Karnataka High Court: M. Nagaprasanna J. set aside the impugned order and allowed the petition.
The facts of the case are such that the second respondent issued a notification inviting applications for the post of Project Information Officer on contract basis. Petitioner finding herself eligible applied, selected and was appointed as Project Information Officer on contract basis with effect from 27.11.2009. The contract was being renewed from time to time on an annual basis and the latest renewal of such contract was on 01.04.2019 to be in operation upto 31.03.2020. The petitioner is thus in service for 10 years now albeit on contract basis. During the subsistence of the aforesaid period of contract, the petitioner by an application dated 11.06.2019, sought maternity leave. On the application given by the petitioner, a notice was issued on 25.06.2019, by the second respondent directing her to report to duties forthwith, despite her application seeking maternity leave. When the petitioner did not report back to duties, despite the notice on 25.06.2019, referring to the same, an order dated 29.08.2019 was passed terminating the service of the petitioner / canceling the contract entered into with the petitioner appointing her as a Project Information Officer on the ground that the petitioner remained absent. Assailing this order instant petition was filed.
Counsel for the petitioners submitted that that denial of maternity leave and terminating or cancellation of the employment of any employee on that ground is contrary to law.
Counsel for the respondents submitted that the petitioner was a contract employee and contract itself gave a right to the second respondent to terminate her services at any point in time and seek to justify the notice impugned.
Whether a contract employee is entitled to maternity leave under the Maternity Benefit Act, 1961?
Rights of women and children recognized by United Nations
- Article 1 of Universal declaration of Human Rights is ‘all human beings are born free and have equal dignity and rights’ these are inalienable.
- Article 42 of the Constitution of India depicts that the State shall make provision for securing just human conditions for work and maternity relief. Therefore, the right of seeking maternity relief by way of leaves springs from Article 42 of the Constitution of India.
- Article 45 of the Constitution of India directs that the State shall endeavor to provide early child care and education for all children until they complete six years.
All these form part of Part IV of the Constitution i.e., Directive Principles of State Policy. The Court relied on Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 wherein it was held
“The directive principles which are fundamentals in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all.”
The Court thus observed that therefore, the State and its instrumentalities cannot deny its obligation to perform its duty as enshrined in the aforesaid Articles.
The Court further relied on Municipal Corpn. of Delhi v. Female Workers, (2000) 3 SCC 224 wherein it was held :
- It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not.
- Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief”, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.
- Section 12 Maternity Benefit Act, 1961, which contains a very significant prohibition in regard to the service of a woman employee, provides as under:
“12. Dismissal during absence or pregnancy.—(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
- This section prohibits dismissal of a woman employee during or on account of her absence on maternity leave. It ensures that the conditions of her service would not be varied to her disadvantage during her absence.
- Contravention of the provisions of this Act has been made an offence under Section 21 of the Act which provides as under:
“21. Penalty for contravention of Act by employer.—(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees:
- The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily-wage basis.
The Maternity Benefit Act, 1961, has now undergone certain amendments, relevant paras of which are extracted hereunder for the purpose for ready reference.
“THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017
(A) In sub-section (3) – (i) For the words “twelve weeks of which not more than six weeks”, the words “twenty-six weeks of which not more than eight weeks” shall be substituted.
(ii) after sub-section (3) and before the first proviso, the following proviso shall be inserted, namely:- “Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery,”;
(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.”
The Court thus observed that the Amendment Act of 2017, a pregnant woman is entitled to maternity leave for a period of 26 weeks which would come to 6 months and 15 days. It was further observed the petitioner was entitled to maternity leave of six months in all in terms of the amended Act of 2017. The action of the second respondent cannot be countenanced, as maternity or the Act does not classify or qualify a mother to be, a government servant, temporary employee, employee on contract basis or an employee on daily wages. The order impugned infers such a harrowing classification.
The Court held that “the writ petition deserves to succeed and it is a fit case where, apart from granting back wages to the petitioner, in the peculiar facts, the second respondent will have to be mulcted with exemplary costs.”
In view of the above, petition was allowed.[B. S. Rajeshwari v. State of Karnataka, Writ Petition No.10677 of 2020, decided on 04-02-2021]
Arunima Bose, Editorial Assistant has reported this brief.