B. Shah Vs. Presiding Officer, Labour
Court, Coimbatore & Ors [1977] INSC 198 (12 October 1977)
SINGH, JASWANT SINGH, JASWANT KRISHNAIYER,
V.R.
CITATION: 1978 AIR 12 1978 SCR (1) 701 1977
SCC (4) 334
ACT:
Interpretation of social security legislation
for women-Duty of the court Right to payment of maternity benefits-Connotation
of the term "week" in sub ss. (1) and (3) of s. 5 read with ss. 2
(1), 3 (n) and 4 of the Maternity Benefits Act (Act LIII of 1961) Whether
computation of the maternity benefits prescribed by the Act has to be made
taking a week as signifying a cycle of seven days including a Sunday or a cycle
of seven days minus a Sunday which is a wage less day- Paragraphs 1 and 2 of
Art 4 of Convention 103 of Maternity Protection Convention (Revised) 1952
adopted by the General Conference of the International Labour Organisation.
HEADNOTE:
Respondent No. 2 working in "Mount
Stuart Estate" belonging to the appellant was allowed leave of absence on
maternity leave. After her delivery, the appellant paid her on account of
maternity benefit an amount equivalent to what she would have earned on the
basis of her average daily wages in 72 working days falling within 12 weeks of
the maternity period excluding 12 Sundays being wage less holidays which fell
during the period of the respondent's actual absence immediately preceding and
including the day of her delivery and the 6 weeks immediately following that
day. The claim for the benefit of the entire period of 12 weeks, that is, for
84 days on the plea that a week consisted of 7 days having been refused, the
respondent moved the Labour Court, Coimbatore, which by its order dated
February 26, 1969, allowed the said claim. The appellant moved the High Court
tinder Art. 226 of the Constitution challenging the decision of the Labour
Court. The single Judge of the High Court allowed the petition holding that 12
weeks for which maternity benefit is provided for in sub- section (3) of s. 5
of the Act must be taken to mean 12 weeks of work and the computation of the
benefit had to be made with reference to the actual days on which the woman
would have worked but for her inability. Aggrieved by this decision. the
respondent filed an appeal under cl. 15 of the Letters Patent and the Division
Bench set aside the orders of the single Judge.
Dismissing the appeal by special leave, the
Court,
HELD : (1) In interpreting provisions of
beneficial pieces of legislation which is intended to achieve the object of
doing social justice to woman workers employed in the plantations and which
squarely fall within the purview of Article 42 of the Constitution, the
beneficent rule of construction which would enable the woman worker not only to
subsist but also to make up her dissipated' energy. nurse her child, preserve
her efficiency as a worker and maintain the level of her previous efficiency
and output has to be adopted by the Court.
[708 H, 709 A-B] (2)The provisions of s. 5 of
the Maternity Benefits Act make it clear that a woman worker who expects a
child is entitled to maternity benefit for a maximum period of 12 weeks which
is split up into two periods viz., prenatal and post-natal. The first one is
the prenatal or ante-natal period is limited to the period of woman's actual
absence extending up to 6 weeks immediately preceding and including the day on
which her delivery occurs and the second one which is post-natal compulsory
period consists of 6 weeks immediately following the day of delivery. The Act
does not contain any definition of the word "week". It has to be
understood in its ordinary dictionary meaning. In the context of sub-s. (1)and
(3) of s. 5 of the Act, the term has to be taken to signify a cycle of 7 days
including Sundays. By using the words, namely, "for the period of her
actual absence immediately preceding and including the day of her delivery and
for the 6 weeks immediately following that day's the Legislature intended that
computation of maternity benefit is to be made for the entire Period of the
woman worker's actual absence, that is, for all the days including Sundays
which may be wage less holidays failing within that 702 period and not only for
intermittent period of 6 days thereby excluding Sundays failing within that
period. The word "period" occurring in s. 5(1) of the Act emphasises
the continuous running of time and recurrence of 7 days. It is also conformity
with Paragraphs 1 and 2 of Article 4 of Convention No. 103 concerning Maternity
Protection Convention (Revised) 1952 adopted by the General Conference of the
International Labour Organisation. [707 D-E, 908 A, E-F, H, 709 B-C]
(3)Computation of maternity benefit is to be made for all the days including
Sundays and rest days which may be wage less holidays comprised in the actual
period of absence of the woman extending up to 6 weeks preceding and including
the day of delivery as also for all the days falling within the 6 weeks
immediately following the day of delivery thereby ensuring that the woman
workers get for the said period not only the amount equal to hundred per cent
of the wages which who was previously earning in terms of s. 3(n) of the Act
but also the benefit of the wages for all the Sundays and rest days falling
within the aforesaid two periods which would ultimately be conducive to the
interest of both the woman worker and her employer. [709 D-F] Malayalam
Plantations Ltd. Cochin v. Inspector of Plantations Mundakayam & Ors.
[1975] Lab. 1. C. 848--A.I.R.
1975 Kerala 86, over-ruled.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1649 of 1975.
Appeal by Special Leave from the Judgment and
Order dated 24-4-1974 of the Madras High Court in Writ Appeal No. 165 of 1972.
G.B. Bai, P. K. Kurian, D. N. Mishra and K.
J. John for the Appellant.
K. N. Bhat (A. C.) for Respondent No. 2.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave which is directed against the
judgment and order dated April 24, 1974 of the Letters Patent Bench of the High
Court of Judicature at Madras reversing the judgment and order dated April 19,
1971 of the Single Judge of that Court passed in writ petition No. 3822 of 1969
presented under Article 226 of the Constitution raises a complex but an
interesting question relating to the construction of the phrases
"maternity benefit........ 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" occurring in section 5(1) of the Maternity
Benefits Act, 1961 (Act LIII of 1961) (hereinafter referred to as 'the Act')
which in view of section 2(1) of the Act is the law applicable even to women
workers employed in plantations.
It appears that in October, 1967, Subbammal,
respondent No. 2 herein, who is a woman worker employed in Mount Stuart Estate
(hereinafter referred to as 'the establishment'), which is carrying on
plantation industry, was allowed leave of absence by the establishment on the
basis of a notice given by her of her expected delivery which actually took
place on December 16, 1967. After her delivery, the respondent was paid by her
employers on account of maternity benefit an amount equivalent to what she
would have earned on the basis of her average daily wage in 72 working days
falling within twelve weeks of the maternity period. While calculating the
aforesaid amount of maternity benefit, the establishment admittedly excluded
twelve Sundays being wage less holidays, which fell during the period of the
respondent's 703 actual absence immediately preceding and including the day of
her delivery and the six weeks immediately following that day. Dissatisfied
with this computation, the respondent made a representation to her employers
claiming maternity benefit for the entire period of twelve weeks under the Act.
i.e. for 84 days on the plea that a week
consisted of seven days. As her demand did not evoke a favourable response, the
respondent applied to the Labour Court, Coimbatore, under section 33C(2) of the
Industrial Disputes Act for redress of her grievance. The claim preferred by
the respondent was resisted by the appellant herein who contended that the
respondent was admittedly working and was being paid only for six days in a
week and that a pregnant woman worker is entitled to maternity benefit for 72
days which are the normal working days in twelve weeks and not for 84 days, as no
wage is payable for the seventh day of the week i.e. Sunday, which is a
nonworking wage less holiday. By its order dated February 26, 1969, the Labour
Court allowed the claim of the respondent. Thereupon the establishment moved
the High Court at Madras under Article- 226 of the Constitution challenging
the, decision of the Labour Court contending that the claim made by the
respondent was untenable as normally a worker works only for six days in a week
and the maternity benefit had to be computed only for 72 days. As against this,
the respondent pleaded that the computation had to be made not with reference
to the actual number of working days but with reference to total number of days
covered by twelve weeks i.e. 84 days. The Single Judge of the High Court to
whom the case was assigned allowed the petition holding that twelve weeks for
which maternity benefit is provided for in subsection (3) of section 5 of the
Act must be taken to mean twelve weeks of work and the computation of the
benefit had to be made with reference to the actual days on which the woman
would have worked but for her inability. Aggrieved by this decision, the
respondent filed an appeal under clause 15 of the Letters Patent which, as
already stated, was allowed by the Letters Patent Bench of the High Court
observing that the maternity benefit which the respondent was entitled to
receive was for the period of her absence before delivery including the day of
delivery and also six weeks thereafter, each week consisting of seven days
including Sundays. Dissatisfied with this decision, the establishment has,
already stated, come up in appeal to this Court by special leave.
We have heard Mr. Pai, learned counsel for
the appellant as also Mr. Bhatt, who in view of the default in appearance of respondent
No. 2 and the importance of the point involved in the case was appointed as
amicus cruaie. We place on record our deep appreciation of the valuable
assistance rendered to us by both of them.
Assailing the judgment and order under
appeal, Mr. Pai has urged that since legislative intent, as revealed from the
scheme of section 5(1) of the Act is to compensate the woman worker who expects
delivery for the loss that her forced absence from work on account of pregnancy
and confinement may entail, the liability which has to be imposed on her
employer cannot exceed the amount that she would have earned if she had not
been compelled to avail of the maternity leave and since Sunday is a
non-working wage less day, the employer cannot be made to pay for that day. He
has further urged that since 704 under section 5 (1) of the Act, the maternity
benefit has to be computed with reference to the period of the workers' actual
absence thereby meaning absence on days on which there was work excluding
Sundays and the term 'week" in the context of 'sub-sections (1) and (3) of
section 5 of the Act is to be under stood as a week of work consisting of six
days and in the instant case, respondent No. 2 was working and earning wages
for six days in a week, the seventh day being a wage less holiday, her claim
cannot be sustained. In support of his contention. Mr. Pai has referred us to
the Full Bench decision of the Kerala High Court in Malayalam Plantations Ltd.
Cochin v. Inspector of Plantation Mundakayam & Ors.(1), and to Convention
No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by
the General Conference of the International Labour Organisation.
Mr. Bhatt has, on the other hand, urged that
the scheme of section 5 of the Act clearly indicates that a woman worker who
expects delivery had to be paid maternity benefit for all the seven days of the
week including Sundays falling within the ante-natal and post-natal periods
specified in the section.
For a proper determination of the question
involved in the appeal, it would, we think, be useful to refer to certain
provisions of the Act which have a bearing on the subject matter of the
controversy before US.
Section 2(1) of the Act makes the Act
applicable to every establishment being a factory, mine or plantation
(including any such establishment belonging to Government and to every
establishment wherein persons are employed for the exhibition of equastrain
acrobatic and other performance.
Sub-section (2) of section 2 of the Act
specifically excludes the applicability of the provisions of the Act to any
factory or other establishment to which the provisions of the Employees State
Insurance Act, 1948 apply for the time being. Section 3(n) of the Act defines
"wages" as under :- "3(n).--Wages means all remuneration paid or
payable in cash to a woman, if the terms of the contract of employment, express
or implied, were fulfilled and includes- (1) such cash allowances (including
dearness allowance and house rent allowance) as a woman is for the time being
entitled to;
(2) incentive bonus; and (3) the money value
of the concessional supply of food-grains and other articles, but does not
include- (i)any bonus other than incentive bonus;
(ii)over-time earnings and any deduction or
payment on account of fines;
(iii)any contribution paid or payable by the
employer to any pension fund or provident fund or for the benefit of the woman
under any law for the time being in force; and (1) (1975) Lab. I. C. 848=A.I.R.
1975 Ker. 86.
705 (iv) any gratuity payable on the
termination of service".
The above definition, it would be noted, does
not restrict the meaning of the term "wages" to contractual wages but
gives the term a composite meaning covering all remunerations in the nature of
cash allowances, incentive bonus and the money value of the concessional supply
of foodgrains and other articles.
Section 4 of the Act which prohibits the
employment of, or work by, woman during certain period lays down :- "4.
Employment of, or work by, woman prohibited during certain period.-(1) No
employer shall knowingly employ a woman in any establishment during the six
weeks immediately following the day of her delivery or her miscarriage.
(2) No woman shall work in any establishment
during the six weeks immediately following the day of her delivery or
miscarriage.
(3) Without prejudice to the provisions of
section 6, no pregnant woman shall, on a request being made by her in this
behalf, be required by her employer to do during the period specified in
sub-section (4) any which is of an arduous nature or which involves long hours
of standing, or which in any way is likely to interfere with her pregnancy or
the normal development of the foet us, or is likely to cause her miscarriage or
otherwise to adversely affect her health.
(4) The period referred to in sub-section (3)
shall be- (a) the period of one month immediately preceding the period of six
weeks, before the date of her expected delivery;
(b) any period during the said period of six
weeks for which the pregnant woman does not avail of leave of absence under
section 6".
Section 5 of the Act which confers right to
payment of maternity benefit on a woman worker provisions:- "5. Right to
payment of maternity benefit.- (1)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 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 the woman's wages payable
to her for the days on which she has worked during the period of three calendar
months immediately preceding the date from which she absents herself on account
of maternity, or one rupee a day, whichever is higher.
706 (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 up to and including the day of her delivery and six weeks immediately
following that day Provided that where a woman dies during this period, the
maternity benefit shall be payable only for the days up to and including the
day of her death.
Provided further that where a woman, having
delivered of a child, dies during her delivery or during the period of six
weeks immediately following the date of her delivery, leaving behind in either
case the child, the employer shall be liable for the maternity benefit for the
entire period of six weeks immediately following the day of her delivery but if
the child also dies during the said period, then, for the days up to and
including the day of the death of the child." Section 6 of the Act which
deals with notice of claim for maternity benefit and payment thereof is to the
following effect :- "6. 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.
707 (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 production of such proof as may be prescribed that
the woman is pregnant, and the amount due for the subsequent period shall be
paid by the employer to. the woman within forty-eight hours of production of
such proof as may be prescribed that the woman has been delivered of a child.
(6)The failure to give notice under this
section s not disentitle a woman to maternity benefit or any other amount under
this Act if she is otherwise entitled to such benefit or amount and in any such
case, an Inspector may either of his own motion or on an application made to
him by the woman, order the payment of such benefit of amount within such
period as may be specified in the order".
The provisions of section 5 of the Act quoted
above make it clear that a woman worker who expects a child is entitled to
maternity benefit for a maximum period of twelve weeks which is split up into
two periods viz. prenatal and post-natal.
The first one i.e. prenatal or ante-natal
period is limited to the period of woman's actual absence extending up to six
weeks immediately preceding and including the day on which her delivery occurs
and the second one which is postnatal compulsory period consists of six weeks
immediately following the day of delivery. The benefit has to be calculated for
the aforesaid two periods on the basis of the average daily wage. According to
the Explanation appended to section 5(1) of the Act, the average daily wage has
to be computed taking into consideration the average of the woman's wager,.
payable to her for the days on which she has worked during the period of three
calendar months immediately preceding the date from which she absents herself
on account of maternity, or one rupee a day, whichever is higher. For fixing
the average daily wage, it has therefore first to be ascertained whether the
wages with were paid or were payable to the woman was for 'time work' or for
'piece work'. It has next to be ascertained as to what were the cash wages paid
or payable to her in terms of the definition contained in section 3 (n) of the
Act for the days on which she worked during the period of three- calendar
months immediately preceding the date of delivery, reckoned according to the
British calendar month. The total wages thus worked out are to be divided by
the number of days in the aforesaid three calendar months in order to arrive at
the average daily wage. After thus finding out the average daily wage, the
liability of the employer in respect of the maternity benefit has to be calculated
in terms of section 5 of the Act for both ore-natal and post- natal period
indicated above.
708 The real though difficult question that
calls for determination by us is as to what is the connotation of the term
"week" occurring in sub-sections (1) and (3) of section 5 of the Act
and whether the computation of the maternity benefit prescribed by the Act for
the a foresaid two periods has to be made taking a "week" as
signifying a cycle of seven days including a Sunday or a cycle of seven days
minus a Sunday which is said to be a wage less day, As the Act does not contain
any definition of the word "week", it has to be understood in its
ordinary dictionary sense.
In the Shorter Oxford English Dictionary
(Third Edition), the word "week" has been described as meaning
"the cycle of seven days, recognized in the calendar of the Jews and
thence adopted in the calendars of Christian Mohammedan and various other
peoples. A space of seven days, irrespective of the time from which it is
reckoned. Seven days as a term for periodical payments (of wager,, rent, or the
like), or as a unit of reckoning for time of work or service." In
Webster's New World Dictionary (1962 Edition), the meaning of the word
"week" is given as "a period of seven days, especially one
beginning with Sunday and ending with Saturday; the hours or days of work in a
seven-day period." In Stroud's Judicial Dictionary (Third Edition), it is
stated that (1) "though a week usually means any consecutive seven days,
it will sometimes be interpreted to mean the ordinary notion of a week
reckoning from Sunday to Sunday and (2) probably, a week usually means seven
clear days." A "week" according to Halsbury's Laws of England
(Third Edi- tion) Volume 37 at p. 84 is. strictly the time between midnight on
Saturday and the same hour on the next succeeding Saturday, but the term is
also applied to any period of seven successive days.
Bearing in mind the above mentioned
dictionary or popular meaning of the term "week", we think that in
the context of sub-sections (1) and (3) of section 5 of the Act, the term has
to be taken to signify a cycle of seven days including Sundays. The language in
which the aforesaid sub-sections are couched also shows that the Legislature
intended that computation of maternity benefit is to be made for the entire
period of the woman worker's actual absence i.e. for all the days including
Sundays which may be wage less holidays falling within that period and not only
for intermittent periods of six days thereby excluding Sundays falling within
that period for if it were not so, the Legislature instead of using the words
"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" would have used the words "for the working days falling within
the period of her actual absence immediately preceding and including the day of
her delivery and the six weeks immediately following that day but excluding the
wage less days". Again the word "period" occurring in section
5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the
continuous running of time and recurrence of the cycle of seven days. It has
also to be borne in mind in this connection that in interpreting provisions of
beneficial pieces of legislation like the one in hand which is intended to
achieve the object of doing social justice to women workers employed in the
plantations and which squarely fall within the purview of Article 42 of the
Constitution, the beneficent rule of construction which would enable the woman
worker not only to subsist but also to make up her dissipated energy, nurse her
child, preserve her efficiency as a worker and maintain the level of her
previous efficiency and output has to be adopted by the Court.
The interpretation placed by us on the
phraseology of sub- sections (1) and (3) of section 5 of the Act appears to us
to be in conformity not only with the legislative intendment but also with
Paragraphs 1 and 2 of Article 4 of Convention No. 103 concerning Maternity
Protection Convention (Revised), 1952 adopted by the General Conference of the
International Labour Organisation which are extracted below for facility of
reference:- "Article 4 :
1. While absent from work on maternity leave
in accordance with the provisions of Article 3, the woman shall be entitled to
receive cash and medical benefits.
2. The rates of cash benefit shall be fixed
by national laws or regulations so as to ensure benefit sufficient for the full
and healthy maintenance of herself and her child in according with a suitable
standard of living." Thus we are of opinion that computation of maternity
benefit has to be made for all the days including Sundays and rest days which
may be wage less holidays comprised in the actual period of absence of the
woman extending upto six weeks preceding and including the day of delivery as
also for all the days falling within the six weeks immediately following the
day of delivery thereby ensuring that the woman worker gets for the said period
not only the amount equaling 100 per cent of the wages which she was previously
earning in terms of section 3 (n) of the Act but also the benefit of the wages
for all the Sundays and rest days falling within the aforesaid two periods
which would ultimately be conducive to the interests of both the woman worker
and her employer.
In view of what we have stated above, we
cannot uphold the view of the law expressed by the Full Bench of Kerala High
Court in Malayalam Plantations Ltd. Cochin v. Inspector of Plantations
Mundakayam & Ors. (supra).
In the result, the appeal fails and is hereby
dismissed.
Although costs have to be paid by appellant
to respondent No. 2 in terms of the Court's order dated October 30, 1975, yet
in view of the fact that the said respondent has not chosen to appear at the
hearing, of the case and Mr. K. N. Bhat has assisted the Court as amicus
curiae, we direct the appellant to pay Rs. 1,000/- to Mr. Bhat as his fee.
S.R. Appeal dismissed.
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