Case BriefsHigh Courts

Jharkhand High Court: S. N. Pathak, J., directed the State of Jharkhand to provide maternity benefits to a contractual employee whose demand for honorarium for the duration of maternity leave was not addressed by the authorities concerned. The Bench stated,

“A woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment…”

The petitioner was appointed on a contractual basis to the post of Protection Officer Institutional Care (POIC), Bokaro and till date she was working. The petitioner contended that she had applied for maternity leave before the District Social Welfare Officer from 03-10-2019 to 30-03-2020 and the same was duly received in the office of the Deputy Commissioner, as well as District Social Welfare Officer.

The grievance of the petitioner was that she was continuously working and getting honorarium for the current month, but she had not been paid the honorarium for the period of her maternity leave, though, she had made representation before the respondents, but no heed was paid. The petitioner submitted that there could not be any distinction between a regular employee, contractual employee and casual employee so far as grant of maternity benefit is concerned as the maternity leave was duly sanctioned to the petitioner and prior information was given to the authorities before leaving the station.

Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of such case(s) and it applies to all establishments belonging to the Government and to every establishment wherein person(s) are employed. Further, Section 3(O) of the Act defines a “woman”; which means a woman employed whether directly or through any agency, for wages in any establishment. Section 5 of the Act provides for right to payment of maternity benefits, which includes any women.

Thus, the Bench opined that a woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment, subject to the condition that the contract of employment should subsist.

Accordingly, the petitioner was directed to file a fresh representation before the respondents, claiming maternity leave benefit for the period in question, and the respondent authorities were directed to take an appropriate decision and issue orders for payment of the arrears of honorarium. [Sarita Kumari v. State of Jharkhand, 2021 SCC OnLine Jhar 706, decided on 21-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Mr Shadab Bin Haque, Advocate

For the Respondents: Mr Achyut Keshav, GP-I

Case BriefsHigh Courts

Karnataka High Court: Nataraj Rangaswamy, J., allowed the petition and granted maternity leave by setting aside the impugned order.

The facts of the case are such that the petitioner was employed as a Senior Resident in the Department of Medicine, ESIC College and Hospital, Kalaburgi on contract basis. The petitioner joined services on 24-07-2018 and after 125 days of service she submitted a leave application on 20-11-2018 seeking for grant of maternity leave from 26-11-2018 to 19-05-2019. The petitioner thereafter delivered on 24-12-2018 and respondent 5 rejected the application. Aggrieved by the refusal to grant maternity leave, present writ petition was filed.

The Court observed that the Office Memorandum dated 11-01-2018 discloses that in respect of Teaching and Non-Teaching Staff they are entitled to 26 weeks of Maternity Leave, subject to the condition that such person must have rendered at least 80days of service in the past 12 months preceding the date of expected delivery, as envisaged in the Maternal Benefit (Amendment) Act, 2017.

The Court further observed that in the present case the application was submitted on 20-11-2018 seeking for maternity leave for 26 weeks which terminated on 19-05-2019 and the petitioner delivered on 24-12-2018. Therefore the petitioner was entitled to the benefit of Maternity Leave even as per Office Memorandum dated 11-01-2018 as by the time she had sought for Maternity Leave, she had put in 80 days of service.

The Court thus held, “this writ petition is allowed and the impugned order passed by respondent no. 5 is quashed. The leave sought for by the petitioner for by the petitioner for the period 26-11-2018 to 19-05-2019 is granted and the same shall be considered as “on duty”.

[Swetha v. Union of India, WP No. 202702 of 2019, decided on 02-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For petitioners: Mr Ameet Kumar Deshpande

For respondents: Mr Sudhirsingh R Vijapur and Sanjeev Kumar C. Patil

Case BriefsHigh Courts

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

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. set aside the impugned order and allowed the petition. 

Facts

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.

Arguments

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.

Issue

Whether a contract employee is entitled to maternity leave under the Maternity Benefit Act, 1961?

Observations

Rights of women and children recognized by United Nations

  1. Article 1 of Universal declaration of Human Rights is ‘all human beings are born free and have equal dignity and rights’ these are inalienable.
  2. 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.
  3. 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 :

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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:

  1. 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.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., allowed a petition which was involved the question of whether a woman, who had given birth to a child prior to joining the Government service, was entitled to maternity leave under Rule 103 of Rajasthan Service Rules, 1951 (RSR).

The petitioner’s child was born on 15-05-2016, and she was given an appointment on the post of Physical Training Instructor (PTI), Grade-III on 04-06-2016 and joined on 06-06-2016. She applied for the maternity leave on 21-06-2016 and didn’t attend office from 26-06-2016 to 10-11-2016. The petitioner’s leave application came to be dealt with by the respondents whereby 90 days’ leave without payment was sanctioned. By another communication dated 17-07-2019, the petitioner was sanctioned a total 142 days’ leave, out of which 90 days were considered as leave without pay as per communication dated 13-08-2018 and 52 days’ leave was treated as extra ordinary leave (EOL), that too without payment. Despite the completion of probation period of two years, the respondents extended petitioner’s probation period by 112 days and confirmed her services w.e.f. 26-09-2018.

The counsel for the petitioner, Mr Bhavit Sharma submitted that the respondents were not justified in deferring petitioner’s confirmation by 112 days while maintaining that respondents’ action in not granting maternity leave to the petitioner was arbitrary and contrary to Rule 103 of the RSR. The counsel for the respondent, Mr Rishi Soni associate to Mr Pankaj Sharma raised a preliminary objection that the petition suffered from delay and laches. He further submitted that maternity leave was permissible only in a case where a child was born after a female joins her duties as a Government servant.

The Court perused the Rule 103 of the RSR and observed that provision had been incorporated with a view to recover from post-delivery issues and obviate the hardship faced by a mother and observe the mandate of Maternity Benefit Act, 1961. The Court also perused Rule 103-A of RSR and while comparing both the rules concluded that a female Government servant or a mother can avail maternity leave for the period prescribed irrespective of the date of child birth; whereas a male Government servant can avail paternity leave for a period of 15 days during his wife’s confinement. In other words, the date of childbirth, is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave.

The Court opined that since on the date of promulgation of these Rules, an employee, who had already given birth, was held entitled to avail maternity leave, it will not only be iniquitous but also discriminatory to exclude an employee, who had given birth to a child a few days ahead of joining the Government service. The Court further explained that Rule 103 does not create or confer right on the basis of date of birth. It simply provided that maternity leave may be granted to a female Government servant from the date of its commencement. Regarding delay and laches the Court felt that it was liable to be rejected as petitioner’s leave application remained unattended/unheeded for about two years and to be sanctioned, but without pay, so it cannot be treated to be belated, by any stretch of argument relying on the judgment of Supreme Court in Port Trust v. Hymanshu International, (1979) 4 SCC 176 where it was held,

            “2…The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable….”

The court while allowing the petition held that petitioner is entitled to grant of maternity leave in terms of Rule 103 of the RSR, irrespective of the fact that she had given birth to the child prior to her joining Government service and Petitioner’s sanctioned leave of 142 days shall be treated as maternity leave and she shall be entitled to salary for the period of such leave, in accordance with Rule 103 of the RSR and shall be deemed confirmed w.e.f. 05-06-2018 (on completion of two years’ service from the date of her joining).[Neeraj v. State of Rajasthan, 2020 SCC OnLine Raj 1864, decided on 07-12-2020]


Suchita Shukla, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Uttaranchal High Court: A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child.

The petitioner is a lady Ayurvedic doctor in Uttarakhand’s State Medical and Health Services, appointed on a contractual basis for one year which had been repeatedly renewed since her appointment in 2009. After her maternity leave, she did not rejoin service and instead claimed Child Care Leave (CCL), citing a 2015 Judgement by a division bench of the Uttaranchal High Court which allowed a contractual employee to get CCL for 730 days. Her application was rejected on the grounds of a 2011 Government Order which excluded contractual employees from availing CCL. A division bench referred the matter in the present case to a Full Bench, which had to decide whether CCL of 730 days could be granted to a contractual employee hired for only one year, and whether the High Court, exercising its jurisdiction under Article 226, could issue mandatory guidelines extending this benefit to contractual employees in the absence of any legislation in this regard.

Chief Standing Counsel for the State, Paresh Tripathi, contended that the petitioner was only entitled to a “fixed monthly honorarium,” and could claim CCL as a matter of right since she is not technically a government servant. He also argued that the petitioner is only relying upon Part IV of the Constitution i.e., the Directive Principles of State Policy, which are not enforceable. He rebutted claims of alleged violations of Articles 14 and 16, averring that regular and contractual employees form two different classes and their separation would fall under ‘reasonable classification’, and Article 21.

While acknowledging the recent worldwide emergence of the otherwise neglected concepts of maternity and child care leave, the Court stated that “the leave is not a recognition of the rights of a woman but it is more a recognition of the rights of a child.”

Bench took due cognizance of various Constitutional and statutory provisions, including Article 15(2) and several Articles under Part IV of the Constitution, which were enforced bearing the needs and rights of children in mind. It rejected the State’s argument that DPSPs are not enforceable, instead upholding their importance by citing Supreme Court judgments where the DPSPs were hailed as “fundamentals in the governance of the country.”

The Court opined that since no distinction is made between a regular and a contractual employee with respect to maternity leave, the same principle should be adopted while considering CCL as well. On the first issue, the Court held that a contractual employee employed for a year was also entitled to CCL, but not for 760 days. Rather, they can be granted paid CCL for 31 days on the same terms as “earned leave” given to other employees under the 2011 Government Order. With regard to the second issue, the Court stated that it has merely read the rights of a contractual employee into the 2011 Order, which have duly been subjected to the restrictions imposed on any regular employee under the said Order. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337, decided on 24-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and N.M. Jamdar, J. allowed a writ petition filed by a commissioning mother of a surrogate child and held that she was entitled to maternity leave.

Unable to bear a second child, the petitioner along with her husband, chose the route of surrogacy. The surrogate mother gave birth to a baby girl on 5-11-2012. With reference to the expected date of delivery, the petitioner sought maternity leave to take care of the surrogate child. The same was denied to her on the ground that the Leave Rules and the policy governing the Rules did not permit maternity leave for a surrogate child.

The petitioner challenged the said denial by way of the present petition. She was represented by Nikhilesh Pote, Advocate. While, M.M. Pabale, Additional Government Pleader, appeared for the State.

The High Court was of the opinion that the issue was no longer res Integra. It was noted that in Hema Vijay Menon v. State of Maharashtra2015 SCC OnLine Bom 6127, the Bombay High Court relying on the decision of the Delhi High Court in Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484, had held that even in case of birth by surrogacy, the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave.

Notably, in Hema Vijay Menon, the Bombay High Court observed: “A commissioning mother like the petitioner would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother like the petitioner cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. Maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs the attention of the mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.

Following the said decision, the Court held that the petitioner was entitled to maternity leave for the child born through surrogacy. It was ordered that various leaves availed of by the petitioner be converted to maternity leave as prayed for by the petitioner.[Pooja Jignesh Doshi v. State of Maharashtra, 2019 SCC OnLine Bom 1433, decided on 03-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Rajiv Sharma J., decided that the proviso second of the Fundamental Rule 153 of the U.P. Fundamental Rules be struck down as it declines to grant maternity leave to a woman for her third child.

In accordance to the facts of the case, the petitioner was denied for maternity leave on the basis that she had already two living children and she cannot avail the same for her third child, which is in consonance to the second proviso of Fundamental Rule 153 the Financial Hand Book of the U.P. Fundamental Rules.

The High Court on an analysis of the stated Rule along with the Maternity Act, 1961 and Article 42 of the Constitution of India decided that, Fundamental Rule 153 is unconstitutional and there is a dire need to strike it down as neither does the rule supports the spirit of Article 42 nor does it stands in conformity with Section 27 of the Maternity Benefit Act, 1961. Hence, the petitioner in the present matter was provided with maternity leave for her third child. [Urmla Masih v. State of Uttarakhand,2018 SCC OnLine Utt 717, dated 30-07-2018]

Hot Off The PressNews

Vide notification dated 29th March, 2018, the Central Government has specified for the purposes of clause (iv) of the Explanation to sub-section (2) of Section 2-A of the Payment of Gratuity Act, 1972 (39 of 1972), that the total period of maternity leave in the case of a female employee shall not exceed twenty-six weeks.

Ministry of Labour and Employment

[No. S-420121/02/2016-SS-II]

Case BriefsHigh Courts

Chhattisgarh High Court: While disposing a writ concerning denial of grant of maternity leave to a mother who has begotten  a child through surrogacy under Rule 38 of the Chhattisgarh Civil Services (Leave) Rules, 2010 the learned Single Judge Bench of Sanjay K. Agrawal, J. held that the State Government cannot differentiate between a biological mother and a mother who begets a child through surrogacy as right to life under Article 21 of Constitution of India includes the right to motherhood and also the right of every child to full development, thereby setting aside the  impugned order rejecting the application of the petitioner for grant of maternity leave  and  held that the petitioner is entitled for maternity leave as provided under Rule 38 of the 2010 Rules.

In the present case the petitioner surrogate mother was a lecturer working in the government girls higher secondary school, Utai. The petitioner was denied maternity leave by the Education Department on the ground that the concept of providing maternal leave to mother who begets child through surrogacy is not mentioned in the Chhattisgarh Civil Services (Leave) Rules, 2010. The Court was not satisfied with the said argument and observed by relying on the case of B. Shah v. Presiding officer Labour Court, (1977)4 SCC 384  that interpretation of beneficial piece of legislation which is intended to achieve social justice must be construed beneficially.

The Court also relied on various case laws such as Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 and the rule of dynamic construction as explained by the eminent author Justice G.P Singh in Principles of Statutory Interpretation, observed that statutes are to be interpreted dynamically according to the change in society and societal conditions, unless and until the contrary intention appears from the statute. [Sadhna Agrawal v. State of Chhattisgarh, 2017 SCC OnLine Chh 19, decided on 3/01/2017]

Case BriefsHigh Courts

High Court of Uttaranchal: The Court while hearing a petition relating to the issue of maternity leave not been granted to the petitioner since she was a contractual employee working under the respondent, the Bench comprising of Rajiv Sharma and Alok Singh, JJ., observed that even though the petitioner is appointed on a contractual basis she is entitled to maternity leave with full pay as per Section 5 of the Maternity Benefit Act read in conjunction with Rule 153 of U.P. Fundamental Rules. The petitioner has moved the court as her maternity leave was not sanctioned. However, the case of the respondents is that since, the petitioner was appointed on contractual basis, and working as a Lecturer (Sociology) hence, she was not entitled for maternity leave.

The Court rejecting the contentions of the respondent observed that in a welfare State it is the obligation of the State to ensure the creation and sustaining of the conditions congenial to good health therefore maternity leave, being social insurance benefit, is a key for maternal and child health and family support hence a employer should be considerate and sympathetic toward a working women and grant maternity leave with full pay for 180 days, even if she is working on contractual basis, ad hoc/tenure or temporary basis under the mandate of under Article 21 of the Constitution read with Article 42. The Court further stated that a female government employee is also entitled to Child Care Leave (CCL) for a child below 18 years of age, as per the recommendation of the 6th Central Pay Commission, of 730 days during the entire service. The Court also highlighted the provisions of paternity leave for a male government servant for a period of at least three weeks to enable the father to look after the mother and child. [Dr. Deepa Sharma v. State of Uttarakhand, 2016 SCC OnLine Utt 2015, decided on 15th December, 2016]

High Courts

Kerala High Court: Dealing with an urgent issue as to whether a ‘biological mother’ is entitled to the maternity leave in a case where she has obtained the baby through surrogacy, a bench of D.S. Naidu J. gave a landmark judgment in favour of the genetic/biological mother. The Court held that a mother who has obtained the baby through surrogacy is entitled to all the benefits an employee could have on post-delivery, i.e. the child specific statutory benefits.

In the instant case, the respondents refused to grant maternity leave to the petitioner (an employee in the Government of Kerala undertaking) to take care of the new born on the ground that the Kerala Livestock Development Board Ltd Rules and Regulations, 1993 only provide maternity leave envisaged under ‘normal circumstances’. The learned Counsel for the petitioner Dr. Thushara James contended that “motherhood does not end with the delivery of a baby, but continues, with more vigour, through the process of child rearing, which is an equally difficult task”. The Counsel also referred various international treaty obligations and conventions to which India is signatory and contended that “when the municipal law is silent, the international covenants and treaties can be made applicable”. She further contended that “provision of the Maternity Benefit Act, 1961 does not maintain any distinction between maternity by way of natural process and by way of ART”. The learned Senior Counsel for the respondent Sumathi Dhandapani contended that “in the face of its own Regulations having statutory force, it is not bound by the provisions of the Maternity Benefit Act. Rule 50 of the Staff Rules and Regulations does not provide for leave in the case of surrogacy”.

The Court examined the statutory scheme of the Maternity Benefit Act, 1961 and noted that “there cannot be any discrimination regarding the genetic mother in extending the statutory benefits to the extent they are applicable”. The Court also examined the international treaties and conventions and noted that “welfare of the child shall be the primary consideration”. The Court went through the decision of Madras High Court in Kalaiselvi v. Chennai Port of Trust 2013 SCC OnLine Mad 811, where it was held that a women employee was entitled to avail ‘child care leave’ even in case where she got a child through an arrangement of surrogacy, and held that “though the petitioner has not undergone any pre-natal phase, however, from the day one, after the delivery , the petitioner is required to be treated as the mother with the new born, and thus without discrimination, the petitioner is entitled to all the benefits that accrue to an employee after the delivery”. P. Geetha v. The Kerala Livestock Development Board Ltd., 2015 SCC OnLine Ker 71, decided on 06-01-2015.