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S.5 of the Act which confers right to payment of maternity benefit on a woman worker provisions STA |
5.Right to payment of maternity STA |
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 immediatel... |
EXPLANATION STA |
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 ST... |
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 STA |
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 STA |
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 STA |
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 STA |
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 STA |
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 followin... |
S.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 STA |
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 ... |
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 STA |
3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery STA |
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 STA |
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 fort... |
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 ... |
The provisions of s.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 Ratio |
The first one i.e.prenatal or ante-natal period is limited to the period of woman's actual absence extending upto 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 Rat... |
The benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage Ratio |
According to the Explanation appended to s.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... |
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 s.3 (n) of the Act ... |
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 Ratio |
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 s.5 of the Act for both ore-natal and post-natal period indicated above Ratio |
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-ss.(1) and (3) of s.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 signifyi... |
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 Ratio |
A space of seven days,irrespective of the time from which it is reckoned Ratio |
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 Ratio |
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 Ratio |
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 Ratio |
A "week" according to Halsbury's Laws of England Ratio |
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 Ratio |
Bearing in mind the above mentioned dictionary or popular meaning of the term Ratio |
week",we think that in the context of sub-ss.(1) and (3) of s.5 of the Act,the term has to be taken to signify a cycle of seven days including Sundays Ratio |
The language in which the aforesaid sub-s.s 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 wageless holidays falling within that period and not only fo... |
It seems to emphasize,in our judgment,the continuous running of time and recurrence of the cycle of seven days Ratio |
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 Art.42 of the Constitutio... |
The interpretation placed by us on the phraseology of sub-ss.(1) and (3) of s.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 Art.4 of Convention No.103 concerning Maternity Protection Convention STA |
Revised),1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference:- "Art.4 STA |
1.While absent from work on maternity leave in accordance with the provisions of art.3,the woman shall be entitled to receive cash and medical benefits STA |
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 STA |
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 the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within ... |
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 Ratio |
Inspector of Plantations Mundakayam & Ors.1974 Indlaw KER 91 (supra Ratio |
In the result,the appeal fails and is hereby dismissed RPC |
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 RPC |
K.N.Bhat has assisted the Court as amicus curiae,we direct the appellant to pay Rs.1,000/-to Mr RPC |
Bhat as his fee RPC |
Appeal dismissed RPC |
The main question raised in this appeal by special leave at the instance of State,of Gujarat,and the Collector of Sabarkantha against the Gujarat High Court's judgment and order dated January 30/31,1975 allowing the writ petition of the respondent is whether once the competent authority under s.2(4) (i) of the Bombay M... |
Act,1953 (Bombay Act Ratio |
No.XXXIX of 1954) declares that a particular Jagir is a proprietary one,a further inquiry under s.37 (2) of the Bombay Land Revenue Code (Bombay Act Ratio |
No Ratio |
V of 1879) with a view to determining whether the Jagirdar had any rights to mines or mineral products in his Jagir granted or recognised under any contract,grant or law for the time being in force or by custom or usage is competent Ratio |
The facts giving rise to the said question are these : By Hajur Order No.116 dated October 27,1933,the respondent (Maharaj Shri Amar Singji Himatsingji) was granted Daljitgarh Jagir comprising of 10 villages mentioned in the said order in jivarak (for maintenance) by the then Ruler of Idar; by another Hajur Order No.80... |
According to the respondent by these grants (parvanas) read together he was given full proprietary rights in the soil of the said villages,that is to say,it was a proprietary Jagir that was granted to him by the then Ruler FAC |
Admittedly,on the coming into force of the Bombay Merged Territories and Areas (Jagirs Abolition) Act,1953 (hereinafter referred to as "the Act") i.e.with effect from respondent's Daljitgarh Jagir stood abolished and all his rights in the Jagir villages,save as expressly provided by or under the Act,were extinguished a... |
It appears that for the purpose of implementing the provisions of the Act the competent authority (Collector of District Sabarkantha) held an inquiry into the question whether the respondent's Jigir was proprietary (involving any right or interest in the soil) or non-proprietary (involving mere assignment of land reven... |
It further appears that pursuant to an order dated November 24,1959,passed by the Mamlatdar,Idar,an entry was made on June 18,1963,in the relevant revenue records (village Form No.6) of one of the villages Kapoda comprised in the Jagir to the effect that the respondent's right to take out gravel and stones was recognis... |
A similar application,containing similar request,was also made by the respondent to the Mamlatdar Taluka Idar on October 4,1971.Thereupon a notice under S.37(2) of the Bombay Land Revenue Code for the purpose of holding an inquiry into the rights of the respondent to mines and mineral products of the said villages clai... |
Aggrieved by this order passed by the Collector on February 23,1973,the respondent preferred a writ petition (Special Civil Application No.1224 of 1973) under Art.227 of the Constitution to the,Gujarat High Court and writ of certiorari quashing the order dated February 23,1973 and a direction restraining the Collector ... |
These reliefs sought by the respondent were resisted by the State of Gujarat and the Collector (the appellants before us) principally on the ground that the inquiry under s.37(2) of the Land Revenue Code into the rights to mines and mineral products in the said villages claimed by the respondent was necessary and prope... |
The High Court negatived the contentions urged by the appellants and took the view that in the determination by the competent authority under s.2 (4) (i) of the Act that the respondent's Jagir was a proprietary one there was implicit decision that the respondent was a grantee of the soil which included sub-soil entitli... |
Accordingly,the High Court set aside the Collector's order and further issued an injunction permanently restraining the State of Gujarat and the Collector from initiating any inquiry under S.37(2) in respect of the respondents rights to mines and mineral products in the said villages RLC |
The appellants seek to challenge the said judgment and order of the Gujarat High Court in this appeal FAC |
Learned counsel for the appellants has contended that the High Court has adopted an erroneous view of the scope and ambit of the inquiry contemplated under S.2(4)(i) of the Act by the competent authority in as much as under the said provision the competent authority had power merely to decide the question whether the r... |
He urged that it would be for the Collector acting under S.37(2) of the Bombay Land Revenue Code to decide the latter question in an inquiry initiated under that provision ARG |
According to learned counsel the mere circumstance that the respondent's Jagir was found under S.2(4 ARG |
i) to be proprietary was not tantamount to the establishment by the respondent of his rights to mines and mineral products in the villages of his Jagir for which there must be an actual grant or contract or law or custom or usage recognising such rights and this could only be determined by the Collector by holding an i... |
On the other hand,learned counsel for the respondent contended that a determination under s.2 (4) (i) of the Act that a particular Jagir 'was a proprietary one necessarily implied that the grant was of soil and the grantee was entitled to mines and mineral products which were expressly saved under s.10 of the Act and i... |
He urged that having regard to such determination that was made by the competent authority under s.2 (4) (i) of the Act it would be clear that a further inquiry into the respondent's rights to mines and mineral products,particularly gravel and stones under s.37(2) of the Code would be misconceived and incompetent ARG |
He pointed out that presumably pursuant to this determination,the Mamlatdar,Idar,had passed an order on November 24,1959,that the respondent's right to stones and gravel in the two villages of Kapoda and Isarwada,though not to mica,had been recognised by the Government and accordingly the necessary entry pertaining to ... |
He further urged that the two letters addressed by the respondent-one to the Collector on October 11,1968 and the other to the Mamlatdar on October 4,1971,merely contained a request to make appropriate entries in the Revenue Records based on the Mamlatdar's order dated November 24,1959 and,therefore,the Collector could... |
According to the learned counsel for the respondent unless a claim to property or rights over property was Made either by the State against any person or by any person against the State,there could be no occasion for the Collector to held an inquiry contemplated by s.37(2) of the Code ARG |
He,therefore,urged that the High Court was right in quashing the Collector's order dated February 23,1973 ARG |
Having regard to the rival contentions of the parties summarised above,it will appear clear that really two questions-one general and the other specific in the light of the facts obtaining in the instant case,arise for our determination in this appeal Ratio |
The general question is whether once the competent authority under s.2 (4) (i) of the Act declares that the particular Jagir is a proprietary one a further inquiry under s.37(2) of the Land Revenue Code with a view to determining whether the Jagirdar had rights to mines and mineral products in such Jagir subsisting on ... |
The other specific question is whether in the facts of the case and having regard to the nature of evidence considered and the specific finding made by the competent authority while determining the question under s.2(4 Ratio |
i),the further inquiry initiated by the Collector under s.37(2) was misconceived and uncalled for Ratio |
Dealing with the first question which is of a general character,it is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s.2 (4) (i) of the Act and to determine the same it will be necessary to consider the scheme and object of the Act and.in particular the purpose of the said inqu... |
The enactment as its preamble will show,has been put on the Statute Book with a view to abolishing Jagirs of various kinds in the merged territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto Ratio |
S.2 contains the definitions of various expressions some of which are material.s.2(vi) defines the expression "jagir" as meaning the grant by or recognition as a grant by,the ruling authority for the time being before the merger of a village,whether such grant is of the soil or an assignment of land revenue or both; th... |
S.2(vii) defines "jagirdar" as meaning a holder of a jagir village and includes his co-sharer.S.2(xv) defines "nonproprietary Jagir" as meaning a jagir which consists of a right in the jagirdar to appropriate as incident of the jagir,land revenue or rent due to Government from persons holding land in a jagir village,bu... |
S.2(xviii) defines "proprietary jagir" as meaning a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil STA |
S.2(4),though it forms part of a definition section,contains a substantive provision which is material for our purposes and it runs thus: "2(4 STA |
If any question arises STA |
i) whether a jagir is proprietary or non-proprietary, (ii)whether any land is Ghatked or Jiwai,or (iii)whetherany person is a permanent holder STA |
the State Government shall decide the question and such decision shall be final STA |
Provided that the State Government may authorise any officer to decide questions arising under any of the subclauses(i),(ii) and (iii) and subject to 'an appeal to the State Government,his decision shall 'be final STA |
Section 3,which contains the main provision dealing with abolition of jagirs,provides that notwithstanding anything contained in any usage,grant,sanad,order,agreement or any law for the time being in force,on and from the appointed date (which under S.2 (1) (i) is a date on which the Act comes into force,which is Augus... |
As a consequence of the,abolition of jagirs under s.3 all Jagir villages became unalienated villages and,therefore,under s.4 it has been provided that all Jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the Code and the Rules made thereunder and the provisions of the C... |
Ss.5 and 6 make provision as to what persons,upon abolition of jagirs and conversion of jagir land into unalienated land would be occupants,who shall be primarily liable to the State Government for payment of land revenue STA |
S.8 declares that all public roads,lands,paths,bridges,titches,dikes,and fences,on or besides the same,the bed of the sea and of harbours,creeks below high water mark,and of rivers,streams,nalaps lakes,wells and tanks,and all canals and water courses etc,situated in jagir village shall vest in the State Government and ... |
s.11 (1) provides for the quantum of compensation payable to a non-proprietary jagirdar on account of abolition of his jagir and extinguishment of his rights,while s.11(2) makes similar provision for quantum of compensation to a proprietary jagirdar on account of the abolition of 'his jagir and extinguishment of his ri... |
Ss.13 and 14 provide for methods of awarding compensations to jagirdars by the Collector and against the awards of the Collector under either of these provisions a appeal has been provided at the instance of the aggrieved party to the Revenue Tribunal under s.16.S.17 provides the procedure for disposal of appeals by th... |
The rest of the sections are (if formal character and not material for our purposes STA |
The aforesaid survey of the material provisions of the Act will bring out two or three aspects very clearly Ratio |
In the first place the,preamble and s.3 of the Act clearly show that the object of the enactment is to abolish Jagirs of all kinds in the merged territories and merged areas in the State of Bombay and to convert all Jagir villages into unalienated villages liable to the payment of land revenue in accordance with the pr... |
Secondly,compensation is made payable under S.11 of the Act to Jagirdars whose Jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of compensation in respect of rights to mines and mineral products in a Jagir village,obviously because if... |
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