and the terms and conditions of her appointment were governed
by the contract which she had signed on 2nd April, 2013. As per
the said contract, she was eligible for 8 days casual leave and 10
days of medical leave. The Petitioner preferred an application for
leave on 8th January, 2014 after absenting herself from duty from
30th December, 2013 and sought medical leave for period of
three months as per doctor's advice. As a contractual employee
she was not entitled for medical leave of three months, which she
applied for. At the relevant time in her application she did not
claim the said leave as maternity benefit on account of illness
arising out of pregnancy. Her claim was for medical leave which
she was not entitled as per terms and conditions of the
contract. In view of her absenteeism from 30th December, 2013
the employer issued an order of termination with effect from date
of her absence i.e. 30th December, 2013. The Petitioner herself
has placed before us the documents she has sought under the
Right to Information Act, pertaining to the notings of the
department. Perusal of the note clearly reveal that the Petitioner
had absented herself from duty from 30th December, 2013 and
had sought medical leave from 1st January, 2014 to 7th April,
2014 and since she was working on contractual basis she was not
entitled for three months maternity benefit. The said application
came to be rejected with a remark from Director that since the
Petitioner was working on contractual basis, she is not entitled
for leave of three months and therefore, in absence of such
leave to her credit her absenteeism from 30th November, 2013
without availability of leave period necessitated the department
to terminate the services of the Petitioner. It is further noted that
the circular which the Petitioner has referred to, was issued on
20th March, 2015 by which the benefits of the maternity leave
were extended to the contractual employees working with the
Respondentdepartment, however, the said circular does not
operate retrospectively and till the time of issuance of the said
circular the contractual employees were entitled for a limited
casual leave and medical leave during the period of contract
which did not include the maternity leave. This came to be
extended to the contractual employees of the department only
with effect from 20th March, 2015. The Petitioner cannot
therefore claim benefit of the said circular. The Petitioner
thereafter made various representations and sought extension of
benefit of the said Government Resolution retrospectively to her
case, however, the same was turned down.
It is not in dispute that the law relating to maternity benefit
has been enacted to achieve the object of securing social justice
to the women workers. However, it has also to be seen that when
a law operates it has to strike a balance between the individual
right and need of the orderly society. The Petitioner's appointment
was governed by the terms and conditions of the contract and
the same was binding upon her. By virtue of the contract she was
not entitled for maternity benefit and she was only entitled for
medical leave for limited period. She absented herself and after
one week submitted her leave application with medical certificate
and prayed for grant of leave for three months when at the
relevant time she was in the very early stage of pregnancy. The
policy contained in the social legislation intends to grant benefit
to women workers to have a safe pregnancy and to develop a
bond with the child and nurture the child immediately after
delivery, expects the benefit to be conferred on the eve of
delivery of a child and therefore, it has bifurcated the period into
two terms namely first term, preceding the delivery and the
second term postdelivery . However, the said benefit is not
available on the eve of pregnancy and the woman is not entitled
to claim the said benefit since the time when a woman conceives
and during her entire gestational period. If the maternity
benefit is to be conferred in this manner, it would rather defeat
the whole purpose, since the employee will also have to look at it
from the angle of running the administration and the woman
employees may not claim such privilege for such entire period
of pregnancy, but necessarily have to regulate themselves in
accordance with the provisions of the Maternity Act. In any
contingency, the Petitioner was not entitled for extension of the
benefits of maternity leave in terms of her order of appointment
and she is not entitled to claim benefit of the Government
Circular dated 20th March, 2015, when her services were already
terminated with effect from 30th December, 2013.
In view of the aforesaid observations, we are not inclined
to grant the relief as prayed by the Petitioner namely reinstating
the Petitioner till completion of the contractual period of
employment.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2402 OF 2016
Laxmi Subhash Yadav
V/s.
Office of Directorate
Through Water and Sanitation
Support Organization (WSSO)
Water Supply and Sanitation
Department
CORAM : S.C.DHARMADHIKARI AND
SMT. BHARATI H.DANGRE, JJ.
Dated : 13th October 2017.
1. The Petitioner has approached this Hon'ble Court for
quashing and setting aside of the termination order, dated 30th
December, 2013 served upon the Petitioner on 12th February,
2014, thereby terminating her contractual services and she has
further prayed that she be extended the benefits available to a
female employee under the Maternity Benefits Act, 1961.
The Petition revolves around certain facts which are not
disputed. The Petitioner was appointed as Document Consultant
by an order dated 2nd April, 2013 appointing her on the said
post with effect from 9th January, 2013 to 8th December, 2013 on
consolidated salary of Rs.30,000/ per month on contractual
basis. The said appointment order was accompanied with a
contract containing the terms and conditions of the appointment
and Petitioner had accepted the same by signing the contract.
The terms and conditions clearly mentioned that the services of
the Petitioner on contract basis are required in the Government of
India funded Water and Sanitation Support Organization (WSSO)
under National Rural Drinking Water Programme (NRDWP) in
the Water Supply and Sanitation department, Government of
Maharashtra. The contractual assignment was for the period
commencing from 9th January, 2013 and to continue till 8th
December, 2013 and it was mentioned that the contractual period
of 11 months of the assignment may be shortened or terminated
any time during the period depending upon the need and
progress of the programme. The contractual assignment
contained clause No. (9) which reads as follows:
“He/She will be eligible for total 08 days of
casual leave (C.L.) and 10 days of Medical/sick
leave for a year or equivalent thereof for the
proportionate length of the service rendered.
However, for any assignment less than 3 months,
no Medical/Sick leave will be entitled. Further,
not more than 3 days of C.L. will be allowed at
a time. In case of fresh agreement signed with
the contractual person, the leave shall not carry
over to the new contract period. No other kind of
leave shall be admissible to the consultant.”
The initial contract was subsequently extended for another
period of 11 months by order dated 26th December, 2013 and the
appointment was continued from 10th December, 2013 to 9th
November, 2014.
The Petitioner absented herself from work from 30th
December, 2013 and on 8th January, 2014 she submitted an
application for leave addressed to the Director, Water and
Sanitation Support Organization, Belapur, thereby intimating
that she was unable to attend the office since 1st January, 2014
due to her ill health. It was also informed that she had
developed certain complications in her pregnancy and doctor
had advised her complete bedrest for next three months.
Therefore, she requested for grant of medical leave from 1st
January, 2014 to 7th April, 2014 considering the pregnancy
complications. The said application was accompanied by certificate
from a private Maternity Hospital at Navi Mumbai, where it was
diagnosed that the Petitioner was carrying two months
pregnancy and she was advised three months rest from 8th
January, 2014.
The Petitioner attempted to resume her services by
submitting an application to the Director on 10th December, 2014,
thereby intimating that the doctor had advised her to have rest
due to complications in her pregnancy, therefore, she had sought
leave for three months, however, now her health was good and
therefore, as per the doctor's advice she intends to resume her
duties. The Petitioner was served with an order of termination
dated 12th February, 2014 informing that in view of her absence
with effect from 30th December, 2013, her services were put to an
end with effect from 30th December, 2013. She was not allowed to
resume her duties and she preferred representation to the
Principal Secretary, Water Supply and Sanitation Department on
13th February, 2014. In the said representation she mentioned
that she had applied for medical leave for period of three
months, however, her file has been processed as maternity leave,
however she had not made any application for maternity leave.
Thereafter, the Petitioner preferred various representations
unsuccessfully. The Petitioner has further contended that the
representations of the Petitioner and the efforts by her to agitate
before the employer that even contractual employee should be
entitled the benefits of maternity leave, ultimately yielded results
by the action of the State Government issuing a Government
circular on 20th March, 2015, thereby extending the benefits of
maternity leave to the contractual employees working in the
District Water and Sanitation Mission Cell of the State
Government and by virtue of the State Government Resolution,
all the contractual women employees working in the District
Water and Sanitation Mission would be entitled for maternity
leave for 60 days and they would be entitled for the pay which
they were entitled before proceeding on leave. Grievance of the
Petitioner however is that the benefits of such Government
Resolution is not extended to her.
2. We have extensively heard Advocate Shri Warunjikar, the
learned counsel for the Petitioner and Shri B.V.Samant, A.G.P.
for the Respondent. The learned counsel Shri Warunjikar has
invited our attention to International Covenant on Economic
Social and Cultural Rights, which include a Covenant relating
to special benefits to women during period of pregnancy and
postdelivery and would rely upon clause (2) of Article 10 of the
said Covenant which reads as follows:
“Special protection should be accorded to
mothers during a reasonable period before and
after childbirth. During such period working
mothers should be accorded paid leave or leave
with adequate social security benefits.”
He also relied upon Article 25 of the Covenant which reads
as follow:
“Motherhood and childhood are entitled to
special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same
social protection.”
3. He also placed heavy reliance on the judgment of the
Hon'ble Apex Court in case of Municipal Corporation of Delhi
Vs. Female Workers (Muster Roll and another ) reported in
(2000)3 Supreme Court Cases 224, wherein the Hon'ble Apex
Court has conferred the benefits of the Maternity Benefits Act,
1961, on the female workers of the Municipal Corporation of
Delhi, who were on muster roll and not in its regular employment.
He emphasized on the observations of the Hon'ble Apex Court that
the employer has to be considerate and sympathetic towards an
employee, who is becoming a mother and he must realize the
physical difficulties, which working women undergo while rearing
the child in their womb or while raising a child after birth.
4. Per contra, the learned Assistant Government Pleader
relied upon the affidavitinreply filed by the Director, Water and
Sanitation Support Organization, Belapur, Navi Mumbai, wherein
the Respondents have categorically stated that the appointment
of the Petitioner was contractual one and was governed by the
terms and conditions mentioned in the appointment order, which
were binding between both the parties. It is stated in the affidavit
that the Petitioner remained absent from duty from 1st January,
2014 to 8th January, 2014 and submitted a medical leave
application on 8th January, 2014 with the medical certificate
requesting for grant of medical leave from 1st January, 2014 to 7th
April, 2014 considering the pregnancy complications. It is
contended that the Petitioner never submitted a maternity leave
application and since she has only applied for medical leave, there
is no question of granting her maternity leave and she was not
entitled for medical leave for three months as per her terms and
conditions of appointment which permitted only 8 days of casual
leave and 10 days of medical leave as per clause No.9 of the
contractual agreement. So far as applicability of Government
Circular of 20th March, 2015 it is stated in the affidavit that the
termination of the Petitioner was effected from 30th December,
2013 and the circular was issued on 20th March, 2015, which is
prospective in nature and did not extend to the Petitioner. It is
further contended by the Respondent that the Petitioner is not in
service and her services have been terminated and the issue of
maternity leave is for the first time agitated before the Court
and Petitioner in fact never applied for maternity leave.
5. Since the facts are not in dispute, we proceed to deal with
the issue involved in the present case. The Maternity Benefits Act,
1961 has been enacted in the backdrop of the fact that number
of women are employed in various establishments and it is
necessary to confer certain benefits on such women who need
certain special treatment in a phase when they are rearing the
child in their womb and also required to nurture the child after
his birth. Article 42 of Constitution of India, in form of Directive
Principle mandates the State to make provisions for securing
just and humane condition of work and for maternity relief.
In furtherance of the said duty the cast on the State
Government, the Parliament had enacted the Maternity Benefits
Act, 1961 and the benefits available under the Act have been
made available to various class of the employees by the State
Government by making enactment applicable to them. The Act
regulates the employment of women in certain establishments
for certain periods before and after child birth and provide
for maternity benefit and certain other benefits. The said Act
ensures the right to payment of maternity benefits which means
the payment referred to in subsection 1 of Section 5. Further,
the said Act also entitles a woman for payment of medical bonus,
leave for miscarriage etc. The said enactment by virtue of
Section 10 entitles a woman suffering from illness arising out of
pregnancy, delivery, premature birth of a child to be entitled to
leave with wages at the rate of maternity benefit for maximum
period of one month. This beneficial piece of legislation also
prevents an employer from dismissing the employee when she
absents herself from work during or on account of such absence.
There is no quarrel about the proposition that the said piece
of legislation is beneficial legislation and is based on the principle
of fairplay to the women employee by recognizing the fact that
motherhood is the most important phase in the life of a woman
and she needs special treatment during the said period. However,
from reading of the provisions of the Act in terms of the benefits
to which an employee is entitled under the provisions of the Act,
it is clear that the benefit conferred upon an woman employee in
terms of the maternity benefit is the payment referred to in subsection
1 of Section 5. The said Section recognizes the factum
that a women needs rest preceding the crucial phase before
delivering a child and another critical face after the delivery,
when she has to care and nurture the child and therefore, it
prescribes the maximum period for which the women shall be
entitled for maternity benefit by the Maternity Benefits
(Amendment) Act of 2017, the said period has been permitted to
be 26 weeks out of which not more than 8 weeks shall precede
date of her expected delivery.
Section 6 prescribes the manner in which the maternity
benefit and payment thereof can be availed and it requires a
woman employed in the establishment to give notice in writing in
such form as prescribed stating that her maternity benefit and
the amount to which she may be entitled under the Act may be
paid to her or to a person nominated by her and she will not
work during the said period for which she received the maternity
benefit. Further it also mandates that a women who is pregnant
should state in the notice the date from which she will absent
from work not being a date earlier than six weeks from the date
of her expected delivery. It is also permissible to give such a
notice after delivery, if such notice is not given when she was
pregnant and on receipt of such notice the employer shall permit
such women employee to absent herself from the establishment
during the period when she receives the maternity benefit.
Section 7, Section 9(a) and Section 10 are the different instances
of maternity benefits which entitles a woman to certain benefits
arising out of pregnancy, delivery, miscarriage, premature birth
etc. Section 10 entitles a woman suffering from illness arising out
of pregnancy, delivery, premature birth of a child, miscarriage,
medical termination of pregnancy to be entitled to leave with
wages at the rate of maternity benefit for maximum period of one
month which is in addition to the period of absence allowed to
her under Section 6 or as under Section 9. Thus, the woman can
avail maternity benefit for period of one month in total, in
addition to the period i.e. prescribed in Section 6. These are the
special benefits which are available under the Maternity Benefits
Act, 1961, to a woman employee.
6. The Petitioner was appointed as a contractual employee
and the terms and conditions of her appointment were governed
by the contract which she had signed on 2nd April, 2013. As per
the said contract, she was eligible for 8 days casual leave and 10
days of medical leave. The Petitioner preferred an application for
leave on 8th January, 2014 after absenting herself from duty from
30th December, 2013 and sought medical leave for period of
three months as per doctor's advice. As a contractual employee
she was not entitled for medical leave of three months, which she
applied for. At the relevant time in her application she did not
claim the said leave as maternity benefit on account of illness
arising out of pregnancy. Her claim was for medical leave which
she was not entitled as per terms and conditions of the
contract. In view of her absenteeism from 30th December, 2013
the employer issued an order of termination with effect from date
of her absence i.e. 30th December, 2013. The Petitioner herself
has placed before us the documents she has sought under the
Right to Information Act, pertaining to the notings of the
department. Perusal of the note clearly reveal that the Petitioner
had absented herself from duty from 30th December, 2013 and
had sought medical leave from 1st January, 2014 to 7th April,
2014 and since she was working on contractual basis she was not
entitled for three months maternity benefit. The said application
came to be rejected with a remark from Director that since the
Petitioner was working on contractual basis, she is not entitled
for leave of three months and therefore, in absence of such
leave to her credit her absenteeism from 30th November, 2013
without availability of leave period necessitated the department
to terminate the services of the Petitioner. It is further noted that
the circular which the Petitioner has referred to, was issued on
20th March, 2015 by which the benefits of the maternity leave
were extended to the contractual employees working with the
Respondentdepartment, however, the said circular does not
operate retrospectively and till the time of issuance of the said
circular the contractual employees were entitled for a limited
casual leave and medical leave during the period of contract
which did not include the maternity leave. This came to be
extended to the contractual employees of the department only
with effect from 20th March, 2015. The Petitioner cannot
therefore claim benefit of the said circular. The Petitioner
thereafter made various representations and sought extension of
benefit of the said Government Resolution retrospectively to her
case, however, the same was turned down.
It is not in dispute that the law relating to maternity benefit
has been enacted to achieve the object of securing social justice
to the women workers. However, it has also to be seen that when
a law operates it has to strike a balance between the individual
right and need of the orderly society. The Petitioner's appointment
was governed by the terms and conditions of the contract and
the same was binding upon her. By virtue of the contract she was
not entitled for maternity benefit and she was only entitled for
medical leave for limited period. She absented herself and after
one week submitted her leave application with medical certificate
and prayed for grant of leave for three months when at the
relevant time she was in the very early stage of pregnancy. The
policy contained in the social legislation intends to grant benefit
to women workers to have a safe pregnancy and to develop a
bond with the child and nurture the child immediately after
delivery, expects the benefit to be conferred on the eve of
delivery of a child and therefore, it has bifurcated the period into
two terms namely first term, preceding the delivery and the
second term postdelivery . However, the said benefit is not
available on the eve of pregnancy and the woman is not entitled
to claim the said benefit since the time when a woman conceives
and during her entire gestational period. If the maternity
benefit is to be conferred in this manner, it would rather defeat
the whole purpose, since the employee will also have to look at it
from the angle of running the administration and the woman
employees may not claim such privilege for such entire period
of pregnancy, but necessarily have to regulate themselves in
accordance with the provisions of the Maternity Act. In any
contingency, the Petitioner was not entitled for extension of the
benefits of maternity leave in terms of her order of appointment
and she is not entitled to claim benefit of the Government
Circular dated 20th March, 2015, when her services were already
terminated with effect from 30th December, 2013.
In view of the aforesaid observations, we are not inclined
to grant the relief as prayed by the Petitioner namely reinstating
the Petitioner till completion of the contractual period of
employment. We do not find merit in the submission of the
Petitioner and in the result, we dismiss the writ petition. No
order as to costs.
(SMT. BHARATI H. DANGRE,J.) (S.C.DHARMADHIKARI,J.)
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