(No. 53 of 1961)1
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:-
- This Act may be called the Maternity Benefit Act, 1961.
- It extends to the whole of India 2[* * *]
- It shall come into force on such date as may be notified in this behalf in the Official Gazette, --
- 3[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]
- in relation to other establishments in s State, by the State Government.
- 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 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.
- 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.
- 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.
- Words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, Sec. 2 and Sch.
- 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.
- Subs. by Aci 52 of 1973, S.3.
- Subs. by Aci 21 of 1972, S.2
- 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.
- “appropriate Government” means in relation to an establishment being a mine 7[or an establishment where persons are employed for the exhibition of questrian, acrobatic and other performances], the Central Government and in relation to any other establishment, the State Government;
- “child” includes a still-born child;
- “delivery” means the birth of a child;
- “employer” means –
- 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;
- 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;
- 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[“establishment” means –
- a factory;
- a mine;
- a plantation;
- an establishment wherein persons are employed for the exhibition of equestrian, acrobatics and other performances; or
- an establishment to which the provisions of this Act have been declared under sub-section (4) of section 2 to be applicable;]
- “factory” means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
- “Inspector” means an Inspector appointed under section 14;
- “maternity benefit” means the payment refereed to in sub-section (1) of section 5;
- “mine” means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952)
- “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);
- “plantation” means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
- “prescribed” means prescribed by rules made under this Act;
- “State Government” in relation to a Union territory, means the Administrator thereof;
- “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 –
- such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to;
- incentive bonus; and
- the money value of the concessional supply of foodgrains and other articles,but does not include –
- any bonus other than incentive bonus;
- overtime earnings and any deduction or payment made on account of fines;
- 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
- any gratuity payable on the termination of service;
- “woman” means a woman employed, whether directly or through any agency, for wages in any establishment.
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.
8 Subs. by Act 52 of 1973, S. 4.
- No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
- No woman shall work in any establishment during the six weeks immediately following the day of her delivery of her miscarriage.
- 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.
- The period referred to in sub-section (3) shall be –
- at the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
- any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.
- 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.
- 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.
- 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.
B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12.
- who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply;
- 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
- who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act].
10. Ins. By Act 53 of 1976, S. 3.
- 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.
- 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.
- Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
- 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.
- 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.
- 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.
- 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.
- 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:
Proved 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 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.
- Nothing contained in this sub-section shall affect the provisions contained in subsection (1).
- 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:
- the nature of work assigned to her by virtue of the provisions contained in subsection (3) of section 4 : or
- breaks for nursing the child allowed to her under the provisions of section 11.
- 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;
- 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:
- 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.
- 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.
- The Inspector may, of his own motion or on receipt of a complaint referred to in subsection (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.
- Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such person, appeal to the prescribed authority.
- 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.
- Any amount payable under these sections shall be recoverable as an arrear of lane revenue.
- 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.
- No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence.
- 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.
- 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.
- 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.
- In particular, and without prejudice to the generality of the foregoing power, such rules may provide for –
- the preparation and maintenance of registers, records and muster rolls;
- the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act;
- 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;
- the form of notices under section 6:
- the nature of proof required under the provisions of this Act;
- the duration of nursing breaks referred to in section 11;
- acts which may constitute gross misconduct for purposes of section 12;
- 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;
- 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;
- the form and manner in which complaints be made to Inspectors under subsection (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;
- any other matter which is to be, or may be, prescribed.
- 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.
- 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.
- In sub-section (2), the words “or maternity” shall be omitted.
- 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.
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