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
From India, Delhi
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99By 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
From India, Delhi
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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, the Honorable Bombay HC has held that IT firms are factories under ESI Act. With that decision, Factories Inspector cannot apply the Factories Act to IT firms which are not yet under the Factories Act.
Varghese Mathew
09961266966
From India, Thiruvananthapuram
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Varghese Mathew
09961266966
From India, Thiruvananthapuram
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Dear Sirs,
I have found a judgment of the Honorable Supreme Court of India (decided in the year 2000 and relating to the Municipal Corporation, Delhi) concerning the applicability of the MBA, 1961. The same is attached to this email. Although it does not pertain to educational institutions, I believe that the contents of the judgment could be helpful for seniors and experts participating in this discussion thread.
Thank you.
From India, Noida
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I have found a judgment of the Honorable Supreme Court of India (decided in the year 2000 and relating to the Municipal Corporation, Delhi) concerning the applicability of the MBA, 1961. The same is attached to this email. Although it does not pertain to educational institutions, I believe that the contents of the judgment could be helpful for seniors and experts participating in this discussion thread.
Thank you.
From India, Noida
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Dear friends,
I believe that the difference of opinion regarding the application of the Maternity Benefit Act, 1961 to educational institutions stems from the varying interpretations of Sec. 2(1)(b) of the Act. To provide clarity, I have included the relevant 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 the 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 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.
Provided that the ----------- or otherwise."
I would like to draw your attention to 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 entity providing employment must align with the definition of a shop or establishment as per the current laws in force; it does not necessarily have to be exclusively defined under the State Shops and Establishment Act. Additionally, it is important to note that the terms 'shop' and 'establishment' are used generically and do not specifically refer to the State S&E Acts. The proviso grants authority to the State Government only in cases of establishments not falling within the scope of existing laws to bring them under the purview of the Maternity Benefit Act through a notification.
Thank you for your attention.
From India, Salem
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I believe that the difference of opinion regarding the application of the Maternity Benefit Act, 1961 to educational institutions stems from the varying interpretations of Sec. 2(1)(b) of the Act. To provide clarity, I have included the relevant 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 the 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 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.
Provided that the ----------- or otherwise."
I would like to draw your attention to 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 entity providing employment must align with the definition of a shop or establishment as per the current laws in force; it does not necessarily have to be exclusively defined under the State Shops and Establishment Act. Additionally, it is important to note that the terms 'shop' and 'establishment' are used generically and do not specifically refer to the State S&E Acts. The proviso grants authority to the State Government only in cases of establishments not falling within the scope of existing laws to bring them under the purview of the Maternity Benefit Act through a notification.
Thank you for your attention.
From India, Salem
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Dear Modi,
The view of the Labour Inspector is not correct. When can an exemption arise? Only when the Act is applicable. So, the exemption may be partial with regard to certain provisions or total from all provisions, but it is strictly confined to that particular Act only, and the exemption cannot act as a bar on the application of other enactments. Please 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, labor enactments like EPF Act and Payment of Gratuity Act, 1972 are applicable. Therefore, no separate notification by the State Govt is necessary. It is better to prefer an appeal under Section 17(3) of the MB Act, 1961, to the Appellate Authority first.
From India, Salem
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The view of the Labour Inspector is not correct. When can an exemption arise? Only when the Act is applicable. So, the exemption may be partial with regard to certain provisions or total from all provisions, but it is strictly confined to that particular Act only, and the exemption cannot act as a bar on the application of other enactments. Please 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, labor enactments like EPF Act and Payment of Gratuity Act, 1972 are applicable. Therefore, no separate notification by the State Govt is necessary. It is better to prefer an appeal under Section 17(3) of the MB Act, 1961, to the Appellate Authority first.
From India, Salem
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Dear Umakanthan Sir,
Is the Minimum Wages Act applicable to a tuition class that is a Pvt Ltd company having around 20 employees, out of which only 9 are permanent? They do not deduct any PF or ESI from the salary. Is the Minimum Wages Act applicable to the institution since there is no ESI deducted?
Thank you.
From India, Pune
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Is the Minimum Wages Act applicable to a tuition class that is a Pvt Ltd company having around 20 employees, out of which only 9 are permanent? They do not deduct any PF or ESI from the salary. Is the Minimum Wages Act applicable to the institution since there is no ESI deducted?
Thank you.
From India, Pune
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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
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From India, Panvel
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Dear Avi, Payment is to be made on gross salary under MB Act, 1961. R N KHOLA
From India, Delhi
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From India, Delhi
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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
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From India, Panvel
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Creche under Maternity Benefit Act.pdf
MATERNITY BENEFIT ACT 2009.doc