SUBMISSION OF ASSIGNMENT OF ‘LABOUR LAWS-II’ (10th SEMESTER) IN

PLACE OF 'GENERAL CLASS TEST ' (GCT) of EVEN Semester of Session 2020-21

Submitted to. Submitted by

Prof. Mohd Wajid khan Shabir

Assistant prof. BA,LLB(10th sem)

Glocal university. Reg.no. GU16R0026

Question No. 1- State with leading cases the provisions of the Maternity Benefit Act, 1961
regarding ‘Right to payment of maternity benefit and forfeiture of maternity benefit. What
are the latest amendments in the Maternity Benefit Act, 1961?

Answer. Every woman has a right to live with dignity and avail certain benefits for the complete
and healthy maintenance of herself and her child even when she is not working. With the
advent and progress in the present era there has been a robust growth in the number of
working women employees in the organization and hence resorting to maternity leave and
various other benefits is on the go. The key arrangement includes: Every woman shall be
entitled to, and her employer shall be liable for making timely payment of maternity benefit
which is payable for the period of her actual absence at the rate of the average daily wage so
determined. There is need to enforce maternity benefits so that a woman is to be able to
provide a quality living for her child without having to worry about whether she will lose her job
and her source of income.

Who is entitled to Maternity Benefit?

Every woman employee who may be employed directly or through any contractor and who has
worked in an establishment for a period of at least 80 days during the 12 months immediately
preceding the date of her expected delivery shall be entitled to for the same.

Who is entitled to Maternity Benefit?

Every woman employee who may be employed directly or through any contractor and who has
worked in an establishment for a period of at least 80 days during the 12 months immediately
preceding the date of her expected delivery shall be entitled to for the same.

Right to payment of maternity benefits

Every woman has the right to payment of maternity benefits. Therefore they shall have the
entitlement to, and her employer shall be liable for, the payment of maternity benefit. For the
period of her actual absence, at the rate, of the average daily wage. The period immediately
precedes the day of her delivery, the actual day of her delivery and also any period immediately
following that day.

During the period of three calendar months, for the days on which she has worked. The average
of the woman’s wages payable to her means the average daily wage. With the minimum rate of
wage fixed or revised under the Minimum Wages Act, 1948. Immediately preceding the date
from which she absents herself on account of maternity.

A woman shall have the entitlement to maternity benefit. Only if she has been working in an
establishment of the employer. Therefore, immediately preceding the date of her expected
delivery. From whom she claims maternity benefit, for a period of not less than eighty days in
the twelve months.

Twelve weeks of which not more than six weeks shall precede the date of her expected delivery
shall be the maximum period for which any woman to have the entitlement to maternity
benefit. Also, if a woman dies during this period, then the maternity benefit shall be payable
only for the days up to and this also involves the day of her death.

Forfeiture of maternity benefit

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, she
shall forfeit her claim to the maternity benefit for such period.

Indian constitution and maternity benefit act

The rights for the upliftment of women are embedded under various Articles of the
Constitution such as,

Article 14- Right to social equality for all genders

Article 15- Right to social equality in terms of employment

Article 15(3)- Empowers the State to make special provisions for women in order to promote
and preserve the strength and vigor of the race.

Article 16- Equal opportunities for all citizens in matters relating to employment or
appointment of any office under the State.

Article 42- Right to just and humane conditions of work and maternity relief

Article 46- Right to improvement in employment opportunities and conditions of working

women
Article 21- Right to Life and Personal Liberty in the context of providing a pregnant woman all
the required facilities along with protection of her employment Therefore, constitutional
privileges go a long way in the enforcement of an Act.

Case laws

Municipal Corporation of Delhi v. Female Workers 1 In this case female workers who were
treated as temporary employees and employed on muster roll claimed that they should also be
entitled to maternity benefit. The court held that as per Articles 39 and 42 of the Directive
Principles of the State Policy a woman 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
fates. 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.

Shah v. Presiding Officer, Labour Court, Coimbatore and Ors 2 In this case, the question was
whether in calculation of the maternity benefit for a period covered by Section 5 Sundays being
wage-less holiday should be excluded? The Apex Court ruled that Sunday must also be included
and read in light of Article 42 stating that the Constitution was intended to 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 and output.

Chandrika v. Indian Red Cross Society3 Here, the Petitioner was terminated while she was on
maternity leave. The relief of reinstatement and consequential benefits were denied to her.
Also, there was no evidence to show that the Petitioner had received the communication. The
Court held that the Petitioner’s services had been terminated illegally and she should be
reinstated with the service and avail the necessary benefits.

Air India v. Nergesh Meerza4 In this case, Air India Corporation (AIC) Act and Indian Airlines
Corporation (IAC) Act formulated certain regulations between the conditions of retirement and
termination of service pertaining to air hostesses (AH) and those of male pursers (MP) forming
part of the same cabin crew and performing similar duties. These conditions were that an AH
under AIC retired from service in case of ‘first pregnancy’. The Court held it to be “grossly
unethical” and as smacking of “deep rooted sense of utter selfishness at the cost of all human
values” as compelling to terminate services if a woman becomes pregnant would amount to
1
AIR 2000 SCC 224.

2
(1977) 4 SCC 384.

3
131 (2006) DLT 585.

4
(1981) 4 SCC 335.
forbidding her not to have any children. It has been stated that mere pregnancy should not be
considered to be a disability but a natural outcome of marriage and any distinction made on the
ground of pregnancy is extremely unreasonable and manifestly arbitrary.

Indian Maternity Benefit (Amendment) Act, 2017

Under a newly amended law, many employers in India are required to increase paid maternity
leave and offer on-site day care services; some of the new standards await clarification.

The MB Amendment Act regulates paid maternity leave entitlement and other related benefits
for women employed in factories, mines and shops or commercial establishments employing 10
or more employees.For ready reference, we have summarised below key amendments
introduced in the MB Amendment Act:

Increased Paid Maternity Leave: The MB Amendment Act has increased the duration of paid
maternity leave available for women employees from the existing 12 weeks to 26 weeks.
Under the MB Amendment Act, this benefit could be availed by women for a period extending
up to 8 weeks before the expected delivery date and remaining 18 weeks can be availed post
childbirth. For women who are expecting after having 2 children, the duration of paid maternity
leave shall be 12 weeks (i.e., 6 weeks pre and 6 weeks post expected date of delivery).

Maternity leave for adoptive and commissioning mothers: The MB Amendment Act extends
certain benefits to adoptive mothers as well and provides that every woman who adopts a child
shall be entitled to 12 weeks of maternity leave, from the date of adoption.

Work from Home option: The MB Amendment Act has also introduced an enabling provision
relating to "work from home" for women, which may be exercised after the expiry of the 26
weeks' leave period. Depending upon the nature of work, women employees may be able to
avail this benefit on terms that are mutually agreed with the employer.

Crèche facility: The MB Amendment Act makes crèche facility mandatory for every
establishment employing 50 or more employees. Women employees would be permitted to
visit the crèche 4 times during the day.

Employee awareness: The MB Amendment Act makes it mandatory for employers to educate
women about the maternity benefits available to them at the time of their appointment.

Thus 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.

Question No. 2- Define the term ‘Scheduled employment’ and examine the provisions relating
to fixing and revising the minimum rates of wages in respect of any scheduled employment
under the Minimum Wages Act, 1948. Refer judicial pronouncements.

Answer Definition of schedule employment

Section 2(g) of minimum wages act 1948 define the term schedule employment as under.

“Scheduled employment” means an employment specified in the Schedule or any process or

branch of work forming part of such employment.
Note: The schedule is divided into two parts namely, Part I and Part II. When originally enacted
Part I of Schedule had 12 entries. Part II relates to employment in agriculture. It was realised
that it would be necessary to fix minimum wages in many more employments to be identified in
course of time. Accordingly, powers were given to appropriate Government to add
employments to the Schedule by following the procedure laid down in Section 21 of the Act. As
a result, the State Government and Central Government have made several additions to the
Schedule and it differs from State to State.

Criteria for notification of scheduled emolovment

Under the provisions of the Minimum Wages Act, 1948, both Central and State Governments
are appropriate Governments to fix, review and revise the minimum wages of the workers
employed in the scheduled employments under their respective jurisdictions. The appropriate
Governments have also been empowered to notify any employment in the schedule where the
number of employees is 1000 or more and fix the rates of minimum wages in respect of the
employees employed therein.There are 45 scheduled employments in the Central Sphere while
in the State Sphere the number of such employments is as many as 1679' The Minimum Wages
Act does not provide for any discrimination between male and female workers or different
minimum wages for them. All the provisions of the Act equally apply to both male and female
workers.

Schedule of Employments Covered under Minimum Wages Act, 1948

1 All Shops and other Establishments

2 Agriculture.

3 Automobile Engineering.

4 Brick Kiln Industry.

5 Cement working Establishments.

6 Chemicals.

7 Clubs.

8 Confectionery and Daily products, Food Preservation etc.

9 Construction of maintenance of Roads or in Building Operation.

10 Dal and Flour Mills.

11 Delhi Transport Corporation.

12 Foundries.

13 Ice Factories and Cold Storage.

14 Laundry, Laundry Services and Cleaning and Dyeing Plants i.e. Factories/Shops.

15 Local Authorities.

16 Metal Working Establishments.

17 Oil Mills.

18 Plastic, rubber, PVC including Cable Industries.

19 Pottery Industries.

20 Printing Press.

21 Public Motor Transport.

22 Radio including assembling of Radio parts.

23 Readymade Garments.

24 Stone breaking/Stone Crushing.

25 Textile including Hosiery, Niwar, Handloom, Lace, Thread-balls, Name Label, Dyeing and
Printing of Textiles.

26 Wood working establishment including saw mills.

27 Employment in all Registered factories not covered by the employment at item No.1 to
26.

28 Private-unrecognised teaching institutions.

29 Hospitals & nursing home not carried on by Government or local authorities.

Case laws regarding the definitions

In the case Linge Gowda Detective and Security Chamber (P) Ltd. v. Authority under Minimum
Wages Act The Karnataka High Court states that the detective agency will not cover under the
act, the employers are liable to pay minimum wages but the same employees who are engaged
by the detective agency are on private duty and are not entitled to get minimum wages under
the act. Therefore, no release can be sought against the contractor or manager.

In the case, Bandhua Mukti Morcha v. Union of India 5 The Supreme Court held that the piece
rated worker is also entitled to receive the minimum wages under the act irrespective of his
outcome.

In the case, Madhya Pradesh Bidi Udyog Sangh, Sagar v. State of Madhya Pradesh 6 The court
stated that any payment which takes part like lay off compensation cannot fall within the
definition of wages under Section 2(h) of the Minimum Wages Act, 1948.

So as per the above discussion it is clear that The Minimum wages Act, 1948 brought about a
revolution in the employees’ wage systems because the relief provided in this Act provides for
complete protection from exploitation of manual labour at the workplace.

5
(1984) SCC (L&S) 389

6
1981 Lab 1C 363: 1981 Lab LN 434: (1981) LLJ 756