Kerala High Court
Shwas Homes Private Limited vs The Deputy Labour Commissioner on 12 October, 2020
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942
WP(C).No.5902 OF 2015(K)
PETITIONER/S:
SHWAS HOMES PRIVATE LIMITED
GROUND FLOOR, SHWAS MYSTIC HEIGHTS I,
KANIYAMPUZHA ROAD, EROOR PO, VYTTILA, KOCHI-682 306,
REPRESENTED BY ITS DIRECTOR SREENI PARAMESWARAN,
AGED 39 YEARS S/O.G.PARAMESWARAN NAIR.
BY ADVS.
SRI.B.ASHOK SHENOY
SRI.K.V.GEORGE
SRI.P.S.GIREESH
SMT.C.G.PREETHA
SRI.P.N.RAJAGOPALAN NAIR
RESPONDENT/S:
1 THE DEPUTY LABOUR COMMISSIONER
(APPELLATE AUTHORITY UNDER THE MATERNITY BENEFIT ACT 1961)
OFFICE OF THE REGIONAL JOINT LABOUR COMMISSIONER,
CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHI-682 030.
2 THE ASSISTANT LABOUR OFFICER GRADE II
ERNAKULAM 1ST CIRCLE, CIVIL STATION,
KAKKANAD, KOCHI-682 030.
3 SMITHA FRANCIS ALIAS SMITHA AJAY, VILLA NO.6,
MYSTIC BELLS, KANIYAMPUZHA ROAD,
EROOR PO, KOCHI-682306.
R1, R3 BY ADV. SRI.CHRISTOPHER ABRAHAM
R1 BY ADV. SMT.M.M.FATHIMA JALEENA
R1, R3 BY ADV. SRI.K.A.HAZAN
SRI. RON BASTIN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5902 OF 2015 2
JUDGMENT
Dated this the 12th day of October 2020 The writ petition is filed by the employer challenging Ext.P3 order dated 26.12.2011 passed under Section 17 of the Maternity Benefit Act, 1961 (hereinafter referred to as 'the Act') by the Assistant Labour Officer Grade-II, Ernakulam 1 st Circle and confirmation of that order by the Appellate Authority under the said Act vide Ext.P5 order dated 12.11.2014.
2. Facts in brief are as follows:-
The 3rd respondent was an employee of the petitioner. On 14.06.2011, she applied for maternity leave of 12 weeks with effect from 16.06.2011. By the said Ext.R3(a) application the 3rd respondent informed the petitioner that she is being operated on 20.06.2011 for delivering a child and she be granted maternity leave with effect from 16.06.2011. It is not in dispute that the 3rd respondent delivered a child on 20.06.2011.
3. The Act provides for payment of maternity benefit to every woman in employment on fulfilling certain conditions. The 3rd respondent was not paid maternity benefits by her employer i.e., the petitioner. She therefore preferred Ext.P1 complaint dated 27.09.2011. The Assistant Labour Officer on whom powers WP(C).No.5902 OF 2015 3 of Inspector were conferred by the Act of 1961 entertained that application and called for remarks of the petitioner vide communication dated 15.10.2011 (Ext.P1). Accordingly, the petitioner herein submitted its remarks vide Ext.P2 communication dated 25.10.2011. The parties were heard by the Assistant Labour Officer and in exercise of powers under Section 17 of the Act, the petitioner herein came to be directed to pay the maternity leave benefits amounting to Rs.50,400/- (Rupees fifty thousand and four hundred rupees only) along with medical bonus under Section 8 of the Act amounting to Rs.2500/- (Rupees two thousand and five hundred only) within seven days from the date of receipt of the order.
4. Feeling aggrieved by the order under Section 17 of the Act, the petitioner herein preferred Ext.P4 appeal before the Appellate Authority under the Act of 1961. Main contentions raised in the appeal were to the effect that the impugned Ext.P3 order came to be passed without granting reasonable opportunity of hearing to the petitioner/employer, by relying on evidence and materials collected behind the back of the petitioner. It is also pleaded in the appeal that as the order directed grant of maternity benefits for the period prior to 17.06.2011 and for the WP(C).No.5902 OF 2015 4 period since 31.07.2011, the same is against the provisions of Section 5 of the Act. As the 3 rd respondent/employee had been paid wages up to 16.06.2011, she was not entitled for maternity benefits from the period prior to 17.06.2011. It is further urged in the memorandum of appeal that at the most the 3 rd respondent would have been entitled for grant maternity benefits for 48 days from 17.06.2011 to 31.07.2011.
5. The appellate authority, i.e, the Deputy Commissioner of Labour Commissioner, Ernakulam secured presence of the parties and heard the appeal. The appeal came to be dismissed by Ext.P5 impugned order dated 12.11.2014.
6. I heard the learned counsel appearing for the petitioner/employer at sufficient length of time. He argued that in view of the provisions under Section 4 of the Act, the employer cannot permit the employee who has delivered a child to work for six weeks after delivery. He drew my attention to Section 10 of the Act which deals with grant of leave with wages for a maximum period of one month in the event of a woman employee suffers from illness arising out of pregnancy, delivery, premature birth of child etc. By relying on Section 5 of the said Act, the learned counsel for the petitioner argues that the period WP(C).No.5902 OF 2015 5 for maternity benefit could not have been bifurcated or maternity leave could not have been claimed post delivery. With this, he prays for allowing the petition.
7. I also heard the earned counsel appearing for the 3 rd respondent/employee. In his submission, the 3 rd respondent is entitled for interest on the amount which is still unpaid. It is argued that the impugned orders are perfectly in consonance with the provisions of the Act of 1961.
8. Heard the learned Government Pleader appearing for respondent Nos.1 and 2 .
9. I have considered the submissions so made and also perused the materials placed on record. This is a petition challenging the order of the Appellate Authority under the Maternity Benefit Act 1961 and the Deputy Labour, Commissioner, Ernakulam, by which by dismissing the appeal filed by the employer, the Appellate Authority confirmed award of maternity benefit and other dues to the 3 rd respondent. Jurisdiction of this Court in dealing with such matters is very limited. This Court can interfere in exercise of its powers under Article 227 of the Constitution of India only when there is error apparent on the fact of the record and if it is demonstrated that WP(C).No.5902 OF 2015 6 the order passed by the quasi judicial authority suffers from perversity or illegality. Finding of fact arrived at by the Appellate Authority cannot be borne into while exercising the writ jurisdiction. Unless and until grave error resulting in miscarriage justice is pointed out, writ jurisdiction in such matters cannot be exercised to upset the decision of the Tribunal, if said decision is within limits of law.
10. Section 5 of the Act which was holding the field at the relevant time and more particularly, Sub Section (1) and (3) of the said Act reads thus:-
''5. Right to pay of maternity benefits - [(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 was 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].
(3) The Maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall preced the date of her expected delivery;
Provided 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 further 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, WP(C).No.5902 OF 2015 7 then, for the days up to and including the date of the death of the child.'' It is thus clear from the bare reading of this provision that it creates a right of payment of maternity benefits to a woman employee. The provision makes it clear that such employee can claim the maternity benefit for a period of 12 weeks as per her choice. She can claim the same for the period immediately preceding the day of her delivery, for the actual day of her delivery or for any period immediately following the day of her delivery. This is the provision of a welfare Statute which needs to be construed for benefits of subjects of such Statute. When the beneficial provision of the statute gives some right to choose the mode and manner in which the maternity benefits can be availed by a woman employee, the employer cannot be heard to say that such benefit should be availed in a particular manner only. Even otherwise, the provision of the Statute is very clear on this aspect. The application claiming maternity benefit by the 3rd respondent is also very clearly mentioning the fact that she want to avail maternity benefit for a period of 12 weeks with effect from 16.06.2011 as the operation for her delivery was fixed on 20.06.2011.WP(C).No.5902 OF 2015 8
11. On this factual backdrop, the authority under the Act of 1961 has rightly exercised powers under section 17 of the said Act by directing the petitioner to pay the maternity benefits as envisaged by the Act. While dealing with the appeal filed by the employer, the Appellate Authority has considered each and every submission advanced on behalf of the employer. It was urged before the Appellate Authority that some loan amount is due and payable by the 3rd respondent/employee. It was rightly considered to be an irrelevant aspect by the Appellate Authority.
12. The Appellate Authority categorically concluded that the 3rd respondent is entitled for maternity benefits in the light of her application which is at Ext.R1(a) on the record of this writ petition. No error of law can be found in the impugned order passed by the Appellate Authority. The same order is perfectly within the limits of law and as such no interference can be made.
13. The other provisions of law, particularly Section 4 and 10 of the Act sought to be relied on by the learned counsel for the petitioner/employer are totally inapplicable to the facts of the instant case. Section 4 prohibits the employer for calling a woman for work for the period of six weeks after her delivery. Section 10 deals with another beneficial provision regarding the WP(C).No.5902 OF 2015 9 grant of one month paid leave on occasion of certain illness suffered by the woman employee.
14. With respect to the claim for entitlement of interest to the unpaid amount is concerned, as the petition is at the instance of the employer, it is not possible to grant interest as claimed by the 3rd respondent.
In the result, the petition is devoid of any merit and the same is accordingly dismissed.
Sd/-
A.M.BADAR ajt JUDGE WP(C).No.5902 OF 2015 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF LETTER NO.743/2011 DATED 15- 10-2011 ISSUED BY 2ND RESPONDENT TO PETITIONER, ALONG WITH COPY OF COMPLAINT DATED 27-09-2011 SUBMITTED BY 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF REPLY LETTER DATED 25-10-2011 SUBMITTED BY PETITIONER TO 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER NO.743/2011 DATED 26-12- 2011 ISSUED BY 2ND RESPONDENT TO PETITIONER.
EXHIBIT P4 TRUE COPY OF APPEAL DATED 19-01-2012 SUBMITTED BY PETITIONER BEFORE DIRECTOR OF FACTORIES AND BOILERS, THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF ORDER DATED 12-11-2014 PASSED BY 1ST RESPONDENT IN MBA NO.1 OF 2014.
EXHIBIT P6 TRUE COPY OF DECREE DATED 16-07-2013 OF SUBORDINATE JUDGE'S COURT, ERNAKULAM IN OS.NO.163 OF 2012.