Ker HC | Such orders undermine confidence and morale of women; HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave

Kerala High Court

Kerala High Court: Devan Ramachandran, J., addressed the grievances of a woman whose request for maternity leave was turned down by the State and to then exacerbate her agony, she was terminated from service on the accusation of unauthorised absence. Voicing the plight of the pregnant women in general, the Bench stated,

“Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

The petitioner had been working as a Counsellor on contract ever since 16-12-2016 in the Office of respondent 3- District Child Protection Officer, albeit, with a day or two break and every time her contract was extended annually. Evidently, she was engaged in such capacity between 23-08-2020 and 17-01-2021 only on daily wage basis and during that period, she gave birth to her child on 28-11-2020, thus constraining her to avail maternity leave from 26-11-2020 to 17-01-2021.

The petitioner submitted that her request for maternity leave had not yet been acceded to; and in the next process of selection, she again topped the list, thus was directed to join the post of Counsellor on 18-01-2021. However, since her child was only 51 days old then, and she had to breastfeed him regularly, she had again requested maternity leave. The petitioner contended that her request for leave was rejected by respondent 2– Director, Women and Child Development Department without assigning any cogent reason.

Later on, the respondent 2 had abruptly issued an order terminating her services on the ground of unauthorized absence.

The State argued that the petitioner was not entitled to have sought maternity leave one day after she joined service on contract; reliance in this regard was place on Note 4 to Rule 100 of Part I of the Kerala Services Rules by the state. Similarly, relying on the decision of the High Court in Jisha P.Jayan v. Sree Sankaracharya University of Sanskrit, 2013 SCC OnLine Ker 13323, the state contended that only a contract employee who has been in service for at least one year or more is entitled to maternity leave and therefore, the Authorities were justified in having issued orders terminating the petitioner’s service.

Going by the rigour of Note 4 to Rule 100 of Part I of the Kerala Services Rules, the Bench observed that a woman employee, who is on provisional service, would be entitled to maternity leave, provided she was continuing beyond one year. The Bench opined that there could be no doubt that petitioner was serving the respondent 3 as a Counsellor on contract for several years, with a day or two break and every time her contract was extended.

Therefore, the competent Authorities had a duty cast upon them to verify whether, in such circumstances, the petitioner was entitled to the benefit of maternity leave, but shockingly, instead of doing so, the respondent 2 had held prosaically that the petitioner’s request could not be acceded to; and, as if to blow most unkindest cut, it held that her absence was unauthorised, thus ordering termination of her contract employment and directing to appoint the next rank holder in the select list. The Bench held that the action of the respondent 2 was insensitive because it was without contest that petitioner gave birth on 28-11-2020; and since she asserted that she was under medical advice to nurse her child -being only 50 days old on when she accepted the latest contract.

To exacerbate the situation, the respondent 2 had even threatened action against the  respondent 3 for having selected and appointed the petitioner “without proper care”, thus insinuating that he ought not to have offered employment to her solely because she had recently delivered, thus being in need for leave to care her child. Opining that such attitude could not be countenanced in this century when women take on variegated responsibilities and require to adept multi-taskers, to survive and find wings to achieve their legitimate ambitions, the Bench stated that,

“The orders impugned in this writ petition can only serve to undermine the confidence and morale of persons like the petitioner, who bravely face the challenges of life every day, with the steely resolve to balance their personal and official life to the best of their capacity.”

Hence, noticing that the petitioner had not been substituted and that the post remained vacant, the Bench set aside the impugned orders  with a direction to reinstate the petitioner in service forthwith and to reconsider her application for leave after affording her an opportunity of being heard as expeditiously as possible, but not later than two weeks. Additionally, the authority concerned was directed to consider how the petitioner’s period of service from 23-03-2021 will require to be regularized.[Vandana Sreemedha J. v. State Of Kerala, WP(C) No. 10206 of 2021, decided on 26-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Sru. B. Mohanlal, Advocate

For the State of Kerala: Sunil Kumar Kuriakose, Government Pleader

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