A. Constitutionality of Maternity Benefit Act 1961?
Article 39 (e) & (f)
B. Is there any maternity benefit law set out by Haryana government?
The state of Haryana follows Maternity Benefit Act, 1961 and The Haryana Maternity Benefit Rules, 1967.
C. Who will be the employer in case of a company?
In cases, other than where government or local authority has control, the person who has the ultimate control over the affairs of the establishment is called employer 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 is also called is employer.
D. What does wage include under the provisions of Maternity Benefit Act 1961?
As per section 3 (n) of the act wages are the remuneration paid or payable in cash if terms of contract of employment were fulfilled. The wages include cash allowances which include DA and HRA, incentive bonus and money value of the concessional supply of food grains and other articles.
E.What is not wages under the provisions of Maternity Benefit Act 1961?
- Any bonus other than incentive bonus.
- Overtime earning + any deductions or payments made on account of fines.
- Contribution paid or payable by employer to any pension fund or provident fund.
- Any gratuity payable on the termination of service.
F. When a woman is not to be hired by an employer?
By virtue of section 4 : No employer shall knowingly employ a woman during the six weeks immediately following her date of ( delivery or miscarriage or medical termination of pregnancy). No woman shall work during the given six weeks.
If a woman requests to not give her work which is arduous or involves long hours of standing or the nature of work interferes with her pregnancy or the normal development of fetus or causes miscarriage or adversely affects her health then in such case for 1 month immediately preceding the period of six weeks of her expected delivery or any period during said period of six weeks where the pregnant woman does not avail of leave of absence under section 6.
G. What are the payments made under Maternity Benefit Act, 1961? (section 5)
The employer is liable to pay the maternity benefit at the rate of average daily wage for the period of absence.
H. What is included in average daily wages?
The average wages of 3 calendar months preceding the date from which a woman was absent on account of maternity OR
The minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 OR Rupee 10, whichever is highest.
I. What are the conditions to maternity benefit[1]? Section 5
Woman will get maternity benefit only if she has worked in the establishment of the employer for a period of not less than 80 days in the 12 months immediately preceding date of her expected delivery.
The maximum period of leave is 26 weeks of which not more than 8 weeks shall precede the date of expected delivery.
Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.
If 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.
As per section 19 0f the act the abstract such act and rules should be exhibited in a conspicuous place by the employer in every part of establishment where women are employed.
In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.
J.What happens if a woman dies after delivery?
When a woman dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit leaving behind a child, the employer shall be liable for the maternity benefit for the entire period.
In case the child also dies during the said period , then, for the days upto date of the death of the child.
K. How to claim maternity benefit? (rules, 1967)
As per section 6 of the act a woman entitled may give notice to the employer stating her maternity benefit and any other amount (entitled amount) to be paid to her and that she will not work during the period for which she receives maternity benefit.
The notice shall state the date from which she will be absent from work (not earlier than eight weeks from expected delivery). The notice may be given as soon as possible and even after delivery. On receipt of notice, the employer shall permit such woman to absent herself during the period for which she receives the maternity benefit.
The amount of maternity benefit for the period preceding the expected delivery date shall be paid in advance to the woman on the production of proof that such woman is pregnant. For the subsequent period the amount shall be paid by the employer to the woman, within 48 hours of production of such proof that the delivery has taken place.
The written notice under section 6 of the act shall be in form B as provided by the The Haryana Maternity Benefit Rules, 1967.
Also every woman is entitled to receive from her employer a medical bonus of Rupees 1000 if free natal confinement and post natal care is not provided by the employer free of charge.
The medical bonus shall be paid along with the second instalment of the maternity benefit.
The payment under section 7 shall be made within two months of the date of death of the woman entitled to receive the payment. The wages due under section 9 shall be paid immediately after production of the certificate.
The wages due under section 10 shall be paid within a week of the beginning of the period of leave referred to in that section on the production of a certificate in Form ‘ C’ from the medical officer of a regional hospital or of a dispensary set up by the State Government or from a registered Medical Practitioner.
L. How the proof has to be submitted under the act?
The fact that a woman is pregnant or has delivered of a child or has undergone miscarriage or is suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall be proved by the production of certificate to that effect in Form ‘C’ from:-
- a Medical Officer of a regional hospital or of a dispensary set up by the State Government
- a registered Medical Practitioner.
- The fact that a woman has been confined may also be proved by the product ion of certified extract from a birth register maintained under the provisions of any law for the time being in force or a certificate signed by a qualified mid-wife.
- The fact that a woman has undergone miscarriage may also be proved by the production of a certificate signed by a qualified mid wife.
- The fact of death of a woman or a child may be proved by the production of a certificate to that effect in Form “D” from any of the authorities referred to in subrule (1) or by the production of a certified extract from a death register maintained under the provisions of any law for the time being in force.
- For the purposes of sub-rules (2) and (3) the qualifications to be possessed by a mid-wife shall be determined by the State Government on the recommendations of the Competent Authority. The certificate from a qualified mid-wife shall be in Form ‘E’.
M. What Is Creches Facility[2]? Is It a Mandate in Haryana ?
Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities :
Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her. Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.
For the purpose of amendment made in the act by virtue of section 11A, the Haryana Government has framed and notified rules under the Maternity (Amend) Benefits Act, 2017, for providing creche facilities and amenities in such establishments as employ 50 or more employees in the state.
N. Whether a woman can be dismissed during the maternity period?
It is unlawful to give notice of dismissal or discharge or dismiss a woman on account of her absence due to maternity.
Any woman deprived of maternity benefit or medical bonus or both or dismissed on account of absence may within 60 days of such date appeal to such authority as may be prescribed. The decision of such authority shall be final.
O. What are the punishments under the act?
Under section 21 of the act if an employer fails to pay any amount of maternity benefit or discharges or dismisses such woman. The employer shall be punishable with imprisonment which shall not be less than 3 months but which may extent to one year and with fine which shall not be less than 2 thousand rupees and may extend to five thousand rupees.
The court shall in addition recover such amount as if it were fine and pay the same to the person entitled.
P. Who may file and try the complaint? (section 23)
The complaint may be filed within 1 year from which such offence is done by the aggrieved woman, head of trade union or the inspector.
A Metropolitan Magistrate or Magistrate of First Class shall or any court higher in rank shall try offence under this act.
Form the purpose of complaint and appeal the forms have been provided under the The Haryana Maternity Benefit Rules, 1967
- COPYRIGHT: MEHTADIXIT.COM, DUCTUS LEGAL
[1] Amendment act 2017.
[2] Amendment act of 2017
DUCTUS EDGE 