Protection of Employment During Maternity

The second limb is the one that shows the section was drafted by somebody who had seen the trick. An employer who cannot dismiss her during the absence might otherwise time the notice so that it runs out while she is away. That is expressly caught.

The first proviso, the wider protection. The discharge or dismissal of a woman at any time during her pregnancy, where she would but for that discharge or dismissal have been entitled to maternity benefit or medical bonus, shall not have the effect of depriving her of the maternity benefit or medical bonus.

Read that carefully. It does not make the dismissal itself unlawful, and it is not confined to a dismissal connected with the pregnancy. What it does is sever the entitlement from the employment: the money survives the dismissal.

The second proviso, the exception. Where the dismissal is for any gross misconduct as may be prescribed by the Central Government, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus, or both.

Note the three conditions packed into it. The misconduct must be gross and of a kind prescribed by the Central Government. The deprivation must be by order in writing. And that order must be communicated to her.

Section 68(2), the appeal. A woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed, may within sixty days from the date the order is communicated to her appeal to the competent authority. The decision of that authority, on whether she should or should not be deprived, discharged or dismissed, shall be final.

Section 69: no deduction of wages

No deduction from the normal and usual daily wages of a woman entitled to maternity benefit shall be made by reason only of:

• (a) the nature of the work assigned to her by virtue of section 59, that is the lighter work she gets when she asks not to be given arduous work; or
• (b) breaks for nursing the child allowed under section 66.

The words "by reason only of" are the limit of the section. It does not make her wages unassailable for every purpose; it stops the employer from charging her for the two accommodations the Chapter itself requires him to make.

Section 70: forfeiture

A woman who works for remuneration during the period she has been permitted by an employer to absent herself for availing maternity benefit shall not be entitled to receive maternity benefit for such period.

Two points. The forfeiture is only for such period, so it does not destroy the whole entitlement. And the trigger is working for remuneration, which fits the undertaking she gives in the notice under section 62(1) that she will not work in any establishment during the period for which she receives the benefit.

Section 71: duties of employer

An abstract of the provisions of this Chapter and the rules relating to it, in the language or languages of the locality, shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.

Read this with section 67(2), which requires the employer to tell each woman in writing and electronically at her initial appointment about every benefit under the Chapter. Between them the Code requires both a general notice on the wall and an individual notice to each woman.

Section 72: the Inspector-cum-Facilitator

Section 72(1), who may complain and about what. A complaint may be made to the Inspector-cum-Facilitator by:

• (a) any woman claiming maternity benefit or any other amount to which she is entitled under the Chapter, and any person claiming that a payment due under the Chapter has been improperly withheld;
• (b) a woman claiming that her employer has discharged or dismissed her during or on account of her absence from work in accordance with the Chapter.

Section 72(2), what he may do. On receiving such a complaint the Inspector-cum-Facilitator may make an inquiry or cause one to be made, and if satisfied:

• (a) that payment has been wrongfully withheld, may direct the payment to be made in accordance with his order in writing;
• (b) that she has been discharged or dismissed during or on account of such absence, may pass such orders as he deems just and proper according to the circumstances of the case.

Section 72(3), appeal. Any person aggrieved by such an order may, within thirty days from the date it is communicated, appeal to the authority prescribed by the appropriate Government.

Section 72(4), finality. The decision of that appellate authority, or of the Inspector-cum-Facilitator where no appeal is preferred, shall be final.

Clause (b) of section 72(2) is unusually wide for an officer's power: "such orders as he deems just and proper according to the circumstances of the case". It is the provision that allows an order beyond mere payment where a woman has been dismissed for taking her leave.

The two routes compared

A woman who has been badly treated under this Chapter has two doors, and they are not the same door.

The benefit does not depend on the label of the job

Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274, is the case to reach for whenever an employer's answer is that the woman was not a regular employee.

Facts. Women engaged by the Municipal Corporation of Delhi on the muster roll, on daily wages, did heavy work on construction and road maintenance including digging trenches. Maternity leave was granted to regular female employees but refused to them because their services had not been regularised. Their union espoused their case and the question whether muster roll women should be given maternity benefit was referred to the Industrial Tribunal, which decided in their favour. The Corporation challenged that award.

Held. The Special Leave Petition was dismissed and the award upheld. There is nothing in the Maternity Benefit Act which entitles only regular women employees to the benefit and denies it to those engaged on a casual basis or on muster roll on daily wages. Article 42 of the Constitution, which speaks of just and humane conditions of work and of maternity relief, though not enforceable at law, is available for determining the legal efficacy of the action complained of. The principles in Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women are to be read into the contract of service, and so read those women become entitled to all the benefits of the Act.

Why it matters here. Because the protections in sections 68 to 72 are only as wide as the entitlement they protect. If a casual or muster roll woman is entitled to maternity benefit, then her dismissal during her authorised absence is unlawful under section 68(1), and her complaint lies to the Inspector-cum-Facilitator under section 72. The case was decided under the Maternity Benefit Act 1961, repealed by item 5 of section 164(1) of this Code; the reasoning carries because section 60(1) of the Code says "every woman" and section 60(2) asks only about days actually worked.

A worked example

Sameera has worked at a courier depot for two years and qualifies for maternity benefit. She gives notice under section 62 and begins her leave.

Three weeks in, the employer sends her a letter of dismissal. That is unlawful under section 68(1): he has dismissed her during her authorised absence.

He says he posted the notice before she left, and it merely expires now. Also caught. Section 68(1) makes it unlawful to give notice of discharge or dismissal on such a day that the notice will expire during such absence.

He instead demotes her and cuts her grade with effect from her return. Caught again: section 68(1) forbids varying any of the conditions of her service to her disadvantage.

What can she do? Two things. She may appeal to the competent authority under section 68(2) within sixty days of the order being communicated to her, and that authority's decision is final. Or she may complain to the Inspector-cum-Facilitator under section 72(1)(b), who may inquire and pass such orders as he deems just and proper.

Change the facts. She is dismissed during her pregnancy but before any leave, for redundancy. Section 68(1) does not bite, because she was not absent in accordance with the Chapter. But the first proviso does: a discharge or dismissal at any time during her pregnancy does not deprive her of the maternity benefit or medical bonus she would otherwise have been entitled to. She loses the job and keeps the money.

Change them again. She is dismissed for gross misconduct. The second proviso allows the employer to deprive her of the benefit or bonus, or both, only if the misconduct is of a kind prescribed by the Central Government, and only by order in writing communicated to her. She may then appeal under section 68(2) within sixty days.

During her leave she takes paid weekend work at a shop. Under section 70 she is not entitled to receive maternity benefit for that period. The rest of her entitlement is unaffected.

On her return she is put on lighter duties under section 59 and takes her two nursing breaks, and the employer cuts her daily wage accordingly. Unlawful. Section 69 forbids any deduction from her normal and usual daily wages by reason only of the nature of the work assigned under section 59 or the nursing breaks allowed under section 66.

She was on the muster roll on daily wages and the employer says none of this applies to her. Following Municipal Corporation of Delhi v. Female Workers (Muster Roll), the benefit is not confined to regular employees, and the Code's own words are "every woman" in section 60(1) and days actually worked in section 60(2).

What this does NOT mean

Section 68(1) is not a bar on dismissal at any time during pregnancy. It bites where the woman is absent in accordance with the Chapter. The first proviso deals separately with a dismissal during the pregnancy, and it preserves the money, not the job.

The gross misconduct exception is not open ended. The misconduct must be of a kind prescribed by the Central Government, and the deprivation must be by written order communicated to her.

Section 69 does not freeze a woman's wages. It stops deductions made by reason only of lighter work under section 59 or nursing breaks under section 66.

Section 70 does not forfeit the whole benefit. It withholds it for the period during which she worked for remuneration.

Section 72 is not a court. It is an officer with power to direct payment and to pass just and proper orders, subject to an appeal to a prescribed authority.

Limits and criticism

"Gross misconduct as may be prescribed" is undefined until the Central Government prescribes it, so the width of the exception in the second proviso to section 68(1) is set by the executive.

Finality under sections 68(2) and 72(4) is stated without qualification. The Code provides no further appeal, so a woman or an employer dissatisfied with the outcome is left to the constitutional jurisdiction of the High Court.

Section 72 sets no time limit for the complaint itself, only thirty days for the appeal, which leaves the position of a stale claim unclear.

The whole Chapter is enforced against a single employer with no fund behind it, so a woman whose employer has closed down has a right and no money, and nothing in sections 68 to 72 addresses that.

Quick revision

• Section 68(1): unlawful to discharge or dismiss during or on account of authorised absence, to time a notice to expire during it, or to vary service conditions to her disadvantage.
• First proviso: discharge or dismissal at any time during pregnancy does not deprive her of maternity benefit or medical bonus. Second proviso: deprivation permitted for gross misconduct as prescribed, by written order communicated to her.
• Section 68(2): appeal to the competent authority within sixty days of communication; its decision is final.
• Section 69: no deduction from normal and usual daily wages by reason only of lighter work under section 59 or nursing breaks under section 66.
• Section 70: working for remuneration during permitted absence forfeits the benefit for that period.
• Section 71: an abstract of the Chapter and rules, in the local language or languages, exhibited in a conspicuous place in every part of the establishment where women are employed.
• Section 72: complaint to the Inspector-cum-Facilitator about payment improperly withheld, or discharge or dismissal; he may inquire and direct payment or pass such orders as he deems just and proper; appeal within thirty days to the prescribed authority; that decision, or his where no appeal is taken, is final.

Test yourself

1. An employer gives a woman notice of dismissal timed so that it expires while she is on maternity leave. Is that lawful? No. Section 68(1) makes it unlawful to give notice of discharge or dismissal on such a day that the notice will expire during her authorised absence.

2. A woman is dismissed during her pregnancy, before any leave, for reasons unconnected with it. Does she lose her maternity benefit? No. By the first proviso to section 68(1), a discharge or dismissal at any time during her pregnancy does not have the effect of depriving her of the maternity benefit or medical bonus to which she would otherwise have been entitled.

3. On what conditions may an employer deprive a woman of maternity benefit for misconduct? The dismissal must be for gross misconduct of a kind prescribed by the Central Government, and the deprivation must be by order in writing communicated to the woman: the second proviso to section 68(1).

4. Within what time, and to whom, does an appeal lie against such an order? To the competent authority, within sixty days from the date on which the order is communicated to her, and that authority's decision is final: section 68(2).

5. A woman on maternity leave takes paid work elsewhere for two weeks. What is the consequence? Under section 70 she is not entitled to receive maternity benefit for that period. The remainder of her entitlement is unaffected.

6. What may an Inspector-cum-Facilitator do on a complaint that a woman was dismissed for taking her leave? He may make or cause an inquiry, and if satisfied she was discharged or dismissed during or on account of her authorised absence, may pass such orders as he deems just and proper according to the circumstances: section 72(2)(b). An appeal lies within thirty days to the authority prescribed by the appropriate Government.

7. What must an employer display, and where? An abstract of the provisions of Chapter VI and the rules relating to it, in the language or languages of the locality, in a conspicuous place in every part of the establishment in which women are employed: section 71.