Manorama Singh vs State Of U P And 3 Others
2021 Latest Caselaw 4372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 4235 of 2021
 

 
Petitioner :- Manorama Singh
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Ramesh Chandra Dwivedi,Bharat Singh
 
Counsel for Respondent :- C.S.C.,Abhinav Ojha
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Heard learned counsel for the petitioner and Sri Abhinav Ojha, learned counsel for the respondent nos.2 and 4.

2. Petitioner is a contractual employee engaged by respondent no.4. Her initial appointment was made through a service provider, which has been extended from time to time. It is stated that petitioner has given birth to a child by Cesarean process on 5.1.2021. Maternity leave in terms of the provisions of the Maternity Benefit Act, 1961 have been claimed by the petitioner but as the respondents have not considered such prayer the petitioner is before this Court. It is submitted that respondents are not extending the benefit in accordance with the Act of 1961, as she is a contractual employee.

3. Supreme Court in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and another, reported in 2000(3) SCC 224, has examined the object and the provisions of the Act of 1961 to hold that benefits under the Act of 1961 would be admissible not only to a regular employee but also to a muster roll employee. The status of an employee engaged on contract basis cannot be inferior to that of a muster roll employee. This Court in a recent judgment in Anshu Rani Vs. State of U.P. and two others, Writ Petition No.3486 of 2019, decided on 19.4.2019, has taken note of the subsequent law laid down to hold that maternity leave for a period of six months would be admissible to the female workers, in such circumstances.

4. Learned counsel for the respondent no.4 states that petitioner is an employee of the service provider, and therefore, she has no right against the respondent no.4.

5. Though petitioner has been engaged through a service provider but she is rendering services to respondent no.4. The work of petitioner is being supervised by the officials of the fourth respondent. The payment of wages to petitioner is also being released by the respondent no.4, as it is the principal employer. The responsibility of the principal employer to implement provisions of the Act of 1961 cannot be avoided on the plea that such benefit has to be granted by the service provider.

6. The observation of the Supreme Court in para 28 to 33 of the judgment in the case of Municipal Corporation of Delhi (supra) is reproduced hereinafter:-

"28. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period.

29. Next it was contended that the benefits contemplated by the Maternity Benefit Act, 1961 can be extended only to workwomen in an 'industry' and not to the muster roll women employees of the Municipal Corporation. This is too stale an argument to be heard. Learned counsel also forgets that Municipal Corporation was treated to be an 'industry' and, therefore, a reference was made to the Industrial Tribunal, which answered the reference against the Corporation, and it is this matter which is being agitated before us.

30. Now, it is to be remembered that the Municipal Corporation or Boards have already been held to be "industry" within the meaning of "Industrial Disputes Act", in Udge Budge Municipality v. Sri. P.R. Mukherjee, (1953) 1 LLJ 195 (SC), it was observed that the Municipal activity would fall within the expression "undertaking" and as such would be an industry. The decision was followed in Baroda Borough Municipality v. Its Workmen, (1957) 1 LLJ 8 (SC), in which the Court observed that those branches of work of the Municipalities which could be regarded as analogous to the carrying-on of a trade or business, would be "industry" and the dispute between the Municipalities and their employees would be treated as an "industrial dispute". This view was reiterated in the Corporation of the City of Nagpur v. Its Employees and Others, (I960) 1 LLJ 523 (SC). In this case, various Departments of the Municipality were considered and certain Departments including General Administration Department and Education Department were held to be covered within the meaning of "industry". The Punjab and Haryana High Court in Municipal Committee, Bhiwani v. Padam Singh and Others, 1973 Labour and Industrial Cases 1512, held that fire-brigade service, maintained by Municipal Committee, was an "industry". But a contrary view was taken by the Bombay High Court in Administrator of the City of Nagpur Municipal Corporation v. Labour Court, Nagpur, 1967 Labour and Industrial Case 107, which held that the fire-brigade service, maintained by the Municipal Corporation, was not an "industry". We are not, in this case, attempting to resolve the conflict between the Punjab and Haryana High Court and the Bombay High Court but what we intend to emphasise is that this Court has already held some of the Departments of the Municipal Corporation to be an "industry". The High Courts have also held the running of dispensary as also sanitary and conservancy activities to be an "industry". (See : Sirur Municipality v. Its Workmen, (1960) 2 LLJ 657;, Municipal Council, Washim v. Manguji Zenduji Dhamane, 1978 Labour and Industrial Cases 881). The Andhra Pradesh High Court in Rajendranagar Municipality v. B.V. Perraju, 1995 Labour and Industrial Cases 2102, has held that storing and distribution of water was a systematic activity of the Corporation which would fall within the definition of "industry".

31. Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of "industry". The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be "workmen" and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.

32. Delhi is the capital of India. No other City or Corporation would be more conscious than the City of Delhi that India is a signatory to various International covenants and treaties. The Universal Declaration of Human Rights, adopted by the United Nations on 10th of December, 1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. This was followed by a series of Conventions. On 18th of December, 1979, the United Nations adopted the "Convention on the Elimination of all forms of discrimination against women". Article 11 of this Convention provides as under :-

"Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular;

(a) The right to work as an inalienable right of all human beings

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational train-ing and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retire-ment, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of repro-duction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimi-nation in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and develop-ment of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary."[Emphasis supplied]

33. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between Municipal Corporation of Delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages."

7. In light of the above observations made by the Supreme Court the principal employer would be obliged to grant benefits in terms of the Act of 1961 to a female worker, who is working in its premises. This writ petition is, therefore, disposed of by directing respondent no.4 to immediately consider petitioner's claim and grant maternity leave in terms of the provisions of the Act of 1961, keeping in view the above observation, within a period of four weeks from the date of presentation of a copy of this order.

Order Date :- 23.3.2021

Anil