Central Administrative Tribunal - Delhi
Shikha Sharma vs Govt. Of Nctd on 18 September, 2024
(OA No.2653/2021)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2653/2021
Reserved on :09.09.2024
Pronounced on :18.09.2024
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Shikha Sharma
D/o Shri Bhikkan Sharma
Aged 31 years
R/o S-205, 2nd Floor,
Greater Kailash-I,
New Delhi-110048. ...Applicant
(By Advocate: Sh Anshuman Mehrotra for Sh Ankur Chhiber)
Vs
1. Government of NCT Delhi,
Through its Chief Secretary
Delhi Secretariat,
I.P. Estate, New Delhi-110002.
2. Administrative Reforms Department
Through the Additional Chief Secretary
Government of NCT of Delhi,
7th Level, C-Wing, Delhi Secretariat,
I.P. Estate, New Delhi-110002. ...Respondents
(By Advocate:Shri H.A.Khan)
ORDER
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(i) To quash the impugned letter dated 11.02.2021 whereby the Respondents have rejected the application dated 31.07.2020 preferred by the Applicant for grant of maternity benefits; and
(ii) To direct the Respondents to grant the Applicant the benefits as mandated under the Maternity Benefits (OA No.2653/2021) (2) Act, 1961 and resultantly release her salary/emoluments as due to her from the period 06.06.2020 till 30.11.2020 along with interest for the delay caused in releasing said amount;
2. The facts of the case, in brief, as indicated in the OA are that on 11.12.2018, the applicant was selected for Chief Minister's Urban Leadership Fellowship (CMULF) for a period of one year. It was stated that the Fellows and Associate Fellows of the program would join on 14.01.2019 for a period of one year, which would extendable for one more year based on performance reviews at the end of the year. The applicant joined as a Fellow under the CMULF and began her assigned duties and on 27.12.2019 the respondents extended her engagement period as a Fellow for a further period of one year. Due to the advent of the COVID-19 and the resultant global pandemic, the Government of India had imposed a nationwide lockdown w.e.f. 23.03.2020 but the applicant continued to work in a hybrid mode wherein she was required to even attend office and other field visits.
3. The applicant preferred an application dated 18.06.2020 applying for maternity leave and as follow up she also sent email dated 24.06.2020 followed by a detailed application dated 31.07.2020 seeking maternity leave with effect from 05.06.2020 to 01.12.2020 as per the provisions of the Maternity Benefit (Amendment) Act, 2017. She received a communication dated 13.08.2020 stating that there is no (OA No.2653/2021) (3) provision for maternity benefits in terms and conditions of the applicant's engagement as a Fellow under the CMULF program and hence the same could not be granted. Further, it was stated that for consideration of her application for leave, the applicant was required to submit the relevant medical documents and it was also noted that at the time re-joining work she would be required to submit a 'Medical Fitness Certificate' to the respondents. Following, the applicant immediately submitted the requisite medical documents with regard to the birth of her child and was on leave thereafter. However, the respondents withheld the salary of the applicant from 05.06.2020 onwards in an arbitrary and illegal manner. The applicant was given verbal assurances that she would be granted the benefit of maternity leave and her salary would be released after approval of the competent authority. The applicant submitted her Medical Fitness Certificate to the concerned authority and resumed her duties vide letter dated 01.12.2020. The Fellowship under the CMULF concluded on 13.01.2021. On 11.02.2021, the applicant received the impugned order stating that the competent authority decided not to accord approval for grant of maternity benefits as there was no provision for the same in the offer of appointment as well as the terms and conditions of her engagement. The applicant preferred a representation dated 31.07.2020 which was replied by the respondents after a long period of 7 (OA No.2653/2021) (4) months, rejecting her claim. The applicant preferred another application on 09.04.2021, to which no reply was received. Aggrieved by the above rejection, the applicant has preferred this OA.
4. I have heard both the counsels and perused the pleadings on record.
5. Based on the counter reply, learned counsel for the respondents has contested the claim made in the OA stating that the applicant deliberately and knowingly concealed her pregnancy status from the A.R. Department when she joined as a Fellow for the second year. Despite having full knowledge of the terms and conditions of the program, which was included provisions for leave, she intentionally misled the department. It is asserted that the said CMULF program was designed to operate on a yearly basis, and therefore, the inclusion of maternity entitlement does not fall within the scope of this program.
6. Learned counsel for the applicant, on the other hand, leaning on the claim made in the OA, has drawn attention to the different provisions of the Maternity Benefit Act, 1961 more specifically Section 2 (1) of the said Act deals with the application of the Act and lays down as under:
"(1) It applies in the first instance, to every establishment being a factory, mine or plantation 4[including any such establishment belonging to Government and to every establishment wherein persons (OA No.2653/2021) (5) are employed for the exhibition of equestrian, acrobatic and other performances]:
Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification In the official on In the official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise."
7. Furthermore, Section 3, which lays down the definitions as per the Act, defines 'employer' in sub-section (d) which lays down as under:
(d) "employer" means
(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department; in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority; in any other case, the person who are the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;"
8. Section 5 lays down the 'Right to Payment of Maternity Benefit' and provides as under:
"(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 immediately preceding and including the day of her delivery and for the six weeks immediately following that day.
(OA No.2653/2021) (6) (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."
9. It is submitted that furthermore, the Government of India amended the said Act vide the Maternity Benefit (Amendment) Act, 2017 wherein the relevant provision which was substituted is as under:
3. In the principal Act, in section 5, (A) in sub-section (3)
(i) for the words "twelve weeks of which not more than six weeks", words "twenty-six weeks of which not more than eight weeks" shall be substituted;
(ii) after sub-section (3) and before the first proviso, the following proviso shall be inserted, namely:
"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.''
10. On the basis of above, the learned counsel for the applicant submits that the CMULF would be considered as an 'establishment' of the State Government, since the Fellows and Associate Fellows are all employed by the respondents and work directly with different Department/Ministries of the GNCT of Delhi and the same would also be covered under the definition of 'employer' as per the Act, and thus the respondents are obliged to grant the benefit of maternity to the applicant as per the provisions of the Act, as provided in (OA No.2653/2021) (7) Section 5. He also draws attention to the following judgments and argues that the provisions of Maternity Benefit Act, 1961 are squarely applies in the case of applicant and hence she is entitled for the same:
i) Municipal Corpn. of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224
ii) State of H.P. and Ors. vs. Sudesh Kumari and connected matter State of H.P. and Ors. vs. Alpana, collectively reported as 2014 SCC OnLine HP 4844
iii) Govt. of NCT of Delhi vs. Shweta Tripathi, 2014 SCC OnLine Del 7138,
iv) Dr.Deepa Sharma vs. State of Uttarakhand & Ors. 2016 SCC OnLine Utt 2015,
v) Smt. Brijlata Sharma vs. the State of Madhya Pradesh, 2017 SCC OnLine MP 958
vi) Raj Bala vs. State of Haryana, 2002 SCC OnLine P&H 1297 and followed in Harjinder Kaur vs. State of Haryana and Ors., 2019 SCC OnLine P&H 1153. 36.
vii) Archana vs. State of Maharashtra and Anr., 2018, SCC OnLine Bom 4136
viii) Dr. Baba Saheb Ambedkaar Hospital Govt. of NCT of Delhi and Anr. Vs. Krati Mehrotra, 2022 SCC OnLine Del 742
11. Attention is also drawn to the judgment of the Hon'ble Delhi High Court in Annwesha Deb vs. Delhi State Legal Services Authority vide W.P.(C) No.11016/2017 & CM Appl.2071/2022 decided on 26.07.2023. In the aforesaid judgment, the Hon'ble High Court has dealt with the matter at length taking into account a catena of judgments and held as follows:
(OA No.2653/2021) (8) "38. It is clear, upon considering the view that has been repeatedly taken, that the Maternity Benefit Act is a welfare and social legislation and the intent of the legislature in no manner could have been to limit or restrict the extent and scope of reliefs that may be granted to all those falling within the ambit of the Act. There is nothing in the language of the Act or in its provisions which suggests that a working expecting woman would be barred from getting the reliefs due to the sole reason of the nature of their employment.
39. In the instant case as well, the employer, i.e., the respondent, admittedly extends benefits arising out of the Maternity Benefit Act to the permanent/regular employees attached with the respondent, however, has been denying such benefits to contractual employees, such as the petitioner herein. In reference to the discussion in the foregoing paragraphs, there is nothing to suggest that this Court shall take a separate view then that has been provided for under the Constitution of India, the Maternity Benefit Act and what has also been interpreted, established and reiterated by the Courts of the Country. The argument advanced on behalf of the respondent that the petitioner is entitled to her maternity benefits for the reason of being a contractual employee is completely devoid of merit.
40. Medical science may have advanced over the years to facilitate the needs of the mother and child, however, the natural care that a newborn child requires cannot be dispensed away with and is also of utmost importance for the development and growth of the baby. The nature certainly does not discriminate on the basis of the nature of employment of a woman when it blesses her with a child. The miracle of childbirth and the process a woman goes through during such time must not be hampered by any extraneous events that may affect the health and well-being of the mother and cause her any degree of distress.
41. Even in this day and age, if a woman is made to choose between her familial life and a career progression, we would be failing as a society by (OA No.2653/2021) (9) not providing her the means to thrive, whether in professional life or in personal life. It is pertinent to note that the Act in place which grants the reliefs to an expecting or a new mother, considers such reliefs as a „Benefit‟, when in fact the reliefs should come as a matter of right to the women employees who may be in that position. In this respect, a positive change of perspective is also required along with a more adaptive approach in the matter of grant of maternity benefits.
42. It is ironic that the petitioner in the instant case, being appointed with the Juvenile Justice Board, was hired to protect the interest and welfare of the children who may be suffering at the hands of the criminal justice system, however, was not able to secure the benefits that were necessary for the best interest and welfare of her own child.
43. The social welfare legislation of the Maternity Benefit Act certainly does not discriminate on the basis of the nature of employment of the beneficiaries. It is also certain that the mere creation of the welfare legislation is not enough.
A duty is cast upon the State and all those who are subjects of the Act to uphold the integrity, the objective and the provisions of the legislation in its letter and spirit. Moreover, even the Constitution of the India advances the ideals which have been culminated and translated into the Maternity Benefit Act.
44. Therefore, in view of the discussion, the facts, circumstances, the submissions made, contentions raised, this Court is of the considered view that the respondent should have extended the benefits and reliefs under the Act to the petitioner as were being extended to its own employees who were similarly situated. The law stands settled in this regard that the nature of employment shall not decide whether a woman employee would be entitled to maternity benefits.
45. Accordingly, considering the entirety of the matter and the law laid down, the instant petition is allowed with following directions:
(OA No.2653/2021) (10) I. The respondent shall release all medical, monetary and other benefits that accrued in favour of the petitioner on account of her pregnancy, as per the terms of the Maternity Benefit Act, 2017.
II. Since, no extreme medical or other exigencies have been presented by the petitioner, ante-natal or post-natal, she shall be entitled to the benefits for the time period as provided under the Maternity Benefit Act, 2017 of 26 weeks.
III. The needful shall be done by the respondent within a period of three months from the date of receipt of this order.
46. In the aforesaid terms, the instant petition stands allowed."
12. In view of aforesaid, I am of the view that the applicant's case is within the scope of the by the judgments cited above, and she is entitled for maternity leave. Accordingly, the impugned order dated 11.02.2021 wherein the respondents had rejected the application dated 31.07.2020 is set aside. The respondents are directed to grant the benefits as mandated under the Maternity Benefits Act, 1961 to the applicant release her salary/emoluments for the period of her engagement, if pending. The needful in this regard may be done as expeditiously as possible and preferably within a period six weeks from the date of receipt of a certified copy of this order. No order as to costs.
(Sanjeeva Kumar) Member (A) /kdr/