Karnataka High Court
The Chief Officer vs Smt B T Nethravathi on 21 August, 2019
Bench: Chief Justice, Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2019
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NO.3259 OF 2018 (S-RES)
BETWEEN:
THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL
CHALLAKERE
CHITRADURGA DISTRICT
PIN - 577522
NOTE: PRESENTLY THE DESIGNATION OF
CHIEF OFFICER IS CHANGED AS
MUNICIPAL COMMISSIONER
... APPELLANT
(BY SMT. APARNA N., ADVOCATE FOR
SHRI CHANDRAKANTH PATIL K., ADVOCATE)
AND:
1. SMT B.T. NETHRAVATHI
AGED ABOUT 42 YEARS
W/O SRI A.D. THIPPAIAH
ACCOUNTANT
TMC CHALLAKERE
R/O # 52, MIG, HOUSING BOARD
COLONY, THYAGARAJA NAGAR
CHALLAKERE TOWN - 577522
CHITRADURGA DISTRICT
2
2. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
BANGALORE-560001
3. THE DIRECTOR
MUNICIPAL ADMINISTRATION
GOVERNMENT OF KARNATAKA
V.V. TOWER, DR. AMBEDKAR VEEDHI
BANGALORE-560001
4. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA - 577538
5. THE PROJECT DIRECTOR
DISTRICT URBAN DEVELOPMENT CELL
C/O. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT - 577538
CHITRADURGA
... RESPONDENTS
(BY SHRI VIJAYA KUMAR, ADVOCATE FOR R1;
SHRI I. THARANATH POOJARI, AGA FOR R2-R5)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 05/09/2018 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P. NO.44563/2013 SO FAR
AS IT RELATES TO ORDERING FOR REINSTATEMENT OF
THE PETITIONER/1ST RESPONDENT HEREIN AND
PAYMENT OF 25% BACK WAGES AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
3
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the first respondent.
2. The first respondent is the writ petitioner before the learned Single Judge. She was employed on a contract basis. She applied to the appellant (Chief Officer, Town Municipal Council, Challakere) for grant of Maternity Leave. The said application was made on 5th August, 2013 on the ground that women employees working on contract basis are eligible to avail 180 days Maternity Leave as per the Official Memorandum issued by the Mission Director, National Rural Health Abhiyan.
3. On 6th August, 2013, the appellant issued an endorsement holding that as the first respondent has been appointed under Municipal Reforms Project as an accountant on contract basis, she is not entitled to Maternity Leave. On 31st August, 2013, the first respondent made one more application to the appellant- Chief Officer, stating that since she was in the ninth month of pregnancy, she should be granted Maternity Leave from 1st September, 2013 on humanitarian grounds. She 4 produced necessary documents along with the said representation.
4. On 11th September, 2013, the 4th respondent-Deputy Commissioner, Chitradurga District, purportedly passed an order canceling the appointment of the first respondent on the ground that there is no provision for grant of Maternity Leave to the employees working on contract basis. The first respondent challenged both the endorsements/orders by filing a writ petition before the learned Single Judge.
5. The learned Single Judge relied upon a decision of the Apex court in the case of Municipal Corporation of Delhi .v. Female Workers (Muster Roll) and Others1 and held that the reasons assigned by the fourth respondent- Deputy Commissioner for rejecting the claim for grant of Maternity Leave cannot be sustained in the eye of law. The learned Single Judge, therefore, proceeded to set aside the order passed by the fourth respondent canceling the appointment of the first respondent. He directed reinstatement of the first respondent. A further direction was issued to pay her salary for the period for which she 1 (2000) 3 SCC 224 5 had sought Maternity Leave and in addition, to pay 25% back-wages from six months after the date of delivery, that is, from 2nd September, 2019 till the date of reinstatement.
6. The submission of the learned counsel for the appellant-Chief Officer is that firstly, the first respondent was appointed purely on a contractual basis, and secondly, even the fourth respondent-Deputy Commissioner took a stand that the first respondent was not entitled to Maternity Leave. Thirdly, she submitted that there are no posts available on the establishment of the Municipal Council and therefore, the Deputy Commissioner be directed to provide a post on which the first respondent could be reinstated, provided the reinstatement is legal. She also submitted that the order regarding payment of back-wages against the appellant is unjust, as the order of cancellation of appointment has been passed by the fourth respondent- Deputy Commissioner.
7. We have carefully considered the submissions.
8. The appellant while issuing the endorsement dated 6th August, 2013, held that the office memorandum relied upon by the first respondent was not applicable to the first 6 respondent. In fact, on 31st August, 2013, the first respondent made another request to the appellant to grant Maternity Leave for a period of three months on humanitarian grounds. Even the said request was not favourably considered by the appellant.
9. We have carefully perused the office memorandum dated 11th September, 2013 issued by the Deputy Commissioner by which the contract of appointment of the first respondent was cancelled. The learned counsel appearing for the appellant had submitted that reasons have been assigned by the Deputy Commissioner and it is observed by him that the work assigned to the first respondent will have to be attended to immediately and it is necessary to appoint another person as an accountant.
10. From the said office memorandum, it appears that the Deputy Commissioner was considering the request made by the first respondent by a representation dated 5th August, 2013 for grant of Maternity Leave. He has referred to the aforesaid endorsement impugned by the appellant. Ultimately, the Deputy Commissioner has observed that as there is no provision for grant of Maternity Leave to 7 employees on contract basis, the appointment of the first respondent is cancelled. The only ground for cancellation of the appointment is that her appointment was purely contractual. The reason given is that as Maternity Leave cannot be granted to the first respondent, her appointment deserves to be cancelled. Thus, only because she applied for Maternity Leave, her appointment was cancelled.
11. The learned Single Judge has relied upon the law laid down by the Apex Court in the case of Muncipal Corporation of Delhi (supra) and has quoted paragraphs 6 and 11 of the said decision which read thus:
'6. Not long ago, the place of a woman in rural areas has 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 utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance 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, 8 in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 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 flu's Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652, 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: -
"(3) Nothing in this article shall prevent the State from making any special provision for women and children."
11. It is in the 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.
In paragraph 27, the Apex Court held thus:
'27. We appreciate the efforts of the Industrial Tribunal in issuing the above directions so as to- provide the benefits of the Act to the muster roll women 9 employees of the Corporation. This direction is fully in consonance with the reference made to the Industrial Tribunal. The question referred for adjudication has already been reproduced in the earlier part of the judgment. It falls in two parts as under:
(i) Whether the female workers working on muster roll should be given any maternity benefit?
(ii) If so, what directions are necessary in this regard.
In paragraph 33, the Apex Court held thus:
'33. Taking into consideration the enunciation of law, as settled by this Court, as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of 'industry.' The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be 'workmen' and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.'
12. In our view, the learned Single Judge was absolutely right in taking the view that denial of the benefit of Maternity Leave to the first respondent by the appellant and the Deputy Commissioner, constitutes violation of the 10 rights of the first respondent and therefore, the stand taken by the appellant as well as the Deputy Commissioner about the entitlement of the first respondent to Maternity Leave, was unsustainable.
13. As stated earlier, the termination of the first respondent from employment is only on the ground that the first respondent is not entitled to Maternity Leave. Therefore, apart from directing payment of salary to the first respondent during the period of Maternity Leave, for the further period till the date of reinstatement, the appellant and the Deputy Commissioner have been directed to pay 25% back-wages to the first respondent.
14. In the normal course, the first respondent would have been entitled to full back-wages. However, the learned Single Judge has, perhaps, taken a liberal view as the first respondent was a contractual employee. Therefore, it is impossible to find fault with the view taken by the learned Single Judge which is consistent with the law laid down by the Apex Court.
15. The order of reinstatement has been made against the Deputy Commissioner. The State or the Deputy 11 Commissioner has not challenged the impugned order. As even the appellant declined to grant Maternity Leave as a matter of right and even on humanitarian grounds, the order of payment of back-wages is rightly made both against the appellant-Town Municipal Council and the Deputy Commissioner. As the order of reinstatement has been passed against the Deputy Commissioner, the appellant cannot be aggrieved by the same.
16. Accordingly, we find no merit in the appeal and it is dismissed. There shall be no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE vgh*