Smt. Priyanka vs State Of Uttarakhand And Others
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Uttarakhand High Court

Smt. Priyanka vs State Of Uttarakhand And Others on 29 February, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                     Writ Petition (S/S) No. 371 of 2023

Smt. Priyanka                                                            ........Petitioner

                                         Versus

State of Uttarakhand and others                                        .....Respondents

Present:-
       Mr. Sunil Upadhyaya, learned counsel, for the petitioner.
       Mr. R.S. Bisht, learned Additional CSC, with Mr. B.S. Koranga, learned Brief Holder, for
       the State of Uttarakhand.


Hon'ble Pankaj Purohit, J. (Oral)

The writ petition has been filed by the petitioner seeking a writ of certiorari quashing the order dated 31.12.2022, passed by the respondent no.3, whereby, the maternity leave provided in the Maternity Benefit Act, 1961 has been denied to the petitioner, and further a writ of mandamus directing the respondent to grant maternity leave to the petitioner for the period from 26.08.2022 to 21.02.2023 with full salary/pay as per the Maternity Benefit Act, 1961.

2. The petitioner is working with the respondent Education Department as a Guest Teacher (Lecturer in Physics), in Government Inter College, Bhalyuta, District Almora. The petitioner during the course of her employment conceived and applied for maternity leave on 25.08.2022 to the Block Education Officer.

3. The said application for maternity leave of the petitioner was denied by the respondent, which constrained the petitioner to move before this Court by filing a WPSS No.2103 of 2022. The said writ petition was decided by this Court vide judgment and order dated 09.11.2022, whereby the Chief Education Officer, District Almora, was directed to decide the representation of the petitioner, which was submitted by the petitioner, within a period of four weeks from the date of the receipt of the representation filed by the petitioner.

4. The petitioner undisputedly has submitted her representation dated 15.11.2022 to the Competent Authority, and the same was decided by the Chief Education Officer, Almora vide order dated 31.12.2022, which is impugned in the writ petition.

5. It is submitted by the learned counsel for the petitioner that the reasons, which has been assigned by the Chief Education Officer, Almora, while rejecting the representation of the petitioner are highly arbitrary against the judgment and order passed by this Court as well as by the Hon'ble Apex Court.

6. Counter affidavit was filed by the respondent stating, therein, mainly that since in the agreement which was entered into between petitioner and respondent for Guest Teacher does not contain any condition, wherein, it has been provided that she would be entitled for maternity leave, she could not be entitled for maternity leave.

7. Though rejoinder affidavit has been filed by the petitioner reiterating the same averments made in the writ petition, however, it has been brought to the notice of this Court by way of the rejoinder affidavit that the said benefit of the maternity leave was extended by the respondent - State by issuance of the Government Order dated 11.09.2023, to all the female staff working with the respondent State, even to employees engaged through outsourcing agency, including the daily wager.

8. Having heard the learned counsel for the parties, the order impugned does not sound fit and is arbitrary in nature, inasmuch as, the order has been passed simply for the reason that there was no condition in the engagement agreement for payment of maternity leave. It has no longer been res integra that the maternity leave is available to all female employees whether they are working in the regular establishment or engaged by the outsourcing agency or daily

wager. The Hon'ble Apex Court in the case of "Dr. Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department and others" decided on 17.08.2023, has held that denial of maternity leave benefit, as available to the female staff, would amount to breach of fundamental right of their life and liberty. Moreover, denial of such benefit to those women employees, who are working in regular establishment, or through outsourcing or daily wager, would amount to discrimination. The Hon'ble Apex Court in the aforesaid judgment has held as under:-

"3. It is this judgment which is assailed before us. For effective adjudication of this appeal, we reproduce below the following provisions of the 1961 Act:-

"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, 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.

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, (the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest.) (2) 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:

Provided that the qualifying period of (eighty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation.- For the purpose of calculating under the sub-section the days on which a woman has actually worked in the establishment (the days for which she has been laid-off or was on holidays declared under any law for the time being enforced to be holidays with wages) during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be (twenty six weeks of which not more than eight weeks) shall precede the date of her expected delivery.

[Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.] [provided further that] where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death;

[Provided also that] where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, than, for the days upto and including the date of death of the child.] (4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

8. Payment of medical bonus.-(1) Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of one thousand rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

(2) The Central Government may before every three years, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of twenty thousand rupees.]

27. Effect of laws and agreements inconsistent with this Act. (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act:

Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be

entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter, which are more favourable to her than those to which she would be entitled under this Act."

7. Broadly, a similar view is reflected in a more recent judgment of this Court in the case of Deepika Singh -vs- Central Administrative Tribunal And Others ((2022) 7 SCR 557]. Though this decision dealt with Central Civil Services (Leave) Rules, 1972, in relation to maternity leave and the 1961 Act was not directly applicable in that case, this Court analysed certain provisions of this Act to derive some guidance on a cognate legislation. This Court observed in the case of Deepika Singh (supra):-

"19. Sub-section (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub-section (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.

20. The Act of 1961 was enacted to secure women's right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In Municipal Corporation of Delhi v. Female Workers (Muster Roll), a two-judge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India's international obligations under the Universal Declaration of Human Rights 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women to extend benefits under the Act of 1961 to workers engaged on a casual basis or on muster roll on daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules

1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections."

In the light of the ratio laid down in the aforesaid two authorities and having regard to Section 27 of the 1961 Act, which gives overriding effect to the statute or any award, agreement or contract of service, in our opinion, the High Court erred in law in holding that the appellant was not entitled to maternity benefits beyond 11th June 2017."

9. Learned counsel for the petitioner has drawn the attention of this Court to the Government Order dated 11.09.2023, issued by the respondent State, wherein, the State of Uttarakhand has also extended the said benefit to even daily wager engaged by the State or through outsourcing agency.

10. In this view of the matter, the writ petition is allowed. The order dated 31.12.2022 is hereby quashed. A writ of mandamus is also issued to the respondents to grant benefits of maternity leave to the petitioner with effect from 26.08.2022 to 21.02.2023 within a period of twelve weeks from today.

11. Any disobedience of this order would be strictly viewed by this Court.

(Pankaj Purohit, J.) 29.02.2024 NR