Centre For Professional And ... vs Abhitha Karun
2022 Latest Caselaw 8990 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                &
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
     WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                       WA NO. 1293 OF 2019
 AGAINST THE JUDGMENT DATED 28/02/2019 IN WP(C)NO. 34821/2018 OF
                       HIGH COURT OF KERALA
APPELLANT/2ND RESPONDENT :

          CENTRE FOR PROFESSIONAL AND ADVANCED STUDIES,
          SCHOOL OF MEDICAL EDUCATION,
          GANDHI NAGAR, KOTTAYAM-686008,
          REPRESENTED BY ITS DIRECTOR.
          BY ADV P.C.SASIDHARAN


RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 3:

    1     ABHITHA KARUN,
          LECTURER ON CONTRACT,
          INE, SME, MANIMALAKKUNNU-686664,
          RESIDING AT KANDANATTU HOUSE,
          NEAR GOVERNMENT MODEL HIGH SCHOOL GROUP,
          MUVATTUPUZHA-686661, ERNAKULAM DISTRICT.
    2     THE STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT HIGH
          EDUCATION DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM-695001.
    3     THE PRINCIPAL,
          INSTITUTE OF NURSING EDUCATION,
          SCHOOL OF MEDICAL EDUCATION,
          MANIMALAKUNNU-686664.
          BY ADVS.
          SRI.M.R.VENUGOPAL
          SMT.DHANYA P.ASHOKAN


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1293 of 2019
                                                2




                                                                              "C.R"


                   P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                           ------------------------------------------
                             Writ.Appeal No. 1293 of 2019
                      -----------------------------------------------------
                         Dated this the 27th day of July, 2022

                                      JUDGMENT

C.S.Sudha, J.

Are contract employees entitled to the benefit of the Maternity Benefit Act,

1961 (the MB Act)? What does the term 'establishment' in Section 2 of the MB Act

mean? Does the Centre for Professional and Advanced Studies, School of Medical

Education (CPAS), a Society registered under the provisions of the Travancore

Cochin Literary Scientific and Charitable Societies Registration Act, 1955 come

within the meaning of the term 'establishment', so as to entitle its employees to claim

the benefit of the MB Act? Can special Rules framed by CPAS override the

provisions contained in the MB ACT? These are the questions that we are called upon

to answer in this intra-court appeal, which is against the judgment dated 28/02/2019

in W.P.(C) No.34821/2018. The appellant is the 2nd respondent and the respondents

herein, the petitioner and respondents 1 and 3 respectively in the writ petition.

2. The writ petition was filed by the petitioner challenging the denial of W.A.No.1293 of 2019

maternity leave with allowance for a period of 26 weeks (180 days) by CPAS, i.e., the

2nd respondent Society. The 2nd respondent Society has been formed to take over the

self financing institutions under the Mahatma Gandhi University. The petitioner

alleges that after a due process of selection, she was appointed as Lecturer on contract

basis in Pediatric Nursing under the 2nd respondent, a self financing institution

directly run by the University with effect from 12/03/2012 for a period of three years

as per Ext.P1 order dated 21/04/2012. According to the petitioner, her service

conditions except the tenure of appointment and the scale of pay were governed by

the provisions of the Mahatma Gandhi University Act and the Statutes. The petitioner

was granted maternity leave for a period of 180 days with effect from 03/03/2014 to

29/08/2014 as per Ext.P2 order dated 21/05/2014. The appointment under Ext.P1

appointment order was renewed for a further period of three years with effect from

12/03/2015 as per Ext.P3 order dated 24/08/2015. During the course of the

employment under Ext.P3, the petitioner conceived and so as per Ext.P4 application

dated 03/10/2017, she applied for maternity leave for a period of 180 days from

03/10/2017 to 31/03/2018. It is further alleged that, at the instance of the Mahatma

Gandhi University, the State Government constituted the 2 nd respondent Society to

take over and administer all the Self-financing Institutions of the University.

2.1. Separate Rules pertaining to qualification, method of appointment and

service conditions of the 2nd respondent were also framed and approved by the

Government vide G.O.(Ms) No.148/2018/H.Edn. dated 26/06/2018. As per the W.A.No.1293 of 2019

aforesaid Rules, though maternity leave is provided for 180 days, the maternity leave

benefit has been limited to 90 days. The 2 nd respondent as per Ext.P5 order dated

21/12/2017 has sanctioned maternity leave to the petitioner as per which though leave

for 180 days has been sanctioned, leave with allowance has been limited to 90 days.

The said order is in violation of the provisions of the the MB Act and the instructions

contained in the circulars issued by the Ministry of Women and Child Health,

Government of India. As is evident from Ext.P2 , the petitioner had been granted

maternity leave for 180 days during the year 2014. The Rules framed by the 2 nd

respondent Society has been approved by the Government only on 26/06/2018. The

service conditions of the petitioner cannot be altered to her disadvantage during the

course of her employment. According to the petitioner, the denial of maternity leave

with allowance for 180 days is illegal, arbitrary and violative of the fundamental

rights and Constitutional principles. Hence the writ petition was moved seeking a

direction to the 2nd respondent to sanction maternity leave with allowance for 180

days; to declare that the petitioner is entitled to maternity leave with allowance for

180 days notwithstanding the taking over of the Self-financing Institutions of the

Mahatma Gandhi University by the 2nd respondent Society and to issue a writ of

certiorari to the extent of quashing the stipulation in Ext.P5 limiting the allowance to

90 days during the period of the maternity leave granted to the petitioner.

3. In the writ petition, 2nd respondent has filed a counter contending that

the petitioner is not entitled to the benefit of the MB Act as claimed by her. The 2nd W.A.No.1293 of 2019

respondent Society has been established for the purpose of conducting self-financing

courses in its colleges or institutions. The Society has framed its own Rules

governing its service conditions. The petitioner working in the erstwhile self-

financing Institutions under the Mahatma Gandhi University, exercised her option to

be engaged by the 2nd respondent on a contract basis and hence the terms and

conditions of her service are governed by the Special Rules framed by the

respondent. The 2nd respondent Society is an independent legal entity and the service

conditions of the employees in the Mahatma Gandhi University will not govern the

service conditions of the employees engaged by the respondent. Though an employee

can apply for leave for 180 days, as per the Rules, leave with allowance will be

limited to 90 days. This Statutory Clause contained in the Special Rules has not been

challenged in the writ petition. The contention of the petitioner that her service has

been altered during the course of employment is incorrect. In the light of the Special

Rules framed by the 2nd respondent Society, the petitioner is not entitled to the reliefs

prayed for, contends the former.

4. The learned Single Judge by the impugned judgment, allowed the writ

petition. Aggrieved the 2nd respondent Society has come up in appeal. According to

the 2nd respondent Society, contract employees are not entitled to the benefit of the

MB Act. In support of this argument, reference has been made to the Division Bench

decision of this Court in Jisha P.Jayan v. Sree Sankaracharya University of

Sanskrit, Kalady, 2013 (3) KLT 533. The impugned judgment has been passed W.A.No.1293 of 2019

relying on the decisions in Mini v. Life Insurance Corporation of India, 2018 (1)

KLT 530 and Rakhi P.V v. State of Kerala, 2018 (2) KLT 251, which have

absolutely no application to the case on hand. Hence, the findings of the learned

Judge are liable to be reversed, contends the 2nd respondent Society.

5. Heard Sri.P.C Sasidharan, the learned Standing Counsel for the

appellant, Ms.Dhanya P. Asokan, the learned counsel for the first respondent and Sri.

A.J.Varghese, the learned Senior Government Pleader.

6. Admittedly, the petitioner as per Ext.P1 was initially appointed on

contract basis for a period of three years, that is, from 12/03/2012 to 11/03/2015.

This was renewed by Ext.P3 for a period of another three years, that is, from

12/03/2015 to 11/03/2018. The petitioner's first maternity leave application was

granted on 21/05/2014 for a period of 180 days, that is, from 03/03/2014 to

29/08/2014. The entire leave period was sanctioned with allowance. However, when

the second application, that is, Ext.P4 dated 03/10/2017 for her 2 nd confinement for

the period from 03/10/2017 to 31/03/2018 was submitted, the 2 nd respondent Society

as per Ext.P5 granted maternity leave with allowance for only 90 days. Ext.P5 order

also states that the maternity leave has been sanctioned subject to the provisions of

the Special Rules to be framed and implemented in the 2 nd respondent Society.

Admittedly, when the petitioner had submitted Ext.P4 application dated 03/10/2017

and when Ext.P5 order dated 21/12/2017 was issued, the Special Rules governing the

Society had not come into force. The Rules came into effect as per G.O(Ms) W.A.No.1293 of 2019

148/2018/H.Edn dated 26/06/2018.

7. The only point to be considered is whether the petitioner is entitled to the

benefit of the MB Act as claimed by her. According to the learned counsel for the 2 nd

respondent Society, the petitioner is not entitled to the benefit claimed, as the 2 nd

respondent society has not been brought under the provisions of the MB Act by the

State Government issuing a notification under the proviso to Clause (b) of Sub

Section (1) to Section 2 of the Act. Reference has been made to the decision

reported in Jisha's Case (Supra) in which decision it has been held that contractual

employees are not entitled to the benefit of maternity leave.

8. Per contra, it was submitted on behalf of the petitioner that she is very

much entitled to the benefit and reference was made to the decisions reported in Shah

vs. Presiding Officer, Labour Court, 1977 KHC 220 ; Municipal Corporation of

Delhi vs. Female Workers, 2000 KHC 504 ; Manager, Jyothi Nikethan English

Medium School vs. Deputy Labour Commissioner, 2015(1) KHC 673 ; Rakhi

P.V. vs. State of Kerala, 2018(2) KHC 251 ; Maniben Maganbhai Bhariya vs.

District Development Officer Dahod, 2022 SCC ONLINE (SC) 507 and G.O.

(P)No.2/2021/Fin. dated 04/01/2021 to substantiate the claim.

9. Section 2 of the MB Act reads -

"2. Application of Act. -- (1) It applies, in the first instance, -

(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances:

W.A.No.1293 of 2019

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or or more persons are employed, or were employed, on any day of the preceding twelve months :

Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

(2) Save as otherwise provided in [sections 5-A and 5-B], nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being."

10. According to the petitioner, the notification as contemplated under the

Proviso to Clause (b) is not necessary as contended on behalf of the 2 nd respondent

Society, as the Society is an 'establishment' as contemplated under Clause (b) to sub-

section (1) of Section 2 of the MB Act. This is disputed by the learned counsel for

the 2nd respondent Society, who argued that the term used in Clause (b) is "shops and

establishments" in a State, which means "shops and commercial establishments". As

the 2nd respondent is not a commercial establishment, the provisions of the MB Act

are not applicable. In answer to this argument advanced, the learned counsel for the

petitioner referred to the decisions in Manager, Jyothi Nikethan English Medium

School (Supra) and Maniben Maganbhai Bhariya (Supra). In Jyothi Nikethan

(Supra) the term 'establishment' as contained in Section 2(c) of the Payment of

Subsistence Allowance Act, 1972 (Kerala) was analysed and the meaning elucidated.

Section 2(c) of the said Act reads -

W.A.No.1293 of 2019

" 2.(c) 'establishment' means any place where any industry, trade, business, undertaking, manufacture, occupation or service is carried on, but does not include any office or department of any Government or any establishment of any railway, major port, mine or oilfield;"

The Division Bench held, going by the definition, 'establishment' means any place

where, inter alia, any occupation or service is carried on, excluding those specifically

excluded by the last limb of that definition.

11. In Maniben Maganbhai Bhariya (Supra), an identical provision in the

Payment of Gratuity Act, 1972, was considered. There the question that arose was

whether, Anganwadi workers/helpers would come under the provisions of the

Payment of Gratuity Act. Clause (b) of Sub-Section (3) to Section 1 of the Payment

of Gratuity Act is pari materia with Clause (b) of sub-section (1) to Section 2 of the

MB Act. Sub-sections (3) and (3A) of Section 1 of the said Act reads -

"(3) It shall apply to -

(a) every factory, mine, oilfield, plantation, port and railway company;

(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;

(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. [(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten."

W.A.No.1293 of 2019

11.1. The term 'establishment' has been explained in paragraph 79 of the

judgment, the relevant portion of which reads -

" 79. .................. It is urged for the appellant that the Payment of Wages Act is not an enactment contemplated by Section 1(3)(b) of the Payment of Gratuity Act. The Payment of Wages Act, it is pointed out, is a Central enactment and Section 1(3)(b), it is said, refers to a law enacted by the State Legislature. We are unable to accept the contention. Section 1(3)(b) speaks of "any law for the time being in force in relation to shops and establishments in a State". There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payment of Wages Act is not a law in relation to "shops and establishments". As to that, the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class of establishments, that is to say, industrial establishments. But it is contended, the law referred to under Section 1(3)(b) must be a law which relates to both shops and establishments, such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law" in Section 1(3) (b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation to noncommercial establishments. Had Section 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non-commercial. The Punjab Shops and Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting Section 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression "establishments"

unqualified. We have carefully examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to Section 1(3) (b) urged before us on behalf of the appellant. Section W.A.No.1293 of 2019

1(3)(b) applies to every establishment within the meaning of any law for the time being in force in relation to establishments in a State. ..........................." (Emphasis Supplied)

12. Therefore, the term 'establishment' referred to in the MB Act can be any

and every establishment within the meaning of any law for the time being in force in

the State in relation to establishments. For instance, the Payment of Subsistence

Allowance Act, 1972 (Kerala) is a law in force in the State of Kerala which defines

'establishment', as one where service is carried on also as in the case of the

establishments of the second respondent. Hence the argument advanced that the 2 nd

respondent Society is not an establishment, as contemplated under Clause (b) of Sub-

section (1) to Section 2 of the MB Act has only to be negatived. The Special Rules

of the 2nd respondent Society cannot obviously override the provisions of the MB

Act, a Central Act.

13. Further, the MB Act is admittedly a beneficial piece of legislation. As

held by the Hon'ble Supreme Court in Shah (Supra) it has to be borne in mind that in

interpreting the provisions of beneficial pieces of legislation, like the one in hand,

which is intended to achieve the object of doing social justice to women workers and

which squarely fall within the purview of Article 42 of the Constitution of India, the

beneficent rule of construction, which would enable the woman worker not only to

subsist but also to make up her dissipated energy, nurse her child, preserve her

efficiency as a worker and maintain the level of her previous efficiency and output,

has to be adopted by the Court.

W.A.No.1293 of 2019

14. Article 14 of the Constitution of India, provides that the State shall not

deny to any person equality before the law or the equal protection of the laws within

the territory of India. Article 15 provides that the State shall not discriminate against

any citizen on grounds only of religion, race, caste, sex, or place of birth or any of

them. Article 38 provides that the State shall strive to promote the welfare of the

people by securing and protecting, as effectively as it may, a social order in which

justice, social, economic and political, shall inform all the institutions of the national

life. Sub-clause (2) of this Article mandates that the State shall strive to minimize the

inequalities in income and endeavor to eliminate inequalities in status, facilities and

opportunities. Article 39 inter alia provides that the State shall, in particular, direct

its policy towards securing that the citizens, men and women equally, have the right

to an adequate means to livelihood. As per Article 42, the State shall make provision

for securing just and humane conditions of work and for maternity relief. Article 43

states that the State shall endeavour to secure, by suitable legislation or economic

organisation or in any other way, to all workers, agricultural, industrial or otherwise,

work, a living wage, conditions of work ensuring a decent standard of life and full

enjoyment of leisure and social and cultural opportunities and, in particular, the State

shall endeavour to promote cottage industries on an individual or co-operative basis

in rural areas.

15. Dealing with Article 14, vis-a-vis, the labour laws, the Apex Court in

Hindustan Antibiotics Ltd vs. Workmen, AIR 1967 SC 948 held that, labour to W.A.No.1293 of 2019

whichever sector it may belong in a particular region and in a particular industry, will

have to be treated on equal basis. In Yusuf Abdul Aziz vs. State of Bombay, AIR

1954 SC 321 it has been held that Article 15(3) which says that nothing in this article

shall prevent the State from making any special provisions for women and children,

applies to both existing and future laws.

15.1. The Hon'ble Supreme Court in Municipal Corporation of Delhi

(Supra) considered the question whether female workers (muster roll) engaged by the

Municipal Corporation of Delhi could be granted the benefit of maternity leave

which was made available only to the regular female workers. Referring to the

aforesaid Articles of the Constitution, the Apex Court held that it is in the background

of the provisions contained in Article 39, specially in Articles 42 and 43, that the

claim of the female workers (muster roll) for maternity leave and the action of the

Corporation in denying that benefit to its women employees has to be scrutinised, so

as to determine whether the denial of maternity leave by the petitioner is justified in

law or not. As Article 42 specifically speaks of "just and humane conditions of

work" and "maternity relief", the validity of an executive or administrative action in

denying maternity benefit has to be examined on the anvil of Article 42 which,

though not enforceable at law, is nevertheless available for determining the legal

efficacy of the action complained of. In the said case, the Apex Court found that there

was no justification for denying the benefit of the Act to casual workers or workers

employed on daily wage basis. A reading of the provisions of the MB Act would W.A.No.1293 of 2019

indicate that they are wholly in consonance with the Directive Principles of State

policy, as set out in Article 39 and in the other Articles, referred to herein above,

specially Article 42.

15.2. The object of the MB Act is to see that a woman employee at the time of

advanced pregnancy, is not compelled to work as it would be detrimental to her

health and also to the health of the foetus. It is for this reason it is provided in the Act

that she would be entitled to maternity leave for certain periods prior to and after

delivery. After scanning through the various provisions of the MB Act, the Apex

Court held that there is nothing contained in the Act by which it can be concluded

that it entitles only regular women employees to the benefit of maternity leave and

not to those who are engaged on casual basis or on muster roll on daily wage basis.

16. We also refer to the G.O.(P)No.2/2021/Fin. dated 04/01/2021 by which

the Government of Kerala has extended the benefit of maternity leave to employees

appointed on contract basis irrespective of the tenure. The said G.O. has been issued

in the light of the judgment of Single Bench of this Court in Rakhi's case (Supra)

wherein it has been held that employees appointed on contract basis will also be

entitled to maternity leave as is due to women employees under the Service Rules

applicable to the State and Central Government servants and to women employees

under the MB Act. As per the said G.O, the Government has extended the benefit of

maternity leave on full pay as per Rule 100, Part I, of the Kerala Service Rules

(KSR) up to a period of 180 days or till the expiry of the existing contract whichever W.A.No.1293 of 2019

is earlier, to female officers appointed on contract basis, irrespective of the tenure of

contract, subject to the condition that the leave would not be admissible from a date

before three weeks from the expected date of confinement certified by the medical

officer. Leave on full pay as per Rule 101, Part-I, KSR has been extended to female

officers appointed on contract basis, irrespective of the tenure of contract, up to a

period of 6 weeks or till the expiry of the existing contract whichever is earlier,

subject to the condition that application for the leave is supported by a certificate

from the medical officer. It is further stated that no officer shall be entitled to the

above benefits unless she has actually worked under the employer for a period of not

less than eighty days immediately preceding her expected date of delivery or date of

miscarriage.

17. As per Section 5(1) of the MB Act, every woman would 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, that is to say, the period

immediately preceding the day of her delivery, the actual day of her delivery and any

period immediately following that day. Sub-Section (2) says that, no woman shall be

entitled to maternity benefit unless she has actually worked in an establishment of the

employer from whom she claims maternity benefit, for a period of not less than

eighty days in the twelve months immediately preceding the date of her expected

delivery. Respondents do not have a case that the petitioner has not worked for a

period of 80 days as contemplated under Sub-Section (2) to Section 5 of the MB Act. W.A.No.1293 of 2019

18. Yet another argument advanced by the learned counsel appearing for the

2nd respondent Society is that, if the petitioner is found entitled to the benefits under

the MB Act, then she ought to have resorted to the remedy available to her under

Section 17 of the Act as per which she ought to have preferred a complaint to the

Inspector before filing the writ petition. An alternate efficacious remedy though

available has not been resorted to by the petitioner and hence the writ petition is not

maintainable. In this context, it is to be noted that the writ petition was not one

instituted on the ground that the provisions of the MB Act would apply to the

establishments of the second respondent. Instead, the writ petition was one claiming

maternity benefit in tune with the provisions contained in the MB Act on various

other grounds. The learned Single judge has upheld the claim in terms of the

impugned judgment not on the ground that the provisions of the MB Act would apply

to the establishments of the second respondent, but on different other grounds. It is

with a view to support the impugned judgment, the petitioner has submitted in this

appeal that she is entitled to maternity benefit in terms of the provisions of the MB

Act as well. In the said circumstances, according to us, the contention that the

petitioner should have invoked Section 17 of the MB Act, instead of approaching this

court is only to be repelled, especially when alternative remedy is not a bar in

entertaining a writ petition in appropriate cases. That being the position we find that

the petitioner is entitled to the benefit of the MB Act as claimed by her.

In these circumstances, we find no infirmity in the impugned judgment calling W.A.No.1293 of 2019

for an interference. The writ appeal is found to be without any merits and hence the

same is dismissed.

Interlocutory Applications, if any pending, shall stand closed.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE

Jms/20.7