Madras High Court
T.Priyadharsini vs The Secretary To Government on 19 October, 2016
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.10.2016
CORAM
THE HON'BLE DR.JUSTICE S.VIMALA
W.P.(MD) Nos.9227of 2015 & 9274 of 2015
and M.P.(MD)Nos.1 and 1 of 2015
T.Priyadharsini ... Petitioner in W.P.(MD) No.9227/2015
R.Gayathri ... Petitioner in W.P.(MD) No.9274/2015
Vs.
1. The Secretary to Government,
Department of School Education,
Government of Tamil Nadu,
Secretariat, Chennai 600 009
2. The Director of School Education,
DPI Campus, Chennai
3. The Joint Director of School Education (Personnel),
D.P.I.Compound, Chennai
4. The Chief Educational Officer, Ramnad
5. The District Educational Officer, Ramnad
6. The Head Master,
Government Higher Secondary School (Boys),
R.S.Mangalam,
Ramnad District ... Respondents in W.P.No.9227/2015
1. The Secretary to Government,
Education Department,
Fort St. George, Chennai 600 009
2. Chief Educational Officer, Virudhunagar
3. The Head Master, KRTA Government Higher
Secondary School, Melathaayilpatti,
Virudhunagar District ... Respondents in W.P.No.9274/2015
Prayer in W.P.(MD) No.9227/2015:- Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus to call for the records pertaining to the proceedings of the fourth
respondent vide his proceedings in O.Mu.No.1868/A5, dated 09.04.2015 and the
consequent recovery proceedings of the sixth respondent, dated 21.04.2015,
vide Na.Ka.No.267/2015, quash the same and to allow the petitioner to avail
the benefits of G.O.Ms.No.51 (P&AR) Department, dated 16.05.2011 and
G.O.Ms.No.237 (P&AR) Department, dated 29.06.1993.
Prayer in W.P.(MD) No.9274/2015:- Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus
directing the respondents herein to regularize the maternity leave of the
petitioner from 01.04.2015 as eligible maternity leave with all salary
benefits.
!For Petitioner in W.P.No.9227/2015: Mr. T.Sakthi Kumaran, for,
M/s. Victory Associates.
For Petitioner in W.P.No.9274/2015: M/s. Lakshmi Gopinathan
For Respondents in both W.Ps. : Mr.T.S.Mohammed Mohideen,
A.G.P.,
:COMMON ORDER
Mate-hara: the word mate-hara is short for maternity harassment. Maternity harassment means workplace discrimination against pregnant or childbearing women, including dismissal, contract non-renewal, demotion and wage cuts. If mate-hara is put in place, i.e., if women can be demoted for getting pregnant, then women who care about their careers would hesitate to have children at all; in other words, would it not amount to turning the clock back on women's right.
1.2. All love begins and ends with motherhood, by which a woman plays the role of the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial. Such being the glory of motherhood, then, how to interpret the statute granting maternity leave to the women.
1.3. Having realized the potential and worth of the child as a Leader of tomorrow, is it not imperative to interpret statutes governing maternity leave, to keep in pace with the changing needs.
- These are the issues raised in these writ petitions.
2. W.P.(MD) No.9227/2015 is a writ of Certiorarified Mandamus, seeking to quash the recovery proceedings ordered by the sixth respondent and to permit the petitioner to avail the maternity leave, in terms of G.O.Ms.No.51 (P&AR) Department, dated 16.05.2011 and G.O.Ms.No.237 (P&AR) Department, dated 29.06.1993.
2.1. W.P.(MD) No.9274/2015 is a Writ of Mandamus, seeking direction to the respondents herein to regularize the maternity leave of the petitioner from 01.04.2015 as eligible maternity leave with all salary benefits.
Brief facts:-
3. The petitioner in W.P.(MD) No.9274 of 2015, R.Gayathri, was appointed as Graduate Teacher, on 26.12.2011, and at present working at the third respondent School. This petitioner given birth to twin (girl) children, in the year 2010 and she got conceived again in the year 2015 and delivered a boy baby, on 06.04.2015. Therefore, she applied for maternity leave from 01.04.2015 onwards. The third respondent has forwarded the leave application to the second respondent, on 22.04.2015, for availing the maternity benefits invoking G.O.Ms.No.237, dated 29.06.1993, but the second respondent has informed the petitioner orally that, as already there are two girl children for the petitioner, she could not avail the benefit of the said Government Order and hence, she could not opt for maternity leave and instead, she should opt for medical leave.
3.1. Similarly placed persons like that of the petitioner, one Mary Josephine Angeli had been granted the benefit of maternity leave for her second delivery, after the delivery of twin babies during the first delivery.
3.2. The intention of the said Government Order is only to grant maternity leave for two deliveries and not for number(s) of children in each delivery.
3.3. Inspite of the several reminders made in-person, the second respondent has not sanctioned the maternity leave and insisting for the submission of medical leave application. Hence, this petitioner has approached this Court, by way of this writ petition.
4. The petitioner in W.P.(MD) No.9227 of 2015, T.Priyadharsini, was initially appointed as Secondary Grade Teacher, through Employment Exchange, with effect from 12.01.2002. Then she was promoted as B.T.Assistant (English) in the year 2010 and presently, working in the sixth respondent school.
4.1. As per the proceedings of the second respondent, dated 04.01.2003 and G.O.No.51 (P&AR) Department, dated 16.05.2011 and G.O.Ms.No.237, dated 29.06.1993, a woman Government servant with less than two surviving children are allowed to take maternity leave for a period of 180 days from the date of its commencement.
4.2. This petitioner (T.Priyadharsini) gave birth to twin children (one male and one female) on 08.07.2011 and then applied for second maternity leave on 12.10.2014. As per G.O.Ms.No.51, dated 16.05.2011, maternity leave was sanctioned to the petitioner for 179 days, i.e., from 13.10.2014 to 09.04.2015 and after leave, she was permitted to join duty on 10.04.2015. But to the shock and dismay of the petitioner, she received the impugned proceedings of the sixth respondent, dated 21.04.2015, on the basis of the proceedings of the fourth respondent, dated 09.04.2015, stating that in the maternity leave application of the petitioner, dated 07.04.2015, the petitioner has not furnished the fact that she already had two surviving children, therefore, she is not entitled to avail maternity leave for the second time.
4.3. The sixth respondent was also requested to take immediate action to obtain orders from the third respondent to treat the 179 days of leave availed by the petitioner as medical leave on loss of pay and also to recover a sum of Rs.2,56,112/- from the petitioner, (the pay sanctioned to the petitioner for the maternity leave availed by the petitioner) and to remit the same in the Government Treasury.
5. The issue, whether a married woman Government Servant is entitled to get fully paid maternity leave, if she has already two surviving children, when the Government order in G.O.Ms.No.173, dated 27.06.1997, stipulates that on and from 29.06.1993, maternity leave shall be granted to a woman Government servant with less than two surviving children has been answered by this Court, in detail, in W.P.(MD) No.13555 of 2009 (J.Sharmila v. The Secretary to Govt. Education Department, Govt. of Tamil Nadu).
6. According to the petitioners, the said order is squarely applicable to the facts of the case and the petitioner is entitled to avail 180 days of maternity leave, as per G.O.Ms.No.237, dated 29.06.1993 and G.O.Ms.No.51, dated 16.05.2011. Hence, this petition has been filed by the petitioner, to quash the impugned order, dated 09.04.2015 issued by the fourth respondent and consequent recovery proceedings of the sixth respondent, dated 21.04.2015 and to allow the petitioner to avail the benefits stated under the said Government Orders.
7. Heard the learned counsel appearing for both sides.
8. The learned counsel appearing for the respondents contended that unless the statute permits, Courts would not be willing to grant relief merely on ethical or moral considerations. In that regard, he has placed reliance on the cases, A.Arulin Ajitha Rani v. Principal, Film and Television Institute of Tamil Nadu MANU/TN/1612/2008: AIR 2008 MADRAS 7 and Nasiruddin v. Sita Ram Agarwal MANU/SC/0100/2003: (2003) 2 SCC 577.
9. The learned counsel appearing for the petitioners contended that, when science fascinate the mankind, the interpretation of law should try to match the advancement in science, as otherwise, the law would become irrelevant. The learned counsel for the petitioners pointed out that rearing child is as important as bearing the child and therefore, grant of maternity leave is imperative even in case of women having more than two living children.
10. At this stage, it would be relevant to consider the advancement in reproductive technology, in order to appreciate the contention regarding the need of law to cope up with the emerging advancement in science.
10.1. For Example, the issues of surrogacy and the dichotomous motherhood have their birth pangs as nascent aspects of law; they seek to be reared in the cradle of common law, i.e., case law, in the absence of the comfort of the statute law.
11. The issue raised was when the (mother) petitioner, being the genetic mother, commissioning a surrogate, to bear her child, sought maternity leave, as if she underwent the maternity, whether it was permissible for her to seek maternity leave.
12. In Baby Makers, (Harper Collins India, 2014), a study on surrogacy in India, the author, Gita Aravamudan, poses a question thus: "Woman, womb, mother... in our minds, the creation, sustenance and nurturing of life hinges on the blending of these words into synonymity. But does being a 'mother' necessarily include the whole gamut of actions like conceiving, carrying, bearing and rearing a child? She describes the disturbing scenario in the prologue as follows:
"Today, babies can be ordered over email, created in Petri dishes from frozen genetic material, and grown in wombs that are considered to be nothing more than gestational vessels. Today, human eggs are traded like any other commodity and fertile women sell their eggs to sterile women for the creation of babies to whom they are not genetically related."
13. It is rightly said that science never ceases to surprise us: it always outwits us, outpaces us; and makes us either change or become irrelevant.
14. In the case of Baby Manji Yamada v. Union of India MANU/SC/8083/2008: (2008) 13 SCC 518 the Hon'ble Supreme Court, apart from tracing the etymological roots of surrogacy, has delineated different types of surrogacy, such as traditional surrogacy (also known as the Straight method), gestational surrogacy (also known as the Host method), which is the case here, altruistic surrogacy, and commercial surrogacy.
14.1. "When motherhood becomes the fruit of a deep yearning, not the result of ignorance or accident, its children will become the foundation of a new race."
14.2. When the children are the foundation of new race, is it not essential that the maternity leave is essential to make the foundation stronger and stronger.
14.3. The Maternity Benefit Act, 1961, was enacted on 12.12.1961, to regulate the employment of women in certain establishments for certain period, before and after child birth. Section 5 provides for the right to payment of maternity benefit. Section 5 (3) provides for twelve weeks payment.
?5. Right to payment of maternity benefit.-
(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 has 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 or ten rupees, whichever is the highest.] (2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.--For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
[(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 precede 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 sa id period, then, for the days up to and including the date of the death of the child.?
15. The object of the Maternity leave has been highlighted by the Hon'ble Supreme Court in the decision reported in Municipal Corporation of Delhi vs Female Workers (Muster Roll), on 8 March, 2000, in Special Leave Petition (Civil) 12797 of 1998, where-under it has been held as follow:-
?A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period.?
16. In this background, this Court has to consider whether the two children norm discovered and adumberated by the Government in G.O.Ms.No.237, School Education Department, dated 29.06.1993, is valid.
16.1. Executive instructions cannot replace the substantive law. If the concern of the State Government is to afford protection to the women during / at or after delivery, then the rule cannot be based upon the number of children delivered in each delivery and it should be based on the delivery itself.
16.2. The interpretation of law cannot defeat the very purpose for which the law was enacted. Therefore, the orders passed by the respondents, declining maternity leave and ordering recovery of salary paid for the eligible maternity period, have to be set-aside.
17. Unless there is a law prohibiting / restricting the number of delivery in order to have indirect control over population, then the Government cannot decline maternity leave, fixing the number of children delivered in each delivery as the basis.
18. It is appropriate to quote the highlights of the Maternity Benefit (Amendment) Bill, 2016, as passed by Rajya Sabha, on 11th August 2016, which reads as under:-
Highlights of the Bill:
The Act provides maternity leave up to 12 weeks for all women. The Bill extends this period to 26 weeks. However, a woman with two or more children will be entitled to 12 weeks of maternity leave. An employer may permit a woman to work from home, if the nature of work assigned permits her to do so. This may be mutually agreed upon by the employer and the woman.
18.1. From the amendment proposed, it is evident that the law is marching towards upholding of rights of women in equal opportunities in employment sector and the increase in the period of maternity leave would reflect the concern for the proper growth and development of the child. When the legislation is progressive, the interpretation cannot be retrogressive.
18.2. When the employment opportunity is at global level, the interpretation of welfare laws should be towards attracting competent workforce towards India and not to repel them away from India.
19. For the foregoing reasons, the proceedings of the fourth respondent in O.Mu.No.1868/A5, dated 09.04.2015 and the consequent recovery proceedings of the sixth respondent, in Na.Ka.No.267/2015, dated 21.04.2015 are quashed and the writ petitions are allowed as prayed for. No costs.
To
1. The Secretary to Government, Department of School Education, Government of Tamil Nadu, Secretariat, Chennai 600 009
2. The Director of School Education, DPI Campus, Chennai
3. The Joint Director of School Education (Personnel), D.P.I.Compound, Chennai
4. The Chief Educational Officer, Ramnad
5. The District Educational Officer, Ramnad
6. The Head Master, Government Higher Secondary School (Boys), R.S.Mangalam, Ramnad District
7. The Chief Educational Officer, Virudhunagar
8. The Head Master, KRTA Government Higher Secondary School, Melathaayilpatti, Virudhunagar District .