Naziya.B vs State Of Kerala
2022 Latest Caselaw 5176 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
         TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944

                        WP(C) NO. 26904 OF 2021

PETITIONERS:

     1      NAZIYA.B.,
            W/O.DEEPU.P.V.,
            PADINJARETAL HOUSE, WEST VELLANIKKARA,
            P.O.MADAKKATHRA, THRISSUR, KERALA,
            PIN-680 651.

     2      DHANYA.M.S.,
            W/O.SUMESH MADHAVAN,
            HOUSE NO.165, ASHTAPATHY, HARITHA NAGAR,
            THRISSUR.

     3      JINCY P.FRANCIS,
            W/O.PRINCILIN K.PETER,
            KIDANGAN KUTTUKKARAN HOUSE,
            ELOTH TEMPLE ROAD, P.O.MANAKODY,
            THRISSUR, PIN-680 012.

            BY ADVS.
            M.R.VENUGOPAL
            DHANYA P.ASHOKAN
            S. MUHAMMAD ALIKHAN


RESPONDENTS:

 1       STATE OF KERALA,
         REPRESENTED BY SECRETARY TO GOVERNMENT
         FINANCE DEPARTMENT, SECRETARIAT,
         THIRUVANANTHAPURAM, PIN-695 001.

 2       KERALA UNIVERSITY OF HEALTH SCIENCES,
         REPRESENTED BY THE REGISTRAR,
         MEDICAL COLLEGE P.O., THRISSUR, PIN-680 596.
 W.P.(C) No. 26904/2021              :2:




      BY ADVS.
      ADVOCATE GENERAL OFFICE KERALA
      SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
      SCIENCES

      SMT.ANIMA, GOVT.PLEADER.



   THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
  24.3.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C) No. 26904/2021                      :3:




                                                                      "CR"

                                 JUDGMENT

The petitioners herein while working as Programmers (IT) at the Kerala

University of Health Sciences on a Contract basis were denied Maternity

Benefits. They have approached this Court with this Writ Petition filed under

Article 226 of the Constitution of India challenging the stand taken by the

respondents.

2. Bare facts are as under.

The 1st petitioner was appointed as a Programmer in the 2nd

respondent University with effect from 25.6.2012 for a period of 12 months.

After the expiry of the said period, the 2nd respondent has extended the

contract by 179 days at a time by giving an artificial break of two days. As per

the last appointment order, a copy of which is produced as Ext.P1, the 1st

petitioner has been appointed for a period of 179 days with effect from

23.6.2021 on a consolidated pay of Rs.35300/- per mensem. The 2nd

petitioner joined the services of the 2nd respondent as a Programmer with

effect from 2.7.2012. Her contract was regularly renewed for 179 days at a

time and as per Ext.P1, the contract was for the period from 24.6.2020 to

18.6.2021 on a consolidated pay of Rs.35300/- per mensem. The 3rd

petitioner joined the services of the 2nd respondent on a contract basis with

effect from 21.8.2017 on a consolidated pay of Rs.30000/- per mensem. The

original appointment was for a period of 179 days. Later, her service was

periodically extended for 179 days at a time by giving an artificial break of

two days between consecutive contracts. As per Ext.P2 appointment order,

she was granted fresh appointment order for a period of 179 days with effect

from 18.8.2021.

3. While working as aforesaid, the petitioners have all applied for

maternity leave and the same was granted by the 2nd respondent. However,

the petitioners were denied any allowance.

4. The materials produced before this Court shows that the 1st

petitioner had applied for maternity leave during her contract period from

27.12.2018 to 21.12.2019. The 2nd respondent was granted maternity leave

without allowance for a period of 155 days starting from 19.1.2019 to

22.6.2019. The 2nd petitioner applied for maternity leave for the period of

174 days commencing from 24.12.2020 to 15.6.2021 and the 2nd respondent

has granted the same without allowance. The 3rd petitioner requested

maternity leave for the period from 15.3.2019 to 14.8.2019 and the same was

granted by the 2nd respondent, however, without allowance.

5. The petitioners contend that the request for maternity leave with

benefits was rejected by the 2nd respondent by Ext.P3 order initially on the

ground that the contract period was for a period of 179 days which is less

than one year. It was on the premise that the benefit provided under Rule

100 and 101 of Part I of the KSR could be extended only to those contract

employees whose tenure of contract is for a minimum period of one year.

6. Later, the Government has issued G.O.(P) No 2/2021/Fin dated

4.1.2021, wherein, taking note of the law laid down by this Court in Rakhi

P.V. and Others v. State of Kerala (2018 (2) KLT 864), the Government

took a decision to extend the benefit of maternity leave on full pay in terms of

Rule 100, Part I of the Kerala Service Rules up to a period of 180 days or till

the expiry of the existing contract whichever is earlier to female officers,

appointed on contract basis, irrespective of the tenure of the contract, subject

to the condition that the leave will not be admissible from a date before 3

weeks from the expected date of confinement as certified by the medical

officer. By the aforesaid order, leave on full pay as per Rule 101, Part I Kerala

service Rules was also extended to female officers appointed on a 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 the application for leave is supported by a Certificate from the medical

officer. However, as per clause (4) of Ext.P4 order, a clause was incorporated

to the effect 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". It was mentioned in the order that the order would take effect

from 27/2/2018.

7. Taking note of the benefit granted to persons such as the

petitioners by Exhibit P4 Government Order, they submitted separate

applications before the 2nd respondent. However, by Ext.P6, P7 and P8

memos, their requests were rejected on the ground that each period of

contract has to be considered a separate posting. The respondents proceeded

to deny the benefits to petitioners 1 and 3 on the ground that they had not

completed the stipulated 80 days of contract service prior to the date of

confinement. Insofar as the 2nd petitioner is concerned, the 2nd respondent

took the view that her application for maternity leave cannot be considered

since her delivery took place on 19.12.2020, a day, which was a break period

between her two contracts. Being aggrieved, they have approached this

Court seeking the following reliefs:

(i) To issue a Writ of certiorari, or any other appropriate Writ, order or direction quashing Ext.P6, P7 and P8 so far as it denies maternity benefit to the petitioners.

(ii) To issue a Writ of mandamus, order or direction directing the respondents to disburse forthwith the maternity benefits due to the petitioners during the maternity leave granted by the respondents.

8. In the counter affidavit filed by the 1st respondent, it is stated

that in view of the provisions in Rule 2 Appendix VIII of Part I of the KSR,

maternity leave is admissible to provisional female recruits only when they

continue beyond one year. Relying on the provisions of the Maternity Benefit

Act, 1961 it is stated that a woman is entitled to benefits only if she has

worked for a period of not less than 80 days in the 12 months immediately

preceding the date of her expected delivery. In the case of the petitioners,

separate contracts have been executed with break-in and hence, the

petitioners can be treated only as fresh recruits. The 1st and 3rd petitioners

worked only for 23 and 25 days respectively during that particular period of

contract and the 2nd petitioner's delivery took place during the break-in

period between the two contracts. Each engagement of the writ petitioners

can be treated only as a free or separate engagement. It is stated that as per

Ext.P4 Government Order, a female officer ought to have completed not less

than 80 days of actual service immediately preceding her date of delivery. It

is stated that the request made by the petitioners was rightly rejected and no

interference is warranted.

9. Smt. Dhanya P. Asokan, the learned counsel appearing for the

petitioner submitted that the Maternity Benefit Act, 1961 was enacted by the

Parliament to regulate the employment of women for certain periods before

and after childbirth and to provide for maternity benefits and certain other

benefits. According to the learned counsel, Article 42 of the Constitution of

India which falls in Part IV of the Constitution containing the Directive

Principles of State Policy requires the State to make provisions for securing

just and humane conditions of work and for maternity relief. Relying on the

judgment of the Apex Court in Municipal Corporation of Delhi v. Female

Workers (Muster roll) and Another [AIR 2000 SC 1274], it is submitted

by the learned counsel that when Article 42 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. The

learned counsel would then refer to the judgment of this Court in Rakhi P.V.

(supra) and it was submitted that it has been unequivocally held by this Court

that the benefits of enhanced maternity leave to women employees are

undoubtedly a piece of welfare legislation which is intended to give women

equal opportunities in public employment. According to the learned counsel,

the State has a responsibility to ensure that a restricted meaning is not given

to welfare legislation so that the rights of women employees to avail leave are

not restricted one way or the other. The learned counsel would then contend

that the records reveal that the petitioners had been actually working in the

2nd respondent University for years together. In order to deny them the

benefits such as maternity reliefs to which they are legitimately entitled, the

2nd respondent has relied on an artificial break-in of two days between the

successive extension of contracts. Relying on the judgment dated 8.10.2018

in W.P.(C) No. 19296/2018 and connected cases, it is contended that this

Court has held that when employees are allowed renewal based on their

satisfactory service, the artificial break of two days is only to be ignored.

Finally, the learned counsel would rely on the judgment of this Court in

Najeema M.M. and Ors. v. Kerala State Beverages (M&M)

Corporation, Sasthamangalam and Another [2013 (1) KHC 123] and it is

argued that continuous engagement of a person with an artificial break-in is a

device designed by some unscrupulous employers to keep on engaging

persons without regularizing them thereby denying them the benefits of

regular employees. According to the learned counsel, the 1st and 3rd

petitioners have been actually working under the 2nd respondent for the past

9 years and the 2nd petitioner for the past 5 years and there is absolutely no

justification in denying maternity benefits to them for the reasons mentioned

in Ext.P6 to P8.

10. Sri.P. Sreekumar, the learned Standing Counsel appearing for the

KUHS and Smt. Anima, the learned Government Pleader, argued that neither

under the provisions of the KSR nor under Ext.P4 order, would the petitioners

be entitled for maternity benefits.

11. I have carefully considered the submissions advanced.

12. In Municipal Corporation of Delhi v Female Workers

(Muster Roll) and Another [AIR 2000 SC 1274], the female workers

(Muster roll) engaged by the Municipal Corporation of Delhi raised a demand

for grant of maternity leave which was made available only to regular female

workers but was denied to them on the ground that their services have not

been regularised. While granting benefits to the petitioners therein, it was

observed as follows in paragraphs Nos. 27 and 33 of the judgment.

27. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles,

especially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which 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.

xxxxxx xxxxxx xxxxxxx

33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre-or post-natal period.

13. In the case on hand, originally the request for maternity benefit

to the petitioners was rejected on the ground that maternity leave under Rule

100 and 101 of the KSR would be admissible to female officers appointed on

a contract basis continuing on service beyond one year. In other words,

female officers appointed on contract for a period of one year or less were not

eligible for maternity leave. However, in view of the law laid down by this

Court in Rakhi P.V. (supra), the Government had a change of mind and they

have come out with Ext.P4 order on 4.1.2021 by which the benefit of

maternity leave on full pay as per Rule 100, Part I KSR has been granted up

to a period of 180 days or till the expiry of the existing contract, irrespective

of its tenure. However, in Ext.P4, the Government has inserted a caveat 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 80 days immediately

preceding her expected date of delivery or date of miscarriage.

14. I am of the view that the word "actually" has been consciously

used in Exhibit P4 order. From Ext.P1 and P2 appointment orders itself, it is

evident that the KUHS is working with minimum number of staff and it was

when the same had adversely affected the workflow of the University that

recommendations were obtained from the system manager and after

reckoning the qualifications and the prior experience of the petitioners in the

University that the Vice-Chancellor chose to accord sanction to appoint the

petitioners as programmers. It is undisputed that the 1st and 3rd petitioners

have been working under the 2nd respondent for the past 9 years and the

2nd petitioner for the past 5 years. What is stated by the Government in

Ext.P4 is that in order to be eligible for the benefits, the employee should

have "actually" worked for a period of not less than 80 days immediately

preceding her expected date of delivery or date of miscarriage. By employing

the word "actually", the Government wanted to include persons such as the

petitioners who have been working for years together. Furthermore, I have no

doubt in my mind that the artificial break-in of two days inserted between

successive contracts cannot be used as a device to deny the benefits to which

the petitioners, as female officers, were entitled by way of maternity benefits.

This was the view taken by this Court in the judgment dated 8.10.2018 in

W.P.(C) No. 19296/2018 wherein this Court had held that the petitioners

therein were allowed renewal based on their satisfactory service, the artificial

break of one day is only to be ignored.

15. As held by the Apex Court, women who constitute almost half of

the segment of our society have to be honoured and treated with dignity at

places where they work to earn their livelihood. Whatever be the nature of

their duties, their avocation and the place where they work, they must be

provided with all the facilities to which they are entitled. To become a mother

is the most natural phenomenon in the life of a woman. The employer has to

be considerate and sympathetic to the cause of the female officer and no

action shall be taken to lower the dignity of the women employee in the

workplace. The employer is to take all steps possible to ensure that they are

sympathetic to the cause of the female officer so that she can achieve her

potential in the workplace and the time spent by her to deliver and raise her

child shall not be detrimental to her career or her prospects. The Maternity

Benefit Act, 1961 aims to provide all these facilities to a working woman in a

dignified manner so that she may overcome the state of motherhood

honourably, peaceably, undeterred by the fear of being victimized for forced

absence during the pre or post-natal period.

In view of the discussion above, the petitioners are entitled to succeed.

The impugned orders insofar as it denies maternity benefits to the petitioners

will stand quashed. There will be a direction to the respondent to forthwith

calculate the maternity benefits to which the petitioners are entitled and to

disburse the same expeditiously, in any event, within a period of two months

from the date of receipt of a copy of this judgment.

Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE

PS/5/5/2022

APPENDIX OF WP(C) 26904/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE FIRST PETITIONER DATED 30.06.2021.

Exhibit P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE THIRD PETITIONER DATED 17.08.2021.

Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT DATED 29.03.2019.

Exhibit P4        TRUE COPY OF THE GO(P) 2/2021/FIN DATED
                  04.01.2021.

Exhibit P5        TRUE COPY OF THE REQUEST DATED 07.01.2021
                  SUBMITTED BY THE FIRST PETITIONER WITH
                  TRANSLATION.

Exhibit P6        TRUE COPY OF THE MEMO DATED 30.10.2021 ISSUED
                  TO THE FIRST PETITIONER.

Exhibit P7        TRUE COPY OF THE MEMO DATED 30.10.2021 ISSUED
                  TO THE SECOND PETITIONER.

Exhibit P8        TRUE COPY OF THE MEMO DATED 30.10.2021 ISSUED
                  TO THE THIRD PETITIONER.



                                //True copy//




                                                       PS to Judge