P.S.Nimmy vs The Kerala Veterinary And Animal ...
2021 Latest Caselaw 6001 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

                THE HONOURABLE MR. JUSTICE GOPINATH P.

     FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                           WA.No.2039 OF 2019

 AGAINST THE JUDGMENT DATED 15-02-2019 IN WP(C) 39889/2018(I) OF
                      HIGH COURT OF KERALA


APPELLANT/PETITIONER:

               P.S.NIMMY,
               SKILLED LABORER, CENTRE FOR PIG PRODUCTION AND
               RESEARCH, MANNUTHY, RESIDING AT PALLIKUDATHIL P.O.,
               MADAKKATHARA, THRISSUR.

               BY ADV. SRI.G.KRISHNAKUMAR

RESPONDENTS/RESPONDENTS:

      1        THE KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY,
               POOKOT, WAYANAD -673576,
               REP. BY ITS VICE CHANCELLOR.

      2        THE REGISTRAR,
               THE KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY,
               POOKOT, WAYANAD - 673 576,
               REP. BY ITS VICE CHANCELLOR.

      3        THE PROFESSOR AND HEAD,
               THE KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY,
               CENTRE FOR PIG PRODUCTION AND RESEARCH, MANNUTHY,
               THRISSUR -680 651.

               R1-3 BY ADV. AYSHA YOUSEFF (B/O)
               R1-3 BY SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND
               ANIMAL SCIENCES UNIVERSITY

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2021, THE
COURT ON 19-02-2021 DELIVERED THE FOLLOWING:
 WA No.2039/2019                           -2-




                                                                                'C.R.'


                                 JUDGMENT

A.K.Jayasankaran Nambiar, J:

The petitioner in W.P (C) No.39889/2018 is the appellant before us

aggrieved by the judgment dated 15-02-2019 of the learned Single Judge. The brief

facts necessary for disposal of the writ appeal are as follows:

2. The appellant is stated to be a skilled causal worker who was

appointed as such in the Kerala Agricultural University in 2003. It is stated that

consequent to the formation of the Kerala Veterinary and Animal Sciences

University, she was transferred as a casual worker under the said University in

2010. During the period between 24-03-2016 and 15-06-2016 the petitioner

availed, and was sanctioned, a maternity leave and it is not in dispute that she

rejoined duty as a casual labourer on 16-06-2016 itself. It is also not in dispute that

during the leave period she received the maternity benefits from the respondent

University for a total period 84 days.

3. The grievance of the petitioner in the writ petition was as regards the

ranking of casual labourers effected by the respondent University, on the basis of

the number of days actually worked as casual labourer. It was pointed out by the

petitioner that, Ext.P1 Leave Rules contemplated that casual labourers who had

discharged service of 160 days in a year would be entitled upto 12 weeks of

maternity leave which would be treated as continuous service and that it was

further made clear in the said Rules that the average daily wage together with the

D.A that was paid to the casual labourer for the period of 3 months (90 days)

immediately prior to the date of delivery would be basis for computation of the

maternity benefit. It was her case that while the respondent University had

granted her the maternity benefits as above, while drawing up the seniority list of

casual labourers prepared based on the number of days actually worked by them,

the petitioner was placed at Sl. No.68 as against Sl.No.23 which she claimed. This

change in the seniority position apparently arose on account of the respondent

University having computed the number of working days during the maternity

leave period by reckoning only 6 days in a week as against 7 days in a normal

week. It was the contention of the petitioner that in as much as the leave Rules

mandated a grant of maternity leave computed in weeks, the respondent

University could not have taken 6 days as constituting those weeks for the

purposes of the seniority list aforementioned.

4. The learned Single Judge who considered the writ petition found that

as per the University Rules, a weekly off is compulsory for every casual employee.

It followed therefore that a casual labourer could work only for 6 days in a week

and had necessarily to be given the seventh day as an off. It was found therefore

that when ordinarily a casual employee could not claim to have worked on the 7 th

day of the week, the petitioner who had proceeded on maternity leave could not

claim a differential treatment. It was accordingly found that the University was

justified in counting 6 days in a week, during the maternity period, for the

purposes of reckoning the position of the petitioner in the seniority list

aforementioned. A review petition filed by the petitioner against the said judgment

of the learned Single Judge did not meet with any success and the same was also

dismissed by order dated 22-08-2019 in R.P No.680/2019.

5. Before us it is contention of Sri. Krishnakumar, learned counsel for

the appellant that the University having reckoned 7 days a week for the purposes

of grant of maternity benefits, was not justified in resorting to a different

computation for the purposes of reckoning the actual number of days worked by

the petitioner, during the maternity period, for inclusion in the seniority list. He

places reliance on the judgment of the Supreme Court in (1997) 4 SCC 384 =

1977 KHC 220: [B. Shah v. Presiding Officer, Labour Court, Coimbatore

and others] where while dealing with a computation of the benefits contemplated

under the Maternity Benefits Act, 1961 the court found that in as much as the Act

did not contain any definition of the word "week" it had to be understood in its

ordinary dictionary meaning which implies a period of 7 days, and that the benefit

of the wages for all the Sundays and rest days falling within the period defined

would ultimately be conducive to the interests of both woman worker and her

employers.

6. It must be noticed here that the judgment aforesaid was rendered while

interpreting the provisions of Section 5 of Maternity benefits Act that provided for

a formula that governed the payment of maternity benefits to the woman

employee. As per the said formula, the employer would be liable for payment of

maternity benefits at the rate of the average daily wage for the period of actual

absence immediately preceding and including the day of delivery, and for the 6

weeks immediately following that day. Through an explanation it was also provided

what had to be paid by the employer was the average of the daily wages payable to

her for the days on which she has worked during the period of 3 calender months

immediately preceding the date from which she absented herself on account of

maternity or one rupee a day whichever was higher. In other words, the provision

that came up for consideration before the court clearly mandated that the average

daily wage paid to the woman employee, for the days actually worked during the

immediately preceding 3 months from which she absented herself on account of

maternity, had to be first determined, and then the said figure applied to the

period during which the woman employee proceeded on maternity leave.

7. On the facts of the case before us, we note that the maternity benefits

due to the petitioner, computed in accordance with the Rules, has already been

paid to the petitioner and this is not in dispute. We are concerned here with the

computation that should govern the appellant's position in a seniority list prepared

based on the actual number of days worked by her as a casual employee for the

purposes of regularisation of her services. In that context, the number of days

which the petitioner is deemed to have worked during the maternity leave period

can only be taken as a reference to the number of days on which she was

exempted from presenting herself for work at the University. By that yardstick, the

Sundays that fell during the maternity period, on which days the petitioner was

not even otherwise expected to present herself for work at the University, and

which therefore did not attract the exemption from work offered by the leave, had

to be necessarily excluded. It might not also be out of place to point out that, even

going by the Leave Rules produced as Ext.P1 in the writ petition, the number of

working days that would have accrued to the credit of the petitioner if she had not

availed the maternity leave would have been the same as computed by the

University.

We therefore find no reason to interfere with the findings of the learned

Single Judge in the impugned judgment, which we uphold for the reasons stated

therein, as supplemented by the reasons contained in this judgment. The Writ

appeal fails and is accordingly dismissed.

(Sd/-) A.K. JAYASANKARAN NAMBIAR JUDGE

(Sd/-) GOPINATH P.

JUDGE AMG

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE I TRUE COPY OF THE REVIEW PETITION NO.680/2019 IN W.P(C) NO.39889/18 OF THIS HON'BLE COURT.

ANNEXURE II TRUE COPY OF THE PETITION TO CONDONE DELAY IN FILING REVIEW PETITION WHICH WAS FILED ALONG WITH R.P.NO.680/2019 IN W.P.(C) NO.39889/18 OF THIS HON'BLE COURT.

ANNEXURE III CERTIFIED COPY OF THE ORDER DATED 22/8/2019 OF THE LEARNED SINGLE JUDGE IN REVIEW PETITION NO.680/2019 IN W.P.(C) NO.39889/18 OF THIS HON'BLE COURT.