Maternity Benefits [Thread 353391]

Hi.
I'd like to know if the Maternity Benefits Act applies to unregistered partnerships in India. I have been working in an unregistered partnership for a year now. I would like to know if my employer is liable to give me the due maternity benefits, as per the MB Act, 1961.
Would really appreciate help here.
Thanks!

Dear Shivi
Yes, your employer is liable to give the due maternity benefits, as per the provisions of Maternity Benefit Act, 1961, but to avail the same you have to served the company for minimum period of 70 days in a year.

The forfeiture/withholding of gratuity is permissible only when service of an employee are terminated due to moral turpitude, riotous and disorderly behavior, theft, misappropriation to the extent of money misappropriation and not otherwise. Under the payment of Gratuity Act, gratuity is payable at a time when the employment of an individual comes to an end, thought retirement, death or removal. Before such as event takes place, no employee can claim the said amount. Equally same, an employee cannot have a right either to pledge or to permit adjustment of such amount before it had accrued to him. It is for this reason, that the Act as well as section 60, C.P.C. were amended suitably, as to keep the entire amount of gratuity, out of the purview of attachment or other adjustments. When the law has prohibited the attachment or other kinds of adjustments of gratuity, it is not at all open to the management to adjust the same towards the repayment of loan. It may not be so, with regard to other amounts. Gratuity, as payable by an employer to an employee or his legal heir, cannot be adjusted against the loan.

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N.Venkatesan
09652773137

Dear Shivi,

As per the section 2 of the Act the applicability is given below:

2. Application of Act.—1[(1) It applies, in the first instance,—

(a) to every establishment being a factory, 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;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]

Provided that the State Government may, with the approval of the Central Government, after giving not less than two month’s notice of its intention of so doing, by notification 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) 2[Save as otherwise provided in 3[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 (34 of 1948), apply for the time being.

COMMENTS

(i) The word establishment has a wide meaning and it generally denotes a shop, a commercial organisation or a public institution, provided that they are not specifically exempted by the appropriate government from the applicability of the Act; Thomas Eapen v. Assistant Labour Officer, 1993 LLR 800 (Ker).

(ii) Corporation which had employed more than a thousand women employees, it should have been brought within the purview of the Act so that the maternity benefits contemplated by the Act could be extended to the women employees of the Corporation; Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

So we have to see if your employer has employed 10 or more people in preceding 12 months on any given day or not at first instance. And secondly if not the other factor would be to see if government has issued any notification to cover such establishment as yours.

Please keep in mind any of the abovementioned criteria.

Thanks for the information Mr Kant.
1. My organisation had a strength of 12 employees in February this year, and the current strength is also 10 employees. However, the strength was lesser in between February and now.
2. I am not aware of any notifications that may have been issued by the Govt. exempting establishments such as mine.
However, as per my understanding of what you have mentioned, if the first condition of the strength of the organisation is satisfied, unless the Govt has exempted any such establishments, all organisations will fall under the purview of the Maternity Benefits Act, 1961 and will be liable to provide the benefits mentioned in the act.
Please correct me if I am wrong.

No labour Act has relevance to the constitution of the establishment. Therefore, if your establishment employs 10 persons, then the provisions of the Maternity Benefit Act will be applicable and a woman employee who has worked at least for 80 days in the 12 months immediately preceding the expected date of delivery is entitled to get the benefits under the Act.
Regards,
Madhu.T.K