Allahabad High Court
Smt Neepal vs State Of U.P. And 2 Others on 16 December, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:238883
Court No. - 34
Case :- WRIT - A No. - 20852 of 2023
Petitioner :- Smt Neepal
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Rachna Dubey
Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. The petitioner is aggrieved by the order dated 7th November, 2023 whereby she has been refused maternity leave for 180 days in view of certain provisions contained under the financial hand book and the notification issued by the State Government on 3rd May, 1990 and further in terms of the order passed by the District Magistrate on 06.10.2023.
3. Learned counsel appearing on behalf of the petitioner submits that this matter of financial hand book has already been considered by this Court in a detailed judgment passed in Writ-A No. 4996 of 2022 on 08.04.2022 in which the maternity leave prayed for by that petitioner was also rejected and this Court set aside the order. Paragraphs-11, 12 and 13 of the said judgment is reproduced hereunder:-
"11. From perusal of Section 3(h) of 1961 Act, it clearly comes out that maternity benefit means the payment referred to in sub-section (1) of Section 5 of 1961 Act. Section 5 of 1961 Act provides that every woman shall be entitled to and an employer shall be liable for the payment of maternity benefit at a certain rate. Sub-section (3) of Section 5 of 1961 Act provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. Section 6 of 1961 Act provides that any woman employed in an establishment and entitled to any maternity benefit under the provisions of 1961 Act may give notice in writing to her employer stating that her maternity benefit be paid to her or to such person as she may nominate in the notice. Sub-section (4) of Section 6 of 1961 Act provides that on receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.
12. A perusal of the aforesaid provisions of 1961 Act thus indicate that a woman would be entitled to give notice in writing for grant of maternity benefit and on receipt of notice the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. The 1961 Act does not contain any such stipulation of the time difference between grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook. Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after coming into force of 1961 Act. The proviso to Section 27 of 1961 Act provides that in case a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under 1961 Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she would be entitled to receive benefits in respect of other matters under 1961 Act, meaning thereby that additional benefits that a woman would be entitled in terms of agreement or contract of service would be admissible to her notwithstanding anything contained in 1961 Act. Thus, it is the additional benefits which have not been precluded but in case there is anything contrary or inconsistent to the provisions of 1961 Act pertaining to maternity benefit then it would be the 1961 Act which would be applicable.
13. In the instant case, the maternity leave as applied by the petitioner has been rejected by placing reliance on Rule 153(1) of the Financial Handbook by contending that the same contains a restriction that the second maternity leave cannot be granted and would be admissible in case there is difference of less than two years between the end of the first maternity leave and grant of second maternity leave. Admittedly, the first maternity leave of the petitioner ended on 30.12.2017 and thus the respondents have rejected the claim of the petitioner for grant of second maternity leave. However, once 1961 Act does not contain any such stipulation accordingly it is apparent that the respondents have patently erred in placing reliance on Rule 153(1) of the Financial Handbook in rejecting the application of the petitioner for grant of maternity leave more particularly when Section 27 of 1961 Act provides that it is 1961 Act which would be applicable notwithstanding anything inconsistent contained in any other law or contract of service."
In view of the above consideration, it is clear that the impugned order dated 25.01.2022 passed by respondent no. 3, i.e., Basic Shiksha Adhikari, Baghpat, is not in accordance with law and is hereby quashed. The maternity leave of 180 days prayed by the petitioner deserves to be allowed in view of the above legal position. Payment of her salary and other emoluments for the period of leave shall be paid to her as and when due."
4. He has placed reliance on Rule 153 (1) of the Financial Hand Book that relates to the second maternity leave. I find this aspect to have been also addressed and applicant had been held entitled to second maternity. It is argued that the said judgment still holds the field as it is a good law.
5. In view of the above, the order dated 7th November, 2023 is hereby quashed. The matter is remitted to the District authority concerned, namely, the District Supply Officer, Meerut to pass order afresh in the light of the judgment of this Court referred to hereinabove expeditiously preferably within a period of four weeks from the date of presentation of a certified copy of this order.
Order Date :- 16.12.2023
Shiraz
