Madras High Court
Management Of Kallayar Estate, Jay ... vs Chief Inspector Of Plantations And Anr. on 31 July, 1998
Equivalent citations: [1999(81)FLR639], (1999)ILLJ180MAD, (1998)IIIMLJ315
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasvam, J.
1. Aggrieved by the order of the first respondent in Maternity Appeal No. 1 of 1989, dated November 9, 1989, the petitioner - Management has filed the present writ petition.
2. The case of the petitioner-Management is briefly stated hereunder. The petitioner is a tea plantation estate covered under the Maternity Benefit Act. The second respondent is employed in the services of the petitioner. On May 28, 1988 she had an abortion in the Estate Hospital and after availing 6 weeks leave, she reported for duty. Her claim for leave wages at the rate of maternity benefit for the post miscarriage period of 6 weeks and leave with wages for one month under Section 10 of the said Act was not entertained on the ground that in the period of 12 months preceding her miscarriage viz., May 28, 1988, she has worked only for 156 days and therefore she was not entitled to payment of maternity benefit as the provision of the Act stood then, ft is further stated that the provisions of the Maternity Benefit Act clearly show that in order to claim benefit either under Section 5 or under Section 9 or under Section 10, the pregnant woman should have worked for not less than 160 days in the 12 calendar months immediately preceding the date of her expected delivery. It is also stated that maternity benefit and leave for miscarriage have been treated on the same footing and the Act does not envisage grant of leave with wages for miscarriage without reference to the qualifying period of service. Based on this reasoning, the claim of the 2nd respondent for post natal leave with wages for 6 weeks and leave for illness arising out of miscarriage was not countenanced. The claim of the 2nd respondent for maternity benefit was taken up as a complaint by the Inspector of Plantations, Valparai. By his order dated May 31, 1989, the Inspector of Plantations, Valparai held that the qualifying period of 160 days actual work is not a prerequisite for grant of leave with wages for miscarriage under Section 9 of the Act, accordingly he directed the petitioner to pay the 2nd respondent maternity benefit of Rs. 981.54 for the period from May 28, 1988 to July 8, 1988. Against the said order of Inspector of Plantations Valparai, the petitioner preferred an appeal to the first respondent under Section 17(3) of the Maternity Benefit Act. By order dated November 9, 1989, the first respondent dismissed the appeal and confirmed the order passed by the Inspector of Plantations. Against the order of the first respondent dated November 9, 1989 in Maternity Appeal No. 1 of 1989, the petitioner has filed the present writ petition.
3. In the light of the above factual position, I have heard the learned counsel for the petitioner as well as second respondent.
4. Mr. P. Ibrahim Kalifulla, learned counsel appearing for the petitioner Management, after taking me through the relevant provisions of the Maternity Benefit Act, 1961 has raised the following contentions:
(i) Inasmuch as the Maternity Benefit Act has treated delivery and miscarriage on the same footing, there is no justification to treat miscarriage on better terms than delivery, accordingly the order of the first respondent is liable to be set aside.
(ii) The first respondent ought to have construed Section 9 in harmony with Section 5 and held that in order to claim leave for maternity, a woman worker should have worked for 160 days in the 12 calendar months immediately preceding the date of miscarriage;
(iii) The first respondent ought to have held that when the Act has not made any difference between miscarriage and delivery, there is no warrant to make a distinction in the matter of delivery, the condition for entitlement on benefit between miscarriage and delivery on the other hand, Mr. N. Paramasivam, learned counsel appearing for the second respondent-worker, has contended that the provisions contemplated under Sections 9 and 5 of the said Act are independent and they should not be related or combined. He also submitted that nowhere under the Maternity Benefit Act it has been contemplated that qualifying period of 160 days of actual work should be calculated in the 12 months preceding the date of miscarriage.
5. I have carefully considered the rival submissions.
6. There is no dispute that second respondent-worker is employed in the service of the petitioner. Likewise, it is also not disputed that on May 28, 1988 she had an abortion in the Estate Hospital and after availing six weeks leave, she reported for duty. She claimed leave wages at the rate of maternity benefit for the post miscarriage period for six weeks and leave with wages for one month under the provisions of the Maternity Benefit Act, 1961 (hereinafter referred to as "the Act"). The Act was passed to regulate the employment of women in certain establishments for certain period before and after child birth and to provide for maternity benefit and certain other benefits, it applies, among other establishments to plantations also.
7. Now I shall refer to some of the provisions applicable to our case, Section 3 of the Act defines "maternity benefit" to mean the payment referred to in Sub-section (1) of Section 5.
Section 3(j) defines "miscarriage" to mean expulsion of the contents of a pregnant uterus at any period prior to or during the twenty- sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860) Section 4 stipulates that no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
Section 5 of the Act runs as follows:
"5. Right to payment of maternity benefit:
(1) Subject to the provisions of this Act, every workman 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.
Explanation : For the purpose of this sub-section, the average daily wage means the average of woman's wages payable to her for the days on which she has worked during the period of the three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery;
Provided that the qualifying period of one hundred and sixty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
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 during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks upto and including the day of her delivery and six weeks immediately following that day:
9. Leave for miscarriage: 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.
10. Leave for illness arising out of pregnancy, delivery, premature birth of a child or miscarriage: A woman suffering from 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."
8. Among all the provisions, we are concerned with Section 9 which speaks about leave for miscarriage. As stated earlier, on May 28, 1988, 2nd respondent herein had an abortion in the hospital belonging to the petitioner management and after availing 6 weeks leave she reported for duty and made a claim for leave wages at the rate of maternity benefit for the miscarriage period of six weeks and also leave with wages for one month under Section 10 of the Act. It is not disputed that her claim was supported by a certificate issued by the concerned authority. Relying on Section 9 of the Act, the learned counsel, for the petitioner, particularly with reference to the expression "at the rate of maternity benefit", has contended that claim under Section 9 is to be treated like claim under Section 5. In other words, according to him, claim under Section 9 is on par with claim under Section 5. As stated earlier Section 5 is applicable to delivery and Section 9 relates to miscarriage. Since the Expression "maternity benefit" is used in Section 5 according to the learned counsel for the petitioner in terms of Section 5, the claimant ought to have worked 160 days in the period of 12 months preceding her miscarriage. In that case, according to the petitioner for management, she had worked only 156 days in the period of 12 months preceding her miscarriage i.e., on May 28, 1988; hence she was not entitled to payment of maternity benefit as provisions of the Act stood then. It is true that in order to claim the payment of maternity benefit under Section 5 the concerned woman has to satisfy that she had actually worked in the establishment of the employer from whom she claims maternity benefit, for a period of not less than 160 days in the 12 months immediately preceding the date of her expected delivery. On a careful reading of Section 5(1), (2), (3) as well as Section 9 of the Act, I am unable to accept the arguments of the learned counsel for the petitioner management. When there is no such condition in Section 9 of the Act by the Legislature , it is not open to this Court to take a different view. If the condition prescribed in Section 5 is also applicable to Section 9, the leave for miscarriage could have been mentioned in Section 5 itself. It is also clear from Section 5 that in the case of delivery a woman worker is entitled to 12 weeks leave i.e., six weeks for pre-natal period and six weeks for post-natal period and in the case of miscarriage she is entitled only for the period of 6 weeks leave with wages following the day of miscarriage on production of a certificate. The fact that the relief is calculated as per maternity benefit should not be taken to mean that for claiming the benefit for 6 weeks after the date of miscarriage the condition of 160 days work should be insisted. Considering the intention of the Legislature and the condition prescribed in Section 5 of the Act and in the absence of similar condition in Section 9, I am of the view that in the case of miscarriage of a woman worker, she can claim the benefit under Section 9 even if she has not worked for 160 days in the period of 12 months preceding date of miscarriage. As rightly observed by the authorities, the provisions contemplated under Secs. 9 and 5 of the Act are independent and not interdependent and they should not be related or combined. If at all Section 9 has got any relation with Section 5 of the Act, the relation is limited in scope i.e., so far as the rate of benefit is concerned. It is clear that Section 5 of the Act does not speak about miscarriage. If the qualifying period of 160 days of work is a pre-requisite for claiming benefits for miscarriage, then the miscarriage should nave been dealt with under Section 5 of the Act. Miscarriage is an unexpected special event which is beyond the control of any individual woman worker. In the case of miscarriage there cannot be a date of expected delivery. Accordingly, the question of expected date of delivery does not arise at all in the case of miscarriage. Nowhere under the Maternity Benefit Act it has been contemplated that the qualifying period of 160 days of actual work should be calculated in the 12 months preceding the date of "miscarriage. Apart from the factual position, it is clear from the preamble of Act that the Maternity Benefit Act is a social piece of legislation. When a question of interpretation arises, it has to be decided in favour of workman since it is the commitment for the State also. As stated earlier, in the case of delivery, a woman worker is entitled to 12 weeks benefit viz., 6 weeks for pre-natal period and 6 weeks for post-natal period and in the case of miscarriage, she is entitled only for the period of 6 weeks leave with wages following the day of miscarriage, she on production of a certificate. This peculiar feature should not be lost sight of. The legislature has aptly worded this section, namely, Section 9 without any condition for payment of relief to the workman for miscarriage. As rightly concluded by the authorities, only when the question of relief comes, the legislature wanted to treat mis- carriage on par with maternity i.e., as in the case of delivery. Accordingly, I am in entire agreement with the conclusion arrived at by the first respondent and I hold that there is no need for the woman worker to put in 160 days of service prior to the date of miscarriage. Accordingly, the writ petition fails and the same is dismissed with costs. Counsel fee Rs. 1,000. Petitioner-management is directed to pay the amount of Rs. 981.54 to the second respondent-worker within a period of two weeks from today.