Delhi High Court
Government Of N.C.T. Delhi & Ors. vs Shweta Tripathi And Anr. on 9 December, 2014
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 09.12.2014
+ W.P.(C) 3089/2014
GOVERNMENT OF N.C.T. DELHI & ORS. ..... Petitioners
Through: Sh. Yogesh Saini with Sh. Kartik Jindal,
for Sh. V.K. Tandon, Advocate.
Versus
SHWETA TRIPATHI AND ANR. ..... Respondents
Through : Ms. (appearance not given), in person.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The petitioner, Govt. of NCT of Delhi (GNCTD) challenges an order
of the Central Administrative Tribunal (CAT) dated 17.09.2013 in O.A.
No.4212/2012. The respondents/applicants had approached the CAT for
appropriate directions, questioning the GNCTD's decision not to grant them
maternity leave for 180 days and confining it to 12 weeks. Both the
respondents were working in the Department of Women and Child
Development, GNCTD. They were appointed as Welfare Officers on
25.08.2009 and 14.07.2010. The first applicant sought leave on 20.06.2012
through the proper channel, stating that her expected date of delivery is
27.12.2012. The second applicant applied on 15.08.2012. Both the
applicants sought leave for six months. The GNCTD, however, granted
leave only to the extent of 12 weeks. Relying upon the directions of the CAT
in O.A. No.939/2011, Dr. Shilpa Sharma v. The Chairman, NDMC and Ors.
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and other judgments, including the decision of the Supreme Court in MCD
v. Female Workers (Muster Roll) and Anr. 2000 (3) SLJ 369 (SC), the
applicants contended that the disparity in employment terms - so far as
maternity benefits were concerned, was arbitrary and discriminatory against
them. The CAT, by its impugned order accepted the applicants' contentions
and held that the mere circumstance that they were contractual employees
could not arm the GNCTD with the discretion to treat them differently from
other employees, who were extended the benefit of 180 days' maternity
leave.
2. The GNCTD contends that the terms of engagement under which the
applicants were given contractual employment are embodied in various
Office Memoranduma dated 12.04.1985, 05.07.1990 and 12.07.1999, as
well as parts of appendix to the Central Services (Leave) Rules, 1972. It is
only to the extent of such leave that the contractual employees could claim
entitlement. These, contended learned counsel, had to be read together with
the provisions of the Maternity Benefit Act, 1961 which mandated that
every establishment or shop necessarily has to give 12 weeks' maternity
benefit to its employees. Learned counsel submitted that the Central Civil
Services (Leave) Rules, 1972 in its substantive provision - Rule 43, which
enables permanent employees to avail of maternity leave for 180 days, could
not have been applied under the circumstances.
3. Section 5(3) of the Maternity Benefit Act, 1961 which requires every
establishment - a term which comprehends even government departments -
to grant maternity benefit of 12 weeks to be given to each female employee,
is in the following terms:
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5. Right to payment of maternity benefit. .......
XXXXXX XXXXXX
(3) The maximum period for which any woman shall be
entitled to maternity benefit shall be twelve weeks, that is to
say, six weeks up to and including the day of her delivery and
six weeks immediately following that day:
Provided that where a woman dies during this period,
the maternity benefit shall be payable only for the days up to
and including the day of her death:
Provided further that where a woman, having been
delivered of a child dies during her delivery or during the
period of six weeks immediately following the date of her
delivery, leaving behind in either case the child, the employer
shall be liable for the maternity benefit for the entire period
of six weeks immediately following the day of her delivery but
if the child also dies during the said period, then for the days
up to and including the day of the death of the child."
4. This provision is in pursuance of the Directive Principle articulated in
Article 42 of the Constitution of India.
5. Rule 43 of the Central Civil Services (Leave) Rules, 1972, on the
other hand, reads as follows:
"43. Maternity Leave
(1) A female Government servant (including an
apprentice) with less than two surviving children may be
granted maternity leave by an authority competent to grant
W.P.(C)3089/2014 Page 3
leave for a period of (135 days) from the date of its
commencement.
(2) During such period, she shall be paid leave salary
equal to the pay drawn immediately before proceeding on
leave.
NOTE :- In the case of a person to whom Employees' State
Insurance Act, 1948 (34 of 1948), applies, the amount of
leave salary payable under this rule shall be reduced by the
amount of benefit payable under the said Act for the
corresponding period.
(3) Maternity leave not exceeding 45 days may also be
granted to a female Government servant (irrespective of the
number of surviving children) during the entire service of
that female Government in caseof miscarriage including
abortion on production of medical certificate as laid down in
Rule 19:
Provided that the maternity leave granted and availed
of before the commencement of the CCS (Leave) Amendment
Rules, 1995, shall not be taken into account for the purpose
of this sub-rule.
(4) (a) Maternity leave may be combined with leave of any
other kind.
(b) Notwithstanding the requirement of production of
medical certificate contained in sub-rule (1) of Rule 30 or
sub-rule (1) of Rule31, leave of the kind due and admissible
(including commuted leave for a period not exceeding 60
days and leave not due) up to a maximum of one year may, if
applied for, be granted in continuation of maternity leave
granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave
account."
W.P.(C)3089/2014 Page 4
6. The CAT's reasoning is premised upon its previous ruling in Dr.
Shilpa (supra) which has, in turn, relied upon several other judgments,
including that of the Supreme Court in the Female Workers (Muster Roll)
(supra) as well as Neetu Chaudhary (Smt.) v. State of Rajasthan and Ors.
2008 (2) RLW 1404 (Raj). The reasoning adopted by the CAT, for
proceeding in the way it did, is that the higher benefit which is given to
employees who are not contractual but are borne in the establishment of the
GNCTD itself, is a standard which should not have been deviated. This
Court is of the opinion that keeping in mind the larger public interest sub-
served in the grant of maternity benefit, the GNCTD, as a model employer,
which is bound by Articles 14 and 16(1), could not have discriminated
between two female employees, for the purpose of maternity benefit, on the
basis that one of them is a contractual employee and thus entitled to lesser
extent of pay, whereas the other, being a permanent employee, could be
favoured with a better term. This cannot be treated as a reasonable
classification, considering the object of the rule for grant of maternity
benefit.
7. For these reasons, the Court finds that the challenge to the CAT's
order is meritless. The writ petition is accordingly dismissed.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
DECEMBER 09, 2014/ajk
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