Bahra University vs Dr. Pooja Bhardwaj And Others
2021 Latest Caselaw 3255 HP

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             HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                C.W.P. No. 2955 of 2019

                                                Date of decision: 27.07.2021




                                                                                 .

    Bahra University, Shimla                                             ...Petitioner

                                      Versus





    Dr. Pooja Bhardwaj and others                 ...Respondents
    ____________________________________________________
    Coram:
    The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice





    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

    Whether approved for reporting1 :


    For the Petitioner(s):            Mr. V.D.Khidtta, Advocate.

    For the Respondents:              Mr. Karan Singh Kanwar, Advocate for
                                      respondent No. 1.



                                      Mr. Ashok Sharma, Advocate General,
                                      with Ms.Ritta Goswami, Additional
                                      Advocates General, for respondents No.




                                      2 and 3.

                         Through Video Conference





    ____________________________________________________
    Jyotsna Rewal Dua,J.

Two authorities below have concurrently held that the

petitioner-employer had failed to grant maternity benefits lawfully

admissible to their employee-respondent No. 1. These concurrent

orders passed under the Maternity Benefit Act 1961, as amended

Whether Reporters of local newspaper are permitted to see the judgment ?

by Act No. 6 of 2017, have been impugned herein by the

petitioner.

2. Facts

.

2(i) Respondent No. 1 is an employee of the petitioner

institution. She filed an application before the petitioner for grant

of maternity leave on 21.05.2018, stating that she would be

proceeding on maternity leave from 21.05.2018. The application

was approved by the petitioner.

2(ii) Respondent No. 1 gave birth to a child on

25.05.2018 and availed maternity leave w.e.f. 21.05.2018 to

20.11.2018. On 14.11.2018, respondent No. 1 applied to the

petitioner institution for release of salary for this period of six

months. Her salary was not released constraining her to lodge a

complaint to respondent No. 3-Labour Inspector Solan on

16.11.2018.

2(iii) On 03.12.2018, respondent No. 1 sent a letter to the

petitioner institution with a prayer to provide her crèche facility so

that she could join her duties. In the meanwhile, respondent No.

3/Labour Inspector Solan upon receipt of the complaint from

respondent No.1, issued notice to both the parties, heard them

and after considering the facts and evidence led by them, passed

an order on 01.02.2019 under Section 17 of the Maternity Benefit

Act, holding respondent No. 1 entitled for an amount of Rs.

2,63,060/- (Two lacs sixty three thousand and sixty) as maternity

benefit consisting of salary for maternity leave and Rs. 3,500/-

.

(three thousand and five hundred) as medical bonus. The

petitioner was also directed to take joining of respondent No. 1 on

the post held by her prior to proceeding on maternity leave 'with

immediate effect with crèche facility'.

2(iv) The petitioner-institution assailed the order dated

01.02.2019 passed by respondent No. 3 before the appellate

authority i.e. respondent No. 2. The appellate authority

requisitioned a report qua the availability of crèche facility from

the field staff. The Labour Inspector Solan inspected the

institution on 09.05.2019 and 24.05.2019. He reported that

though crèche was opened by the petitioner-institution on

05.02.2019, but it was not maintained as per National Minimum

Guidelines for setting and running crèches under the Maternity

Benefit Act 2017. Subsequently, at the request of petitioner-

institution, the appellate authority called for another report qua the

crèche facility. The Labour Officer Solan supplied the

report on 18.07.2019 and 31.08.2019 reporting therein

that the facilities which were found missing at the

time of earlier inspection conducted by the Labour

Inspector had now been provided. Considering these aspects, the

appellate authority passed order on 02.09.2019 under Section

17(4) of the Act permitting respondent No. 1 to join her duties with

.

immediate effect. The petitioner was also directed to take

respondent No.1's joining on the same post held by her before

proceeding on maternity leave with immediate effect. The period

of her absence i.e. 20.11.2018 to 26.08.2019 was to be counted

towards her seniority for all purposes, including the maternity

benefits since her employer-petitioner had failed to provide

crèche facilities to the child as per National Minimum Guidelines

for setting up crèche facility framed by Ministry of Woman and

Child Development, Government of India as per provisions

contained under Sections 4 and 11-A of the Maternity Benefit Act

2017.

2(v) The orders dated 01.02.2019 and 02.09.2019 have

been assailed by the petitioner in this writ petition.

3. We have heard learned counsel for the parties and

gone through the record appended with the petition.

4. Legal Provisions

Maternity benefit under Section 3(h) of the Act has

been defined as 'the payment referred to in sub-section (1) of

Section 5.' Payment of maternity benefit is governed by Section

5 of the Act, relevant part of which reads as under :-

5. Right to payment of maternity benefit. -

.

(1) Subject to the provisions of this Act, every woman shall be entitled to, and her

employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following

that day.

Explanation. - For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date

from which she absents herself on account of maternity, or one rupee a day, whichever is higher.

x x x x x x x x x x x"

The maximum period for which any woman is entitled

to maternity benefit in terms of Ss. 5(3) of the Act was "12 weeks,

that is to say 6 weeks upto and including the day of the delivery

and six weeks immediately following that day". By virtue of

amendment carried out in this sub section by Act No. 6 of 2017,

the words "twenty-six weeks of which not more than eight weeks"

have been substituted for the words of "twelve weeks of which not

more than six weeks".

Section 6 of the Act provides giving of notice for

claiming maternity benefit and payment thereof. The Section is as

under :-

"6. Notice of claim for maternity benefit and payment thereof. -

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any

.

establishment during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. (4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her

delivery.

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the

amount due for the subsequent period shall be paid by the employer to the woman

within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to

such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order."

Under following Section 11 of the Act, every woman

who returns to duty after delivery of child is to be allowed nursing

breaks :-

"11. Nursing breaks. -- Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months."

Section 11A incorporated in the Act by The Maternity

Benefit (Amendment) Act 2017 mandates that every

establishment having fifty or more employees shall have crèche

.

facility and the woman employee shall be allowed four visits a day

to the crèche. The Section is as under :-

"Section 11A.

(1) Every establishment having fifty or more employees shall have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities :

Provided that the employer shall allow four visits a day to the crèche by the woman,

which shall also include the interval for rest allowed to her. (2) Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act."

Under norms of National Minimum Guidelines for

setting up and Running Creches under Maternity Benefit

(Amendment) Act, 2017, crèche facility has to be provided for the

children of employees up to the age of 6 years.

5. Respondent No. 3 authority after considering the

material facts, records and statements, on 01.02.2019 held that

petitioner had failed to pay due claims to respondent No.1 during

the period of her maternity leave w.e.f. 20.05.2018 to 19.11.2018.

Subsequently, respondent No.1 could not join her duties for want

of crèche facility in the petitioner-institution. Therefore, petitioner

was directed to pay an amount of Rs. 2,63,060/- (Two lacs sixty

three thousand and sixty) as maternity leave salary with interest.

Petitioner was further directed to accept respondent No.1's

joining on the post held by her prior to her proceeding on

maternity leave. Before the appellate authority also, it was proved

.

on record that the petitioner had not provided the crèche facility

earlier and later on though provided this facility on 05.02.2019,

but the same was not maintained as per norms of National

Minimum Guidelines for setting up and running crèches under the

Maternity Benefit Act 2017. It was only on 26.08.2019 that the

crèche set up by the petitioner was reported to be as per

applicable norms. Inspection reports in this regard were placed

on record. Respondent No. 1 could not join her duties for want of

crèche facility in the petitioner-institution. In the backdrop of legal

provisions and in the face of concurrent findings of the facts,

which the petitioner could not rebut, we find no reason to interfere

with the impugned orders. This writ petition lacks merit and is

accordingly dismissed. Pending applications, if any, also stand

disposed of.

                                                ( Ravi Malimath )
                                               Acting Chief Justice



    27th July, 2021 (K)                        ( Jyotsna Rewal Dua )
                                                      Judge