BENGAL MATERNITY BENEFIT ACT, 1939

Act No. 04 of 1939

20th April, 1939

An Act to regulate the employment of women in factories for certain periods before and after childbirth and to provide for the payment of maternity benefit to them. Whereas it is expedient to regulate the employment of women in factories for certain periods before and after childbirth and to provide for the payment of maternity benefit to them; It is hereby enacted as follows:- 1. For Statement of Objects and Reasons, see the Calcutta Gazette, dated the 19th August, 1937, Part IVA, page 6; the Report of the Select Committee was presented to the Bengal Legislative Assembly on the 29th July, 1938; for proceedings of the Bengal Legislative Assembly, see the Bengal Legislative Assembly proceedings of the 30th September, 1937, 16th February, 29th July and 19th and 22nd August, 1938.

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S.1 Short title extent and commencement

(1) This Act may be called the Bengal Maternity Benefit Act, 1939.

(2) It extends to the whole of 1[West Bengal].

(3) It shall come into force on such date2 as the 3[State] Government may, by notification in the Official Gazette, direct.

1. The words within square brackets were substituted for the word "Bengal" by paragraph (2) of Article 3 of the Indian Independence (Adaptation of Bengal and Punjab Acts) Order, 1948.

2. The Act was brought into force on the 1st January, 1940, vide notification No. 3248Com., dated the 30th October, 1939, published at page 2784 of the Calcutta Gazette of the 2nd November, 1939. The Act came into force in Darjeeling on the 1st January, 1940, vide notification No. 3249Com, dated the 30th October, 1939, at page 2784 of the Calcutta Gazette, dated the 2nd November, 1939.

3. The word within square brackets was substituted for the word "Provincial" by paragraph 4(1) of the Adaptation of Laws Order, 1950.

S.2 Definitions

In this Act, unless there is anything repugnant in the subject or context,-

(a) "Child" includes a still-born child;
(b) "employer" includes the occupier of a factory and the manager of a factory;
(c) factory means a factory as defined in clause (j) of section 2 of the 1Factories Act, 1934 (XXV of 1934), and includes a place declared to be a factory under sub-section (2) of section 5 of that Act, but does not include a seasonal factory;
(d) "maternity benefit" means the sum of money payable under the provisions of this Act to a woman employed in a factory;
(e) "medical practitioner" means a medical practitioner nominated for the purposes of this Act by the employer with the approval of the Inspector of Factories;
(f) "wages" means wages as defined in clause (vi) of section 2 of the Payment of Wages Act, 1936 (IV of 1936);
(g) "woman" means a woman worker; and
(h) expressions used, but not defined in this Ac

S.3 Employment of or work by, women in factories prohibited during certain period

After this Act comes into force-

(1) no employer shall knowingly employ a woman in any factory during the four weeks immediately following the day of her delivery; and

(2) no woman shall work in any factory during the four weeks immediately following the day of her delivery.

S.4 Right to and liability for payment of maternity benefit

(1) Subject to the provisions of this Act, every woman employed in a factory shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of her average daily earnings calculated to the nearest quarter of an anna in the manner provided in sub-section (2) or at the rate of eight annas a day, whichever is greater for the actual days of her absence, which shall include holidays and non-working days, during the period of four weeks immediately preceding and including the day of her delivery and for the four weeks immediately following that day :

Provided that a woman shall not be entitled to maternity benefit unless she has been employed in the factory of the employer from whom she claims maternity benefit for a period of not less than - nine months immediately preceding the day of her delivery.

(2) The average daily earnings referred to in sub-section (1) shall be calculated by dividing the total wages earned by the woman durin

S.5 Procedure regarding payment of maternity benefit

(1) Any woman entitled to maternity benefit under the provisions of this Act,-

(a) who is pregnant may, on any day, give notice either orally in person or in writing in the form prescribed by rules made under this Act to the manager of the factory that she expects to be confined within one month next following and may therein nominate a person for purposes of section 6;
(b) who has not given the notice referred to in clause (a) and has been delivered of a child, shall, within seven days, give similar notice that she has given birth to a child.

(2) When such notice is received, the employer shall permit the woman to absent herself from the factory from the day following the date of notice in the case mentioned in clause (a) of sub-section (7) and from the day of delivery in the case mentioned in clause (b) thereof, until four weeks after the day of delivery.

(3) An employer shall pay maternity benefit to a woman entitled thereto in such one

S.6 Payment of maternity benefit in case of a woman's death

(1) If a woman entitled to maternity benefit under this Act dies on the day of her delivery or during the period thereafter for which she is entitled to the maternity benefit, the employer's liability under sub-section (1) of section 4 shall not, by reason of her death, be discharged, and he shall pay the amount of maternity benefit due, if the newly-born child survives her, to the person who undertakes the care of the child; and, if the child does not survive her, to the person nominated by her under sub-section (1) of section 5 or, if she has made no such nomination, to her legal representative.

(2) If a woman dies during the period for which she is entitled to maternity benefit but before giving birth to a child, the employer shall be liable only for the period up to and including the day of her death, provided that any sum already paid to her in excess of such liability under clause (i) of sub-section (3) of section 5 shall not be recoverable from her legal representativ

S.7 No notice of dismissal to be given to a woman in certain cases

(I) When a woman absents herself from work in accordance with the provisions of this Act, it shall not be lawful for her employer to give her notice of dismissal during such absence or on such a day that the notice will expire during such absence.

(2) (a) No notice of dismissal given without sufficient cause by an employer to a woman within a period of six months before her delivery shall have the effect of depriving her of any maternity benefit to which but for such notice she may have become entitled under this Act.

(b) If any question arises as to whether any notice of dismissal is one to which clause (a) applies, such question, shall be referred to the Inspector of Factories. An appeal from the Inspector's decision shall, within sixty days thereof, lie to the Labour Commissioner whose decision shall be final.

S.8 Penalty for working for payment during permitted period of absence

If a woman does any work for which she receives payment in cash or kind after she has been permitted by her employer to absent herself under the provisions of section 5, she shall be liable, on conviction, to a fine not exceeding ten rupees.

S.9 Penalty for contravention of the Act by an employer and application of fine in payment of compensation

(1) If any employer contravenes any provision of this Act, he shall, on conviction, be liable to a fine which may extend to five hundred rupees.

(2) Whenever a Court imposes a fine under this section or confirms in appeal, revision or otherwise such a sentence, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied in the payment of compensation to the woman concerned for any loss or damage caused to her by the contravention of a provision of this Act on account of which the fine has been imposed.

S.10 Penalty for contravention of the Act by a woman

If any woman works in any factory within four weeks after the day of her delivery, she shall be liable, on conviction, to a fine not exceeding ten rupees.

S.11 Cognizance of offences

(1) No prosecution under this Act shall be instituted except by, or with the previous sanction of, the Inspector of Factories, and no such prosecution shall be instituted until the expiry of the period of appeal under sub-section (2) or, if such an appeal is preferred, unless the Labour Commissioner, by his order thereon sanctions a prosecution.

(2) Where the Inspector of Factories decides either to institute a prosecution under this Act or to grant sanction thereto, he shall forthwith communicate his order to the person complained against, who may, within thirty days of the date of the said order, appeal to the Labour Commissioner against such decision. The decision of the Labour Commissioner on such appeal shall be final.

(3) No Court inferior to that of a Presidency Magistrate or of a Magistrate of the First Class shall try any offence against this Act or any rules thereunder.

S.12 Appeal against refusal to prosecute or grant sanction thereto

Where on an application by an employer or a woman in such behalf, the Inspector of Factories refuses either to institute a prosecution under this Act or to grant previous sanction thereto, he shall without delay communicate to the applicant his order of refusal, and an employer or a woman aggrieved by such order may, within thirty days of the date thereof, appeal to the Labour Commissioner against such order. The decision of the Labour Commissioner on such appeal shall be final.

S.13 Limitation of prosecution

No Court shall take cognizance of any offence against this Act or any rule there under unless complaint thereof has been made to the Inspector of Factories within six months of the date on which the offence is alleged to have been committed.

S.14 Rules

(1) The 1[State] Government may make rules2 for the purpose of carrying into effect the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the preparation and maintenance of a muster roll or register or a combined muster roll and register, and the particulars to be entered in such muster roll, register or combined muster roll and register or in the register kept or deemed to have been kept under section 41 of the 3Factories Act, 1934 ( XXV of 1934.);
(b) the inspection of factories for the purposes of this Act by Inspectors of Factories;
(c) the exercise of powers and the performance of duties by Inspectors of Factories for the purposes of this Act;
(d) the method of payment of maternity benefit in so far as provision has not been made in this Act;
(e) the forms of notices under clause (a) and clause (b) of sub-section (1) of section 5; and

S.15 Abstract of this Act and the rules there under to be exhibited

An abstract of the provisions of this Act and the rules there under in the local vernaculars shall be exhibited in a conspicuous manner by the employer in every part of a factory in which women are employed.