i would suggest you, you carefully go through the notification of exemption issued by the Gujarat Govt under section 4 of Shop & Establishment, if any thing favourable its ok, otherwise go for writ petition before Gujarat High Court. Maternity Benefit Act is social peace of legislation to protect the womenhood and to compensate the women during the period of absence due to birth of child.
By notification the Govt has exempted Education Institute from the compliance under Shop & Establishment but not from the provisions of Maternity Benefit Act.
For applicability of Maternity Benefit, the Establishment should be an establishment within the meaning of Shop & Establishment Act, an education institute surely as per Gujarat shop Act is an Establishment within the meaning of said Maternity Benefit Act.
As per Section of section 2(1)(b) of the Maternity Act -[(1) It applies, in the first instance,—
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]
Further definition of Estabishment under MB Act means-
[(e) “establishment” means—
(i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 2[***]
3[(iva) a shop or establishment; or]
in view of above difinition and applicability of MB Act, its surely applicable, Education Institute fullfil the creteria of both above provisions.
Exemption issued from the operation of S&E Act does not have any effect.
frame your arguments in above said direction and go for writ petition, definitely you can get the benefit.
Regards
Sanjay Kumar
87By notification the Govt has exempted Education Institute from the compliance under Shop & Establishment but not from the provisions of Maternity Benefit Act.
For applicability of Maternity Benefit, the Establishment should be an establishment within the meaning of Shop & Establishment Act, an education institute surely as per Gujarat shop Act is an Establishment within the meaning of said Maternity Benefit Act.
As per Section of section 2(1)(b) of the Maternity Act -[(1) It applies, in the first instance,—
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]
Further definition of Estabishment under MB Act means-
[(e) “establishment” means—
(i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 2[***]
3[(iva) a shop or establishment; or]
in view of above difinition and applicability of MB Act, its surely applicable, Education Institute fullfil the creteria of both above provisions.
Exemption issued from the operation of S&E Act does not have any effect.
frame your arguments in above said direction and go for writ petition, definitely you can get the benefit.
Regards
Sanjay Kumar
MB Act is applicable to an establishment ,be it educational or commercial only if it is covered under the Shops & Commercial Est:Act of the respective state.Applicability of EPF or ESI to such establishment is by virtue of notifications under those Acts.For example Hon Bombay HC has held that IT firms are factories under ESI Act .With that decision Factories Inspector cannot apply Factories Act to IT firms which are not yet under Factories Act.
Varghese Mathew
09961266966
From India, Thiruvananthapuram
Varghese Mathew
09961266966
From India, Thiruvananthapuram
Sir(s),
I have found a judgment of Hon'ble Supreme Court of India( decided in the year 2000 and is relating to Municipal Corporation, Delhi) in respect of applicability of MBA, 1961.The same is linked herewith as an e-mail attachment . Though, the same does not relate to educational institutions, but I feel that the contents of the same can be helpful for seniors/experts as per discussion in this thread.
From India, Noida
I have found a judgment of Hon'ble Supreme Court of India( decided in the year 2000 and is relating to Municipal Corporation, Delhi) in respect of applicability of MBA, 1961.The same is linked herewith as an e-mail attachment . Though, the same does not relate to educational institutions, but I feel that the contents of the same can be helpful for seniors/experts as per discussion in this thread.
From India, Noida
Dear friends,
I think that the difference of opinion as to the application of the Maternity Benefit Act,1961 to educational institution is due to the difference in the interpretation of Sec.2(1)(b) of the Act. For the sake of ready-reference let me give the extract below:
"2.Application of the Act.- (1) It applies, in the first instance,-
(a) 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 equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the timebeing in force in relation to shops and establishments in a State, in which ten or more persons are employed or were employed, on any day of the preceding twelve months.
Provided that the ----------- or otherwise."
Here, I would like to request your attention to be focussed on the phrase " to every shop or establishment within the meaning of ANY LAW for the time being in force in relation to shops and establishments in a State ". The particular entity providing employment should be a shop or establishment within the meaning of any law for the time being in force - that's all.It need not be necessarily defined exclusively as such under the State Shops and Estt Act.Again we have to note that the usage 'shop' and 'establishment' is only in generic terms and not with specific reference to the State S&E Acts.The proviso empowers the State Govt. only in the case of any other or class of establishment not falling within the meaning of any law as such to bring it within the application of the MB Act by means of a notification.
From India, Salem
I think that the difference of opinion as to the application of the Maternity Benefit Act,1961 to educational institution is due to the difference in the interpretation of Sec.2(1)(b) of the Act. For the sake of ready-reference let me give the extract below:
"2.Application of the Act.- (1) It applies, in the first instance,-
(a) 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 equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the timebeing in force in relation to shops and establishments in a State, in which ten or more persons are employed or were employed, on any day of the preceding twelve months.
Provided that the ----------- or otherwise."
Here, I would like to request your attention to be focussed on the phrase " to every shop or establishment within the meaning of ANY LAW for the time being in force in relation to shops and establishments in a State ". The particular entity providing employment should be a shop or establishment within the meaning of any law for the time being in force - that's all.It need not be necessarily defined exclusively as such under the State Shops and Estt Act.Again we have to note that the usage 'shop' and 'establishment' is only in generic terms and not with specific reference to the State S&E Acts.The proviso empowers the State Govt. only in the case of any other or class of establishment not falling within the meaning of any law as such to bring it within the application of the MB Act by means of a notification.
From India, Salem
Dear Modi,
The view of the Labour Inspector is not correct.When an exemption can arise? Only, when the Act is applicable.So, the exemption may be partial with regard to certain provisions or total from all provisons but it is strictly confined to that particular Act only and the exemption can not act as a bar on the application of other enactments.Pl read my previous reply carefully. I reiterate that the establishment should be an establishment within the meaning of any law applicable to shops and establishments in its general sense.In respect of private educational institutions, labour enactments like EPF Act, Payment of Gratuity Act,1972 are applicable.Therefoe, no separate notification by the State Govt is necessary. Better, prefer an appeal u/s17(3) of the MB Act,1961 to the Appellate Authority first.
From India, Salem
The view of the Labour Inspector is not correct.When an exemption can arise? Only, when the Act is applicable.So, the exemption may be partial with regard to certain provisions or total from all provisons but it is strictly confined to that particular Act only and the exemption can not act as a bar on the application of other enactments.Pl read my previous reply carefully. I reiterate that the establishment should be an establishment within the meaning of any law applicable to shops and establishments in its general sense.In respect of private educational institutions, labour enactments like EPF Act, Payment of Gratuity Act,1972 are applicable.Therefoe, no separate notification by the State Govt is necessary. Better, prefer an appeal u/s17(3) of the MB Act,1961 to the Appellate Authority first.
From India, Salem
Dear Umakanthan Sir,
Is MB Act applicable to a Tution class which is Pvt Ltd company having around 20 employees out of which only 9 are permanent. They do not deduct any PF nor ESI from the salary. Is MB Act applicable to the institution as there is no ESI deducted?
From India, Pune
Is MB Act applicable to a Tution class which is Pvt Ltd company having around 20 employees out of which only 9 are permanent. They do not deduct any PF nor ESI from the salary. Is MB Act applicable to the institution as there is no ESI deducted?
From India, Pune
What is the rate of Payment to be paid to Lady Employee under Maternity Benefit Act, Whether she is eligible for Gross Salary or Only Basic Salary. Please clarify.
From India, Panvel
From India, Panvel
Dear Sir/ Madam, Thank you very much for your comments on the Maternity Payment. Is there any Govt . GR or Noting about Gross Salary Payment to be paid to the Women under Maternity Benefit Act ?
From India, Panvel
From India, Panvel
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Creche under Maternity Benefit Act.pdf
MATERNITY BENEFIT ACT 2009.doc