Historical Background:

Before the Vishakha guidelines came into the picture, the women had to take the matter of Sexual Harassment at Workplace by lodging a complaint under Sec 354 and 509 of IPC.

Bhanwari Devi, a social worker in a programme to stop child marriages, stopped a child marriage that was taking place in an influential Gujjar family. To take revenge one Ramakant Gujjar along with five of his men gang-raped Bhanwari Devi in a brutal manner in front of her husband. Her attempt to file a police case was met with apathy and she faced further stigma and cruelty. The trial court acquitted the accused citing lack of evidence but Bhanwari Devi, along with a sympathizer (Association known as Vishaka), approached the Supreme Court by way of a writ petition which eventually led to a very important and landmark judgment.

In the Vishaka v. State of Rajasthan, (1997) 6 SCC 241 case, the guidelines issued by a three-judge bench comprising of Chief Justice Verma, Justice Sujata V. Manohar and Justice B.N. Kripal widened the meaning and scope of sexual harassment. It defined sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following: 

1. Physical contact or advances.
2. A demand or request for sexual favours.
3. Sexually coloured remarks.
4. Showing pornography.
5. Any other unwelcome conduct whether it is physical, verbal or non-verbal. 

After 16 years of Vishakha case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted with the objective to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto. The provisions of the Act came into force from 9th Dec 2013. It extends to the whole of India.

In Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625 case, the respondent was working as a Private Secretary to the Chairman of the Apparel Export Promotion Council. It was alleged that he tried to molest a woman employee of the Council Miss X who was at the relevant, time working as a Clerk-cum-Typist in the office. The respondent had tried to molest her physically in the lift also while coming to the basement. The Court held that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.

Object of the Act:

• to provide protection against sexual harassment of women at the workplace and for the prevention
• to redress complaints of sexual harassment and for matter connected therewith or incidental thereto.

Important Definitions:

Aggrieved Woman:

According to Section 2(a) of the Act, “aggrieved woman” means—

1. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
2. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

Domestic Worker:

According to Section 2(e) of the Act, “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part-time or full-time basis, but does not include any member of the family of the employer.

Employee:

According to Section 2(f) of the Act, “employee” means a person employed at a workplace for any work on a regular, temporary, ad hoc, or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

Employer:

According to Section 2(f) of the Act, “employer” means—

1. in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;
2. in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace. Explanation. —For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of policies for such organization;
3. in relation to workplace covered under sub-clause (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
4. in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of a domestic worker, irrespective of the number, time period, or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

Internal Committee:

According to Section 2(h) of the Act, “Internal Committee” means an Internal Complaints Committee constituted under section 4 of the Act.

Local Committee:

According to Section 2(i) of the Act, “Local Committee” means the Local Complaints Committee constituted under section 6 of the Act.

Respondent:

According to Section 2(m) of the Act, “respondent’ means a person against whom the aggrieved woman has made a complaint under section 9 of the Act.

Work Place:

According to Section 2(0) of the Act, “workplace” includes—

1. any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a government company or a corporation or a co-operative society;
2. any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
3. hospitals or nursing homes;
4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
6. a dwelling place or a house;

Sexual Harassment:

According to Section 2(m) of the Act, “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

1. physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

According to Section 3 of the Act: The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:

1. implied or explicit promise of preferential treatment in her employment; or
2. implied or explicit threat of detrimental treatment in her employment; or
3. implied or explicit threat about her present or future employment status; or
4. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
5. humiliating treatment likely to affect her health or safety.

Internal Complaints Committee:

According to Section 2(h) of the the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, “Internal Committee” means an Internal Complaints Committee constituted under section 4 of the Act.

Section 4 of Chapter II of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the Internal Complaints Committee. To look after problems related to harassment of women at the workplace, every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee at different levels and offices of the organization.

The Internal Committees shall consist of a Presiding Officer who shall be a woman preferably employed at a senior level at the workplace from amongst the employees. Not less than two Members of the committee from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge. One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. At least one-half of the total Members so nominated shall be women.

The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

Removal of Presiding Officer or Member of Internal Complaints Committee:

Presiding Officer or Member of Internal Complaints Committee, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section in following circumstances

1. contravenes the provisions of section 16; or
2. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
3. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
4. has so abused his position as to render his continuance in office prejudicial to the public interest.

Local Committee:

According to Section 2(i) of the Act, “Local Committee” means the Local Complaints Committee constituted under section 6 of the Act. Sections 5 to 8 of Chapter III of the Act, deals with the Local Committee.

Section 5 of the Act deals with the notification of the district officer. According to Section 5 of the Act, the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

Jurisdiction of Local Committee:

Section 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the jurisdiction of the Local Committee.  According to Section 6 of the Act,

1. Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Committee” to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
2. The District Officer shall designate one nodal officer in every block, taluka, and tehsil in the rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
3. The jurisdiction of the Local Committee shall extend to the areas of the district where it is constituted.

Constitution of Local Committee:

Section 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the constitution of the Local Committee.  According to Section 7 of the Act, the Local Committees shall consist of a Chairperson be nominated from amongst the eminent women in the field of social work and committed to the cause of women. One Member to be nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district. Two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed. At least one of the nominees should, preferably, have a background in law or legal knowledge. At least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time. The concerned officer dealing with the social welfare or women and child development in the district shall be a member ex officio.

Removal of Chairperson or Member of Local Committee:

Chairperson or Member of Local Committee, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section in the following circumstances

1. contravenes the provisions of section 16; or
2. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
3. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
4. has so abused his position as to render his continuance in office prejudicial to the public interest.

Complaint of Sexual Harassment:

Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the complaint of sexual harassment. According to Section 9 of the Act, any aggrieved woman may make, in writing, a complaint of sexual harassment at the workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of the last incident. If such a complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing. The Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit for filing the complaint not exceeding three months if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Conciliation:

Section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with the conciliation between the respondent and the aggrieved woman. According to Section 10 of the Act, before initiating an inquiry under section 11 and at the request of the aggrieved woman, the Internal Committee or, as the case may be, the Local Committee, may take steps to settle the matter between her and the respondent through conciliation, but there should not be a monetary settlement as a basis of conciliation.

When settlement is reached the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation. The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent. Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

Inquiry Into Complaint:

Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with an inquiry into the complaint made by the aggrieved woman. According to Section 10 of the Act, before initiating an inquiry under section 11 and at the request of the aggrieved woman, the Internal Committee or, as the case may be, the Local Committee, may take steps to settle the matter between her and the respondent through conciliation, but there should not be a monetary settlement as a basis of conciliation. The inquiry under Section 11(1) shall be completed within a period of ninety days.

According to Section 11 of the Act, when there is no conciliation has arrived between the respondent and the aggrieved woman or the respondent fails to comply with any condition of settlement the respondent and the aggrieved woman under Section 10 of the Act, the inquiry is initiated under Section 11 of the Act. The Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make an inquiry into the complaint in accordance with the provisions of the Service Rules applicable to the respondent. If no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable. If both the parties are employees, the parties shall, during the course of the inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee

Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15 of the Act.

According to Section 16 of the Act, publication or making known contents of complaint and inquiry proceedings is prohibited. The contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent, and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press, and media in any manner

According to Section 17 of the Act, If any person entrusted with the duty to handle or deal with the complaint, inquiry, or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for a penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.

Power of Committees During Enquiry:

For the purpose of making an inquiry under Section 11(1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of documents;
• any other matter which may be prescribed.

Action During the Pendency of Inquiry:

Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the actions to be taken during the pendency of the inquiry.

During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—

• transfer the aggrieved woman or the respondent to any other workplace; or
• grant leave to the aggrieved woman up to a period of three months; or
• grant such other relief to the aggrieved woman a may be prescribed.

The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under Section 12(1), the employer shall implement the recommendations made Section 12(1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

Inquiry Report:

Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 deals with an inquiry report.According to Section 13 of the act, on the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be

• to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
• to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15: Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: Provided further that in case the respondent fails to pay the sum referred to in Section 13(2), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

Punishment for False or Malicious Complaint and False Evidence:

Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the punishment for false or malicious complaint and false evidence. according to Section 14 of the Act,

1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed: Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section: Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
2. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Determination of Compensation:

Section 15 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with the determination of compensation. According to Section 15 of the Act, for the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—

• the mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman;
• the loss in the career opportunity due to the incident of sexual harassment;
• medical expenses incurred by the victim for physical or psychiatric treatment;
• the income and financial status of the respondent;
• feasibility of such payment in a lump sum or in installments.

Appeal

Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with appeal. According to Section 18 of the Act,

1. Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or subsection (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
2. The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.

Duty of Employer:

Section 19 of the Act deals with the duties of employer. According to Section 19 of the Act the duties of employer are as follows:

• provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
• display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
• organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
• provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
• assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
• make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
• provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
• cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
• treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• monitor the timely submission of reports by the Internal Committee

Conclusion:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides a robust mechanism for redressal to women. It requires public awareness, sensitivity, and robust implementation of the Act, to avoid such incidents.

The post The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 appeared first on The Fact Factor.

Historical Background:

Before the enactment of the Maternity Benefit Act, 1961, there were three different State Acts on the subject and three Central Acts, namely, Mines Maternity Benefit act, 1941, the Employees State insurance act, 1948, and Plantation Labour act, 1951. They varied in provisions related to qualifying conditions, periods, rate of benefit, etc.

The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to the crèche facility (Section 11 A) came into effect with effect from July 1, 2017.

Object of the Act:

The Objects of the Act are as follows:

• to protect the dignity of motherhood and the dignity of a new person’s birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.
• to remove disparity of qualifying conditions, periods, rate of benefit, etc. between different Acts.

Features of the Maternity Benefit Act, 1961:

The main features of the act are as follows:

• The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child.
• The Act is applicable to the establishments employing 10 or more employees. Every woman employee who may be employed directly or through any contractor and who has worked in an establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery shall be entitled to for the benefits.
• As per 1961 Act, the maximum period for which maternity benefit can be sought shall be 12 weeks in totality whether taken before or after childbirth. More than 6 weeks before delivery cannot be taken. As per Amendment Act, 2017, The maximum period for which maternity benefit can be sought shall be 26 weeks in totality whether taken before or after childbirth. More than 8 weeks before delivery cannot be taken.
• Under Section 5 of the Act, every woman covered under the Act 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 immediately preceding and including the day of her delivery and for the six weeks immediately following that day
• 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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
• The State Government is empowered to extend any of the provisions of the Act to some other foundation or class of foundations, industrial, commercial, agricultural or otherwise with the approval of the Central Government by giving not less than two month’s notification of its goal of doing so.
• The Act bars the applicability of the provisions of the Act to any factory or other establishments to which the provisions of the Employees State Insurance Act,1984 applies except as otherwise provided in section 5A and 5B of the Act.

Constitutional Obligation to Pass the Act:

The rights for the upliftment of women are embedded under various Articles of the Constitution such as,

• Article 14- Right to social equality for all genders
• Article 15- Right to social equality in terms of employment
• Article 15(3)- Empowers the State to make special provisions for women in order to promote and preserve the strength and vigor of the race.
• Article 16- Equal opportunities for all citizens in matters relating to employment or appointment of any office under the State.
• Article 42- Right to just and humane conditions of work and maternity relief
• Article 46- Right to improvement in employment opportunities and conditions of working women
• Article 21- Right to Life and Personal Liberty in the context of providing a pregnant woman all the required facilities along with protection of her employment

Therefore, constitutional privileges go a long way in the enforcement of an Act.

Important Definitions:

Employer:

According to Section 3(d) of the Act, “employer” means–

1. in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;
2. in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
3. in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person.

Establishment:

According to Section 2(e) of the Act, “establishment” means–

1. a factory;
2. a mine;
3. a plantation;
4. an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 
5. a shop or establishment; or
6. an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable.

Applicability of the Act:

The Act is applicable to the establishments employing 10 or more employees. According to Section 2 read along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951). Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of  Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.

Provisions of this Act are not applicable to any factoryor other establishment in which provisions of the Employees State Insurance Act, 1948 apply for the time being.

Eligibility:

Every woman employee who may be employed directly or through any contractor and who has worked in an establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery shall be entitled to for the benefits. 

Benefits Under the Act:

Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence.

Cash Benefits

• Leave with average pay for six weeks before the delivery.
• Leave with average pay for six weeks after the delivery.
• A medical bonus if the employer does not provide free medical care to the woman.
• An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth.
• In case of miscarriage, six weeks leave with average pay from the date of miscarriage.

Non Cash Benefits/Privilege:

• Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
• Two nursing breaks in the course of her daily work until the child is 15 months old.
• No discharge or dismissal while she is on maternity leave.
• No change to her disadvantage in any of the conditions of her employment while on maternity leave.
• Pregnant women discharged or dismissed may still claim maternity benefit from the employer.

In addition to the above the Act also makes provisions to undertake light work activities for pregnant women 10 weeks prior to her delivery also nursing breaks during daily work till the child attends age of 15 months.

Restrictions on the Employment of Pregnant Women:

According to Section 4 of the Act, no employer shall knowingly employ any woman who is in the period of 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. No woman shall be working in any establishment during the period of 6 weeks.

No woman shall be engaged in any arduous work which may involve long hours of standing or any work which is likely to interfere with her pregnancy or cause miscarriage or adversely affect her health during the period of 1 month preceding the period of 6 weeks before the date of her expected delivery and also the period of 6 weeks for which she does not take leave.

Claim for Maternity Benefit:

Under Section 6 of the Act,

• 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.
• 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.
• Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
• 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.

Amount of Remuneration Under the Act:

It is calculated by including the average daily wages for the actual absence period which is in fact the average wages payable to the woman on the days which she has worked during the period of 3 months immediately preceding the date from which she takes absence on the ground of maternity or Rupees 10, whichever is higher.

Other Related Benefits:

Death of a Pregnant Woman Employee:

As per Section 7 of the Act, maternity benefit shall be paid only for the days including and upto the day of death. Such benefit or amount shall be paid by the employer to the person nominated by the woman. If no nomination is made then her legal representative must avail of the benefit.

Medical Bonus:

As per Section 8 of the Act, every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

Leave on Miscarriage:

As per Section 9 of the Act, in case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage.

Nursing Breaks:

As per Section 10 of the Act, aA woman suffering illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

Forfeiture of Maternity Benefit:

As per Section 18 of the Act, if a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorised absence, she shall forfeit her claim to the maternity benefit for such period.

Inspectors:

As per Section 14 of the Act, the appropriate Government by notification in the Official Gazette, may appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may also define the local limits of the jurisdiction within which they shall exercise their function under this Act.

As per Section 16 of the Act, Inspector appointed under Section 14 of the Act is a public servant within the meaning of Section 21 of the Indian Penal Code.

Powers and Duties of Inspectors:

As per Section 16 of the Act, Inspector appointed under Section 14 of the Act is a public servant within the meaning of Section 21 of the Indian Penal Code.

As per Section 15 of the Act, an Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely: –

• enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection;
• examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself:
• require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received form them under this Act; and
• take copies of any registers and records or notices or any portions thereof.

As per Section 17 of the Act, inspector can direct establishment to pay the payment in accordance with his orders.

Provisions for Penalty:

As per Section 21 of the Act, if any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.

Under Section 22 of the Act, whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

Cognizance of Offence:

As per Section 23 of the Act, any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 (21 of 1860) or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed. No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.

Highlights of the Amendment in Maternity Benefit Act:

The Maternity Benefit (Amendment) Act 2017 has made changes to the Maternity Benefits Act, 1961. The amended Act put India third overall just behind Canada and Norway internationally in the number of maternity benefits being made accessible to the female employees of workforce

The significant point of the amendment Act is to regulate the work of women during the time of childbirth. It has amended the provision related to the duration and applicability of maternity leave and other facilities.

• To avail the benefits of the Act woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefit under the provisions of the Maternity Benefit Act.
• The Act is applicable to all those women working in factories, mines and shops or business foundations which employ at least 10 employees. However, for those women who are expecting after 2 children, the duration of the leave stays unaltered at 12 weeks.
• It further stretched out the benefits to the adoptive and commissioning mothers by giving them 12 weeks of maternity leave from the date of adoption. The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the amendment, it was 6 weeks. Remaining 18 weeks can be availed post labor.
• The Act has introduced an enabling provision relating to work from home that can be practiced after the expiry of 26 weeks leave period. Contingent on the idea of work, women can avail this provision such terms that are commonly concurred with the business.
• The amendment Act has mandated a crèche facility for every establishment employing 50 or more employees. The women employees should be permitted to visit the facility four times during the day.
• The amended Act makes it mandatory for employers to inform the women workers about the maternity benefits available to them at the hour of their appointment.

“Crèche facility” in Establishment:

This provision is incorporated by Amendment Act, 2017. In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.

Conclusion:

Motherhood is a very special experience in a woman’s life. A woman needs to be able to give quality time to her child without having to worry about her job and her source of income. Article 42 of the Constitution of India imposes an obligation upon the state to make provisions for securing just and human conditions of work and for maternity relief. The Act properly safeguards the rights of women and provides for the basic foundations of health and safety. Provisions on extended maternity leave, offices like crèche, work from home and so forth have not only generated motivation in women to join the workforce but also motivated them to continue working. 

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The law identifying with work and job is called Industrial law or labour law in India. The meaning of MRTU & PULP Act, 1971 is the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. By Government Resolution, Industries, and Labour Department, No. IDA. 1367-LAB-II, dated the 14th February 1968, the Government of Maharashtra appointed a Committee called “the Committee on Unfair Labour Practices” for defining certain activities of employers and workers and their organizations which should be treated as unfair labour practices and for suggesting action which should be taken against employers or workers, or their organisations, for engaging in such unfair labour practices. On the basis of the report submitted by the committee this Act was enacted.

It is Maharashtra Act I of 1972. The Act received an assent from the President on 13th January 1972 and was published in Maharashtra Government Gazette Part IV on 1st February 1972.

Objects of the MRTU & Pulp Act, 1971.

The objects of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 are given in the preamble of the Act. They are as follow:

• To provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings;
• To state the rights and obligations of trade unions;
• To confer certain powers on unrecognized unions;
• To provide for declaring certain strikes and lockouts as illegal strikes and lockouts;
• To define and provide for the prevention of certain unfair labour practices;
• To constitute courts – as independent machinery –
  • To carry out the purposes of the Act;
  • To accord recognition to trade unions; and
  • To enforce the provisions of the Act relating to unfair labour practices.
• To provide for matters connected with the above purposes.

Section 1: MRTU & PULP Act, 1971: Short Title:

This Act may be called the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

Section 2: MRTU & PULP Act, 1971: Extent, Commencement, and Application:

(1) This Act extends to the whole of the State of Maharashtra.

(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas and for different provision of this Act.

(3) Except as otherwise hereinafter provided, this Act shall apply to the industries to which the Bombay Industrial Relations Act, 1946, Bom. XI of 1947, for the time being applies, and also to any industry as defined in clause (j) of section 2 of the Industrial Disputes Act, 1947, XIV of 1947, and the State Government in relation to any industrial dispute concerning of such industry is the appropriate Government under that Act :

Provided that, the State Government may, by notification in the Official Gazette, direct that the provisions of this Act shall cease to apply to any such industry from such date as may be specified in the notification; and from that date, the provisions of this Act shall cease to apply to that industry and, thereupon, section 7 of the Bombay General Clauses Act, 1904, Bom. I of 1944, shall apply to such cess or, as if this Act has been repealed in relation to such industry by a Maharashtra Act.

Definitions Under MRTU & Pulp Act, 1971

Section 3 of the Act gives definitions of important terms.

Section 3: MRTU & PULP Act, 1971: Definitions:

(1) “Bombay Act” means the Bombay Industrial Relations Act, 1946, Bom. XI of 1947;

Whenever the term “Bombay Act” is used, the reference is to the Bombay Industrial Relations Act, 1946 Bom. XI of 1947. Before the formation of the Maharashtra state, Bombay Province was there consisting of part of Maharashtra, Gujarat. For this province the Bombay Industrial Relations Act, 1946 was Enacted. on 1 st May 1962, the State of Maharashtra and the State of Gujarat were carved out of the Bombay Province.

Section 3: MRTU & PULP Act, 1971: Definitions:

(2) “Central Act” means the Industrial Disputes Act, 1947, XIV of 1947;

Whenever the term “Central Act” is used, the reference is to the Industrial Disputes Act, 1947.

Section 3: MRTU & PULP Act, 1971: Definitions:

(3) “concern” means any premises including the precincts thereof where any industry to which the Central Act applies is carried on;

Section 3: MRTU & PULP Act, 1971: Definitions:

(4) “Court” for the purposes of Chapters VI and VII means the Industrial Court, or as the case may be, the Labour Court;

Section 3: MRTU & PULP Act, 1971: Definitions:

(5) “employee” in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act; and in any other case, means a workman as defined in clause (s) of section 2 of the Central Act;

Section 3: MRTU & PULP Act, 1971: Definitions:

(6) “employer” in relation to an industry to which the Bombay Act applies, means an employer as defined in clause (14) of section 3 of the Bombay Act; and in any other case, means an employer as defined in clause (g) of section 2 of the Central Act;

Section 3: MRTU & PULP Act, 1971: Definitions:

(7) “Industry” in relation to an industry to which the Bombay Act applies means an industry as defined in clause (19) of section 3 of the Bombay Act, and in any other case, means an industry as defined in clause (j) of section 2 of the Central Act;

Section 3: MRTU & PULP Act, 1971: Definitions:
(8) “Industrial Court” means an Industrial Court constituted under section 4;

Section 3: MRTU & PULP Act, 1971: Definitions:
(9) “Investigating Officer” means an officer appointed under section 8;

Section 3: MRTU & PULP Act, 1971: Definitions:
(10) “Labour Court” means a Labour Court constituted under section 6;

Section 3: MRTU & PULP Act, 1971: Definitions:
(11) “member” means a person who is an ordinary member of a union, and has paid a subscription to the union of not less than 50 paise per calender month :

Provided that, no person shall at any time be deemed to be a member, if his subscription is in arrears for a period of more than three calendar months during the expression “membership” shall be construed, accordingly.

Explanation: A subscription for a calendar month shall, for the purpose of this clause, be deemed to be in arrears, if such subscription is not paid within three months after the end of the calendar months in respect of which it is due;

Section 3: MRTU & PULP Act, 1971: Definitions:

(12) “order” means an order of the Industrial or Labour Court;

Section 3: MRTU & PULP Act, 1971: Definitions:

(13) “recognised union” means a union which has been issued a certificate of recognition under Chapter III;

Section 3: MRTU & PULP Act, 1971: Definitions:

(14) “Schedule” means a Schedule to this Act;

Section 3: MRTU & PULP Act, 1971: Definitions:

(15) “undertaking” for the purposes of Chapter III, means any concern in industry to be one undertaking for the purpose of that Chapter : Provided that, the State Government may notify a group of concerns owned by the same employer in any industry to be undertaking for the purpose of that Chapter;

Section 3: MRTU & PULP Act, 1971: Definitions:

(16) “unfair labour practices” means unfair labour practice as defined in section 26;

Section 3: MRTU & PULP Act, 1971: Definitions:

(17) “union” means a trade union of employees, which is registered under the Trade Unions Act, 1926;

Section 3: MRTU & PULP Act, 1971: Definitions:

(18) words and expressions used in this Act and not defined therein, but defined in the Bombay Act, shall, in relation to an industry to which the provisions of the Bombay Act apply, have the meanings assigned to them by the Bombay Act; and in other case, shall have the meanings assigned to them by the Central Act.

Next Topic: Authorities Under MRTU & PULP Act (S. 4 to 9, 37)

Indian Legal System > Civil Laws > Labour Laws > MRTU and PULP Act, 1971 > Introduction

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