Laxmi Subhash Yadav vs Office Of Directorate Through ...
2017 Latest Caselaw 8192 Bom

Priya Soparkar                    1                            wp 2402-16


       IN  THE HIGH  COURT OF JUDICATURE  AT BOMBAY 
                CIVIL  APPELLATE JURISDICTION 

                  WRIT PETITION NO.2402 OF 2016
                                   
Laxmi  Subhash  Yadav
Age  35 years, (Occupation:Unemployed)
Residing  at C-5/7, 4:1, Sector-1A,
CBD Belapur, Navi Mumbai 400614                  ...   Petitioner
       V/s.
1. Office  of Directorate
Through  Water and Sanitation
Support  Organization (WSSO)
Water Supply and Sanitation 
Department CIDCO Bhavan, 
South Wing, First Floor,
Navi Mumbai 400 614, 
Dist. Thane.
2. State of Maharashtra
Through Secretary, 
Water  Supply  & Sanitation
Department, New Bldg. 
7th floor,  L.T.Marg,
Near Crawford  Market,
GT  Hospital Campus,
Mumbai 400001. 
3. Government  of India
Through  Office of Joint
Secretary (Water, Sanitation)
Ministry of Drinking  Water and
Sanitation Paryavarn Bhavan,
CGO  Complex, Lodhi Road,
New Delhi - 110003.                         ... Respondents
                              ---
Mr.Uday P. Warunjikar  for the Petitioner. 
Mr.B.V.Samant, AGP  for the State/Respondent No.2. 
                              ---




  ::: Uploaded on - 13/10/2017          ::: Downloaded on - 14/10/2017 02:42:24 :::
 Priya Soparkar                          2                                 wp 2402-16


                             CORAM :  S.C.DHARMADHIKARI AND
                                           SMT. BHARATI H.DANGRE, JJ.

Reserved for judgment on: 3rd October, 2017.

Judgment pronounced on : 13 th October 2017.

JUDGMENT (PER SMT. BHARTI H.DANGRE, J):-

1. The Petitioner has approached this Hon'ble Court for

quashing and setting aside of the termination order, dated 30 th

December, 2013 served upon the Petitioner on 12 th 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 8 th 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

Priya Soparkar 3 wp 2402-16

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 8 th

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

Priya Soparkar 4 wp 2402-16

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 26 th December, 2013 and the

appointment was continued from 10th December, 2013 to 9th

November, 2014.

The Petitioner absented herself from work from 30 th

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 1 st 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 bed-rest for next three months.

Therefore, she requested for grant of medical leave from 1 st

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

Priya Soparkar 5 wp 2402-16

diagnosed that the Petitioner was carrying two months

pregnancy and she was advised three months rest from 8 th

January, 2014.

The Petitioner attempted to resume her services by

submitting an application to the Director on 10 th 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

Priya Soparkar 6 wp 2402-16

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

Priya Soparkar 7 wp 2402-16

Social and Cultural Rights, which include a Covenant relating

to special benefits to women during period of pregnancy and

post-delivery 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

Priya Soparkar 8 wp 2402-16

(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 affidavit-in-reply 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 1 st January,

2014 to 8th January, 2014 and submitted a medical leave

application on 8th January, 2014 with the medical certificate

Priya Soparkar 9 wp 2402-16

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 30 th December,

2013 and the circular was issued on 20 th 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,

Priya Soparkar 10 wp 2402-16

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 sub-section 1 of Section 5. Further,

the said Act also entitles a woman for payment of medical bonus,

leave for mis-carriage etc. The said enactment by virtue of

Priya Soparkar 11 wp 2402-16

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 fair-play 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 sub-

section 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

Priya Soparkar 12 wp 2402-16

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

Priya Soparkar 13 wp 2402-16

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 singed 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

Priya Soparkar 14 wp 2402-16

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 30 th 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 30 th 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 30 th November, 2013

Priya Soparkar 15 wp 2402-16

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

Respondent-department, 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

Priya Soparkar 16 wp 2402-16

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 post-delivery . 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

Priya Soparkar 17 wp 2402-16

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.)

.......