B. SHAH versus PRESIDING OFFICER, LABOUR COURT, COIMBATORE & ORS.

B. SHAH

PRESIDING OFFICER, LABOUR COURT, COIMBATORE & ORS. October 12, 1977

[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]

Interpretation of social security legislation for women-Duty of the court.

Right to payn1ent of maternity benefit~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 Lill of 1961). Whether computation of the maternity bene-fits prescribed by the Act has to be made taking week as si1;11ifying cycle of' seven days including Sunday or cycle of seven days minus Sunday which is wageless day-Paragraphs I and 2 of Art. 4 of Convention 103 of Maternity Protection Convention (Revisecf) 1952 adopted by the General Conference of the International Labour Organisation.

Respondent No. 2 working in "Mount Stuart Estate" belonging to the appel-lant 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 wageless 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 claifu for the benefit of the entire period of 12 weeks, that is, for 84 days on the plea that week consisted of 7 days having been refused, the respo@ent moved the Labour Court, Coimba~ tore, which by its order dated February 26, 1969, allowed the said claim. The appe11ant moved the High Court under 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 provisio11.s 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 beneficient 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 worker and maintain the level of her previous efficiency and output has to be adopted by the Court. [708 H, 709 A-Bl

(2) The provisions of s. 5 of the Maternity Benefits Act make it clear that woman \Vorker who expects child is entitled to maternity benefit fOr maxi-mum period of 12 weeks which is split up into two petiods viz., pre-natal and post-natal. The first one is the pre-natal or ante-natal period is limited to the period of woman's actual absence extending upto 6 weeks immediately preced-ing 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 deftnitiori of the word "week". It has to be understood in its ordina'ry dictionary me<lning. In the context of sub-s. (1) and (3) of s. 5 of the Act, the term has to be taken to signify cycle of 7 days including Sundays. By using the words, namely, "for the period of her actual absence immediately preceding and including the day R of her delivery and for the 6 weeks immediately followin~ that day's. the Legislature intended that computation of maternity benefit is to be rnade for the entire period of the woman worker's actual absence, that is, for all the days including Sundays which may be wageless holidays falling within that

period and not only for intermittent period of 6 da•ys thereby excluding Sundays falling within that period. The word "period" occurring ins. 5(1) of the Act emphasises the continuous running of time and recurrence of 7 days. It i) also conforn1ity with Paragraphs 1 and 2 of Article 4 of Convention No. !OJ coacerning l\1aternity Protection Convention (Revised) 1952 adopted by the General Conference of the Jntcrnationnl Labour Organisalio:i. l707 lJ-J:,, 908 A, E-F, H, 709 B-CJ

. (3) Computation of maternity benefit is to be made for all_ the days includ-B 1ng Sundays and rest days \Vhich may be wageless holidays Comprised in the actual period of absence of the woman extending upto 6 weeks preceding and including the day of delivery as also for all the days falling \Vithin the 6 \veeJ..;s immediately following the day of delivery thereby ensuring that the wom:1 n workers get for the said period not only the amount equal to hundred per cent of the wages \vhich who was previously earning in terms of s. 3(n) of the 1\ct but .also the benefit of the wages for all the Sundays and rest days frilling within the aforesaid two periods ·which would ultimately be conducive to the interest of both the woma·n worker and her employer. [709 D-f']

Malayala1n Plantations Ltd. Cochin v. Inspector of Plantations Mundakaya111 & Ors. [1975] Lab. I. C. 848--A.l.R. 1975 Kerala 86, over-ruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1649 of 1975.

Appeal by Special Leave from th•e 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

J ASWANT SrNGH, J. This appeal· by special kave 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 dabed 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 complex but an interesting question relating to the construction of the phras•e "maternity benefit ....... . for the period of her actual absence immediately preceding and includ-F ing the day of her delivery and for the six w""ks 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 vi•ew of section 2 ( 1) of the Act is the Jaw applicable even to women workers employed in plantations.It appears that in October, 1967, Subbammal, respondent No. 2 .G herein, who is woman worker employed in Mount Stuart Estate (hereinafter refcrPed to as 'the establishment'), which is carrying on plantation indootry, was allowed leave of. absence by the establishment on the basis of notice given by her of her ·~xpected delivery which actually took place on December 16, 1967. After her delivery, the respondent was paid by her emplo}'crs 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 wageless holidays, which fell during the period of the respondent's

actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. Dissatis-fied with this computation, the respondent made repres•ontation to her employers claiming maternity benefit for the entire period of twelw weeks under the Act. i.e. for 84 days on the plea that week consisted of seven days. As her demand did not evoke favourable response, the respond•,nt 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 week and that 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 pay-able for the seventh day of the week i.e. Sunday, which is non-working wageless 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 o! the Constitution challenging the decision of the Labour Court contend-ing that the claim made by the respondent was untenable as normally worker works only for six days in 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 sub-section ( 3) of section 5 of the Act must be taken to mean twelve weeks of work and the computation of the benefit bad to be made with refer-ence to the actual days on which the woman would have worked but for her inability. Aggrieved by thi's 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 entit:•ed to receive was for the period of her absence before ddivery including the day of deli-very 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 ~eave.

establishment

We have heard Mr. Pai, learned couns~l for the appellant as also Mr. Bhatt, who in view of the default in apearance of respondent No. 2 and the importance of the point involved in the case was appoinved 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 tho loss that her forced absence from work on account of pregnancy and confinemant 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 non-working wageless day, the employer cannot be made to pay for that day. He has further urged that since

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 sec-tion 5 of the Act is to be under stood as week of work consisting of six days and in the instant case, respondent No. 2 was working and earn-ing wages for six days in week, the sewnth day being wageless 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 Plantata-tions Mundakayam & Ors.([1]) and to Convention No. 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the Gene-ral Conference of the International Labour Organisation.

Mr. Bhatt has, on the other hand, urged that th~ scheme of section 5 of the Act clearly indicates that woman worker who expects deli-very 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 proper d'etermination of the question involved in the appeal, it would, we think, be useful to refer to certain provisions of the Act which have bearing on the subject matter of the controvercy before us.

Section 2 ( 1) of the Act makes the Act applicable to every esta-blishment being factory, mine or plantation (including any such esta-blishment 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 speci-fically 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 woman, if the terms of the contract of employ-ment, express or implied, were fulfilled and includes-

(!) snch cash allowances (including dearness allowance and house rent allowance) as 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 articl<es, but does not include-(i) any bonus other than incentive bonus;

(ii) over-time earnings and any deduction or pay-ment on account of fines;

(iii) any contribution paid or payable by the em-ployer to any pension fund or provident fund or for the ben<efit of the woman under any law for the time being in force; and

(!) (1975) Lab. I. C. 848~A.I.R. 1975 Ker. 86.

(iv) any gratuity payable on the termination of ser-vice".

The above definition, it would be noted, does not restrict the mean-ing of the term "wages" to contractual wages but gives the term 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 woman in any establishment during the six weeks immediately following the day of her delivery or her mis-carriage.

(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 requost being made by her in this behalf, be required by ber 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 nor-mal development of the fo>tus, or is likely to cause her mis-carriage 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 woman worker provisions:-

"5. Right to payment of maternity benefit.-

(1) Subject to tho 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 averag:: daily wage for the period of her actual absence immediately pre-ceding and including the day of her delivery and for the six weeks immediately following that day.

EXPLANATION.-For the purpooe of this sub-section the average daily wage means the average of the woman's V.:alles payable to her for the days on which she has worked dunng the period of three calendar months immediately preceding the date from which she absents herself on account of mater-nity, or one rupe•o day, whichever is higher.

(2) No woman shall be entitled to maternitv benefit un-less she has actually worked in an establishmen"t of the em-ployer from whom she claims maternity benefit, for period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected deli-very.

Provided that the qualifying period of one hundred and sixty days aforesaid shall not apply to 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 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 woman dks during this period, the maternitiy benefit shall be payable only for the days up to and including the day of her death.

Provided further that where woman, having deli'.'ered of 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 upto and including the day of the death of th•e 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 honefit and payment thereof.-(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions Qf this Act may give notice in writing in such form as may be pres-cribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this A\'t may be paid to h·~r or to such person as she may no_mi-nate in the notice and that she will not work in any establish-ment during the period for which she receives maternity benefit.

(2) In the case of woman who is pregnant, such notice shall state the date from which she wia be absent from work, not being date earlier than six weeks from the date of her expected delivery.

(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 pre-ceding 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 P''riod shall be paid by the employer to the woman within forty-eight hours of pro-duction of such proof as may be prescribed that the woman has been delivered of child. ( 6) The failure to give notice under this section shall not disentitle woman to maternity benefit or any other amount under this Act if she is oth•=rwisc entitled to such benefit or amount and in any such case, an Inspector nby 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 specifi.ed in the order''.The provisions of section 5 of the Act quoted above make it clear that woman worker who expects child is entitled to maternity bene-fit for maximum period of twelve weeks which is split up into two periods viz. pre-natal and post-natal. The first one i.e. pre-natal or ante-natal period is limited to the period of woman's actual absence extending upto six weeks immediaoely preceding and including the day on which her delivery occurs and the second one which is post-natal compulsory period consists of six weeks immediately following the day of delive1y The benefit has to be calculated for the afore-said 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 compubed taking into consideration 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 pre-ceding th•: date from which_ she absents herself on account of mater-nity, or one rupee 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 thre•e 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 pre-natal and post-natal period indicatei above.

The real though difficult question that calls for determination by us is as to wbat is the connotation of the term "week" occurring in sub-sections (I) and ( 3) of section 5 of the Act and whether the computation of the maternity benefit prescribed by lb~ Act for the aforesaid two periods has to be made taking "week" as signifying cycle of seven days including Sunday or cycle of seven days minus Sunday which is said to be wageless 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. space of seven days, irrespective of the time from which it is reckoned. Seven days as term for periodical pqyments (of wages, rent, or the like), or as unit of reckoning for time of work or service."

In Webster's New World Dictionary (1962 Edition), the meaning of the word "wi,ek" is given as "a period of seven days, especially one beginning with Sunday and ending with Saturday; the hours or days of work in seven-day period."

In Stroud's Judicial Dictionary (Third Edition), it is stated that ( 1) "though week usually means any consecutive seven days, it will sometimes be interpreted to mean the ordinary notion of week reckon-ing from Sunday to Sunday and (2) probably, week usually means seven clear days."

"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 th' 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 mean-ing of the term "wrek", 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 cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legis-lature intended that computation of maternity benefit is to be made for the entire period of the woman worker's actual abS'Cnce i.e. for all the days including Sundays which may be wageless 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 wageless days". Again the word "period" occurring in section 5(1) of the Act is strong word. It seems to emphasize, in our judgment, the continuorn running of time and Pecnrrence of the cycle of seven days. It has also to be borne in mind in this connection thatJ.n inter-

preting provisions of beneficial pieces of legislation like the one in hand which is intended to achieV'e the object of doing social justice to women work,ers 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 worker and maintain the level of her pre-vious efficiency and output has to be adopted by the Court.

The iuDerpretatiou 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 I and 2 of Article 4 of Convention No. I 03 concerning Maternity Pro-tection Convention (Revis,ed), 1952 adopted by the General Con-ference 9,f the International Labour Organisation which are extracted below for facility of reference :-

"Article 4 :

I. Whibe absent from work on maternity leave in accor-dance with the provisions of Article 3, the woman shall be entitled to receive cash and med'ical 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 accordanoe with 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 wageless holidays comprised in the actual period of absence of tm woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks imme-diately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per rent 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 inDerests 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 th".' Full Bench of Karala 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 ord,er 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 lhe Court as amicus curiae, we direct the appellant to pay Rs. 1,000/- to Mr. Bhat as his fee.