Instruction/Clarification issued regarding Maternity Benefit Act 1961

OFFICE OF THE CHIEF LABOUR COMMISSIONER(CENTRAL), NEW DELHI

SECTION-LS SECTION

INSTRUCTIONS ISSUED BY THE OFFICE OF THE CLC(C)

MATERNITY BENEFIT ACT, 1961

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F. No. 26(02)/2025-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 25/02/2025

NOTE

Subject: Request for maternity leave with wages-reg.

Please refer to your F.No. S-36025/01/2025-SS-I dated 10/02/2025 on the above subject above. The comments from the O/o CLC(C) are as under-

As per Section 3(a) of Maternity Benefit Act, 1961:-

"Appropriate Government" means, in relation to an establishment being a mine, or an establishment wherein 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;"

As per Section 5(1) Maternity Benefit Act, 1961:-

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 provided therein, for a period when she is absent the period immediately preceding the date of her delivery, the actual day of the delivery and any period immediately following that day.

The employer liability to grant MB is absolute and as the words used in the language of the Act is "every woman". Accordingly, it is clarified that the contractual manpower shall be eligible for maternity Benefit in full and it shall be borne by her employer.

Additionally, the copy of Circular of MoLE vide letter No. S-36012/03/2015-SS-I dated 28.08.2017 in respect of Maternity Benefit (Amendment) Act, 2017 is enclosed herewith for your more clarification.

This issues with the approval of Competent Authority.

(Ashwani Kumar Chaturvedi) Assistant Labour Commissioner(C)Hq

To, SS.I Section Ministry of Labour and Employment Shram Shakti Bhawan New Delhi.

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F. No. 26(06)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 08/04/2025

NOTE

Subject: Request for clarification regarding eligibility of Maternity Benefits for legal consultants engaged for short duration-reg.

Please refer to your F.No. S-36025/05/2023-SS-I dated 27/02/2025 on the above subject above. The comments from the O/o CLC(C) are as under-

As per Section 3(a) of Maternity Benefit Act, 1961:-

"Appropriate Government" means, in relation to an establishment being a mine, or an establishment wherein 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;"

As per Section 5(1) Maternity Benefit Act, 1961:-

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 provided therein, for a period when she is absent the period immediately preceding the date of her delivery, the actual day of the delivery and any period immediately following that day.

The employer liability to grant MB is absolute and as the words used in the language of the Act is "every woman". Accordingly, it is clarified that the contractual manpower shall be eligible for maternity Benefit in full and it shall be borne by her employer.

As per Section 5(2) and 5(3) of the Maternity Benefit Act may be referred which provides that:-

5(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 eighty days in the twelve months immediately preceding the date of her expected delivery: 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 or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

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(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:

Hence, for any woman, as defined under Section 3(o) of the Act, to be eligible for Maternity Benefit actual working of not less than eighty days in the twelve months immediately preceding the date of her expected delivery is required.

Additionally, the copy of Circular of MoLE vide letter No. S-36012/03/2015-SS-I dated 28.08.2017 in respect of Maternity Benefit (Amendment) Act, 2017 is enclosed herewith for your more clarification.

This issues with the approval of CLC(C).

(Ashwani Kumar Chaturvedi) Assistant Labour Commissioner(C)Hq

To, SS.I Section Ministry of Labour and Employment Shram Shakti Bhawan New Delhi.

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F. No. 26(06)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 01/08/2023

NOTE

Subject: Clarification regarding eligibility of an outsourced personnel for claim for paid Maternity Leave-reg.

Please refer to your F.No. S-36025/05/2023-SS-I dated 03/07/2023 on the above subject above. The proposed comments from O/o CLC(C) are as under-

1. National Centre for Medium Range Weather Forecasting (NCMRWF), Ministry of Earth Sciences-

A Data Entry Operator (DEO) proceeded on maternity leave on 21.11.2022 and her contract expired on 30.11.2022. A new service provider is being hired through GeM. The following queries are raised:

(i) Whether DEO is eligible for benefits as the present contract ended and new contract (with possibility of new vendor) will start in between the maternity leave period. If in the interim, there is no contract in place then who would bear the cost

(ii) If the DEO is eligible to get payment during maternity period, then the payment will be made to her on monthly basis (through the service provider) or the whole payment (in lump sum) of 180 days will be paid to her after joining the office from maternity leave.

(iii) Who will bear the liability of her maternity benefit i.e. wages on leave whether the service provider (old /new) or NCMRWF, Noida

Ans. The matter has been examined. The Central Government is not the appropriate Government in respect of contract workers of National Centre for Medium Range Weather Forecasting. They may be advised to approach the State government for necessary clarification.

Further it is for the information that Section 5 (1) of the Act states that 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 provided therein, for a period when she is absent the period immediately preceding the date of her delivery, the actual day of the delivery and any period immediately following that day.

The employer liability to grant MB is absolute and as the words used in the language of the Act is "every woman". Accordingly, it is clarified that the DEO/contract labour shall be eligible for maternity Benefit in full and it shall be borne by her employer.

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The same principle would also be applicable for the queries as raised by the following establishments/departments :-

1. National Commission for Scheduled Castes (NCSC)
2. Ministry of Ports, Shipping and Waterways (MOPSW)

This issues with the approval of Competent Authority.

(Ashwani Kumar Chaturvedi) Assistant Labour Commissioner(C)Hq

To, SS.I Section Ministry of Labour and Employment Shram Shakti Bhawan New Delhi.

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F. No. 26(06)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 13/03/2024

NOTE

Subject: Clarification regarding Maternity Benefit (Amendment) Act, 2017-reg.

Please refer to your F.No. S-36025/05/2023-SS-I dated 23/01/2024 on the above subject above. The proposed comments from O/o CLC(C) are as under-

(i) Whether a Data Entry Operator (on outsourced basis) is eligible to get the maternity benefit in case the existing contract of the vendor, by whom the DEO has been appointed in the Central Establishment, will come to an end in between the maternity leave period.

(ii) If Yes, then whether the DEO is eligible for payment of salary for the maternity leave beyond the contract period and if yes, then the payment of the same will be borne by the vendor or by the Central Establishment for the period beyond the contract?

Ans.(i) & (ii) As per the Maternity Benefit (Amendment) Act, 2017 women who have completed 80 days in the 12 months immediately preceding the date of her expected delivery in entitled to maternity benefit as per section 5(2) of Maternity Benefit Act 1961.

Hon'ble Supreme Court pronounced the judgement dated 17th August 2023 in the matter Dr. Kavita Yadav Vs The Secretary, MoH&FW and categorically held that continuation of Maternity benefit is inbuilt in the statute itself, where the benefits would survive and continue despite the cessation of employment. Once an employee is entitled to maternity benefits under Section 5(2) of the Act, such benefits can travel beyond the term of the employment also. It is not co-terminus with the employment tenure.

(iii) In case the payment is to be borne by the vendor beyond the contract period then the reimbursement of the same is to be done to the vendor or not by the Central Establishment after the expiry of the contract?

Ans.(iii) Though the woman has been engaged by the vendor/contractor to perform work in the Central establishment. The liability to pay the said benefit to the woman is upon the vendor/contractor. But vendor/ contractor is a service provider in the Central Establishment and accordingly the amount of the benefits so provided may be reimbursed to the said vendor.

This issues with the approval of Competent Authority.

(Pankaj Dahiya) Regional Labour Commissioner(C)Hq

To, SS.I Section Ministry of Labour and Employment Shram Shakti Bhawan New Delhi.

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F. No. 26(06)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 24/09/2024

NOTE

Subject: Clarification regarding Maternity Benefit (Amendment) Act, 2017-reg.

Please refer to your F.No. S-36025/05/2023-SS-I dated 28/08/2024 on the above subject above. The proposed comments from O/o CLC(C) are as under-

1. Whether the vendor is liable to pay the amount of the maternity benefit to the said DEO for the whole maternity leave period, including period beyond the expiry of the contract and the reimbursement of the same is to be done to the vendor by the Central Establishment for the whole maternity leave period.

OR

Whether the vendor is liable to pay the said benefits only for the remaining period of contract i.e. from 21.11.2022 to 30.11.2022 and raise the bill for the same to the Central Establishment accordingly for reimbursement and that for the rest of the period beyond the termination of the contract, the Central Establishment will have to pay the said benefits directly to the DEO?

Ans.1 As per the Maternity Benefit (Amendment) Act, 2017 women who have completed 80 days in the 12 months immediately preceding the date of her expected delivery in entitled to maternity benefit as per section 5(2) of Maternity Benefit Act 1961.

Hon'ble Supreme Court pronounced the judgement dated 17th August 2023 in the matter Dr. Kavita Yadav Vs The Secretary, MoH&FW and categorically held that continuation of Maternity benefit is inbuilt in the statute itself, where the benefits would survive and continue despite the cessation of employment. Once an employee is entitled to maternity benefits under Section 5(2) of the Act, such benefits can travel beyond the term of the employment also. It is not co-terminus with the employment tenure.

2. Is there any time to apply for maternity benefits in case of a contractual employee?

Ans.2 As per the Section 6 of the Maternity Benefit Act, 1961- 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. (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

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F.No. 26(01)2023-LS.I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner(C) New Delhi

Dated: 09.05.2023

NOTE

Subject: Clarification regarding Maternity Benefit (Amendment) Act, 2017-reg.

Please refer to your F.No. S-36025/05/2021-SS.I dated 12.04.2023 on the subject mentioned above.

The matter has been examined and it is stated that similar case has been decided by the Hon'ble Delhi HC and the same ruling of the court has to apply in this instant case. The matter and the ruling of the court is given below.

Delhi High Court: Dr. Baba Saheb Ambedkar Hospital Govt. of NCT of Delhi & Anr Vs. Dr. Krati Mahrotra, (WP (C) 1278/2020. (A woman who was appointed on adhoc applied for Maternity Leave. During her leave period her contract term got expired. Accordingly, the employer refused to grant full Maternity Benefit).

Ruling by High Court: There is nothing in the MBA, 1961, which links the grant of MB to the tenure of woman employee. Adhoc employee is entitled to MB beyond the term of contract for pregnancy occurring during contractual period. "Para 11.4 Section 5 (1) broadly provides that every woman would be entitled to payment of MB at rate provided therein, for a period when she is absent the period immediately preceeding the date of her delivery, the actual day of the delivery and any period immediately following that day. The employer liability to grant MB is absolute..."

According it is clarified that the DEO/contract labour would be eligible for maternity Benefit in full and it shall be born by her employer.

This issues with the approval of competent authority.

(Wonmi Horam)CLS Regional Labour Commissioner(C)Hqs.

To, SS.I Section MOLE

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F. No. 26(11)/2023-LS-III Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 23/2/2023

NOTE

Subject: Seeking clarification on payment of Maternity Benefit to outsource DEO of MoPSW-reg

Please refer to Ministry's file No. S-36025/04/2021-SS-I on the above subject above

The matter has been examined on the following issue

1. The minimum wages of DEO is more than Rs.21000/- and thus, ESIC facility has been withdrawn due to which maternity benefits couldn't be provided by ESIC

2. Whether the vendor or principal employer (Ministry of Ports, Shipping & Waterways) is responsible for payment of Maternity benefits.

3. As per section 2(2), Nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees State Insurance Act, 1948, apply for the time being. As per the details of the employee, she receives salary more than Rs21000/-. As such, she is not covered under the the Employees State Insurance Act, 1948. Further, being a contractual employees, she is not covered under the CCS Maternity Leaver Rules. Also, as per Section 3(o) of the Act, 'woman' means a woman employed, whether directly or through any agency, for wages in any establishment.

4. Whether the vendor or principal employer (Ministry of Ports, Shipping & Waterways) is responsible for payment of Maternity benefits. Right to payment of maternity benefits as per section 5(1) of the Act 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, that is to say the period immediately preceding the day of her delivery,

the actual day of her delivery and any period immediately following the day As per Section 5(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 the period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

Hence, it is intimated to that the employer has liability for the payment of maternity benefits to outsourced DEO of MoPSW.

This issues with the approval of Competent Authority.

(Wonmi Horam)CLS Regional Labour Commissioner(C)

To Shri Madan Chaurasia Deputy Secretary

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F. No. 26(4)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 17/03/2023

NOTE

Subject: Seeking clarification regarding Maternity Benefit to the outsourced staff-reg.

Please refer to your letter No. A-42012/57/2022-Ad.II dated 21/2/2023 on the above subject above.

The matter has been examined on the following issue-

1. According to the section 5 of the Maternity Benefit Act, 1961 dated 12th Dec, 1961 that says every women 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. However, in the absence of the contribution of ESIC, who shall bear expense of the wages to woman employees proceeding of Maternity leave whose ESIC contribution has been stopped due to maximum wage limit of Rs.21000/-.

Ans. Considering the provision of Maternity Benefit Act, 1961, it is clarified that every women employee, subject to the fulfilment of the provisions of the Act, is eligible for maternity benefits, irrespective of the provisions of ESIC schemes.

2. What about the admissibility of other medical benefits to these employees..

Ans. This pertains to ESIC.

This issues with the approval of Competent Authority.

(Wonmi Horam) Regional Labour Commissioner(C)Hq

To, Shri Vishvajeet Kumar Gupta, Under Secretary Ministry of Home Affairs/Grih Mantralaya Admin-II, North Block, New Delhi

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F. No. 26(05)/2023-LS-I Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner (C) New Delhi

Dated: 11/07/2023

NOTE

Subject: Clarification sought by Inland Waterways Authority of India w.r.t applicability of Maternity Benefit Act, 1961-reg.

Please refer to your F.No. S-36025/04/2023-SS-I dated 28/6/2023 on the subject above. In this connection it for the information that the Central Government is not the Appropriate Government under Maternity Benefit Act, 1961 in relation to the establishment of Inland Waterways Authority of India & the hired contractual employee. The management of M/s Inland Waterways Authority of India may be advised to approach the respective State Government for the requisite clarification.

However, Comments from O/o CLC(C) on the issues involved in this matter in the light of Maternity benefits Act, 1961 are as below:

1. Whether the MB Act is applicable to Contractual employees? Comments- Section 3(o) defines the Woman as a woman employed, whether directly or through any agency, for wages in any establishment.

2. If so, whether contractual employee(s) is eligible for the benefits since guidelines of her engagement do not provide for maternity benefit? Comments- "Woman" as defined under Section 3(o) of the Act shall be eligible for the Maternity benefits as provided under the Act subject to other provisions and eligibility mentioned under the Act. Section -27 of the Act contains non-obstante clause which has an overriding effect on any other law or terms of an agreement or contract of service inconsistent therewith any of the provisions of this Act.

This issues with the approval of Competent Authority.

(Ashwani Kumar Chaturvedi) Assistant Labour Commissioner(C)Hq

To, SS.I Section Ministry of Labour and Employment Shram Shakti Bhawan New Delhi.