Himachal Pradesh High Court
Bahra University vs Dr. Pooja Bhardwaj And Others on 27 July, 2021
Author: Jyotsna Rewal Dua
Bench: Ravi Malimath, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.W.P. No. 2955 of 2019
Date of decision: 27.07.2021
.
Bahra University, Shimla ...Petitioner
Versus
Dr. Pooja Bhardwaj and others ...Respondents
____________________________________________________
Coram:
The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioner(s): Mr. V.D.Khidtta, Advocate.
For the Respondents: Mr. Karan Singh Kanwar, Advocate for
respondent No. 1.
Mr. Ashok Sharma, Advocate General,
with Ms.Ritta Goswami, Additional
Advocates General, for respondents No.
2 and 3.
Through Video Conference
____________________________________________________
Jyotsna Rewal Dua,J.
Two authorities below have concurrently held that the petitioner-employer had failed to grant maternity benefits lawfully admissible to their employee-respondent No. 1. These concurrent orders passed under the Maternity Benefit Act 1961, as amended 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 2by Act No. 6 of 2017, have been impugned herein by the petitioner.
2. Facts .
2(i) Respondent No. 1 is an employee of the petitioner institution. She filed an application before the petitioner for grant of maternity leave on 21.05.2018, stating that she would be proceeding on maternity leave from 21.05.2018. The application was approved by the petitioner.
2(ii) Respondent No. 1 gave birth to a child on 25.05.2018 and availed maternity leave w.e.f. 21.05.2018 to 20.11.2018. On 14.11.2018, respondent No. 1 applied to the petitioner institution for release of salary for this period of six months. Her salary was not released constraining her to lodge a complaint to respondent No. 3-Labour Inspector Solan on 16.11.2018.
2(iii) On 03.12.2018, respondent No. 1 sent a letter to the petitioner institution with a prayer to provide her crèche facility so that she could join her duties. In the meanwhile, respondent No. 3/Labour Inspector Solan upon receipt of the complaint from respondent No.1, issued notice to both the parties, heard them and after considering the facts and evidence led by them, passed an order on 01.02.2019 under Section 17 of the Maternity Benefit ::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 3 Act, holding respondent No. 1 entitled for an amount of Rs.
2,63,060/- (Two lacs sixty three thousand and sixty) as maternity benefit consisting of salary for maternity leave and Rs. 3,500/-
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(three thousand and five hundred) as medical bonus. The petitioner was also directed to take joining of respondent No. 1 on the post held by her prior to proceeding on maternity leave 'with immediate effect with crèche facility'.
2(iv) The petitioner-institution assailed the order dated 01.02.2019 passed by respondent No. 3 before the appellate authority i.e. respondent No. 2. The appellate authority requisitioned a report qua the availability of crèche facility from the field staff. The Labour Inspector Solan inspected the institution on 09.05.2019 and 24.05.2019. He reported that though crèche was opened by the petitioner-institution on 05.02.2019, but it was not maintained as per National Minimum Guidelines for setting and running crèches under the Maternity Benefit Act 2017. Subsequently, at the request of petitioner-
institution, the appellate authority called for another report qua the crèche facility. The Labour Officer Solan supplied the report on 18.07.2019 and 31.08.2019 reporting therein that the facilities which were found missing at the time of earlier inspection conducted by the Labour ::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 4 Inspector had now been provided. Considering these aspects, the appellate authority passed order on 02.09.2019 under Section 17(4) of the Act permitting respondent No. 1 to join her duties with .
immediate effect. The petitioner was also directed to take respondent No.1's joining on the same post held by her before proceeding on maternity leave with immediate effect. The period of her absence i.e. 20.11.2018 to 26.08.2019 was to be counted towards her seniority for all purposes, including the maternity benefits since her employer-petitioner had failed to provide crèche facilities to the child as per National Minimum Guidelines for setting up crèche facility framed by Ministry of Woman and Child Development, Government of India as per provisions contained under Sections 4 and 11-A of the Maternity Benefit Act 2017.
2(v) The orders dated 01.02.2019 and 02.09.2019 have been assailed by the petitioner in this writ petition.
3. We have heard learned counsel for the parties and gone through the record appended with the petition.
4. Legal Provisions Maternity benefit under Section 3(h) of the Act has been defined as 'the payment referred to in sub-section (1) of ::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 5 Section 5.' Payment of maternity benefit is governed by Section 5 of the Act, relevant part of which reads as under :-
5. Right to payment of maternity benefit. -
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(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 immediately preceding and including the day of her delivery and for the six weeks 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, or one rupee a day, whichever is higher.
x x x x x x x x x x x"
The maximum period for which any woman is entitled to maternity benefit in terms of Ss. 5(3) of the Act was "12 weeks, that is to say 6 weeks upto and including the day of the delivery and six weeks immediately following that day". By virtue of amendment carried out in this sub section by Act No. 6 of 2017, the words "twenty-six weeks of which not more than eight weeks"
have been substituted for the words of "twelve weeks of which not more than six weeks".
Section 6 of the Act provides giving of notice for claiming maternity benefit and payment thereof. The Section is as under :-
"6. Notice of claim for maternity benefit and payment thereof. -
::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 6(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any .
establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. (4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery.
(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order."
Under following Section 11 of the Act, every woman who returns to duty after delivery of child is to be allowed nursing breaks :-
"11. Nursing breaks. -- Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months."::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 7
Section 11A incorporated in the Act by The Maternity Benefit (Amendment) Act 2017 mandates that every establishment having fifty or more employees shall have crèche .
facility and the woman employee shall be allowed four visits a day to the crèche. The Section is as under :-
"Section 11A.
(1) Every establishment having fifty or more employees shall have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities :
Provided that the employer shall allow four visits a day to the crèche by the woman, which shall also include the interval for rest allowed to her. (2) Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act."
Under norms of National Minimum Guidelines for setting up and Running Creches under Maternity Benefit (Amendment) Act, 2017, crèche facility has to be provided for the children of employees up to the age of 6 years.
5. Respondent No. 3 authority after considering the material facts, records and statements, on 01.02.2019 held that petitioner had failed to pay due claims to respondent No.1 during the period of her maternity leave w.e.f. 20.05.2018 to 19.11.2018.
Subsequently, respondent No.1 could not join her duties for want of crèche facility in the petitioner-institution. Therefore, petitioner was directed to pay an amount of Rs. 2,63,060/- (Two lacs sixty three thousand and sixty) as maternity leave salary with interest.
::: Downloaded on - 29/07/2021 20:17:01 :::HCHP 8Petitioner was further directed to accept respondent No.1's joining on the post held by her prior to her proceeding on maternity leave. Before the appellate authority also, it was proved .
on record that the petitioner had not provided the crèche facility earlier and later on though provided this facility on 05.02.2019, but the same was not maintained as per norms of National Minimum Guidelines for setting up and running crèches under the Maternity Benefit Act 2017. It was only on 26.08.2019 that the crèche set up by the petitioner was reported to be as per applicable norms. Inspection reports in this regard were placed on record. Respondent No. 1 could not join her duties for want of crèche facility in the petitioner-institution. In the backdrop of legal provisions and in the face of concurrent findings of the facts, which the petitioner could not rebut, we find no reason to interfere with the impugned orders. This writ petition lacks merit and is accordingly dismissed. Pending applications, if any, also stand disposed of.
( Ravi Malimath )
Acting Chief Justice
27th July, 2021 (K) ( Jyotsna Rewal Dua )
Judge
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