UNIT – 3

The Maternity Benefit Act, 1961 and Maternity

Benefit (Amendment) Act, 2017
 Introduction
• The Maternity Benefit Act, 1961 is a legislation that protects the
employment of women at the time of her maternity. It entitles women
employees of ‘maternity benefit’ which is fully paid wages during the
absence from work and to take care of her child.
• The Act is applicable to the establishments employing 10 or more
employees. The Maternity Benefit Act, 1961 has been amended
through the Maternity (Amendment) Bill 2017 which was passed in the
Lok Sabha on March 09, 2017.
• Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016.
Further, it received assent from the President of India on March 27,
2017. The provisions of the Maternity Benefit (Amendment) Act, 2017
came into effect on April 1, 2017, and the provision with regard to
crèche facility (Section 111 A) came into effect with effect from July 1,
2017.
 Indian Constitution and
Maternity Benefits
1) Art 15(3) - Nothing in this article shall prevent the State from making any
special provision for women and children.
2) Art.21 - Protection of life and personal liberty.
3) Art. 39 - Certain principles of policy to be followed by the State.
• (a) that the citizens, men and women equally, have the right to an
adequate means to livelihood;
• (d) that there is equal pay for equal work for both men and women;
• (e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength;
4) Art.41 - Right to work, to education and to public
assistance in certain cases.
5) Art.42 - Provision for just and humane conditions of work
and maternity relief.
 Objectives of Maternity Benefit Act, 1961

1) It aims to regulate the employment of women in

certain periods before and after childbirth.
2) To provide for maternity benefits including
maternity leave, wages, bonus, nursing breaks etc.
3) To protect the dignity of motherhood and the dignity
of a new person by providing for full and healthy
maintenance of the women and her child at this
important time when she is not working.
 Meaning of Maternity Benefit
▪ “A payment (maternity allowance) made to a
pregnant women who usually works but does not
qualify for statutory pay.”
 Definitions(Sec. 3)
► (a) “appropriate Government” means in relation to an
establishment being a mine [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.
• (e) Establishment – means a factory, mine, plantation or an
establishment to which Section 2(1) applies
• (f) Factory – as defined under Section 2(m) of the Factories Act,
1948
• (g) Inspector – an Inspector appointed under Section 14 of this
Act
• (h) Maternity Benefit – means the payment referred to in
Section 5(1) of this Act
• (ha) Medical Termination of Pregnancy – means the
termination of pregnancy as allowed under the Medical
Termination of Pregnancy Act, 1971
• (i) Mine – as defined under Section 2(j) of the Mines Act, 1952
• (j) Miscarriage – loss of the contents of a pregnant uterus before
or during the 26th week of pregnancy, but it does not include any
miscarriage which is punishable under the IPC, 312.
• (Sec. 312 - Whoever voluntarily causes a woman with child to miscarry, shall, if
such miscarriage be not caused in good faith for the purpose of saving the life of
the woman, be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both; and, if the woman be quick
with child, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine)

• (k) Plantation – as defined under Section 2(f) of the Plantation Labour Act, 1951.

• (l) Prescribed – means prescribed by rules made under this Act.

• (m) State Government – in relation to a Union Territory, it means the Administrator

thereof.
► (n) Wages – includes all remuneration paid or payable in cash to an employee,
provided the express and implied terms of the contract of employment have been
fulfilled.
► It also includes:
• Cash allowances, including dearness allowance, house-rent allowance;
• Incentive bonus;
• The money value of the concessional supply of food grains and other articles.
► It does not include:
• Any bonus other than incentive bonus;
• Overtime earnings and any deduction or payments amounting to fines;
• Any contribution paid or payable by the employer to any pension fund, provident
fund or for the benefit of the woman under any law for the time being in force;
• Any gratuity payable on the termination of service.
• (o) Woman – means a woman employed, either directly or through an agency, in
return for wages in any establishment
State of Uttarakhand v. Smt. Urmila Masih and Others. (Special
Appeal No. 736 of 2019)Uttarakhand)
• Issue: Petitioner applied for maternity leave w.e.f. 30.06.2015 to
09.12.2015. The maternity leave was declined to the petitioner on the
ground that she had already two living children, as such for third child the
maternity leave could not be granted. It is in these circumstances, the
present petition has been filed.
• The High Court held that the proviso to Fundamental Rule 153 of the Financial Hand
Book of the U.P. Fundamental Rules was contrary to Section 27 of the Maternity
Benefit Act, 1961. The Court further noted that Section 27 of the Act does not prohibit,
in any manner, to grant of maternity leave to a female Govt. servant, who has already
had two children at the time of submission of application for maternity leave, after
giving birth to third child.
• (Sec. 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.)
• (According to second proviso of Fundamental Rule 153, produced
hereinabove, in case, any female Govt. servant has two or more living
children, she is not entitled to get maternity leave, even though, such
leave may be otherwise admissible to her).

• The High Court also held that the proviso of the Fundamental Rule
153 was also against the letter and spirit of Article 42 of the
Constitution of India (Provision for just and humane conditions of
work and maternity relief). In view of the aforesaid observations, the
High Court held the proviso to Fundamental Rule 153 of the
Financial Hand Book of the U.P. Fundamental Rules, as ultra
vires and unconstitutional.
► Applicability of the Act
• Upon reading Section 2 along with Section 3 (e) of Maternity Benefits
Act, 1961, it can be concluded that the Act is applicable to
establishments such as factories, (“factory” as defined in the Factories
Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and
plantations (“plantation” means a plantation as defined in the
Plantations Labour Act,1951).
• The Maternity Benefit Act also applies to establishments belonging to
Government and establishments wherein persons are employed for the
exhibition of equestrian(relating to horse riding), acrobatic(gymnastic
feats) and other performances as per Section 2(b).
• The Act is also applicable to every shop or establishment defined under
law, wherein ten or more persons are employed on a day during the
preceding twelve months and which is applicable in relation to shops and
establishments in a particular State.
 Eligibility
Woman employee:
▪ must actually work for 160 days in 12 months
immediately preceding her date of delivery;
▪ Should intimate the employer seven weeks before her
delivery date about the leave period;
▪ Can take advance payment for 6 weeks leave before
delivery;
▪ Can take payment for 6 weeks leave after child birth
within 48 hours after submitting the proof.
 Air India v. Nergesh Meerza (AIR 1981 SC
►
1829)
Brief Facts:
• The case was result of Regulations 46 and 47 of the Air India
Employees Service Regulations which created a significant amount of
disparity between the pay and promotional avenues of male and
female in-flight cabin crew.
• It was brought forth that under Regulation 46, while the retirement
age for male cabin crew was 58, female cabin crew were required to
retire under three circumstances:
• (1) upon reaching 35 years of age;
• (2) upon getting married; or
• (3) upon first pregnancy.
 • The regulations were upheld in the tribunals after observing factors
such as “young and attractive” air hostesses are necessary to deal
with temperamental passengers. Thereafter, the case reached the
Supreme Court questioning the constitutionality of the Regulations.
► Issues:
1. Whether Regulation 46 & 47 are violative of Articles 14, 15 and 16 of the
Constitution of India and thus ultra vires in whole or part?
2. Whether discretionary powers as enumerated under Regulation 47 can be
deemed as being excessive delegation?
►The SC held that -
• Article 14 only forbids against hostile discrimination and not against
reasonable classification.
• The court came to the conclusion that Air Flight Pursers and Air Hostesses
formed different classes (in service law terminology, separate “cadres”) as
they had different recruitment conditions and different promotional
avenues. Therefore, that the matter in question is not violative of Article
14.
• The Court states that while Article 16(2) purports that no discrimination
should be made only on the ground of sex, however it never prohibits the
state from discriminating on the grounds of sex and other
considerations. With this basis, the Court rejected the violation of Article
16.
• On the subject of termination, the Supreme Court vehemently opposed the
arguments put forth by the Respondents and struck down the Air
India and Indian Airlines Regulations on the retirement and pregnancy
bar on the services of air hostesses as unconstitutional.
► Impact of the Judgment:
• The importance of the judgment is largely because this was
not only the first de facto case of sexual discrimination at
the workplace but also an important law that addressed the
discriminatory practices against women of the country.
Though there are certain aspects of the case holding the
patriarchal norms and following certain sexist perspectives,
striking down the regulation on termination made a huge
impact on women in the country.
 Employment of, or work by, women
prohibited during certain period (Sec.4)
▪ (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 or 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.
 Tata Tea Co. Ltd. v. Inspector of Plantations
(1992) 1 LLJ 603 (Kerala)
► Brief Facts: Under Section 4A of the Kerala Industrial Establishments (National and Festival
Holidays) Act, 1958, an employer could require any employee to work on any such holidays and
any such employee was under Section 5(2) entitled to twice the wages for working on that day.
Under Section 4 of the Maternity Benefit Act, 1961, an employee is entitled to certain benefits
including maternity leave during the period mentioned in that Section.

► Issue: Whether an employee entitled to benefit of the Maternity Benefit Act, 1961, is eligible to
claim the benefit under Section 5(1) of the Kerala Industrial Establishments (National and Festival
Holidays) Act, 1958?

► Held: During the periods mentioned under Section 4 of the Maternity Benefit Act,
1961, the employer cannot exercise his right under Section 4A of the Kerala Industrial
Establishments (National and Festival Holidays) Act, 1958. Thus, the claim of the
employees for the wages under the Kerala Industrial Establishments (National and
Festival Holidays) Act, 1958, was held to be not sustainable.
 Right to payment of maternity benefit (Sec.5)
• Sec.5(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.
• Sec.5(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.
• Sec. 5(3) - The maximum period for which any woman shall be entitled to
maternity benefit shall be(26 weeks of which not more than 8 weeks(2017)
shall precede the date of her expected delivery.
• Provided that maximum period entitled to maternity benefit by a woman
having two or more than two surviving children, shall be 12 weeks of which
not more than 6 weeks shall precede the date of her expected delivery.
• 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.
• Sec.5(4)- provides that a woman who legally adopts a child below the age of
three months or 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.
• (A commissioning mother is one who hires a surrogate mother to bear
child on her behalf).
• Sec. 5(5) – provides that 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 the maternity benefit for such period and on
such conditions as the employer and the woman may actually agree.
 1) P. Geetha v. The Kerala Livestock
Development Board Ltd. (WP(C).No. 20680 of 2015, Ker HC)
• Facts: A Dy. General Manager, working in the first respondent Board, a
Government of Kerala undertaking. After remaining childless for over 20
years, the petitioner, along with her husband, had entered into an
arrangement with a fertility clinic in Hyderabad, Telengana State, to have a
baby through surrogate procedure. A baby was born on 18.06.2014 through a
host mother, and handed over to the petitioner, the genetic mother. She was
denied maternity leave as per the Staff Rules.
• Held: The Kerala HC declares that there ought not to be any discrimination
of a woman as far as the maternity benefits are concerned only on the
ground that she has obtained the baby through surrogacy. It is further made
clear that, keeping in view the dichotomy of maternity or motherhood, the
petitioner is entitled to all the benefits an employee could have on
post-delivery, sans the leaves involving the health of the mother after the
delivery.”
 2) B. Shah v. Presiding Officer, Labour Court,
Coimbatore and Ors. (AIR 1978 SC 12)

The question was Whether Sunday is to be counted in calculating the amount of

maternity benefit?

• The SC held that in the context of Section 5, the term week has to be taken to signify a
cycle of 7 days including Sundays. The Legislature intended that computation of
maternity benefit is to be made for the entire period of the woman employee’s actual
absence i.e., for all the days, including Sundays, which may be wage less holidays
falling within that period and not only for intermittent periods of six days thereby
excluding Sundays falling within that period.
• This computation ensures that the woman gets for the said period, 100%
of the wages that she was previously earning, and also the benefit of
the wages for all the Sundays and holidays falling within the said
period, which would be conducive to the interest of both the woman
and the employer.

• The SC further held that in interpreting provisions of beneficial pieces

of legislation which is intended to achieve the object of doing social
justice to woman workers employed in the plantations and which
squarely fall within the purview of Article 42 of the Constitution, the
beneficent rule of construction which would enable the woman worker
not only to subsist but also to make up her dissipated' energy, nurse
her child, preserve her efficiency as a worker and maintain the level of
her previous efficiency.
Can contractual workers claim maternity benefits under the
Maternity Benefit Act, 1961?
3) Municipal Corporation of Delhi v. Female Workers(2000) SCC 224

Brief Facts:
• The Union of Female Workers who were not on regular rolls, but were
treated as temporary workers and employed on Muster roll, claimed that
they should also get maternity benefit like regular workers, under the
Maternity Benefit Act, 1961, as an employee is entitled to certain benefits
including maternity leave during the period mentioned in that Section.

"Whether the female workers working on Muster Roll should be given any
maternity benefit?
• The Industrial Tribunal, by its Award dated 2nd of April, 1996, allowed the claim of the
female workers (muster roll) and directed the Corporation to extend the benefits under
the Maternity Benefit Act, 1961 to muster roll female workers who were in the continuous
service of the Corporation for three years or more. The Corporation challenged this
judgment in a Writ Petition before the Delhi High Court which was dismissed by the Single
• The SC held that the provisions of the Maternity Benefit Act
1961, would indicate that they are wholly in consonance with
the Directive Principles of State Policy, as set out in Article 39
and Article 42. A woman employee, at the time of advanced
pregnancy cannot be compelled to undertake hard labour as it
would be detrimental to her health and also to the health of
the fetus. It is for this reason that it is provided in the Act
that she would be entitled to maternity leave for certain
periods prior to and after delivery.
 4) Dr. Mandeep Kaur v. Union of India
(W.P. No. 1400 of 2018, HP HC)

• Facts: the Petitioner, a medical officer employed on a contractual basis at

an Ex-Servicemen Contributory Health Scheme clinic applied for maternity
leave along with other consequential benefits including continuity in service,
under the Act. This was rejected by the Respondent on grounds that her
contract of employment did not contain any clause under which maternity
benefits could be claimed.
• Held: The Himachal Pradesh High Court, relying on the Apex Court’s
holding in Municipal Corporation of Delhi v. Female Workers and Anr. [2000
(3) (SCC) 224] wherein the Apex Court had explicitly mandated for maternity
leave to be made available to women employees whether permanent, casual,
or contractual, remarked that even if the Petitioner was employed on a
contractual basis, denial of benefit of maternity leave would tantamount to
infringement vis-a-vis the salutary purpose behind Article 21 in the
Constitution of India.
 Sec. 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 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.
 Payment of maternity benefit in
certain cases (Sec.5B)

Every woman –
• (a) who is employed in a factory or other establishment to
which the provisions of the Employees’ State Insurance Act,
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.
 1) Rattan Lal & Ors. v. State of Haryana & Ors.
SC 1985 (3) SLR 548
• On the question whether it is open to the State Government to appoint
teachers on an ad-hoc basis at the commencement of an academic
year and terminate their services before the commencement of the
next summer vacation, or earlier, to appoint them again on an ad-hoc
basis at the commencement of next academic year and to terminate
their services before the commencement of the succeeding summer
vacation or earlier and to continue to do year after year?
• The SC held that the policy of "ad-hocism" followed by the
State Government in the appointment of teachers for quite a long
period has led to the breach of Articles 14 ant 16 of the
Constitution. Such a situation cannot be permitted to last any
longer. The State Government is expected to function as a
model employer.
• The SC held: “We strongly deprecate the policy of the
State Government under which ‘ad hoc’ teachers are
denied the salary and allowances for the period of the
summer vacation by resorting to the fictional breaks of
the type referred to above. These ‘ad hoc’ teachers shall
be paid salary and allowances for the period of summer
vacation as long as they hold the office under this order.
Those who are entitled to maternity or medical leaves
shall also be granted such leaves in accordance with the
rules.”
 2) State of Himachal Pradesh v. Sudesh Kumari
2015 Lab IC 1717 (HP HC)
► Issue: Discrimination between regular and adhoc staff while
granting maternity benefit.
• The HC held that under Article 14 of the Constitution, State
cannot discriminate between an adhoc/ contractual and regular
female employees and grant different period of maternity leave
to them. In law, there is no difference between a female regular
employee and a contractual/ad hoc employee because she is
female for all intents and purposes; and she has a matrimonial
home, matrimonial life, and after conception, she has to undergo
same maternity period, treatment, pains and other difficulties like
a regular employee.
 3) Preeti Singh v. State of UP & Ors.
(No. 9907 of 2021, Decided on 27th April 2021, All HC)
• Facts: The Respondents granted the Petitioner maternity leave till the date of
28.12.2019. Later, the Petitioner filed for another maternity leave, from
17.03.2021 to 12.10.2021. This was rejected a day before the leave was to come
into effect, i.e., on 16.03.2021, on the ground that the next leave was sought
before the two year period of the earlier leave being up.
• Section 13 of the Uttar Pradesh Fundamental Rules deals with provisions of
maternity leave.
• Held: The Allahabad High Court has once again clarified that the Maternity
Benefit Act, 1961, does not bar the grant of maternity leave a second time before
the completion of two years from the date on which maternity leave granted
earlier expires.
• The HC held that, more particularly when Section 27 of the Maternity Benefit
Act provides that the Act would be applicable notwithstanding anything
inconsistent contained in any other law or contract of service, then the Rule
153(1) of the Financial Handbook cannot be cited to reject the Petitioner’s
 No distinction between a surrogate mother and a natural
mother for maternity benefits
Sushma Devi v. State of Himachal Pradesh & Ors. C.W.P. No.4509
of 2020

• The petitioner joined as a Language Teacher on contract basis and is

currently posted at Government Senior Secondary School, Showad, District
Kullu. The petitioner was blessed with a baby on 10.09.2020 through
surrogacy treatment from Fortis La Femme Hospital S-549 Alknanda Don
Bosco Road, Greater Kailash II, New Delhi.

• The petitioner had applied for maternity leave to the Principal, Government
Senior Secondary School, Showad, District Kullu( respondent No.4), who
in turn forwarded the same to 3rd respondent i.e. Deputy Director, Higher
Education, Kullu, seeking clarification as to whether the petitioner is
entitled for maternity leave on surrogacy.
• However, no action whatsoever was taken on the application of the petitioner, constraining
her to file the instant petition, seeking therein a direction to the respondents to
sanction/grant the maternity leave to the petitioner.
• The only ground taken for non grant of the leave was that as per Notification of H.P.
Government issued vide Finance Department No. Fin.(C)-A(3)-1/2008 Loose dated
21.12.2017, maternity leave is admissible on adoption of a child as per Rule 43(1) of CCS
(Leave) Rules 1972 for 180 days, but there is no clarification in the said notification
regarding admissibility of maternity leave to a female Government employee on surrogacy.
• Held: The Himachal Pradesh HC interpreted the purpose of Rule 43 of Central Civil
Services (Leave) Rules, 1972, and noted that even in the case of adoption, bonding between
mother and adopted child has been duly recognized by the Central Government.
Additionally, the Court observed that Article 42 of the Constitution recognizes the
importance of maternity benefit and grant of child-care leave.
• Further, the Court opined that distinguishing between a mother who begets a child through
surrogacy and a natural mother, who gives birth to a child would be an “insult to
womanhood and the intention of a woman to bring up a child begotten through
surrogacy”.
•
 Notice of claim for maternity benefit
and payment thereof (Sec.6)
• Sec. 6(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.
• (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.
 Payment or maternity benefit in case
of death of a woman(Sec.7)
• Sec.7 - 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.
 Payment of medical bonus(Sec.8)

• Sec.8 Every woman entitled to maternity benefit

under this Act shall also be entitled to receive from
her employer a medical bonus of one thousand
rupees, if no pre-natal confinement and post-natal
care is provided for by the employer, free of charge.
 Leave for miscarriage (Sec.9)
• Sec.9 - 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 or, as
the case may be, her medical termination of pregnancy.
• Sec. 9A – Leave with wages for tubectomy operation
• In case of tubectomy operation, 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 two
weeks immediately following the day of her tubectomy
operation.
 Leave for illness arising out of pregnancy,
delivery, premature birth of child, or
miscarriage (Sec.10)
• Sec.10 - 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.
 Nursing breaks(Sec.11)
• 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.
• Sec. 11A – Creche facility (2017 amendment)
• (1) 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.
• (2) 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."
 Dismissal during absence or
pregnancy(Sec.12)
• Sec.12 (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 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 subsection (1).
 No deduction of wages in certain
cases(Sec.13)
• Sec. 13 - 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 subsection (3) of section 4; or
• (b) breaks for nursing the child allowed to her under
the provisions of section 11.
 Appointment of Inspectors(Sec.14)
• The appropriate Government may, by notification
in the 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.
Powers and duties of Inspectors(Sec.15)

• Sec.15 - 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 from them under this Act; and
• (d) take copies of any registers and records or notices
or any portions thereof.
Inspectors to be public servants(Sec.16)

• 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,1860.
 Power of Inspector to direct payments to be
made(Sec.17)
(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
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.
(3) (Any person aggrieved by the decision of the Inspector under sub-section (2)
may, within 30 days from the date on which such decision is communicated 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 arrears of
land revenue.
 Forfeiture of maternity benefit(Sec.18)

• 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.
The Maternity (Amendment )Benefit Act, 2017
Main Highlights of The Maternity (Amendment )Benefit
Act, 2017
• The time of maternity leave which a Female worker is qualified
for, has been expanded from 12 weeks to 26 weeks.
• The time of maternity advantage of 26 weeks can be stretched
out to women who are as of now under maternity leave at the
hour of usage of this revision in the Act. The improved
Maternity Benefit can be benefitted for the initial two kids.
• According to the revision, a woman having at least two enduring
kids will be qualified for twelve weeks of Maternity Benefit of
which not more than six weeks will be taken preceding the date
of the normal conveyance.
The Maternity (Amendment ) Benefit Act, 2017

• Each foundation having 50 or more representatives will be

required to have an obligatory creche office (inside the
recommended good ways from the foundation), either
independently or alongside other normal offices. The woman is
likewise to be permitted 4 (four) visits per day to the creche,
which will incorporate the interim for rest permitted to her.
The Maternity (Amendment ) Benefit Act, 2017

► Work from home:

• If the idea of work allocated to a woman employee is with the
end goal that she can telecommute, a business may enable her
to telecommute post the time of Maternity Benefit. The
conditions for telecommuting might have commonly concurred
between the business and the employee.
 The Maternity (Amendment ) Benefit Act, 2017
► Prior Intimation:
• Every foundation will be required to give the woman employee at the
hour of her underlying arrangement, data about each advantage
accessible under the Act.
• The arrangement identifying with “telecommute has been presented
through the Act and can be practiced after the expiry of 26 weeks’ leave
period. In light of the idea of work, a woman employee can get
advantage of this arrangement on such terms that are commonly
concurred with the business.
• The raising of the maternity benefits by 12 weeks to 26 weeks is in
accordance with the proposal of the World Health Organization which
gives that kids must be solely breastfed by the mother for the initial 24
weeks.
• The expansion in the maternity leave can help in expanding endurance
paces of youngsters and solid improvement of a kid.
 The Maternity (Amendment ) Benefit Act, 2017
► Creche Facility Introduced by Maternity Benefit (Amendment) Act,
2017
• In terms of Section 11A of the Maternity Benefit Act, every
establishment to which the Act applies and have fifty or more
employees must establish a Crèche facility within such distance as
may be prescribed through notification.
• The Creche must be established either separately or along with
common facilities. The employer must allow women at least four
visits a day to the crèche and it shall also include the interval for rest
allowed to her.
• Every establishment is required to intimate in writing and
electronically to every woman at the time of appointing her initially
regarding every benefit available under the Maternity Benefit Act.
The Maternity (Amendment ) Benefit Act, 2017
► National Guidelines for setting up and running creches under the
Maternity Benefit (Amendment) Act, 2017
• Section 11A mandates the establishment of crèches within such
distance as may be prescribed, either separately or along with
common facilities.
• As per Section 2(l), “prescribed” means prescribed by rules made
under this Act.
• Further, as per Section 28 of the Act, rules can be prescribed by the
State or Central Government as the case may be for carrying out
the purposes of the Act.
The Maternity (Amendment ) Benefit Act, 2017
► Crèche for Whom?
• The use of a crèche facility is proposed to be extended to children
of the age group of 6 months to 6 years of all employees
including temporary, daily wage, consultant and contractual
personnel.
► Crèche Location
• The center should be near/at the workplace site or in the
beneficiaries’ neighborhood, within 500 meters.
► Timings
• The crèche preferably should open for 8 hours to 10 hours. In this
case, the workers can follow a shift system. In case the
establishment has day and night shifts, then the crèche should
also be run in shifts.
 The Maternity (Amendment ) Benefit Act, 2017
► Facilities to be provided
a) Crèches should be concrete, with a min space of 10-12 sq.ft.
per child, with ventilation, drinking water and with no unsafe
places such as open drains, pits, garbage bins near the center.
Further, other facilities to be provided include:
b) A guard, who should have undergone police verification.
c) Ramps and handrails.
d) Every Creche should have one supervisor per crèche.
e) The Creche should have a minimum of one trained worker for
every 10 children who are under three years of age.
f) For every 20 children above the age of three, the creche
should have one trained worker along with a helper.
g) No plumbers, drivers, and electricians and other outside
persons should be allowed inside the crèche when children
are present.
h) A Crèche monitoring committee should be formed having
representations from among crèche workers, parents, and
administration.
i) Forming a grievance redressal committee for inquiring
into instances of sexual abuse.
 Maternity Benefit (Mines and Circus) Amendment
Rules 2019
a) It is pertinent to note these rules do not apply to Crèches established in
Mines and Circus establishments. Crèches in Mines are regulated by the
Maternity Benefit (Mines and Circus) Amendment Rules 2019.
Some of the key provisions include:
a) Rule 2 (b) – The crèches are set up for children under 6 years of age.
b) Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the
number of women employed.
c) Rule 4- Basic Standard requirements to be provided.
d) Rule 8- The crèches shall be open during the whole day and open at
night if the women employees are at the office.
e) Rule 9- Restriction of access to outsiders.
f) Rule 10- Guidelines for medical arrangements.
 The Maternity (Amendment ) Benefit Act, 2017
► Are creche facilities mandatory?
• The language of Section 11A of the Amendment Act, 2017 is
that Crèche facilities shall be established at “every
establishment”. Thus, going by the rule of literal
interpretation, it can be inferred that the section mandates to
establish crèches only in those “establishments” covered
under the definition of “establishment” under Section 3 (e) of
the Act.
• Further, it can also be inferred that an “establishment”
excluded under Section 2(2) or excluded by notification under
Section 26 of the Act, is not obliged to set up a crèche as
mandated.
 The Maternity (Amendment ) Benefit Act, 2017
• Further, the clarification notification issued on behalf of The
Maternity Benefit (Amendment) Act, 2017, clarified that as
Section 2 has not undergone an amendment, there are no
changes regarding the application of the Act of 1961.
• As per Section 2(b), an “establishment” includes every shop
or establishment within the meaning of any law for the time
being in force in relation to shops and establishments in a
State.
 The Maternity (Amendment ) Benefit Act, 2017
• Consequently, crèches are mandatory in all establishments
covered under Delhi Shops and Establishment Act, 1954.
• As per Section 2(5) of the 1954 Act, “commercial
establishment” means any premises wherein any trade,
business or profession or any work in connection with, or
incidental or ancillary thereto is carried on..”. Further, as per
Section 2(9) of the Act of 1954, “‘establishment’ means a shop,
a commercial establishment…”.
• Thus, Crèches are mandatory in companies, firms and
consultant companies even though they may be incorporated
or registered under The Partnership Act, 1932 or Companies
Act, 2013.
 The Maternity (Amendment ) Benefit Act, 2017
► Conclusion
• The Amendment Act has come into force with effect from 1
April 2017. All establishments covered under the Amendment
Act were supposed to amend their existing maternity benefit
policies to bring it in line with the Amendment Act with effect
from 1 April 2017. The changes brought through the
Amendment Act are applauded by everyone.
• However, there are different aspects of the Amendment Act
that require clarity. It is not clear whether increased maternity
benefits will also be applicable to women who are currently
undergoing maternity leave.
• Furthermore, the justification for having separate effective
date for implementing “work from home” option is not clear,
for the reason that works from home is an enabling provision
brought into force to inspire employers to provide such choice
to a woman depending upon the nature of work being handled
by her and not a statutory requirement under the MB
Amendment Act.
• The requirements like creche facilities require more capital
and operating expenditure on the part of the employer. The
establishments will have to bear the whole cost of providing
leave to employees. In most countries, the cost of maternity
leave is shared by the government, employer, insurance
agency and other social security programs.
Thank You