Allahabad High Court
Arti Yadav vs State Of U.P. Thru. Addl. Chief Secy/ ... on 14 July, 2022
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 8 Case :- WRIT - A No. - 4060 of 2022 Petitioner :- Arti Yadav Respondent :- State Of U.P. Thru. Addl. Chief Secy/ Prin Secy Deptt. Of Agriculture Govt Of U.P. Lko And 4 Others Counsel for Petitioner :- Anupam Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
Heard Shri Anupam Dwivedi, learned counsel for the petitioner as well as learned Standing Counsel appearing on behalf of the opposite parties.
Learned counsel for the petitioner has assailed the legality and validity of the order dated 16.6.2022 passed by the Additional Director (Administration) U.P. thereby rejecting the application for grant of maternity leave to the petitioner on the ground that she had already availed of the maternity leave from 24.02.2020 to 21.8.2020 and such leave would not be admissible to the petitioner before expiry of two years from the last date of said leave granted to the petitioner for her earlier pregnancy.
Learned counsel for the petitioner has submitted that provisions of Maternity Benefit Act, 1961 (Act No. 53 of 1961) will be applicable to the present case which do not place any embargo in case a person becomes pregnant and seeks maternity within two years from the last date of previous maternity leave. It is submitted that Section 27 of Maternity Benefit Act, 1961 categorically provides that the provisions of the Act, 1961 shall have effect notwithstanding anything inconsistent therewith contained in any other law, whether made before or after coming into force of the Act, 1961.
He submits that State Government has rejected the representation of the petitioner relying upon the provision of the Rule ? 153/154 of the U.P. Financial Handbook (Vol. II to IV) which provides that such leave shall not be granted if the same is sought within two years from the last date of the previous maternity leave.
Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the judgment of this Court in the case of Richa Shukla vs. State of U.P. & Others in Writ Petition No.32394 (SS) of 2019 whereby this Court has specifically held that provision of the Act, 1961 would prevail over the Financial Hand Book, particularly in view of Section 27 of the Act, 1961.
Learned Standing Counsel on the basis of instructions has submitted that in the similar circumstances this Court had passed the final judgment in the case of Smt. Twinkle Sharma vs. State of U.P. in Writ petition no.9341 (SS) of 2021 which was decided on 30.11.2021. Against the order dated 30.11.2021 the State has preferred a Special Appeal being Special Appeal no.112/2022 where it has been admitted by this Court by means of order dated 25.3.2022 and the Division Bench in the Special Appeal has further provided that the "Admission of the present appeal will not be a bar for granting benefits of the judgment of learned single judge to the respondents".
With the consent of the parties this Court is proceeding to decide the case finally.
In the present case the petitioner had made an application on 01.6.2022 seeking maternity leave from 01.6.2022 to 27.11.2022 along with all the consequential benefits. It has been stated that in the year 2019 when the petitioner first became pregnant has also applied for medical leave from 24.2.2020 21.8.2020 (180 days) which was duly sanctioned by the opposite party no. 4 vide order dated 24.8.2020. The ground taken by the opposite party for rejecting the application of the petitioner is that a period of two years has not expired from 21.8.2020 which was the last day of leave availed by the petitioner till the commencement of leave from 01.6.2022 which is within the period of two years from the last day of leave availed in the first instance.
This Court in the case of Twinkle Sharma has passed the following order :-
"Learned counsel further submits that the second maternity leave has been rejected in terms of the Rule 153 (1) of the Financial Hand Book, Volume ? 2 Part ? 2 to 4 as well as proviso to Rule 153 (1). It has been submitted that the aforesaid provisions are clearly against the provisions of the Maternity Benefit Act, 1961 in which there is no such stipulation or condition that the second maternity leave could not be sought by an employee within a period of two years from the grant of first maternity leave. It is submitted that the Act of 1961 being a Central Act would prevail over the provisions of the Financial Hand Book which is a State enacement particularly in view of Article 254 of the Constitution of India. It has been further submitted that the aforesaid aspect has already been considered by this Court in the case of Smt. Richa Shukla versus State of U.P. and Others, Writ Petition No.32394 (SS) of 2019 whereby this Court has specifically held that the provisions of the Act 1961 would prevail over the Financial Hand Book particularly in view of Section 27 of the Act, 1961.
Learned counsel appearing on behalf of the opposite parties have refuted the submissions advanced by the learned counsel for petitioner on the basis that government officials are required to follow the rule of land and since there is a clear stipulation in proviso to Rule 153 (1) of the Financial Hand Book, it is required to be followed since it has not been specifically repealed till date.
Considering the aforesaid submissions and material on record, it appears that there is certain dichotomy in the provisions of Rule 153 (1) of the Financial Hand Book and provisions of the 1961 Act, Rule 153 (1) of the Financial Hand Book stipulates that a second maternity leave would not be admissible in case it is sought within a period of two years from grant of first maternity leave.
However a reading of the Act 1961 clearly does not have any such prohibition or stipulation.
Section 3(h) of the Act of 1961 and Section 5, 6 are as follows :-
"(h)" maternity benefit" means the payment referred to in sub-section (1) of Section - 5.
Section 5 of 1961 Act reads 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 period immediately following that day.
(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.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be [Twenty six weeks of which not more than eight weeks] shall precede the date of her expected delivery :] [Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery] [Provided further that] where a woman dies during this period, the maternity benefit shall be payable only for the days up to an including the day of her death :
[Provided also 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, then, for the days up to and including the date of the death of the child.] [(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date of child is handed over to the adopting mother or the commissioning mother, as the case may be] [(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period an on such conditions as the employer and the woman may mutually agree] Section 6 of 1961 Act reads as under :-
6. Notice of claim for maternity benefit and payment thereof.- (1) Any woman employed in an establishhment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.
[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period fro which she receives the maternity benefit.] (5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
(6) The failure to give notice under this section shall not disentitle a woman to a maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order."
It is also relevant fact that Section 27 of the Act of 1961 pertains to effect of laws and agreements inconsistent with the Act of 1961. The section commences with a non obstante clause and particularly refers to the fact that the provisions of the Act, 1961 would prevail notwithstanding anything consistent therewith contained in any other law whether made before or after coming into force of the Act.
Clearly, in terms of Section 27 of the Act 1961, any other Act off the Central or State Government promulgated even prior to the Act of 1961 would be subservient to the Act of 1961.
It is also a relevant fact that the Act of 1961, any other Act of the Central or State Government promulgated even prior to the Act of 1961 would be subservient to the Act of 1961.
It is also a relevant fact that the Act of 1961 has been promulgated in view of powers exercised by the parliament in terms of Entries 23 and 24 of List 3 in Schedule 7 to the Constitution of India.
As per Article 254 of the Constitution of India, it has been specifically provided that in case of any inconsistency between laws made by parliament and laws made by legislature of states, it is the laws made by the parliament in exercise of powers under the concurrent list which shall prevail and the law made by legislature of State shall, to the extent of repugnancy be void. The exception indicated in Article 254 (2) of the Constitution clearly does not apply in the present case since the Financial Hand Book was notified prior to the enactment of Act of 1961. The judgment rendered by this Court in the case of Smt. Richa Shukla (supra) has also upheld the challenge to Rule 153 (1) of the Financial Hand Book particularly in view of Section 27 of the Act, 1961. This Court is in respectful agreement with the aforesaid judgment of this Court.
In view of the aforesaid, clearly the impugned order having been passed only in terms of the provisions of Financial Hand Book and without adverting to the provisions of the Act, 1961 is vitiated and is therefore quashed by issuance of a writ in the nature of Certiorari. Since th period of maternity leave sought by the petitioner has already elapsed, the opposite party No.4, i.e., District Basic Education Officer, Shravasti is directed to provide benefits to which petitioner is entitled in terms of provisions of Act of 1961 as claimed in prayer No.3 to the writ petition. Directions with regard to same shall be issued by the concerned authority within a period of four weeks from the date a copy of this order is produced before the said authority.
Considering the aforesaid facts and directions, the writ petition stands allowed."
This Court is of the considered view that the judgment of the co-ordinate bench of this Court in the case of Twinkle Sharma is squarely applicable to the facts of the case.
We have also considered the interim order dated 25.3.2022 passed in Special Appeal No.112/2022. It is noticed that though the Division Bench has admitted this appeal but there also they have not restrained the State Government from extending the benefit of maternity leave to the petitioner therein.
In light of the above, the petitioner is also entitled to be granted similar benefit which has been extended by this Court in the case of Twinkle Sharma vs. State of U.P. in Writ petition no.9341 (SS) of 2021 as well as Richa Shukla vs. State of U.P. & Others in Writ Petition No.32394 (SS) of 2019.
In light of the above writ petition is allowed. Orders dated 16.6.2022 & 27.6.2022 are quashed. Opposite party is directed to pass a fresh order expeditiously say within ten days from the date a certified copy of this order is produced before him granting maternity leave to the petitioner on the basis of the application submitted by him dated 01.6.2022.
Order Date :- 14.7.2022 mks