Delhi High Court
Sunita Baliyan vs Director Social Welfare Department ... on 19 November, 2007
Equivalent citations: (2008)IILLJ286DEL
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. The present writ petition is directed against a no relief award dated 20th March, 2006 passed by the Labour Court in ID No. 175/2000, against the petitioner, wherein the reference made by the appropriate Government as to "whether the services of the petitioner were terminated illegally and/or unjustifiably by the management and if so, to what relief was she entitled and what directions are necessary in this respect", was answered by the Labour Court as below:
I accordingly, hold that she has not been terminated as yet and find myself in agreement with the Ld.AR for the management that she is absenting herself from the duties and, as such, there is no question of her illegal or unjustifiable termination from the services. However, the management is at liberty to take action as per the above referred provisions against her. The issue is accordingly decided in favor of the management and against the workman.
2. The brief facts leading to the filing of the present petition are that the petitioner was appointed as Anganwadi Worker with the respondent management with effect from 19th May, 1997. On 5th November, 1998, she was granted maternity leave up to 15th November, 1998. However, the petitioner extended her maternity leave. It is averred that when she went to join her duties on 25th January, 1999, the same was refused to her. Thus it was her case that her services were terminated by way of refusal of duties though she had gone on maternity leave. The petitioner claimed violation of Section 12 of the Maternity Benefit Act, 1961 (for short `the Act') and raised an industrial dispute which was contested by the respondent management. It was stated that the petitioner had absented herself from duties with effect from 5th November, 1998 without any intimation or prior permission from the respondent management. It was also stated that she was an honorary worker and was not entitled to any leave and in any case, she had not applied for maternity leave. On the pleadings of the parties, two issues were framed. The first issue framed was as to whether the petitioner was an honorary worker and the second issue was in terms of the reference made by the appropriate Government.
3. After hearing the parties, the first issue was decided in favor of the petitioner. While deciding the second issue, the Labour Court examined the provisions of Sections 6 and 12 of the Act, and noted that though the aforesaid provisions require a woman claiming entitlement to maternity benefit under the Act to give a notice in writing to the employer during her pregnancy or as soon as possible after delivery, in the present case, no material was placed on record by the petitioner, of notice given to the respondent management claiming any maternity benefit. Hence, it was held that in the absence of any record that the petitioner applied for leave, no benefit could be given to her. The plea of the petitioner that her services were terminated by way of an oral order was also turned down on the ground that there was no material placed on the file that she made any representation against her illegal termination from service and that she raised her demand for the first time only on 12th July, 1999.
4. The Labour Court took notice of para 4 of Rule 4.21 of the General Guidelines applicable to the respondent management which deals with Anganwadi Workers who are absent from duties and observed that the aforesaid rule mandated that if any Anganwadi Worker was found absent without intimation, permission or application for a week at a time, the management shall serve 10 days' notice to the defaulter and if she fails to report for duty within the stipulated period, her case shall be referred to the Headquarters for necessary action. It was observed in the impugned award that no notice had been issued by the respondent management in terms of the aforesaid Rules and hence it was concluded that the services of the petitioner were not terminated as yet and that the petitioner was absent herself from duties.
5. Counsel for the petitioner contended that the Labour Court failed to take into consideration the applications for maternity leave filed before it. In support of his contention, he sought to draw the attention of the Court to the Annexures P-1 to P-3. While Annexure P-1 is a medical certificate issued by a private hospital indicating that the petitioner was admitted on 21st November, 1998 and discharged on 22nd November, 1998, Annexure P-2 is a copy of a letter dated 15th December, 1998 addressed by the mother of the petitioner but the same is not a request seeking maternity leave on behalf of the petitioner. Annexure P-3 is a letter dated 23rd April, 1999 addressed by the petitioner to the respondent management. A perusal of the said letter shows that there is no request made therein for seeking maternity leave in terms of Section 6 of the Act. In any case, it does not meet the requirement of Section 6 of the Act for the reason that it was written after almost five months of the delivery.
6. Counsel for the petitioner also submitted that the provisions of the aforesaid Act do not make it mandatory for the petitioner to give a notice to her employer and hence her services could not be terminated by the respondent management. The aforesaid plea is found to be untenable for the reason that while the said provision does not mandate a woman to immediately intimate the employer of her pregnancy, for claiming benefit of the Act, it certainly calls upon her to give a notice in writing during her pregnancy as soon as possible after delivery. The obvious intendment of the provision is to ensure that while a woman working in an establishment gets the maternity benefit, at the same time, inconvenience is not caused to the establishment where she is engaged and adequate alternate arrangements can be made by the management to ensure that the work does not suffer in her absence. In the present case, as per the records, the petitioner failed to take any steps in this regard. Further, as observed in the impugned award, it is not a case of termination of the petitioner, as the respondent management has not taken any steps against her in terms of Rule 4.21 of the General Guidelines governing the respondent management.
7. There is no other argument urged on behalf of the petitioner before this Court to assail the impugned award. For the reasons stated hereinabove, this Court does not find any illegality, arbitrariness or perversity in the impugned award which warrants interference under Article 226 of the Constitution of India. The writ petition is therefore dismissed in liming.