Ganpatlal Mulchandji Joshi… v. First Civil Judge, Class I, Nagpur And Another,…

The petitioner is the manager of a bidi factory at Gondia in the Bhandara district. Respondent No. 2, whom I will hereafter refer to as the respondent, was one of the workers employed in that factory. During the period of her employment, she gave birth to a child. Thereafter, she made an application to the authority constituted under the Payment of Wages Act, 1936 (4 of 1936) for an order directing the petitioner to pay maternity benefit to her as provided in the C.P Maternity Benefit Act, 1930. The petitioner contended before the authority that the petitioner's factory was not a factory within the meaning of the word “factory” given in the Maternity Benefit Act, and that consequently, the respondent was not entitled to any benefit under this Act. Another objection raised by the petitioner was that the amount claimed by the respondent was not “wages” within the definition of this term given in the Payment of Wages Act. These contentions were not accepted and an order was made, directing the petitioner to pay Rs. 28/- on account of maternity benefit to the respondent. Against this order, the present special civil application has been filed.

2. Mr. Phadke, who appears on behalf of the petitioner, has raised the same points, which had been urged on behalf of the petitioner before the Payment of Wages Authority, and these are that the petitioner's factory is not a factory, to which the provisions of the Maternity Benefit Act apply, and that the maternity benefit payable under this Act is not “wages” within the meaning of this word given in the Payment of Wages Act. It seems to us that the petition must succeed on the second ground, which has been urged by Mr. Phadke. Consequently, it is not necessary for us to decide the other point, which has also been urged by Mr. Phadke that the petitioner's factory is not a factory within the meaning of the Maternity Benefit Act. We have been referred to a number of cases, in which different views, which are not easy to reconcile, have been expressed with regard to the definition of the term “wages” given in the Payment of Wages Act. We do not think that it is necessary to refer to these cases, because the question arising in the present case can, in our opinion, be determined by a consideration of the definition of the “wages” given in the Act itself and the provisions of the Maternity Benefit Act. Clause (b) in Sec. 2 of the latter Act defines “benefit” to mean benefit as provided by this Act. Section 3 lays down that no employer shall employ a woman in any factory during the four weeks immediately following the day of her delivery and that no woman shall work in any factory during this period. Sub-section (1) of S. 4, which provides for the payment of maternity benefit, states that every woman employed in the factory shall be entitled to the payment of maternity benefit at the rate of her average daily earnings calculated on the total wages earned during the period of three months preceding the day of her confinement or at the rate of eight annas a day, whichever is less, for the actual days of her absence for the period immediately preceding her confinement and for four weeks immediately following her confinement. sub-section (2) of this section states that the maximum period for which any woman shall be entitled to the payment of maternity benefit shall be eight weeks. Sub-section (1) of S. 5 provides that any woman entitled to maternity benefit, who is pregnant, may give a notice to her employer, stating that she expects to be confined within one month next following, or in case she has been delivered of a child, stating that she is confined, that her maternity benefit may be paid to her, and that she will not work in any employment during the period, for which she receives maternity benefit. sub-section (2) of this section states that after receiving the notice, the employer shall permit the worker to absent herself from the factory from the day following the date of the notice in the former case and from the day of her delivery in the latter case, until four weeks after the day of delivery. A contravention of the provisions of the Act is made an offence under S. 9 of the Act. It will be seen from these provisions that the amount payable under this Act is referred to as “benefit” and not as “wages”. The distinction between the two words is ??? in sub-s. (1) of S. 4, which lays down that the amount of maternity benefit is to be calculated on the basis of the wages earned by the worker concerned during the period of three months preceding the date of her confinement. The Act does not also say that the period for which maternity benefit is payable, should be treated as leave or that the worker should be paid leave salary or wages during this period. The payment to be made to her is described as benefit and not as wages or leave salary. The intention of the Legislature, therefore, clearly was that it should not be regarded as wages.

3. The term “wages” is defined in Cl. (vi) in S. 2 of the Payment of Wages Act. The relevant portion of it is as follows:

“‘Wages’ means all remuneration capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, …….. to a person employed in respect of his employment, …… but does not include

(a) the value of any house-accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the State Government.”

4. Wages, therefore, mean remuneration, which an employer is liable to pay, if the terms of the contract of employment are fulfilled. In other words, they are payments made by an employer for services rendered. Under S. 4 of the Maternity Benefit Act, the benefit is payable for (a) the actual days of absence during four weeks immediately preceding the confinement, and (b) four weeks immediately following the confinement. During the second period, the employer is prohibited by S. 3 from employing the worker, while for the first period, the employer is bound to permit her to remain absent, if she gives the notice referred to in S. 5. It, however, appears that under S. 4, she will be entitled to receive the maternity benefit during the first period, even if she absents herself without having previously given such notice or without even having informed the employer. She can, therefore, claim the benefit, even if she remains absent without the permission of the employer. This amount is, therefore, payable to her, even if she does not fulfil the terms of her employment. It is also possible to argue that in view of the provisions of S. 3 that no employer shall employ a woman during the period of four weeks following the day of delivery, the contract of employment is suspended during this period. As, therefore, the amount of maternity benefit is payable, even if the terms of employment are not fulfilled, it cannot be said to be wages within the meaning of this term given in the Payment of Wages Act.

5. The term “wages” is also defined in the Workmen's Compensation Act, 1923. It is defined as including any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer or a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. In this Act, benefit is specifically in; eluded in the definition of “wages”. There is no similar provision in the Payment of Wages Act. On the other hand, Cl. (a) in the definition, excludes from the terms “wages” the value of medical attendance or other amenity. This also suggests that the Legislature did not intend that maternity benefit, payable when a woman worker is delivered of a child, should be regarded as wages.

6. In our opinion, therefore, the amount claimed by the respondent on account of maternity benefit was not wages within the meaning of the Payment of Wages Act. The authority constituted under this Act had consequently no jurisdiction to make an order, directing the petitioner to pay this amount. The order passed by that authority is accordingly set aside and the application made by the respondent to that authority will be dismissed. There will be no order as to costs.

K.S.B

Order set aside.