Pregnant and fired from your job, citing COVID 19 ?
An employer cannot fire a pregnant
employee who has worked in the organisation for upto 80 days in 12 months immediately
preceding her date of delivery.
Force majeure is a contractual defence.
Maternity Benefit Act, 2017 is a welfare legislation and thus higher in
precedence to Contract law. Therefore, it is the statutory obligation of all
employers to comply with the provisions of the maternity benefit act, 2017.
The act extends benefits to mother’s who
are working from home, adoptive mothers, surrogate mothers, biological mothers.
This is a prevailing problem across
organisations, classes, regions. Women should not be punished for bearing a
child in their womb. They are life giver, nurturers and bread winners. It is
the statutory duty of the employer and state to ensure that the Constitutional
right of women to life and liberty is guaranteed and
protected at all times.
Women employees can avail 26 weeks paid Leave
as opposed to the previously granted 12 weeks after the 1961 Maternity Benefit
Act got amended in 2017.
Women employees wrongfully laid off
because of their pregnancy are entitled to compensation and maternity benefits.
The maternity leave is a social insurance born out of Article 14 and 15, 42 of
the Constitution but also resonates in the 1979, U.N Convention on the
Elimination of all forms of discrimination against women
In Countries like Canada Women get Maternity
leave for 40 + weeks. In USA they don’t. India has always taken the lead in
feminist laws as compared to USA. For example Indian woman could vote since coming
into force of our Constitution (1949), American Women had to fight for their right
to vote. There are many such examples. However, this will make for another story.
Hon'ble Supreme Court in its judgment held
as under
“ A
just social order can be achieved only when inequalities are obliterated and
everyone is provided what is legally due. Women who constitute almost half of
the segment of our society have to be honoured and treated with dignity at
places where they work to earn their livelihood. Whatever be the nature of
their duties, their avocation and the place where they work; they must be
provided all the facilities to which they are entitled. To become a mother is
the most natural phenomena in the life of a woman. Whatever is needed to
facilitate the birth of child to a woman who is in service, the employer has to
be considerate towards her and must realise the physical difficulties which a
working woman would face in performing her duties at the work place while
carrying a baby in the womb or while rearing up the child after birth. The
Maternity Benefit Act, 1961 aims to provide all these facilities to
a working woman in a dignified manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the fear of being victimised
for forced absence during the pre or postnatal period…. Grant of maternity
benefit is not a matter of charity; it is a positive mandate of law as has been
held by the Hon'ble Supreme Court in its aforesaid judgment of Municipal
Corporation of Delhi (supra). The Preamble of the Maternity Benefit Act itself
states that "it is an Act to regulate the employment of women in certain
establishments for certain periods before and after childbirth and to provide
for maternity benefit and certain other benefits."
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 3 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.
Gauri Neo Rampal
Reseached by :
Team GNR
Important links
https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf
https://www.indiacode.nic.in/bitstream/123456789/1681/1/A1961-53.pdf
( In picture, you see progress in digitisation of court hearings and filings - an urgent need in covid times. ) A civil suit related to property matters can take anywhere between 46 years to 100 years from subordinate courts to Supreme Courts. The fault lies in lofty procedures of civil and criminal procedure codes. - archaic forms of serving summons, sign of judge mandatory on summons - adjournments on notice, summons, etc. - sign of judge mandatory in supplying copy of documents, orders etc for copying section. - execution etc. Suggestions :- A) Copying section - officer / clerk of copying section should be the competent authority to supply certified copies and the same should he done mandatorily within 2 working days. B) Procedure of serving summons/ notice - should be simultaneous instead of consecutive. Electronic summons - email whatsapp courier proclamation publication should be allowed to be done on first hearing itself. There should not be adjournm...
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