Jharkhand High Court
Sarita Kumari vs The State Of Jharkhand on 21 September, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1124 of 2021
Sarita Kumari ... Petitioner
VERSUS-
1. The State of Jharkhand
2. The Secretary-cum-Chairman, Jharkhand State Child Protection Unit,
Women, Child Development and Social Security Department, Government
of Jharkhand, Project Bhawan, Dhurwa, Ranchi
3. The Director-cum-Member Secretary, Jharkhand State Child Protection
Unit, Women, Child Development and Social Security Department,
Government of Jharkhand, Project Bhawan, Dhurwa, Ranchi
4. The District Social Welfare Officer, Bokaro
5. The District Child Protection Officer, Bokaro ...
Respondents
CORAM: HON'BLE MR. JUSTICE DR S. N. PATHAK
(Through : Video Conferencing)
For the Petitioner : Mr. Shadab Bin Haque, Advocate
For the Respondents : Mr. Achyut Keshav, GP-I
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04/21.09.2021 The petitioner has approached this Court with a prayer for a direction
upon the respondents to pay the arrears of honorarium for the period from
03.10.2019 to 30.03.2020 in which the petitioner was on maternity leave.
Further, prayer has been made to pay the litigation cost and interest upon
delayed payment.
The case of the petitioner lies in a narrow compass. The petitioner was
appointed on 16.11.2013 on contractual basis to the post of Protection Officer
Institutional Care (POIC), Bokaro and till date she is working. The petitioner
applied for maternity leave before the District Social Welfare Officer and copy
of the same has been given to Deputy Commissioner, Bokaro praying therein
that to approve maternity leave from 03.10.2019 to 30.03.2020 and the same
was duly received in the office of the Deputy Commissioner, Bokaro as well as
District Social Welfare Officer, Bokaro. After availing the maternity leave, the
petitioner resumed her duties on 30.03.2020. It is specific case of the petitioner
that she is continuously working and getting honorarium for the current month,
but she has not been paid the honorarium for the aforesaid period of her
maternity leave, therefore, she represented before the respondents, but no heed
was paid. Aggrieved by the same, she has approached this Court for redressal of
her grievances.
Mr. Shadab Bin Haque, learned counsel for the petitioner submits that
the petitioner is entitled for honorarium of the aforesaid period on which she
was on maternity leave. He further submits that there cannot be any distinction
between a regular employee, contractual employee and casual employee so far
as grant of maternity benefit is concerned. The maternity leave was duly
sanctioned to the petitioner and prior information was given to the authorities
before leaving the station and as such, it cannot be said that it was an
unauthorized leave. He further submits that when the contract of the
employment of the petitioner is subsisting then the female employee, whatever
be the mode and nature of the employment, is entitled to get the monetary
benefits arising out of maternity leave. To buttress his argument, learned
counsel places a heavy reliance on the judgment of this Court in case of
Priyanka Kumari Vs. The State of Jharkhand in W.P.(S) No.2766 of 2018
and submits that the issue is now no more res integra the case of the petitioner is
squarely covered by the aforesaid case.
On the other hand, no counter-affidavit has been filed. However,
learned counsel for the respondents does not dispute the legal issues and very
fairly submits that in view of the amendment in the Maternity Act, 2017,
maternity leave of 12 weeks have been extended to 26 weeks and same is
applicable for every working women. He further submits that if the petitioner
files a fresh representation, same shall be considered, in accordance with law
and the arrears of honorarium for the period in question, for which she is
entitled, shall be paid to her as per direction of this Hon'ble Court.
Be that as it may, having gone through the rival submissions of
the parties, this Court is of the considered view that admittedly the petitioner
was appointed on the contractual basis and is still in employment. There is no
quarrel that petitioner being a female, is entitled for maternity benefits. Law is
very clear on that point, Section 2 of the Maternity Benefit Act, 1961 deals with
the applicability of such case(s) and it applies to all establishments belonging to
the Government and to every establishment wherein person(s) are employed.
Further, Section 3(O) of the Act defines a "woman"; which means a woman
employed whether directly or through any agency, for wages in any
establishment. Section 5 of the Act provides for right to payment of maternity
benefits, which includes any women.
Thus, from the aforesaid facts, it is quite clear that a woman
employee cannot be discriminated on the basis of mode of appointment and
each and every woman, who is an employee of any establishment, is entitled to
get the maternity benefit, whatever be the mode of her appointment, subject to
the condition that the contract of employment should subsist.
Further, the issue is now no more res integra, as a Co-ordinate
Bench of this Court has already decided the issue in case of Priyanka Kumari
(supra).
As a cumulative effect of the aforesaid rules, guidelines and
judicial pronouncement, I hereby direct the petitioner to file a fresh
representation before the respondents, claiming maternity leave benefit for the
period in question, within a period of two weeks from the date of receipt of a
copy of this order. After receipt of the same, the respondent authorities are
directed to take a appropriate decision, in accordance with law, within a further
period of two weeks and issue orders for payment of the arrears of honorarium
for the period in question on which she was on maternity leave and pay the
same within a further period of two weeks.
With the aforesaid observation and directions, writ petition stands
allowed.
(Dr. S.N. Pathak, J.)
punit/-
