Applicablity Of The Maternity Benefit Act - PDF Download

Dear All,

Can you provide me an authentic opinion on whether the Maternity Benefit Act is applicable to private educational institutes for teaching female staff? Or is there any local court/high court/supreme court ruling on this matter?

Find out whether your state government has declared private educational institutions within the meaning of the Shops and Commercial Establishment Act of your state. If so, it will apply.

Varghese Mathew
09961266966

Mr. Varghese Mathew,

The educational institutions within the meaning of the Bombay Shops and Establishment Act, as declared by the Gujarat government, are exempted under section 4 of the act. However, they are required to comply with all provisions of the act. Therefore, my question still stands.

Regards

KN Modi

I am from Trivandrum. Hence, I am not sure about the GOs of the Gujarat Government under the MB Act. You had better check the matter with any Labour Law consultant in Gujarat.

Varghese Mathew

Hi KNmodi,

According to the Maternity Benefit Act, every woman employee will be covered under the Maternity Benefit Act. Educational institutions are covered under the State Shops and Commercial Establishment Act. All services/employment covered under the Maternity Benefit Act of 1961. If you are from Maharashtra, please refer to the attachment.

I hope your query will not arise. In case it does, please lodge a complaint using Form No. 6 & 7, which can be sent to the Labour Inspector.

Hi,

Not only Maharashtra, but all states and every employed woman are covered under the Maternity Benefit Act. So, don't think too much; go ahead.

Mr. Ravi5554,

I am talking about the MB Act of 1961. The attachment you provided me is not clear about the MB Act. I have raised a complaint in Form 6 before the Inspector of the Labour Department, Government of Gujarat. However, he has set aside my complaint, stating that the institute is not covered under the Shops and Establishments Act. That is, establishments engaged in educational activities are exempted from complying with all provisions of the act under Section 4 of the Bombay Shops and Establishment Act. Therefore, you are not eligible for that. In this case, what should I do henceforth?

Regards.

If educational institutions are not considered as establishments under the relevant Act for MB Act, as stated by the labor inspector, you cannot do anything unless you are covered under the ESI Act.

Varghese Mathew
09961266966

Dear Modi,

Please refer to Sec. 2(1)(b) of the Maternity Benefit Act, 1961. We are aware that the Employees' Provident Fund Act is already applicable to all educational institutions employing more than 20 employees. Therefore, the condition stipulated in sub-clause (b) - i.e., an educational institution being an establishment under the EPF Act 1952 - stands automatically fulfilled, and hence there is no need for any separate notification in this regard.

Thank you.

Hi KNModi,

For regarding this matter, you can consult an advocate for your better understanding.

i would suggest you, you carefully go through the notification of exemption issued by the Gujarat Govt under section 4 of Shop & Establishment, if any thing favourable its ok, otherwise go for writ petition before Gujarat High Court. Maternity Benefit Act is social peace of legislation to protect the womenhood and to compensate the women during the period of absence due to birth of child.

By notification the Govt has exempted Education Institute from the compliance under Shop & Establishment but not from the provisions of Maternity Benefit Act.

For applicability of Maternity Benefit, the Establishment should be an establishment within the meaning of Shop & Establishment Act, an education institute surely as per Gujarat shop Act is an Establishment within the meaning of said Maternity Benefit Act.

As per Section of section 2(1)(b) of the Maternity Act -[(1) It applies, in the first instance,—

(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:]

Further definition of Estabishment under MB Act means-

[(e) “establishment” means—

(i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 2[***]

3[(iva) a shop or establishment; or]

in view of above difinition and applicability of MB Act, its surely applicable, Education Institute fullfil the creteria of both above provisions.

Exemption issued from the operation of S&E Act does not have any effect.

frame your arguments in above said direction and go for writ petition, definitely you can get the benefit.

Regards

Sanjay Kumar

MB Act is applicable to an establishment, be it educational or commercial, only if it is covered under the Shops & Commercial Est. Act of the respective state. Applicability of EPF or ESI to such establishment is by virtue of notifications under those Acts. For example, the Honorable Bombay HC has held that IT firms are factories under ESI Act. With that decision, Factories Inspector cannot apply the Factories Act to IT firms which are not yet under the Factories Act.

Varghese Mathew
09961266966

Dear Sirs,

I have found a judgment of the Honorable Supreme Court of India (decided in the year 2000 and relating to the Municipal Corporation, Delhi) concerning the applicability of the MBA, 1961. The same is attached to this email. Although it does not pertain to educational institutions, I believe that the contents of the judgment could be helpful for seniors and experts participating in this discussion thread.

Thank you.

Dear friends,

I believe that the difference of opinion regarding the application of the Maternity Benefit Act, 1961 to educational institutions stems from the varying interpretations of Sec. 2(1)(b) of the Act. To provide clarity, I have included the relevant extract below:

"2. Application of the Act. - (1) It applies, in the first instance, -

(a) to every establishment being a factory, mine, or plantation, including any such establishment belonging to the 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 ----------- or otherwise."

I would like to draw your attention to the phrase "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." The entity providing employment must align with the definition of a shop or establishment as per the current laws in force; it does not necessarily have to be exclusively defined under the State Shops and Establishment Act. Additionally, it is important to note that the terms 'shop' and 'establishment' are used generically and do not specifically refer to the State S&E Acts. The proviso grants authority to the State Government only in cases of establishments not falling within the scope of existing laws to bring them under the purview of the Maternity Benefit Act through a notification.

Thank you for your attention.

Dear Modi,

The view of the Labour Inspector is not correct. When can an exemption arise? Only when the Act is applicable. So, the exemption may be partial with regard to certain provisions or total from all provisions, but it is strictly confined to that particular Act only, and the exemption cannot act as a bar on the application of other enactments. Please read my previous reply carefully. I reiterate that the establishment should be an establishment within the meaning of any law applicable to shops and establishments in its general sense. In respect of private educational institutions, labor enactments like EPF Act and Payment of Gratuity Act, 1972 are applicable. Therefore, no separate notification by the State Govt is necessary. It is better to prefer an appeal under Section 17(3) of the MB Act, 1961, to the Appellate Authority first.

Dear Umakanthan Sir,

Is the Minimum Wages Act applicable to a tuition class that is a Pvt Ltd company having around 20 employees, out of which only 9 are permanent? They do not deduct any PF or ESI from the salary. Is the Minimum Wages Act applicable to the institution since there is no ESI deducted?

Thank you.

What is the rate of payment to be paid to a female employee under the Maternity Benefit Act? Is she eligible for gross salary or only basic salary? Please clarify.

Dear Avi,

Payment is to be made on gross salary under MB Act, 1961.

R N KHOLA

Dear Sir/Madam,

Thank you very much for your comments on the Maternity Payment. Is there any government GR or notation regarding the gross salary payment to be made to women under the Maternity Benefit Act?

Please let me know if you need further clarification on this matter.

Thank you.

Best regards,
[Your Name]

Dear member,

I believe it would be better if you read sections 5, 5A, 5B, 6, 7, and 8 of the Maternity Benefit Act, 1961. I hope you will receive the appropriate response or information after reviewing the provisions mentioned above.