MALAYALAM PLANTATIONS LTD Vs. INSPECTOR OF PLANTATIONS
HIGH COURT OF KERALA
MALAYALAM PLANTATIONS LTD.
INSPECTOR OF PLANTATIONS
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(1.) This appeal has been referred to a Full Bench as it involves a nice question relating to the scope of S.5 of the Maternity Benefit Act, 1961 (Central Act). That Act replaced the Kerala Maternity Benefit Act, 1957 from 15-8-1970. The 1st respondent Inspector of Plantations, Mundakayam inspected the appellant's estate on 6-5-1971 and on such inspection felt that 11 women workers were not given maternity benefit according to the provisions of the Central Act. This resulted in the issue of a notice by the 1st respondent to show cause why the balance amount due was not disbursed to them. The Superintendent of the appellant submitted his explanation stating that the workers work for six days in a week only, Sunday being a wageless holiday, that the workers are entitled to maternity benefit only on that basis and as such no more amount is due to them. The 1st respondent did not accept this explanation. He passed an order directing that these women workers are entitled to maternity benefit on the basis of their average daily wage multiplied by seven. This was challenged by a writ petition which was dismissed by a learned single Judge of this Court. This appeal is filed against that judgment.
(2.) To understand the respective contentions urged before us it is necessary to state at the outset the scope of the various provisions of the Maternity Benefit Act, 1961. This Act has been made applicable to establishments in plantation as defined in Plantations Labour Act, 1951. The Act is intended to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits. S.4 prohibits employment of a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage. She is prohibited from work in any establishment during the said six weeks. For a period of six weeks preceding the date of her expected delivery, if she makes a request "in that behalf, she should not be required to do any work 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. She is given a right to 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 date of delivery and for six weeks thereafter. The average daily wage is the average of a 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. A woman worker is entitled to maternity benefit only if she has actually worked in the establishment for a period of not less than 160 days in the 12 months immediately preceding her expected delivery. The maximum period for which a woman shall be entitled to maternity benefit is 12 weeks, that is to say, six weeks preceding and six weeks succeeding the date of her delivery. By S.6 she is required to give notice in writing to her employer stating that her maternity benefit and any other amount to which she is entitled under this Act may be paid to her or to her nominee and that she will not work in any establishment during the period she receives maternity benefit. On receipt of such a notice the employer is required to permit such woman to absent herself from the establishment until the expiry of six weeks after the date of her delivery. In the case of miscarriage a woman worker on production of such proof shall be entitled to leave with wages at the rate of the maternity benefit for a period of six weeks immediately following the day of her miscarriage. Over and above such leave a woman worker is also entitled to leave with wages for a maximum period of one month in case she suffers any illness arising out of pregnancy, delivery, premature birth of child or miscarriage. The employer is prohibited from dismissing a woman who absents herself from work in accordance with the provisions of this Act during that period. If the employer fails to pay the benefit as provided for by the Act, the worker is allowed to appeal to the prescribed authority and claim reliefs. The amount determined by such authority as due can be recovered under the provisions of the Revenue Recovery Act and paid to the worker.
(3.) In the background of these provisions the controversy centres round the scope of S.5(1). It is in the . following terms: -
"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 absented herself on account of maternity, or one rupee a day, whichever is higher-".
Here the period for which a worker is entitled to benefit is divided into two parts. For the period before her date of delivery she is entitled to maternity benefit only for the period of her actual absence. For six weeks after her delivery she is entitled to maternity benefit. The difference between these two periods is understandable. For the earlier period she is not prohibited from working. She may absent herself after giving the required notice. So, maternity benefit is limited to the period of her actual absence only. But she is prohibited from doing work in any establishment during the six weeks after delivery, and the liability to pay maternity benefit is absolute for that period. S.5(3) provides for payment of maternity benefit for the maximum period of 12 weeks. The period of benefit is described in terms of weeks. Whether the Legislature contemplated a week of seven calendar days or a working week is not expressed. That is the controversy here. So, to resolve that we have to find out the legislative intent from other provisions of the Act. For this purpose the subject of the legislation must be kept in view. The following passage from "Maxwell on The Interpretation of Statutes, 12th Edition" page 76 is pertinent in this context.
"The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained. Grammatically, words may cover a case; but whenever a statute or document is to be construed it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied."
The expression "week" has different shades of meanings depending on context. Generally it applies to a seven day period reckoned from Saturday midnight to next Saturday midnight. It is used also to cover a continuous period of 7 days from any day in a week. It is also used to denote a working day week (See Shorter Oxford Dictionary and Chambers's Twentieth Century Dictionary). In the case of industrial establishments for payment of wages this is generally understood with reference to the working day week. Under the Payment of Wages Act each establishment will have a wage period. A worker is paid his wage for each day of work and the wage period is generally a week and shall not exceed a month. At the end of the period the wage earned by him for the days he worked is calculated and paid. The day of rest is not reckoned in the calculation. When such a worker takes leave for a week or for a month, his leave wage is calculated on the basis of the wage that he may receive during the period of leave. Here also the day of rest is not reckoned. Even then he is said to be on leave for a week or for a month and leave with wages will not give him anything more than what he would have earned during the period. A woman worker during her maternity period is under a disability to work and the statute compulsorily prohibits her from working in the establishment for the post delivery period of six weeks. She is on compulsory leave then. She loses what she would have earned. A period of leave with wages would fetch her what she would have got if she had worked. That is intended to be given as maternity benefit. There is nothing to suggest or to infer from S.5 of the Act, that she should be paid by way of maternity benefit anything more than what she would have earned if she had worked during the same period. In other words, the law does not require the employer to treat her differently from a worker on leave with wages. That this is the idea of the Parliament in enacting this law is clear from other provisions as well. For the period before her delivery she is not prohibited from working and the section provides that she must be paid at the rate of the average daily wage for the period of her actual absence The expression "actual absence" emphasises the fact that it covers . only working days. Nobody will say that a worker is absent on a holiday. That shows that the Legislature intended only to direct the employer to pay maternity benefit at the rate of the average daily wage for the working days absented by the worker during a period of six weeks before delivery. A fortiori the post delivery period of six weeks' compulsory absence cannot have a different scope in the matter of payment of maternity benefit. In other words, maternity benefit is given for a period and the maximum period is reckoned with reference to the date of delivery - six weeks before and six weeks after delivery and "week" " is to be understood in terms of working day week only. This is further clear from the other provisions in the section.;
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