Central Administrative Tribunal - Chandigarh
Kakki Kaur Alias Baljinder Kaur vs Jawahar Navodaya Vidyalaya on 17 April, 2023
1- O.A. No. 1360/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.1360/2022
Chandigarh, this the 17th April, 2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Kakki Kaur alias Baljinder Kaur aged about 41 years D/o Sh. Darshan
Singh, Matron, Jawahar Navodaya Vidyalya, Sector 25 (West)
Chandigarh, R/o House No.3, Bhaini Doaba, Ludhiana. (GROUP-D)
....Applicant
(By Advocate: Mr. B.S. Seemar)
Versus
1. Union of India through its Secretary department of School
Education and Literacy, 124-C, Shastri Bhawan, New Delhi-110001.
2. Chairperson Navodaya Vidyalaya Samiti, B-15, Industrial Area,
Sector-62, Noida, Uttar Pradesh-201307.
3. Principal, Jawahar Navodya Vidyalya, Sector-25 (West), Chandigarh-
160014.
... .Respondents
(By Advocate: Mr. Sanjay Goyal, SR. CGSC for R-1
Mr. D.R. Sharma for R-2 and 3)
O R D E R (Oral)
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
" (i) The respondents may kindly be directed to grant maternity leave to the applicant for the period 01.01.2023 to 16.03.2023 along with the advance maternity benefits as provided under the Maternity Benefit, Act."2- O.A. No. 1360/2022
2. The pleaded case of the applicant is that the applicant is working as a matron from the last 5 years in the schools under the respondent No.2 and currently from the last 3 years she is working in the school of respondent No.3. She is expecting a child and the doctors after the medical examination have put the prospective date of delivery as 27.01.2023, as per certificate (Annexure A-3). She requested for maternity leave as well as benefit thereto but till date no such leave has been granted. It has also been pleaded that the written requests of the applicant are not being accepted by the respondent No.3 and it has been specifically told by the respondent No.3 to relive her from job but not grant of maternity leave and benefits. A copy of the application given by the applicant is annexed as A-4. She has been told that she may be granted leave without pay but not the maternity leave benefits.
3. It has been contended by the applicant as per the Section 5 of the Maternity Benefit Act, 1961 she is entitled to the maternity leave but also the payment of maternity benefit at the rate of 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. Reliance in support of the claim has been placed on the judgment of the Hon‟ble Supreme Court in the case of 'Municipal Corporation of Delhi versus Female Workers' 2003(3) SCC 224 which has been followed by this Tribunal in a number of decisions passed by this Tribunal including the OA No.60/34/2019 tiled as Samriti Sharma and another V/s Union of India and others holding that even the contractual employee are entitled to paid maternity leave. 3- O.A. No. 1360/2022
4. The respondents no 2 and 3 have filed the written statement contesting the claim of the applicant. It has been submitted that the applicant had worked on contract basis initially with breaks of two months and thereafter with number of breaks. As per Maternity Benefit Act, 1961, no woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity leave for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery. Since the applicant was engaged on daily wage basis only on 01.09.2022 and has thus not completed one hundred and sixty days as required under the law, therefore, she is not entitled to maternity leave as per law. It has also been submitted that the applicant did not submit her application (Annexure A-4) to the respondents for grant of maternity leave. Even the Medical Certificates dated 29.08.2022 and 29.11.2022 were never brought to the notice of the respondents. It has been averred that had the applicant informed that she is in the family way and expected date of delivery is stated to be 27.01.2023, she would not have been engaged as Matron.
5. The applicant has filed rejoinder controverting the submissions made by the respondents in their written statement.
6. I have gone through the pleadings and considered the arguments advanced by learned counsel for both the sides.
7. The controversy herein is with regard to entitlement of a daily wager woman to maternity leave benefits in terms of Section 5 of the Maternity Benefit Act, 1961.
4- O.A. No. 1360/2022
8. Before proceeding further with the rival contentions of the parties, the contents of Section 5 of the Maternity Benefit Act, 1961 (the Act, 1961) are reproduced hereunder:-
"5. Right to payment of maternity benefits.-- 13 [ (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, or one rupees day, whichever is the higher].
(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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of one hundred and sixty 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 twenty six weeks that is to say, eight weeks up to and including the day of her delivery."
9. The case of the applicant is that she has been working with the respondents on daily wages since 19.08.2017 and got expected a child on 22.04.2022, and expected due delivery date is 27.01.2023. As per the relevant rules she is entitled to maternity leave benefit and therefore, she prayed that she may be granted maternity leave from 01.01.2023 to 16.03.2023. The respondents‟ plea is that the 5- O.A. No. 1360/2022 applicant was engaged on daily basis only on 01.09.2022 and has thus not completed one hundred and sixty days as required under the law to get entitled for the benefit of maternity leave. First of all, the Section 5 of the Act, 1961 provides that "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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery. It has been further mentioned that for the purpose of calculation of days she actually worked, the period for which she has been laid off and was on the holidays declared under law shall also be taken into consideration. From a perusal of the record of attendance register from April, 2022 to November, 2022 (Annexure A-5), produced by the applicant, she worked the period in a calendar year preceding her expected date of delivery i.e. 27.01.2023, which is much more than the period as prescribed under the Act, 1961 to get entitled for the benefit of maternity leave. Even as per the appointment letter dated 11.11.2021 (Annexure R-2/1) filed by the respondents, the applicant was directed to join immediately but not later than one week from the receiving of appointment letter. Thus, the contention of the respondents that she has not worked for the period as prescribed under the Act, is rejected being wrong.
10. Learned counsel for the respondents contended that she never submitted her application for grant of maternity leave and the medical certificates citing her expected date of delivery. The receipt of her application for grant of maternity leave has also been denied. 6- O.A. No. 1360/2022 It has also been contended that had the respondents known about the fact that she is on way to make a family, they would not have engaged her. Such an approach of the respondents towards their female employees, who have been working with them for the last five years is not appreciated. The applicant might not have dared to inform the authorities about her pregnancy and health, apprehending disengagement of her services. The stand take by the respondents is in contravention of the their own guidelines issued vide letter dated 02.06.2021 wherein it is stated that being Principal Employer we will continue to ensure that labour laws, timely payment of wages and welfare measures are being scrupulously followed by these agencies. While issuing such guidelines, the respondents are not expected to deal with their expecting female employees with such apathy. The Hon‟ble Supreme Court in the case of Municipal Corporation of Delhi (supra) observed as under:-
"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 7- O.A. No. 1360/2022 motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period."
11. The issue is no longer res integra. In a catena of judgments, the Courts have held that the daily wage women workers are entitled to the benefit of maternity leave. In the case of Muncipal Corporation of Delhi (supra), the female workers working on muster roll were held entitled to the benefit of pay and allowances while observing that the provision of Maternity Benefits Act are in consonance with the Directives Principles of State Policy set out in Articles 39 and 42 of the Constitution. Following the principles laid down by the Hon‟ble Supreme Court in the case aforementioned, the Hon‟ble High Court of Punjab and Haryana in the case of Mrs. Anima Goel Vs. Haryana State Agricultural Marketing Board (CWP NO. 677/2004 decided on 17.11.2006), held that the petitioner working with Marketing Board on daily wage basis and contractual basis is entitled to maternity leave. This Tribunal also followed the said judgment and granted the benefit of maternity leave to contractual women employees of Chandigarh Administration in the case of Samriti Sharma and Others Vs. Union of India and Others (O.A. No. 060/34/2019 decided on 14.02.2022).
12. In view of the discussion herein above, the applicant is held entitled to the benefit of maternity leave as per the Rules and law enunciated on the issue as discussed herein above. The Original Application is allowed. The respondents are directed to consider the applicant‟s application (Annexure A-4), in view of the observations made herein above and grant her the relevant benefit within a period 8- O.A. No. 1360/2022 of two months from the date of receipt of a certified copy of this order. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟