above, the disqualification is to be for such number of days as may be decided by the authority authorised by the Corporation, which is the appropriate Regional Office.
Violation and penalties:
Sadly , not just in our country and our working culture but across the globe, hiring a single or newly married woman is a subject of skepticism. The situation is worse in our country since many times an employer begins to try and figure out ways to terminate the woman who is expecting.
=. The Maternity Benefits Act serves as a shield for working women, seeking an adequate route to manage their professional and personal lives.
The act provides that, no employer shall dismiss, discharge or reduce or otherwise punish a woman employee during the period she is in receipt of maternity benefit, nor shall he dismiss, discharge, reduce or otherwise punish a woman employee during the period she is absent from work as a result of illness duly certified to have arisen out of pregnancy or confinement rendering her unfit for work.
It ensures that the employers are considerate of the expecting employee's situation, by imposing punishment and fines on them, in the event of failure to provide any maternity benefit. The fine in this case may extend up to Rs.5,000. Moreover, an employer may be held liable to pay as much as Rs.20,000 on failing to provide free medical care to expectant employees. For discharging or dismissing such a woman during or on account of her absence from work, the employer shall be punishable with imprisonment which shall not be less than 3 months, but it will extend to one year.
Paternal leave and its applicability in India:
Though it is the mother who actually delivers the child, a father plays an equally important role. A father is expected to be emotionally and physically available for both, mother and child, before and after the delivery. Infact, legally accepting and providing two months of paternal leave has resulted in a reduced divorce rate in Sweden.
In India, the Central Government in 1999 by notification under Central Civil Services (Leave) Rule 551 (A) made provisions for paternity leave for a male Central Government employee (including an apprentice and probationer) with less than two surviving children for a period of 15 days to take care of his wife and new born child. He can avail this leave 15 days before or within 6 months from the date of delivery of child. If such leave is not availed within the period, it shall be treated as lapsed. For paternity leave, he shall be paid leave salary equal to the pay last drawn immediately before proceeding on leave. Also, the same rule applies when a child is adopted.
While paternity leave is sanctioned for government employees, there is not such law that indoctrinates the private sector to make it obligatory. Hence, paternity leave is open to interpretation by individual companies.
Despite there being no legislation, the New Delhi High Court in 2009 passed a judgement allowing paternity leave in private schools with Chandramohan Jain, a private school teacher, getting his deducted salary back as his leaves were recognised as Paternity leaves by the court.
We all know and understand that for a healthy work culture and to get the optimum efficiency out of an employee, an employer must ensure to provide certain basic amenities like a comfortable work place, healthy working hours, giving the employee enough physical and mental rest etc. Being a country where our family is of first and foremost importance for us, an employer needs to keep in mind that having a child is a new start for all members of the family, hence, it is an utter necessity to provide reasonable amount of maternity as well as paternity leaves. We must not forget that for a vulnerable new mother and her newly born child, a father is the most important person to be around.
Complaint under Maternity Benefits Act 1961:
The Central Industrial Relations Machinery (CIRM) in the Ministry of Labour is responsible for enforcing this Act. CIRM is an attached office of the Ministry and is also known as the Chief Labour Commissioner (Central) [CLC(C)] Organisation. The CIRM is headed by the Chief Labour Commissioner (Central).
Also, the appropriate Government may appoint inspectors for the purposes of this Act defining their jurisdiction limits.
No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed.
Copyright 2023 – Helpline Law