UNIT IV PROVIDENT FUND ACT EMPLOYEES’ PROVIDENT FUND ORGANISATION The Employees’ Provident Fund Organisation is a statutory body under the Ministry of Labour, Government of India, New Delhi. It administers Social Security Schemes framed under the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952, namely Provident Fund, Pension and Insurance to industrial employees. These benefits are extended to establishments which employ 20 or more persons. The Employees’ Provident Fund Organisation is an All India Organisation having its offices in all state capitals, cities, towns and districts with its headquarters at New Delhi. It is administered by the Central Board of Trustees - Employees’ Provident Fund comprising representatives from employees, employers and the Central/State Government. The Employees’ Provident Fund is made applicable to an employee from the date of his joining the establishment and recovers contribution at the rate of 12% of basic wages and the dearness allowance and the employer also contributes his share of contribution @ 12 %. In addition to this, the employers contribute an additional 1.15 % towards administrative charges (subject to certain conditions discussed later). Every member of Provident Fund is automatically governed by Pension and Insurance Schemes. Similar to government employees, the industrial employees are also eligible to avail the monthly pension after their superannuation and family pension in case of their death. During life time, a member can avail withdrawals from his Provident Fund for Housing, Marriage, and Illness ete. v7] Edit with WPS Office © sewned wth Xt ScannerTO WHOM THE PROVIDENT FUND ACT APPLIES? (1) The Employees’ Provident Funds & Miscellaneous Provisions Act, 1952, is applicable to - All establishments/Factories; included in the list of notified Industries and class of establishments. The minimum number of persons employed should be 20. The Central Government after giving two months notice is empowered to apply the act to any establishment employing less than 20 persons, by notification in the official gazette. ‘Person’ includes regular, casual, piece rated, part time, temporary and contract employees, etc. The Provident Fund Act will come into force in an establishment from the very date of set up or commencement of business excepting certain class of establishments specified excluded under Section 16 of the Act. The Act once applied will continue to apply to the establishment even if the number of employees fall less than 20 after coverage. The Employees’ Provident Fund Act is applicable to the cinema theatres employing 5 or more workers. (4) Voluntary application of Act: The following category of establishments can seek voluntary application of the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952: (i) Any establishment which is not employing 20 persons (including contract workers); and (ii) Establishments employing 20 persons but not falling in the list of notified industries/class of establishments. EXEMPTION On application of the Provident Fund Act to an establishment, the employer may seek exemption from the operation of Provident v7] Edit with WPS OfficeFund Scheme or Pension Scheme or Employees’ Deposit Linked Insurance Scheme or from all. The basic condition is that majority of employees should opt for the exemption and the benefits of the private Provident Fund/Pension Scheme should necessarily be at par or more than the Statutory Schemes. For exemption from EDLI Scheme, the insurance benefits payable to the employees should be more favourable than the Statutory Scheme. On grant of exemption, the Board of Trustees constituted by the Employer shall handle the Provident Fund matter relating to investment, maintenance of account and settlement of Provident Fund accounts etc. to the members - such establishments are known as exempted establishments. The exempted establishments should maintain their own Provident Fund recognized by Income Tax. The rate and manner of crediting interest should not be less than the one declared for the members of the unexempted establishments. It is worth mentioning here that the exemption earlier provided to charitable organizations has been withdrawn w.e.f. 01.04.2015. FEATURES OF PROVIDENT FUND Act 1. Provident Fund is a Social Security Benefit to employees. 2. It is a compulsory saving by an employee during his employment. 3. Itis meant for old age. 4. This is required to be availed on retirement/cessation from service. 5. An employee who contributes to Provident Fund is also eligible to receive a matching contribution from his employer. 6. Employees’ Provident Fund Act/Scheme, Employees’ Provident Fund is set up under the Central Act viz. Employees’ Provident Funds & Miscellaneous Provisions Act, 1952, in the year 1952. v7] Edit with WPS Office © sewned wth Xt Scanner7. It is applicable throughout the country (except Jammu & Kashmir). 8. Itis applicable to almost all establishments falling under the industries/class of establishments, wherein 20 persons are employed. 9. In the case of cinema theatres workers, it is applicable to such establishments wherein 5 persons are employed. 10. Benefits to an employee are provided through the schemes framed under the ‘Act’. 11. Provident Fund benefits are provided under the Employees’ Provident Funds Scheme, 1952. 12. Pension benefits are provided under the Employees’ Pension Scheme, 1995. 13. Insurance Benefits are provided under the Employees’ Deposit Linked Insurance Scheme, 1976. 14. A member of Employees’ Provident Fund is automatically eligible for Pension and Insurance benefits without paying any additional amount of contribution. 15. Employees’ Provident Fund Organisation(EPFO) 16. Employees’ Provident Fund Organisation is administering the above Schemes. 17. Employees’ Provident Fund Organisation is a statutory body under the Ministry of Labour, Government of India. 18. It is an all India Organisation having its offices in all State Capitals, Cities, Towns and Districts. 19. The Employees’ Provident Fund is administered by Central Board of Trustees - Employees’ Provident Fund. 20. The Central Board of Trustees, Employees’ Provident Fund consist of representatives from Employees’ Association, Employers Association and Central/State Governments. 21. Honorable Minister for Labour, Government of India is the Chairman of Central Board of Trustees, Employees’ v7] Edit with WPS Office © sewned wth Xt ScannerProvident Funds. 22. The Chief executive of the organisation is the Central Provident Fund Commissioner, New Delhi. 23. The Regional Provident Fund Commissioners are in charge of the Regional/ Sub- Regional/Sub-Accounts offices and monitor the compliance from all the establishments. 24. Regional Provident Fund Commissioners are maintaining the Provident Fund accounts and ensure collection of dues from employers and extending of various benefits to the Employees/Family members/Nominees. BENEFITS UNDER EMPLOYEES’ PROVIDENT FUNDS SCHEME, 1952. » Every employee is required to pay Contribution to the provident fund @ 12%/10% of the Basic Wages, Dearness Allowance and cash value of food concession. » The Employer will also pay an equal amount of contribution. » While contributing to Employees’ Provident Funds, the member is eligible for deductions u/s 80C of the Income Tax Act’ 1961 . » The Provident Fund accumulations of the member will earn compound interest, calculated on monthly running balances. » The members are informed of the balance of their Provident Fund accumulation every year through the Annual Statement of Accounts (Form 23). This facility is now converted to online issue of Form 23 on the employer's portal. With the advent of new regime with allotment of Universal Account Numbers to each and every employee/member of the fund, the department is in the process of sending automated v7] Edit with WPS Officemonthly balances over SMS to the registered mobile number of the members. » The Provident Fund members can avail advances / partial withdrawals for Housing, Marriage, Illness, etc., through application in Form 31 which provides details and documents to be submitted. » On retirement or on leaving service, the Provident Fund accumulations can be withdrawn in full by submitting application in Form 19. >» In case of premature death, the Provident Fund is payable to Nominee(s)/ family members by submission of Form 20 by each beneficiary. >» A member of Provident Fund also acquires membership under pension scheme. BENEFITS OF PENSION SCHEME - Pension is a boon for the working class. It is no more the prerogative of Government employees only. An Employee is eligible for Pension after a minimum of 10 years of pensionable service. The Pension is payable on attaining the age of 58 years, whether he is in service or superannuated. - Early Pension at reduced rate can be availed on leaving the employment, after attaining the age of 50 years. - Where an employee is totally disabled and leaving service on account of disablement, Disablement Pension is allowed. There is no age and service stipulation to claim the pension in such cases. v7] Edit with WPS Office © sewned wth Xt ScannerPension is based on age, wage and service of an employee at the time of his leaving service. The payment of Pension is guaranteed and assured even in cases where the employer fails to deposit the pension contributions. When a member dies as Bachelor or Spinster or where there is no spouse or children below 25 years, the Family Pension is payable to Nominee till his/her death. When there is no valid nomination, the Family Pension is payable to dependent father followed by dependent mother. However, in case of deceased parents, pension will be payable to the legal successor as identified by the claimant and seconded by the Employer through submission of Family Particulars Report. In addition to Family Pension to Widow / Widower, Children below 25 years are also eligible for Pension simultaneously. It is payable to the married daughters also, below the age of 25 years. On behalf of the minor children the pension is payable to guardian as custodian. Any child in a family with total and permanent disablement will receive Children Pension till death. The monthly pension is payable through designated Banks and Post Offices on the first day of every month through the Savings Bank account of the pensioner. The pension can be drawn anywhere in India. The employees with less than 10 years of service on the day of superannuation may avail the benefit of withdrawal from Pension Fund. Where an employee has not served for 10 years on the date of leaving service and has not attained the age of 58 years, he may obtain a Scheme Certificate so as to continue his membership during un-employment period and the same can v7] Edit with WPS Office © sewned wth Xt Scannerbe used to count the previous service as and when he joins another establishment covered under the Act. The Pension quantum is determined separately for the period of service from 1.3.1971 to 15.11.1995 as fixed amount. This is known as “Past Service” benefit. The Pension for the service rendered on or after 16.11.1995 is calculated through formula namely, Pensionable Salary x Pensionable Service 70 An employee on his superannuation is entitled for Pension (through the above formula) up to 60% of the pensionable salary. (Pensionable Salary would mean, the salary drawn by the employee for a period of 12 months prior to the date of superannuation). Benefits under Employees’ Deposit Linked Insurance Scheme, 1976 - A member of Provident Fund is also a member of Employees Deposit Linked Insurance Scheme. In case of death of an employee, while in service, insurance benefit upto Rs.6.00,000/- is payable to the Nominee / family members. - No contribution is required to be paid by the employee for the insurance benefit. The employer alone is required to pay the contribution. TRANSFER OF PROVIDENT FUND ACCOUNTS A Provident Fund member, on leaving an establishment and joining another establishment (Whether the Act is applicable or v7] Edit with WPS Officenot) can seek transfer of his Provident Fund balances to his new Provident Fund account opened in the transferee establishment. This application should be submitted through the present employer to the Regional Provident Fund Commissioner concerned for effecting the transfer. The member should also ensure that the amount transferred to his present account number is included in the Provident Fund Annual Statement of account of the year in which transfer was effected. (Refer to further discussion on Universal Account Number to understand the recent change in transfer procedures) UAN stands for Universal Account Number to be allotted by EPFO. The UAN will act as an umbrella for the multiple Member Ids allotted to an individual by different establishments. The idea is to link multiple Member Identification Numbers (Member Id) allotted to a single member under single Universal Account Number. This will help the member to view details of all the Member Identification Numbers (Member Id) linked to it. If a member is already allotted Universal Account Number (UAN) then he / she is required to provide the same on joining new establishment to enable the employer to in-turn mark the new allotted Member Identification Number (Member Id) to the already allotted Universal Identification Number (UAN). DEFAULT IN PAYMENT OF DUES BY EMPLOYER &CONSEQUENCES: » Penal Damages upto 25 % per annum and interest at the rate of 12% payable on defaulted deposits. » Attachment of Bank Accounts. » Realisation of dues from Debtors. » Attachment of movable and immovable properties. » Arrest and Detention. » Action under Section 406 / 409 of Indian Penal Code. v7] Edit with WPS Office>» Action under Section 110 Criminal Procedure Code. » Prosecution under Section 14 of the EPF & MP Act 1952. Maternity Benefit Act 1961 Maternity Benefits Act 1961, Act Under The Maternity Benefits Act,1961 The Maternity Benefit Act, aims to regulate of employment of women employees in certain establishments for certain periods before and after child birth and provides for maternity and certain other benefits. The Act extends to the whole of India and is applicable to: Every factory, mine or plantation (including those belonging to Government) and An establishment engaged in the exhibition of equestrian, acrobatic and other performances, irrespective of the number of employees, and To every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months. The State Government may extend the Act to any other establishment or class or establishments; industrial, commercial, agricultural or otherwise. However, the Act does not apply to any such factory/other establishment to which the provisions of the Employees’ State Insurance Act are applicable for the time being. But, where the factory/establishment is governed under the Employees’ State Insurance Act, and the woman employee is not qualified to claim maternity benefit under section 50 of that Act, because her wages exceed Rs. 3,000 p.m. (or the amount so specified u/s 2(9) of the ESI Act), or for any other reason, then such woman employee is entitled to claim maternity benefit under v7] Edit with WPS Office © sewned wth Xt Scannerthis Act till she becomes qualified to claim maternity benefit under the E.S.I. Act. HISTORY OF THE METERNITY ACT 1961 The ongoing trends in labour market suggest that participation of women is going to increase which require more and more woman friendly environment at the workplace taking due care of their general needs. It would be important to understand the gender dimension of the labour force, as Generation of productive and gainful employment with decent working conditions is viewed as a crucial strategy for inclusive growth. This would require a proper understanding of the nature and characteristics of the existing and emerging labour market situation in INDIA so that along with overall employment growth, issues relating to women workers are adequately addressed in all relevant policies. Within this frame work it is extremely important to understand the gender dimension of the labour force. Although Labour force participation rate of women is low but has increased during last few years. Variety of social and family related constraints compel women to confine themselves to household activities at their prime working age & early exit of women(Probably post marital age) from labour market particularly reflected in urban areas where women face inadequate social and family support system. The situation is very difficult to remedy without the continued intervention of legislative policy and measures. This has been recognized in the Constitution of India and various legislations that have been passed in India in favor of women to balance the deep inequalities that exist in our society. The focus of the present study is one such very important legislation passed for the welfare and benefit of working women in India — the Maternity Benefit Act, 1961. It is interesting to know that the first Maternity Benefits Act was v7] Edit with WPS Office © sewned wth Xt Scannerpassed in 1929 by the Bombay Government and as result of the recommendation of the Royal Commission on Labour in INDIA (1931) the Maternity Benefit Act were passed in other states like Madras (1934), Uttar Pradesh (1938), West Bengal (1939), Assam (1944). That shows the growing awareness of the administration due to the active role of the Trade union movement at that times which compelled the authorities to make some protective laws for women workers which went on improving in their substance in favour of women workers as the years passed. The present Maternity Benefit Act 1961 is made a Central Act to be applied to all states. Even then there are different rules in the states of their, own showing many disparities in the Central States Acts. An Amendment to the Maternity Benefit Act, 1961 passed in 1973, tried to remove some of the anomalies in the present Act. The Employees State Insurance Act under which women are entitled to get benefit is also in existence. A number of women workers who do not come under any of those two protective laws, miss the welfare benefit all together. The mines Maternity Act 1911 and plantation Maternity Benefit Act 1951 also extend the some protection to women workers in those industries. MATERNITY BENEFIT AND THE INDIAN CONSTITUTION These rights and privileges are: right to equality in law (Article 14 of the Constitution of India), right to social equality (Id., Article 15.), right to social equality in employment (Id., Article 16.), right to protective discriminations (Id., Article 15 (3).) ,right against exploitations of women (Id., Article 23.), right to adequate means of livelihood (Id., Article 39 (a).), right to equal pay for equal work (Id., Article 39 (d).), right that the health and strength of workers both men and women are not abused(Id., Article 39 (e).), right to just and humane conditions of work and maternity relief (Id., Article 42.), and right to improvement in employment v7] Edit with WPS Officeopportunities and conditions of the working women (Id., Article 46.). Article 42, a directive principle of State Policy, states that “The State shall make provision for securing just and humane conditions of work and for maternity relief.” Art. 21, Right to Life and Personal Liberty is not merely a right to protect one’s body but the guarantee under this provision contemplates a larger scope. Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country. Therefore, the State must guarantee to a pregnant working woman all the facilities and assistance that she requires while protecting her employment as well as her own and her child’s health. The measures and provisions which are made in the Post-Constitution Period for women workers are mostly based on these constitutional provisions. WHAT IS MATERNITY BENEFIT? Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence. Period For Which Benefit Allowed The maximum period for which any woman shall be entitled to maternity benefit shall be 12 weeks in all whether taken before or after childbirth. However she cannot take more than six weeks before her expected delivery. Prior to the amendment of 1989, a woman employee could not avail of the six weeks’ leave preceding the date of her delivery; she was entitled to only six weeks leave following the day of her v7] Edit with WPS Office © sewned wth Xt Scannerdelivery. However, by the above amendment, the position has changed. Now, in case a woman employee does not avail of six weeks’ leave preceding the date of her delivery, she can avail of that leave following her delivery, provided the total leave period, ie. preceding and following the day of her delivery does not exceed 12 weeks. Who is entitled to Maternity Benefit Every woman employee, whether employed directly or through a contractor, who has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit. The qualifying period of 80 days shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of immigration. For calculating the number of days on which a woman has actually worked during the preceding 12 months, the days on which she has been laid off or was on holidays with wages shall also be counted. There is neither a wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in. Notice for Maternity Benefit A woman employee entitled to maternity benefit may give a notice in writing (in the prescribed form) to her employer, stating as follows: That her maternity benefit may be paid to her or to her nominee (to be specified in the notice); that she will not work in any establishment during the period for which she receives maternity benefit; and that she will be absent from work from such date (to be specified by her), which shall not be earlier than 6 weeks before the date of her expected delivery. The notice may be given during the pregnancy or as soon as possible, after the delivery. v7] Edit with WPS OfficeOn receipt of the notice, the employer shall permit such woman to absent herself from work after the day of her delivery. The failure to give notice, however, does not disentitle the woman to the benefit of the Act. Restriction on Employment of Pregnant Women No employer should knowingly employ a woman during the period of 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. Besides, no woman should work in any establishment during the said period of 6 weeks.Further, the employer should not require a pregnant woman employee to do an arduous work involving long hours of standing or any work which is likely to interfere with her pregnancy or cause miscarriage or adversely affect her health, during the period of 1 month preceding the period of 6 weeks before the date of her expected delivery, and any period during the said period of 6 weeks for which she does not avail of the leave. Discharge or Dismissal to be Void When a pregnant 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 give notice of discharge or dismissal in such a day that the notice will expire during such absence or to vary to her disadvantage any of the conditions of her services. Dismissal or discharge of a pregnant woman shall not disentitle her to the maternity benefit or medical bonus allowable under the Act except if it was on some other ground. Other Benefits. LEAVE FOR MISCARRIAGE AND ILLNESS In case of miscarriage or medical termination of pregnancy, a woman shall, on production of the prescribed proof, be entitled to v7] Edit with WPS Office © sewned wth Xt Scannerleave with wages at the rate of maternity benefit, for a period of 6 weeks immediately following the day of her miscarriage or medical termination of pregnancy. LEAVE FOR TUBECTOMY OPERATION In case of tubectomy operation, a woman shall, on production of prescribed proof, be entitled to leave with wages at the rate of maternity benefit for a period of (2)two weeks immediately following the day of operation. LEAVE FOR ILLNESS Leave for a maximum period of one month with wages at the rate of maternity benefit are allowable in case of illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy or tubectomy operation. MEDICAL BONUS Every woman entitled to maternity benefit shall also be allowed a medical bonus of Rs. 250, if no pre-natal confinement and post- natal care is provided for by the employer free of charge. Duties of Employers Important obligations of employers under the Act are: To pay maternity benefit and/or medical bonus and allow maternity leave and nursing breaks to the woman employees, in accordance with the provisions of the Act.Not to engage pregnant women in contravention of section 4 and not to dismiss or discharge a pregnant woman employee during the period of maternity leave. Right of Employees Important rights of an employee are: v7] Edit with WPS Office © sewned wth Xt ScannerTo make a complaint to the Inspector and claim the amount of maternity benefit improperly with held by the employer.To appeal against an order of the employer depriving her of the maternity benefit or medical bonus or dismissing or discharging her from service, to the competent authority, within 60 days of the service of such order. Penalties For Contravention of Act by Employer For failure to pay maternity benefit as as provided for under the Act, the penalty is imprisonment upto one year and fine upto Rs. 5000. The minimum being 3 months and Rs. 2000 respectively. For dismissal or discharge of a woman as provided for under the Act, the penalty is imprisonment up to one year and fine up to Rs. 5000. The minimum being 3 months and Rs.2000 respectively. Disentitle the woman to the benefit of the Act. THE MATERNITY BENEFIT ACT, 1961 The Act was passed with a view to reduce disparities under the existing Maternity Benefit Acts and to bring uniformity with regard to rates, qualifying conditions and duration of maternity benefits. The Act repealed the Mines Maternity Benefit Act, 1941, the Bombay Maternity Benefit Act, 1929, the provisions of maternity protection under the Plantations Labour Act, 1951 and all other provincial enactments covering the same field. However, the Act does not apply to factory or establishment to which the provision of Employee's State Insurance Act 1948 applies, except as otherwise provided in Sections 5A and 5B of the Act. OBJECT AND SCOPE The Act seeks to regulate the employment of women in certain establishments for certain periods before and after childbirth and v7] Edit with WPS Officeto provide maternity benefit and certain other benefits to women workers. The Act extends to the whole of India. It applies, in the first instance: to every establishment being a factory, a mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; to every shop or establishment within the meaning of any law for the time being in force in relation to shop and establishments in a state, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. The State Government is empowered to extend all or any of the provisions of the Act to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise with the approval of the Central Government by giving not less than two month’s notice of its intention of so doing. the Act excludes the applicability of the provisions of the Act to any factory or other establishment to which the provisions of the Employee's State Insurance Act, 1948 applies except as otherwise provided in Sections 5A and 5B of the Act. The Act has been amended from time to time. The Amendment of 1972 provides that in the event of the application of the Employee's State Insurance Act, 1948 to any factory or establishment, maternity benefit under the Maternity Benefit Act would continue to be available to women workers, until they become qualified to claim similar benefit under Employee's State Insurance Act. v7] Edit with WPS Office © sewned wth Xt ScannerAgain, in 1973 the Act was amended so as to bring within its ambit establishments in the circus industry. A 1976 amendment further extends the scope of the Act to the women employed in factories or establishments covered by the ESI Act, 1948 and in receipt of wages exceeding entitlement specified in that Act. The Act was again amended in1988 to incorporate the recommendations of a working group of Economic Administration Reforms Commission. The Act was extended to shops or establishments employing 10 or more persons. KEY ASPECTS OF MATERNITY BENEFIT ACT,1961 The rate of maternity benefits was enhanced and some other changes were introduced. The Amendment of 1995 further expanded the coverage of the Act and recognized the medical termination of pregnancy and provided incentives for family planning. Maternity Benefit (Amendment) Act, 1995 provides that there shall be a six weeks leave with wages in case of medical termination of pregnancy, two weeks leave with wages to women employees who undergo tubectomy operation and one month leave with wages in cases of illness arising out these two. By an amendment in 2008 the existing ceiling of maternity benefit was increased from Rs. 250 to Rs. 1000. The Central Government is empowered to increase the medical bonus from time to time subject to a maximum of Rs. 20, 000/-. SALIENT FEATURES OF THE ACT ACCORDING TO SECTION 4 OF THIS ACT, No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, or miscarriage, nor shall any woman work during v7] Edit with WPS Officethis period. Besides, no pregnant woman shall, on a request made by her in this behalf, be required by her employer to do any work of arduous nature, or that 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, during the one month immediately preceding the six weeks before the date of her expected delivery. Every woman shall be entitled to, and her employer shall be liable for, the payment of Maternity benefits 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, says the provision under Section 5. However no woman shall be entitled to these benefits unless she has actually worked in an establishment of the employer from whom she claims them, for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery. The maximum period for which any woman shall be entitled to Maternity benefits shall be 84 days. In case a woman dies during this period, then the Maternity benefit shall be payable only for the days up to, and including, the day of her death. Similarly, if a woman dies during her delivery, or during the period of Implementation of Maternity Benefit Act of six weeks immediately following the date of delivery, leaving behind in either case the child, the employer shall be liable for the Maternity benefits for the entire period of six weeks immediately following the day of her delivery. v7] Edit with WPS Office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. In the event of a women’s death, the employer shall pay such benefits or amount to the person nominated by the deceased in the notice given under Section 6 and if no notice has been given, then to her legal representatives. Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after delivery. The provision under Section 6(5) says that the amount of maternally benefits for a period preceding the date of her expected delivery shall be paid in advance by the employer. Miscarriage has also been given same importance. Section 9 provides that in case of miscarriage, a woman shall be entitled to leave with wages at the rate of maternally benefit for a period of six weeks immediately following the day of her miscarriage. Besides a woman suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall be entitled to an additional leave with wages at the rate of Maternity benefit for a maximum period of one month under Section 10, (Gupta and Gupta 2008). Regarding nursing breaks Section 11 provides for two additional breaks of the prescribed duration for nursing the child until the child attains the age of 15 months. Moreover, deduction of wages in certain cases has been made unlawful. A woman cannot be discharged or dismissed by the employer when she absents herself from work in accordance with the provisions of this Act. Salient features of the Maternity Benefit (Amendment) Act, v7] Edit with WPS Office © sewned wth Xt Scanner2017 Salient features of the Maternity Benefit (Amendment) Act, 2017 The Act extends to whole of India to all mines, plantations, shops, establishments and factories either in organized or unorganized sector in which 10 or more persons are or were employed on any day of the preceding twelve months. Any women who has worked in the establishment for more than 80 days is entitled to the maternity benefit. Who can avail Duration of maternity leave Maternity benefit prior to expected delivery Maternity benefit for a woman having two or more children Maternity benefit to adopting mother and commissioning mother Right to Payment of maternity benefit Provision for Créche facility Option to Work from Home Informing women employees of the right to maternity leave Penalty for Contravention of the Act by employer Note 1. - All women who are employed in any capacity directly or through any agency i.e. either on contractual or as consultant 2. - Every woman will be entitled to maternity benefit of 26 weeks. 3. This maternity benefit should not be availed before 8 weeks from the date of expected delivery 4. lf a woman has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before 6 weeks from the date of the expected delivery. 5. A woman who legally adopts a child below the age of three months or a commissioning mother (the woman who has donated her egg to another woman ) shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother. 6. 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 that is to say, the period immediately proceeding the day of her delivery, the actual day of her delivery and any period immediately following that day. v7] Edit with WPS Office © sewned wth Xt Scanner7. Every establishment with 50 or more employees to provide créche facilities within a prescribed distance. The woman will be allowed four visits to the créche in a day. This will include the interval of rest allowed to her. 8. An employer may permit a woman to work from home. This would apply if the nature of work assigned to the woman permits her to work from home. This option can be availed of, after the period of maternity leave, for a duration that is mutually decided by the employer and the woman. 9. Every establishment t should intimate a woman at the time of her appointment of the maternity benefits available to her. Such communication must be in writing and electronically. 10. - If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work or her pregnancy, shall be punishable with imprisonment which is not less than 3 months but which may extent to one year and with a fine of no less than Rs. 2000/- which may exceed to Rs. 6000/- .Women in instance like these may make a complaint to the Inspector as prescribed in the Act. ELIGIBILITY FOR CLAIM. Eligibility An insured women shall be qualified to claim maternity benefit for a confinement occurring or expected to occur in a benefit period, if the contributions in respect of her were payable for not less than half the number of corresponding contribution period. The insured woman becomes eligible for the benefit after being certified to be eligible for such payment by the medical officer to whom she has been allotted or by an insurance medical officer attached to a dispensary, hospital, clinic or other institution to which the insured women is or was allotted if in the opinion of such insurance medical officer the condition of the women so justifies. Any other evidence in lieu of a certificate of pregnancy, expected confinement or confinement from an v7] Edit with WPS Office © sewned wth Xt Scannerinsurance medical officer may be accepted by the corporation, if in its opinion, the circumstances of any particular case so justify. DURATION OF QUANTAM OF BENEFIT . The Duration and Quantum of Benefit The duration of maternity benefit available to an insured woman in case of confinement is 12 weeks of which not more than 6 shall precede the expected date of confinement. In case of miscarriage, insured women are entitled to maternity benefit for a period of 6 weeks only provided she gives a notice and submits a certificate of miscarriage from the concerned medical officer. For illness arising out of pregnancy, delivery, pre-mature birth of a child or miscarriage she is, on production of a certificate from the prescribed medical officer in the prescribed form, entitled to maternity benefit for an additional period of one month. The rate of maternity benefit is equal to twice the standard benefit rate corresponding to the average daily wages in respect of insured woman during the corresponding contribution period. The maternity benefit is paid subject to the condition that the insured woman does not work for remuneration on the days in respect of which the benefit is paid. In the event of the death of an insured woman, the maternity benefit is payable to her nominee or legal representative for the whole period if the child survives, and if child also dies until the death of the child. An insured woman shall not be entitled to receive for the same period (a) both sickness benefit and maternity benefit or (b) both maternity and disablement benefit for temporary disablement. Where a woman worker is entitled to more than one of the benefits she shall have to choose between the two. Food corporation of India Workers union vs. Shri G.R. Majhi and Ors., MANu/DE/9806/2006 The maternity leave and other maternity benefits are available to all employees of the v7] Edit with WPS Office © sewned wth Xt Scannerestablishment in terms of the provisions of the Maternity Benefit Act 1961. The certified standing orders do not over rule the provisions of the Maternity Benefit Act 1961. The certified standing orders are in respect of leave other than maternity leave since maternity leave is covered by Maternity Benefit Act 1961. k chandrika vs Indian Red cross Society 131(2006) DLT 585 Services of the petitioner were terminated while she was on maternity leave. There was no evidence to show that the petitioner had received the communication. The Industrial adjudicator concluded that the workman had no intention of joining duty with the management and the relief of reinstatement and consequential benefits was denied to her. The court held that the petitioner's services were terminated illegally and unjustifiably. The court ordered that the Petitioner be reinstated in service with continuity of service for the purposes of computation of service benefits. Back wages at the rate equivalent to 50 per cent of the basic pay was also granted. In normal circumstances, full wages would have been granted as back pay but as the organization was not for profit, this would have been onerous — Writ petition allowed. Vandana kandari vs. university of Delhi 170 (2010) DLT 755 The court held that any Act on the part of any university or college which deprives or detains in any semester any female student, merely on the ground that she was unable to attend classes, being in the advanced stage of pregnancy, or due to the delivery of the child, is an act which completely negates not only the conscience of the Constitution but also women’s rights and the concept of gender equality. Withholding relaxation to these students is equivalent to making motherhood a crime. v7] Edit with WPS Office © sewned wth Xt ScannerPROHIBITION OF EMPLOYMENT OF WOMEN Section 4 absolutely prohibits any women from working in an establishment during the six weeks after her delivery or miscarriage. Employers are forbidden to knowingly employ women during this period and employed women are required to take paid six-weeks leave. Pregnant women have the further option of taking paid leave of absence up to six weeks before their expected date of delivery under Section 6(2). All working women are thus eligible for a total of 12 weeks of paid maternity leave, 6 weeks before and 6 weeks after delivery. A woman worker is entitled to maternity protection, as per the mandate of the Act she must receive at least 12 weeks of leave with pay. Sec 4. Employment of, or work by, women prohibited during certain period. - (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 of 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 6. v7] Edit with WPS OfficeSec 5, Right to payment of maternity benefit. -- (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 6. Notice of claim for maternity benefit and payment thereof. ~ (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. S. 3. (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 v7] Edit with WPS Office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. 7. Payment or maternity benefit in case of death of a woman. - 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. Sec 8. Payment of medical bonus. - Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge. Sec 9, Leave for miscarriage. — 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. Sec 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or miscarriage. -- 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. v7] Edit with WPS Office © sewned wth Xt ScannerSec 11. Nursing breaks. -- 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 12. Dismissal during absence or pregnancy. - (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). 13. No deduction of wages in certain cases. -- 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 v7] Edit with WPS Office © sewned wth Xt Scannersubsection (3) of section 4 : or (b) breaks for nursing the child allowed to her under the provisions of section 11. Sec 14. Appointment of Inspectors. - 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. 15. Powers and duties of Inspectors. - 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 i: 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 form them under this Act; and (d) take copies of any registers and records or notices or any portions thereof. Sec 16. Inspectors to be public servants. - 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 (45 of 1860). Sec 17. Power of Inspector to direct payments to be made. -- (1) Any woman claiming that maternity benefit or any other amount v7] Edit with WPS Office © sewned wth Xt Scanner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 thirty 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 arrear of lane revenue. Sec 18. Forfeiture of maternity benefit. - lf 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. Sec 19. Abstracts of Act and rules thereunder to be exhibited. - An abstract of the provisions of this Act and the rules made thereunder in the language or languages of the locality shall be exhibited | a conspicuous place by the employer in every part of the establishment in which women are employed. Sec 20. Registers, etc. - Every employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed. Sec 21. Penalty for contravention of Act by employers. - If any employer contravenes the provisions of this Act or the rules made thereunder he shall be punishable with imprisonment which may v7] Edit with WPS Officeextend to three months, or with fine which may extend to five hundred rupees, or with both; and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall in addition recover such maternity benefit or amount as if it were a fine, and pay the same to the person entitled thereto. Sec 22. Penalty for obstructing Inspector. - Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector, shall be punishable with imprisonment which ma extend to three months, or with fine which may extend to five hundred rupees or with both. Sec 23. Cognizance of offences. -- (1) 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. (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence. Sec 24 No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made thereunder. Sec 25. Power of Central Government to give directions. - The Central Government may v7] Edit with WPS Office © sewned wth Xt Scannergive such directions as it may deem necessary to a State Government regarding the carrying into execution the provisions of this Act and the State Government shall comply with such directions. Sec 26. Power to exempt establishments. -- If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefit which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt subject to such conditions and restrictions, if any, as may be specified in the notifications, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made there under. 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: 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. (2) 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. Sec 28. Power to make rules. -- (1) The appropriate Government may, subject to the condition of previous publication and by v7] Edit with WPS Office © sewned wth Xt Scannernotification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for — (a) the preparation and maintenance of registers, records and muster rolls; (b) the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act; (c) 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; (d) the form of notices under section 6: (e) the nature of proof required under the provisions of this Act; (f) the duration of nursing breaks referred to in section 11; (g) acts which may constitute gross misconduct for purposes of section 12; (h) 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; (i) 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; (j) 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; (k) any other matter which is to be, or may be, prescribed. (3) 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; v7] Edit with WPS Officeso, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. MEDICAL BONUS Section 8 provides that every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of Rs.3500, (with effect from 19.12.2011) if no pre-natal confinement and post-natal care is provided for by the employer free of charge In above Table (5.12) research conducted revealed a dismal less than 7% of women entitled to this benefit actually receiving it. Moreover, even in this very low figure it remains ambiguous as to whether this payment is being borne by the employer, as required by the Act, or whether it is being adjusted in some form of insurance wherein the employee too has contributed. NURSING BREAK Under Section 11 of Maternity Benefit Act 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. v7] Edit with WPS Office © sewned wth Xt Scanner