Raj Kumar Makkad
(Adv P & H High Court Chandigarh)
07 May 2011
MATERNITY BENEFIT ACT, 1961
(No. 53 of 1961)1
[12th. December, 1961]
An Act to regulate the employment of women in certain establishment for certain
period before and after child-birth and to provide for maternity benefit and certain
other benefits.
Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows: -
1. Short title, extend and commencement. -- (1) This Act may be called the Maternity
Benefit Act, 1961.
(2) It extends to the whole of India 2[* * *]
(3) It shall come into force on such date as may be notified in this behalf in the Official
Gazette, --
3[(a) in relation to mines and to any other establishment wherein persons are employed
for the exhibition of equestrian, acrobatic and other performances, by the Central
Government, and]
(b) in relation to other establishments in s State, by the State Government.
NOTES. – This Act came into force in relation to mines in the territories to which it
extends on the 1st. November 1963 – Vide S.O. No. 2920, dated 5th. October, 1963,
published in the Gazette of India, Part II, Sec. 3 (ii), dated 12th. October, 1963. This Act
came into force in the whole of Uttar Pradesh with effect from 22nd. February 1974, vide
notification No. 512 (V)-2/36-5-13 (V) 72, dated 22nd. February 1974.
2. Application of Act. -- (1) It applies in the first instance, to every establishment being a
factory, mine or plantation 4[including any such establishment belonging to Government
and to every establishment wherein persons are employed for the exhibition of
equestrian, acrobatic and other performances]:
Provided that the State Government may, with the approval of the Central Government,
after giving not less than two months’ notice of its intention of so doing, by notification
1 Received the assent of the President on the 12th. December, 1961 and published in the Gazette of India,
Extraordinary, dated 13th. December 1961. For Statement of Objects and Reasons see Gazette of India,
Extraordinary, Part II, dated 6th. December 1960.
2 Words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, Sec. 2 and Sch.
3 Subs. by Act 52 of 1973, Sec. 2, w.e.f. 1-3-1975 – Vide notification No. S.O. 113A (E), dated 27-2-1975.
4 Subs. by Aci 52 of 1973, S.3.
In the official on In the official Gazette, declare that all or any of the provisions of this
Act shall apply also to any other establishment or class of establishments, industrial,
commercial, agricultural or otherwise.
(2) 5[Save as otherwise provided in 6[sections 5A and 5B] nothing contained in this Act]
shall apply to any factory or other establishment to which the provisions of the
Employees’ State Insurance Act, 1948 (84 of 1948), apply for the time being.
3. Definitions. -- In this Act, unless the context otherwise requires, --
(a) “appropriate Government” means in relation to an establishment being a mine 7[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;
[8(e) “establishment” means –
(i) a factory;
(ii) a mine;
(iii) a plantation;
(iv) an establishment wherein persons are employed for the exhibition of
equestrian, acrobatics and other performances; or
5 Subs. by Aci 21 of 1972, S.2.
6 Subs. by Act 53 of 1976, sec. 2, for “section 5A”. Act 53 of 1976 came into force w.e.f. 1-5-1976 – Vide
notification No. S.O. 337 (E), dated 30-4-1976.
7 Added by Act 52 of 1973, S. 4.
8 Subs. by Act 52 of 1973, S. 4.
(v) an establishment to which the provisions of this Act have been declared under
sub-section (4) of section 2 to be applicable;]
(f) “factory” means a factory as defined in clause (m) of section 2 of the Factories
Act, 1948 (63 of 1948);
(g) “Inspector” means an Inspector appointed under section 14;
(h) “maternity benefit” means the payment refereed to in sub-section (1) of section 5;
(i) “mine” means a mine as defined in clause (j) of section 2 of the Mines Act, 1952
(35 of 1952)
(j) “miscarriage” means expulsion of the contents of a pregnant uterus at ay period
prior to or during the twenty-sixth week of pregnancy but does not include any
miscarriage the causing of which ins punishable under the Indian Penal Code (45
of 1860);
(k) “plantation” means a plantation as defined in clause (f) of section 2 of the
Plantations Labour Act, 1951 (69 of 1951);
(l) “prescribed” means prescribed by rules made under this Act;
(m) “State Government” in relation to a Union territory, means the Administrator
thereof;
(n) “wages” means all remuneration paid or payable in cash to a woman, if the terms
of the contract of employment, express or implied, were fulfilled and includes –
(1) such cash allowances (including dearness allowance and house rent
allowance) as a woman is for the time being entitled to;
(2) incentive bonus; and
(3) the money value of the concessional supply of foodgrains and other
articles,
but does not include –
(i) any bonus other than incentive bonus;
(ii) overtime earnings and any deduction or payment made on account of
fines;
(iii) any contribution paid or payable by the employer to any pension fund
or provident fund or for the benefit of the woman under any law for
the time being in force; and
(iv) any gratuity payable on the termination of service;
(o) “woman” means a woman employed, whether directly or through any agency, for
wages in any establishment.
NOTES. – Sec 3 (f). – A factory does not include a mine subject to the operation of
the Mines Act, 152, or a railway running-shed.
Sec. 3 (j) – The definition of miscarriage is similar to the definition as given in Sec. 2
(14-B) of the Employees’ State Insurance Act, 1948.
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.
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.
Explanation. – For the purpose of this sub-section, the average daily wage means the
average of the woman’s wages payable to her for the days on which she has worked
during the period of three calendar months immediately preceding the date from which
she absents herself on account of maternity, or one rupee a day, whichever is higher.
(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.
Explanation: - For the purpose of calculating under this sub-section the days on
which a woman has actually worked in the establishment, the days for which she has
been laid-off during the period of twelve months immediately preceding the date of her
expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall
be twelve weeks, that is to say, six weeks up to and including the day of her delivery and
six weeks immediately following that day:
Provided that where a woman dies during this period, the maternity benefit shall
be payable only for the days up to and including the day of her death:
Provided further that where a woman, having been delivered of a child dies during
her delivery or during the period of six weeks immediately following the date of her
delivery, leaving behind in either case the child, the employer shall be liable for the
maternity benefit for the entire period of six weeks immediately following the day of her
delivery but if the child also dies during the said period, then for the days up to and
including the day of the death of the child.
NOTES. – The term “week” means a cycle of seven days including Sundays;
B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12.
9[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 (34 of 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.]
10[5-B. Payment of maternity benefit in certain cases. -- Every woman –
(a) who is employed in a factory or other establishment to which the provisions of
the Employees’ State Insurance Act, 1948 (34 of 1948), 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].
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.
9 Ins. By Act 21 of 1972, S. 3.
10 Ins. By Act 53 of 1976, 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 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.
NOTES. – See also Sec. 50 of the Employees’ State Insurance Act, 1948, for
conditions under which a woman becomes qualified to claim maternity benefit under this Act.
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.
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.
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.
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.
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.
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 subsection
(3) of section 4 : or
(b) breaks for nursing the child allowed to her under the provisions of section 11.
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 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
form them under this Act; and
(d) take copies of any registers and records or notices or any portions thereof.
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).
17. Power of Inspector to direct payments to be made. -- (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 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.
18. 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, he shall forfeit her claim to the maternity
benefit for such period.
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 I a conspicuous place by the employer in every part of the
establishment in which women are employed.
20. Registers, etc. – Every employer shall prepare and maintain such registers, records
and muster-rolls and in such manner as may be prescribed.
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 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.
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.
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.
NOTES. – Sections 21 to 23 deal with penalties under the Act and procedure to try offences committed
under this Act.
24. Protection of action taken in good faith. -- 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.
25. Power of Central Government to give directions. -- The Central Government may
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.
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 thereunder.
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.
28. Power to make rules. -- (1) The appropriate Government may, subject to the
condition of previous publication and by notification in the Official Gazette, make rules
for carrying out the purposes of this Act.
(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; so, however, that any such modification or annulment shall be without prejudice to
the validity of anything previously done under that rule.
29. Amendment of Act 69 of 1951. -- In section 32 of Plantation Labour Act, 1951, --
(a) in sub-section (1), the letter and brackets “(a)” before the words “in the case of
sickness,” the word “and” after the words “sickness allowance”, and clause (b)
shall be omitted.
(b) In sub-section (2), the words “or maternity” shall be omitted.
30. Repeal. -- On the application of this Act. –
(i) to mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and Maternity Benefit
Act, 1929 (Bom. Act VII of 1929), as in force in that territory, shall stand repealed.
11 Subs. by Act 52 of 1973, S. 5.
