Punjab-Haryana High Court
Parkasho Devi vs Uttar Haryana Bijli Vitran Nigam ... on 9 May, 2008
Equivalent citations: (2008)3PLR248
Author: Mohinder Pal
Bench: Hemant Gupta, Mohinder Pal
JUDGMENT Mohinder Pal, J.
1. By this common judgment, the afore-stated two writ petitions are being disposed of which are directed against he orders rejecting the claim of the petitioner for grant of maternity leave from December 12, 2002 to December 23, 2002 on account of miscarriage.
2. The petitioner was appointed in the Uttar Haryana Bijli Vitran Nigam Limited (for short 'the Nigam') at Karnal on compassionate grounds in the year 1998 after the death of her husband Indraj Singh, who was helper First Grade in the Nigam and died on June 21, 1996. The petitioner had two issues from the loins of Indraj Singh. She remarried on May 01, 2000 with Shiv Kumar and has one issue from this wedlock.
3. On December 12, 2002, the petitioner was admitted in the hospital due to some complications in pregnancy. She suffered miscarriage and was operated upon. The petitioner applied for grant of maternity leave from December 12, 2002 to December 23, 2002 on account of miscarriage. The claim of the petitioner was declined by the Nigam on the ground that benefit of maternity leave was admissible upto two children, which she had already availed.
4. The case of the petitioner is that under Section 9 of the Maternity Benefit Act, 1961 (for short 'the Act') she is entitled to six week's maternity leave with wages at the rate of maternity benefit as there is no restriction therein that the maternity benefit will be available upto two living children only.
5. In response to notice of motion, written statement has been filed by the respondents. If it has been pleaded that the petitioner has invoked the provisions of the Act without challenging the vires of Rule 8.127(a) of the Punjab Civil Services Rules (Volume 1) (Part 1)(Main Rules) (Revised Edition), 1976 which provides as under:
Rule 8.127(a). The competent authority under Rule 8.23 may grant to a female Government employee maternity leave on full pay for a period not exceeding three months. The grant of leave should be so regularized that (1) the date of confinement falls within the period of this leave and (2) the leave does not extend more than six weeks from the date of confinement. This leave may be extended to six months on the certificate of the Principal Medical Officer or Assistant to Civil Surgeon. Materiality leave is not debited against the leave account.
Provided that no leave under this sub rule shall be granted to female Government employee who has two or more children.
It has thus been pleaded that no maternity leave shall be granted to female Government employee who has two or more children. The petitioner having three children, is not entitled for the maternity leave benefit claimed by her.
6. After hearing the learned Counsel for the parties and going through the records of the case, we do not find any ground warranting interference by this Court in exercise of writ jurisdiction. Note 4 below Rule 8.127(1) of the Punjab Civil Services Rules (Vol. I Part I), as applicable to Haryana and adopted by the Nigam clearly lays down that maternity leave shall not be admissible to a female Government employee having more than two living children. In such cases leave of the kind due or extraordinary leave will be allowed.
7. In view of the above, the claim of the petitioner for grant of maternity leave benefit for the period from December 12, 2002 to December 23, 2002, on account of miscarriage is not maintained as she is having three living children.
8. So far as reliance placed by learned Counsel for the petitioner upon the provisions of Section 9 of the Act to content that the petitioner is entitled to six weeks's maternity leave because under this Section there is no restriction that the maternity leave benefit will be available upto two living children only is concerned, it may be stated that it is clearly stated in Section 2 of the Act that it applies, in the first instance, to every establishment being a factory, mine or plantation including any such establishment belonging to government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances. It shall also apply to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. As such, the provisions of the Act do not apply to the employees of the Nigam.
For the aforesaid reasons, both these writ petitions are dismissed being without any merit.