Karnataka High Court
Smt B T Nethravathi vs The State Of Karnataka on 5 September, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.44563 OF 2013 (S-RES)
BETWEEN:
SMT.B T NETHRAVATHI
AGED ABOUT 37 YEARS
W/O SRI A D THIPPAIAH
ACCOUNTANT
TMC CHALLAKERE (UNDER CANCELLATION
OF APPOINTMENT ORDER)
R/O #52, MIG, HOUSING BOARD
COLONY, THYAGARAJA NAGAR
CHALLAKERE TOWN
CHITRADURGA DISTRICT ... PETITIONER
(BY SRI.VIJAY KUMAR, ADV. FOR SRI.B B BAJENTRI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
BANGALORE - 560001
2. THE DIRECTOR
MUNICIPAL ADMINISTRATION
GOVERNMENT OF KARNATAKA
V V TOWER, DR AMBEDKAR VEEDHI
BANGALORE 560 001
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3. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA - 577 501
4. THE PROJECT DIRECTOR
DISTRICT URBAN DEVELOPMENT CELL
O/O THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA - 577 501
5. THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL
CHALLAKERE - 577 522
CHITRADURGA DISTRICT ... RESPONDENTS
(BY SRI.B.C.BALARAJ, HCGP FOR R1 TO R4;
SRI.G.KRISHNA MURTHY, SR. ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS RELATING TO THE IMPUGNED ENDORSEMENT
DT.6.8.2013 OF THE R-5 VIDE ANNX-D AND OFFICIAL
MEMORANDUM DT.11.9.2013 ISSUED BY THE R-3 VIDE ANNX-G.
AND QUASH THE SAME.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This writ petition is filed by the petitioner being aggrieved of the endorsement dated 6.8.2013 (Annexure-D) issued by the Chief Officer, Town Municipal Council, Challakere, the 5th 3 respondent herein and the official memorandum dated 11.9.2013 (Annexure-G) issued by the Deputy Commissioner, Chitradurga, the third respondent herein, to the effect that the petitioner is not entitled to maternity leave, she being appointed on temporary contract basis and revoking the appointment of the petitioner, respectively.
2. The brief facts of the case are that petitioner was appointed as an Accountant on contract basis in the 5th respondent office by the Respondent No.3. Her appointment was continued from time to time under Rule 4 (Note Below) of the Karnataka Municipal (Recruitment of Officers & Servants) Rules, 1971.
3. The petitioner applied for maternity leave on 5.8.2013 for 180 days. The 5th respondent rejected her claim for maternity leave holding that official memorandum of the National Rural Health Abhiyan applies for female employees of those working under the aforesaid scheme and who were working in all the District Health & Family Welfare Sanghs only and the petitioner who is working in the Municipal Reforms Project on temporary basis, is not entitled to maternity leave. 4 However, the petitioner was admitted to hospital and she delivered a baby on 2.9.2013. By the order dated 11.9.2013 the Respondent No.3 has cancelled the appointment of the petitioner citing the very reasons that the petitioner is not entitled to maternity leave and work of Accountant to which petitioner was appointed, was hampered. Being aggrieved, the present writ petition is filed.
4. I have heard the learned counsel for the petitioner and the learned H.C.G.P for R1 to R4 and Sri G Krishnamurthy, Senior Advocate for R-5.
5. The petitioner being appointed on contract basis by the third respondent in the office of 5th respondent is not in dispute. The fact that petitioner was pregnant and she applied for 180 days of maternity leave is also not in dispute. The reason assigned by the 5th respondent to reject the maternity leave to the petitioner that such leave benefit is not admissible to the petitioner as she is a temporary contract employee and it is applicable to those female employees working in all the District Health & Family Welfare Sanghs is not sustainable in the eye of law. The Hon'ble Apex Court exhaustively considered and 5 interpreted the constitutional provisions and the Maternity Benefit Act, 1961 and held that even the muster roll female employees are entitled to maternity benefit in the decision reported in (2000) 3 SCC 224 (Municipal Corporation of Delhi v. Female Workers (Muster Roll) & another). Paragraphs-6 & 11 of the judgment are to the following effect:
"6. Not long ago, the place of a woman in rural areas had been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilized for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in an advanced stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the fundamental rights contained in Part III of the Constitution. Article14 6 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with this article vis-à-vis the labour laws, this Court in Hindustan Antibiotics Ltd., v. Workmen (AIR 1967 SC 948) has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this article provides as under:
"15. (3) Nothing in this article shall prevent the State from making any special provision for women and children."
11. It is in this background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinized so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not."
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6. In the circumstances, the reasons assigned by the 5th respondent to reject claim of the petitioner for maternity leave is not available and cannot be sustained in the eye of law and the ratio laid down by the Hon'ble Apex Court in the above cited decision. It is unfortunate on the same reasoning, the third respondent has canceled the appointment of the petitioner itself. It is not clear as to where did the respondents get the said reason to reject the maternity leave. Except stating that the benefit of maternity leave is not applicable to the petitioner, the third respondent has not stated any provision of law or order under which the petitioner was not entitled to maternity leave. The impugned orders suffer from non application of mind and exercise of power in an arbitrary manner.
7. Therefore, I am of the view that this is a case where petitioner is to be reinstated, paid salary for the period for which she had applied for maternity leave, 25% back wages and to pay the salary from the date of reinstatement.
Accordingly, the writ petition is allowed. The impugned endorsement issued by the 5th respondent (Annexure-D) and the order passed by the 3rd respondent (Annexure-G) are 8 hereby quashed. The third respondent Deputy Commissioner, Chitradurga is directed to reinstate the petitioner within a period of three months from the date of receipt of copy of this order on the same terms and conditions on which she was in service of the 5th respondent. The respondents No.3 & 5 are directed to pay salary of the petitioner for the maternity period to which she was entitled to and also to pay 25% of back-wages from six months after the date of delivery i.e., 2.9.2013 till the date of reinstatement and to pay her salary from the date of reinstatement as is admissible. It is for the Deputy Commissioner, Chitradurga to take work from the petitioner if the post in which the petitioner was working is not vacant.
Sd/-
JUDGE akd