Central Administrative Tribunal - Delhi
Dr Anuradha Kushwaha vs Gnctd on 22 April, 2024
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O.A. No.244/2024
Item No. 39 (C-5)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 244/2024
This the 22nd Day of April, 2024
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Anuradha Kushwaha,
Senior Resident (Obs. & Gynae)
(Group 'A') Sardar Vallabh Bhai Patel Hospital,
Aged 34 years W/o Dr Praveen Maurya D6,
Third Floor, Front Side, West Patel Nagar,
Delhi-110008
.....Applicant
(By Advocate : Mr. Suresh Sharma)
VERSUS
1. Government Of National Capital Territory Of Delhi Through Its
Chief Secretary 5th Floor Delhi Sachivalaya, New Delhi-110002
2. The Director, DGEHS Incharge Directorate Of Health Services
Government Of Nct Of Delhi F-17, Karkardooma, Delhi. 92
3. Director/ Medical Superintendent Sardar Vallabh Bhai Patel
Hospital, C-2/B, Jankapuri, New Delhi-110058
.... Respondents
(By Advocate : Ms. Purnima Maheshwari)
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O.A. No.244/2024
Item No. 39 (C-5)
ORDER (ORAL)
Hon'ble Dr. Anand S. Khati, Member (A) The applicant who is working as a senior resident (OBS and Gynae) at Sardar Vallabhbhai Patel Hospital and GNCTD, is aggrieved by the curtailment of her entitlement of Maternity leave of 38 days vide impugned office order No.F.No.5(9)/2023/SVBPH/SR/61-65 dated 02.01.2024 which is against the statutory provisions of the Maternity Leave Act, 1961 read with CCS Leave Rules and in violation of the law laid down by the Hon'ble Supreme Court in the case of MCD Vs. Female Workers (Muster Roll) and Anr. in 2000 (3) SLJ 369 (SC).
2. Learned counsel for the applicant has quoted various pronouncments of judicial forums, including those of this Hon'ble Tribunal and others which reads as under:
"(i) Order dated 3 October, 2019 of Central Administrative Tribunal. Principal Bench in O.A. No.No.4576/2017 titled 3 O.A. No.244/2024 Item No. 39 (C-5) Dr Sanvedna S Singhani vs North Delhi Municipal Corporation
(ii) Judgment of the Hon'ble High Court of Delhi in W.P. (C) No.3089/2014 dated 09.12.2014 titled GOVT. OF N.C.T. DELHI & ORS. V. SHWETA TRIPATHI & A-07)
(iii) Judgment dated 11.03.2022 of the Hon'ble High (Court of Delhi in W.P. (C) No.1278/2020 titled DR. BABA SAHEB AMBEDKAR HOSPITAL GOVT. OF NCT OF DELHI & ANR.versus DR. KRATI MEHROTRA
(iv) Judgment dated 01.05.2020 of the Hon'ble High Court of Delhi in LPA No.595/2019 titled Manisha Priyadarshini V. Ors.
(v) Judgment dated 09.08.2005 of the Hon'ble High Court of Delhi in Bharti Gupta v. Rail India Technical and Economical Services Ltd."
3. During the course of arguments, learned counsel for the applicant has drawn my attention towards the impugned order dated 02.01.2024 whereby the applicant was granted maternity leave w.e.f. 22.12.2023 to 28.01.2024, i.e. the last day of her current tenure as per the guidelines issued by Health and Family Welfare Department, GNCTD, which comes out to 38 days.
4. To rebut the arguments of learned counsel for the applicant, learned counsel for the respondent relies upon a decision of the Hon'ble Supreme Court in SLP No. 12797/1998 pronounced on 08.03.1998 4 O.A. No.244/2024 Item No. 39 (C-5) in the matter of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and Amr. The operative portion of the said judgment reads as under:
"The Parliament has already made te been made available to a date the mployees of the petitioner- Corporation. But the benefit is not being made available to the women employees petition on Corporation on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers of workers employed on daily wage basis.
Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of the Action conta dennitions the word "child" as defined in Section 3(b) includes a 'still-born' child. "Delivery" a definition Section 3(c) means the birth of a child. "Maternity Benefit has been defined in Sertion defined inch means the payment to in defined in Clause
(o) of Section 3 which means "a woman employed, whether directly or throug which provides, inter alia, as under: have been defined in Clase (h) of Section 3 which provides, inter alia, as under:
"Wages means all remuneration paid or payable in cash to a woman". Section 5 provides, inter alia, as under:
"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."
5. She also relies upon the decision of the Hon'ble High Court of Delhi in WP (C) No. 3089/2014 dated 09.12.2014 in the matter of Government of NCT Delhi & Ors. Vs. Shweta Tripathi and Anr. For the 5 O.A. No.244/2024 Item No. 39 (C-5) sake of clarity, the relevant part of the order reads as under:
"The GNCTD, however, granted leave only to the extent of 12 weeks. Relying upon the directions of the CAT in O.A. No.939/2011, Dr. Shilpa Sharma v. The Chairman, NDMC and Ors. and other judgments, including the decision of the Supreme Court in MCD applicnale Workers (Muster Roll) and Anr. 2000 (3) SLJ 369 (SC), the applicants contended that the disparity in employment terms maternity benefits were concerned, was arbitrary and discriminatory against them. The CAT, by its impugned order accepted the applicants' contentions so far as and held that the mere circumstance that they were contractual employees could not arm the GNCTD with the discretion to treat them differently from other employees, who were extended the benefit of 180 days' maternity leave.
Section 5(3) of the Maternity Benefit Act, 1961 which requires every establishment a term which comprehends even government departments - to grant maternity benefit of 12 weeks to be given to each female employee, is in the following terms:
Right to payment of maternity benefit........
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day:
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 of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then for the days up to and including the day of the death of the child."
4. This provision is in pursuance of the Directive Principle articulated Article 42 of the Constitution of India.
5. Rule 43 of the Central Civil Services (Leave) Rules, 1972, on other hand, reads as follows:
"43. Maternity Leave 6 O.A. No.244/2024 Item No. 39 (C-5) (1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant Commencen period of (135 days) from the date of its (2) During such period, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
NOTE: In the case of a person to whom Employees' State Insurance Act, 1948 (34 of 1948), applies, the amount of leave salary payable under this rule shall be reduced by the amount of benefit payable under the said Act for the corresponding period.
(3) Maternity leave not exceeding 45 days may also be granted to a female Government servant (irrespective of the number of surviving children) during the entire service of that female Government in caseof miscarriage including abortion on production of medical certificate as laid down in Rule 19:
Provided that the maternity leave granted and availed of before the commencement of the CCS (Leave) Amendment Rules, 1995, shall not be taken into account for the purpose of this sub-rule.
(4) (a) Maternity leave may be combined with leave of any other kind.
(b) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule31, leave of the kind due and admissible (including commuted leave for a period not exceeding 60 days and leave not due) up to a maximum of one year may, if applied for, be granted in continuation of maternity leave granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave account."
6. The CAT's reasoning is premised upon its previous ruling in D Shilpa (supra) which has, in turn, relied upon several other judgmens including that of the Supreme Court in the Female Workers (Muster Roll (Smt.) v. State of Rajasthan and 2008 (2) RLW 1404 (Raj). The reasoning adopted by the CAT. the proceeding in the way it did, is that the higher benefit which is given employees who are not contractual but are borne in the establishment of GNCTD itself, is a standard which should not have been deviated. Thi Court is of the opinion that keeping in mind the larger public interest served in the grant of maternity benefit, the GNCTD, as a model employer, which is bound by Articles 14 and 16(1), could not have discriminate 7 O.A. No.244/2024 Item No. 39 (C-5) between two female employees, for the purpose of maternity benefit, on basis that one of them is a contractual employee and thus entitled to lesser extent of pay, whereas the other, being a permanent employee, could be favoured with a better term. This cannot be treated as a reasonable classification, considering the object of the rule for grant of maternity benefit."
6. Learned counsel for the respondent further relies upon the order of Co-ordinate Bench of this Tribunal in OA 4576/2017, in the matter of Dr. Samvedna Sindani Singhani Vs. NDMC and Others, decided on 03.10.2019. The relevant extract of the said order is quoted herein under:
"12. There is no dispute that as a contractual employee applicant was also entitled for grant of maternity leave. The dispute is in regard to quantum of leave whether it will be 84 days or 180 days The subject matter of quantum of leave has already been adjudicated by Hon'ble High Court of Delhi, Hon'ble High Court of Madhya Pradesh and Hon'ble High Court of Rajasthan as well as this Tribunal and the same has been brought out by the applicant in para-6 [(i) to (iv) supra).
13. This Bench is in respectful agreement with the ratio of those judgments and there is no reason to deny 180 days of maternity leave to the applicant. Accordingly, instant OA succeeds.
14. Respondents are directed to sanction a total of 180 days of maternity leave and make due payments within a period of 03 months from the date of receipt of a certified copy of this order. There shall be no interest. No costs."
7. Learned counsel for the applicant has made it very clear that the applicant is limiting her prayer 8 O.A. No.244/2024 Item No. 39 (C-5) to Clause B to quash the impugned office order and no other relief is being sought vide this OA.
8. Based on the pleadings available on record and having heard the learned counsel for the parties, I am of the opinion that there is no dispute that as a contractual employee, the applicant was entitled for grant of maternity leave. The dispute is only with regard to the quantity of leave, whether it would be 38 days or 180 days as prescribed in the law. It is observed that the subject matter of quantum of relief has already been adjudicated by the Hon'ble High Court of Delhi as well as this Tribunal and the same has been brought out by the applicant in para 1(supra) of the OA.
9. Since the applicant is stated to be no more working with the respondents, she will be paid the amount in lieu of the remaining period of her maternity leave. Hence, the respondents are hereby directed to issue payment within a period of two 9 O.A. No.244/2024 Item No. 39 (C-5) months from the date of receipt of a certified copy of this order.
10. Accordingly, the OA is disposed of in the aforesaid terms. There shall be no order as to cost.
(Dr. Anand S. Khati) Member (A) /RUDRA/