MALAYALAM PLANTATIONS LTD Vs. INSPECTOR OF PLANTATIONS

JUDGEMENT

(1.) This appeal has been referred to a Full Bench as it involves a nice question relating to the scope of S.5 of the Maternity Benefit Act, 1961 (Central Act). That Act replaced the Kerala Maternity Benefit Act, 1957 from 15-8-1970. The 1st respondent Inspector of Plantations, Mundakayam inspected the appellant's estate on 6-5-1971 and on such inspection felt that 11 women workers were not given maternity benefit according to the provisions of the Central Act. This resulted in the issue of a notice by the 1st respondent to show cause why the balance amount due was not disbursed to them. The Superintendent of the appellant submitted his explanation stating that the workers work for six days in a week only, Sunday being a wageless holiday, that the workers are entitled to maternity benefit only on that basis and as such no more amount is due to them. The 1st respondent did not accept this explanation. He passed an order directing that these women workers are entitled to maternity benefit on the basis of their average daily wage multiplied by seven. This was challenged by a writ petition which was dismissed by a learned single Judge of this Court. This appeal is filed against that judgment.

(2.) To understand the respective contentions urged before us it is necessary to state at the outset the scope of the various provisions of the Maternity Benefit Act, 1961. This Act has been made applicable to establishments in plantation as defined in Plantations Labour Act, 1951. The Act is intended to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits. S.4 prohibits employment of a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage. She is prohibited from work in any establishment during the said six weeks. For a period of six weeks preceding the date of her expected delivery, if she makes a request "in that behalf, she should not be required to do 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. She is given a right to 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 date of delivery and for six weeks thereafter. The average daily wage is the average of a 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. A woman worker is entitled to maternity benefit only if she has actually worked in the establishment for a period of not less than 160 days in the 12 months immediately preceding her expected delivery. The maximum period for which a woman shall be entitled to maternity benefit is 12 weeks, that is to say, six weeks preceding and six weeks succeeding the date of her delivery. By S.6 she is required to give notice in writing to her employer stating that her maternity benefit and any other amount to which she is entitled under this Act may be paid to her or to her nominee and that she will not work in any establishment during the period she receives maternity benefit. On receipt of such a notice the employer is required to permit such woman to absent herself from the establishment until the expiry of six weeks after the date of her delivery. In the case of miscarriage a woman worker on production of such proof shall be entitled to leave with wages at the rate of the maternity benefit for a period of six weeks immediately following the day of her miscarriage. Over and above such leave a woman worker is also entitled to leave with wages for a maximum period of one month in case she suffers any illness arising out of pregnancy, delivery, premature birth of child or miscarriage. The employer is prohibited from dismissing a woman who absents herself from work in accordance with the provisions of this Act during that period. If the employer fails to pay the benefit as provided for by the Act, the worker is allowed to appeal to the prescribed authority and claim reliefs. The amount determined by such authority as due can be recovered under the provisions of the Revenue Recovery Act and paid to the worker.

(3.) In the background of these provisions the controversy centres round the scope of S.5(1). It is in the . following terms: -