Madhya Pradesh High Court
Dr. Anjul Namdeo vs The State Of Madhya Pradesh on 12 September, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 12th OF SEPTEMBER, 2022
WRIT PETITION No. 3860 of 2019
BETWEEN:-
DR. ANJUL NAMDEO W/O DR. RAKESH
NAMDEO, AGED ABOUT 37 YEARS,
OCCUPATION: MEDICAL OFFICERS R/O. WARD
NO. 12, CIVIL COURT ROAD TEH. TENDUKHEDA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHREYAS PANDIT, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR
DEPARTMENT OF PUBLIC HEALTH AND
FAMILY WELFARE VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. COM M ISSIONER DIRECTORATE OF HEALTH
SERVICE DISTT.BHOPAL (MADHYA PRADESH)
3. MISSION DIRECTOR NATIONAL HEALTH
MISSION 08 ARERA HILLS JAIL ROAD BHOPAL
(MADHYA PRADESH)
4. CHIEF ADMINISTRATIVE OFFICER NATIONAL
HEALTH MISISON 08 ARERA HILLS JAIL ROAD
BHOPAL (MADHYA PRADESH)
5. CHIEF MEDICAL AND HEALTH OFFICER
DAMOH DISTT. DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ARNAV TIWARI, PANEL LAWYER)
(BY SHRI DEEPAK SAHU, ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 2 The petitioner has filed this petition while praying for following reliefs:-
"7.(i) That the records of the entire case be requisitioned.
(ii) That the impugned order dated 22.12.2018 ( Annexure P/9) passed by the Chief Administrative Officer, NHM, Madhya Pradesh, Bhopal be quashed.
(iii) That the respondent authorities be directed to allow the petitioner to work on the post of Computer operator.
(iv) Any other relief which the Hon'ble court deems fit in the interest of justice may kindly be granted."
The facts as putforth in the petition reflect that the petitioner herein was appointed as Ayush Medical Officer on contractual basis vide order dated 26- 09-2013. Thereafter, on 27-06-2017, the petitioner moved an application availing maternity leave and accordingly, the petitioner proceeded on maternity leave however, the petitioner was diagnosed that it was high risk pregnancy and the petitioner was also found to be anemic and suffering from Oligohydramnios. The petition also reflect that the petitioner was to deliver a child in the month of February, 2017 but, in the 8th month of pregnancy, her condition further deteriorated and the fetus died in the womb, as a result of which, subsequently, the petitioner was detected with anemia and high blood pressure and was under
treatment. After prolong treatment, when the petitioner made an effort to join vide application dated 11-07-2018, the petitioner was issued a show-cause notice 04-08-2018, by which, the petitioner was called upon to explain the unauthorized absence upon completion of 180 days of maternity leave. The show-cause notice was replied by the petitioner and the reply filed by the petitioner was found to be satisfactory by the Chief Medical and Health Officer, Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 3 Damoh and accordingly, the Chief Medical Officer, Damoh vide its communication dated 13-08-2018 recommended the petitioner's case while observing that the explanation furnished by the petitioner was satisfactory however, the respondents passed impugned order dated 22-12-2022 contained in Annexure P/9, by which, the petitioner's request for joining has been declined while referring to Clause-7.1, 7.7 and 11.1 of National Health Mission ( Public Health and Family Welfare Department, Madhya Pradesh).
Counsel for the petitioner submits that the respondents have not disputed that even after a period of 180 days, the petitioner was suffering from prolong illness on account of anemia as well as colitis.The respondents have also not disputed the certificate which has been brought on record as Annexure- P/5. The counsel also contends that undisputedly, the Chief Medical and Health Officer, being an expert of the field duly appreciated the medical condition of the petitioner and since the petitioner's pregnancy was categorised as high risk pregnancy and eventually, the fetus died in womb, the petitioner ought to have been permitted to join inasmuch as, there was no willful absence from duty. The counsel thus, while placing reliance on the decision of this Court in WP No. 28414/18 ( Richa Tiwari Vs. State of M.P and others ) as well as WP No. 15523/16 ( Smt. Archana Pandey Vs. State of M.P. and others ) submits that the impugned order deserves to be quashed inasmuch as, in view of the provisions of Maternity Benefit Act, 1961 which has been elaborately dealt with by the Apex Court in the Case of Municipal Corporation of Delhi Vs. Female Workers (Musteroll ) & Another 2000 (3) SCC 224 , the petitioner claim ought to have been considered sympathetically in the light of provisions of Maternity Benefit Act, 1961. The counsel submits that if the order impugned Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 4 is tested on the anvil of law laid down by this court as well as Apex Court, it would make abundantly clear that the impugned order deserves to be quashed.
Per contra, learned counsel for the respondents submits that the authorities while taking into consideration the petitioner application, in terms of Clause-71, 7.7 and 11.1 of the National Health Mission ( Public Health and Family Welfare Department, Madhya Pradesh) Manual ( hereinafter referred to as 'Manual') have rightly proceeded to decline the application as regards joining by the petitioner. It is further contended by the respondents that it is not a case where maternity leave is being refused, on the contrary, it is case where the petitioner was required to explain her unauthorized absence. It is further contended by the respondents that the petitioner deployment was based on contract basis and therefore, the petitioner was bound by condition of contract in terms of provisions of 11.1 of National Health Mission ( Public Health and Family Welfare Department, Madhya Pradesh) Manual. If an employee engaged on contract basis remains unauthorisedly absent for a period beyond 30 days, the contractual employment is treated to be cancelled automatically. Therefore, in the present case, the authorities while taking into consideration various Clauses of the National Health Mission ( Public Health and Family Welfare Department, Madhya Pradesh) Manual rightly concluded the petitioner was not entitled to join and has passed the order impugned dated 22-12-2018 contained in Annexure P/9, which requires no interference.
Shri Arnav Tiwari, learned Panel Lawyer has also adopted arguments advanced on behalf of National Health Mission ( Public Health and Family Welfare Department, Madhya Pradesh).
Heard the rival submissions of parties and perused the record. A perusal of Annexure- P/3 dated 27-06-2017 reflects that the petitioner Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 5 sought maternity leave from 01-05-2017 to 27-10-2017. The petitioner's pregnancy was categorised as high risk pregnancy, which is also evident from perusal of page-30 and also from document at Page No. 23.
It is also not in dispute that the petitioner lost fetus in the womb itself and therefore, on account of high risk pregnancy, the petitioner sustained subsequent complications like anemia and colitis. The petitioner has further placed medical certificates on record vide Annexure- P/5. A perusal of the same reflects that at Page-38, there is certificate dated 02-11-2017, at page-39 certificate dated 03-01-2018 and at page-40 certificate dated 01-07-2018 respectively. Upon receipt of application for permission to join, the petitioner was served with a notice contained in Annexure- P/6. A perusal of the notice reflect that the petitioner's explanation was sought as regards the following four interrogations:-
1] As to why the petitioner did not report back on duty after completion of 180 days of sanctioned maternity leave, for a period of 8 months and 10 days?
2] Why no information was given by the petitioner to Chief Medical and Health Officer, Damoh for additional leave after sanctioned maternity leave ?
3] As to whether after maternity leave, the petitioner has produced any certificate issued by the Medical Board before the Chief Medical Officer, Damoh and said office or not ?
4] During the period of absence whether the petitioner was employed somewhere else or not?
The petitioner replied to all these queries vide his reply which is contained at page-43 of the writ petition. A perusal of the page-43 reflects that the Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 6 petitioner informed the authorities, that when the petitioner's pregnancy was of approximately six months,the petitioner suffered Oligohydramnios, as a result of which, she lost fetus in the womb (IUD). It is further stated by the petitioner that after high risk pregnancy, the petitioner could not join services on account of anemia and high blood pressure and thus, she produced fitness certificate dated 10-08-2019 and again petitioner further stated that she was not gainfully employed during the period of absence. The reply of the petitioner was duly taken note of and was approved by the Chief Medical and Health Officer, which is also evident from perusal of Annexure- P/7 dated 13-08-2018. A perusal of document contained in Annexure-P/7 reflects that the Chief Medical and Health Officer expressed his approval/satisfaction as regards the reply submitted by the petitioner therefore, the authority while dealing with the petitioner's application ought to have taken into consideration the reasons assigned by the petitioner as regards her absence after the high risk pregnancy. The medical certificates produced by the petitioner before the authorities upon joining have not been disputed, on the contrary, approved by the Chief Medical and Health Officer, Damoh. Thus, the case of the petitioner was a complicated case inasmuch as, the petitioner was diagnosed with Oligohydramnios and later on lost fetus in her womb. Thus, petitioner's case in the considered view of this Court was required to be taken into consideration in terms of Maternity Benefit Act, 1961.
The Apex Court in the case of Municipal Corporation of Delhi (supra) held in paragraph-33 as under :-
"33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 7 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 phenomenon 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 workplace 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 motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre-or post-natal period."
This Court also while relying upon the decision of the Apex Court in Municipal Corporation of Delhi ( supra ) held in Smt. Archana Pandey (supra) in paragraph-16 as under:-
"16. Identical issue of granting maternity leave to women employees appointed on contract basis or on adhoc or temporary basis have been considered by the Allahabad High Court, the Rajasthan High Court, the Punjab & Haryana High Court and the Uttarakhand High Court and based on the law laid down by the Supreme Court in the case of Female Workers (Muster Roll) (Supra), petitions have been allowed and directions issued to grant Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 8 benefit to the employees. The Division Bench of the Allahabad High Court in the case of Dr. Parul Mishra Vs. State of U.P. decided on 27th January, 2010 in the case of a Lecturer working as Government and Post Graduate College on contract basis, after applying the laid down in the Supreme Court Female Workers (Muster Roll) (Supra) held that the employees therein was entitled to avail maternity benefit as is applicable to regularly lecturer in the Government College and identical contention of the State Government counsel to say that contractual employees are not entitled for maternity benefit was rejected. It was held by the learned High Court that the maternity leave does not change with the nature of employment. It is concerned with human right of a women and the employer and the Courts are bound under the constitutional scheme guaranteeing right to life, a right to live with dignity and protect the health of both mother and child, and after taking note of identical principle, petitions have been allowed. Similarly, the Rajsthan High Court in various writ petitions has directed for granting benefit to contract and temporary employees who are also claiming identical benefit in the cases of Civil Writ No.1598/2017 - Meenakshi Rao Vs. State of Rajasthan & others decided on 14th February, 2017 following earlier an judgment of the Rajasthan High Court rendered by Division Bench in the case of Neetu Choudhary Vs. State of Rajasthan & others (2008) Vol.-II RNW page 1404 (Raj). The Punjab & Haryana High Court has also granted similar benefit and allowed identical writ petition in the case of Anima Goel Vs. Haryana State Agricultural Development Corporation (2007) Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 9 Vol.III LLJ page 64, Punjab & Haryana and the Uttarakhand High Court has allowed a writ petition on identical terms in the case of Smt. Nidhi Choudhary Vs. State of Uttarakhand Writ Petition No.1866/2016 decided on 27.09.2016. Copies of all these judgments available in the website of Indian Kanoon Organization have been produced before us for perusal and we find that in all these cases after applying the law laid down by the Supreme Court as detailed here-in-above, identical writ petitions have been allowed and contractual employees have been directed to be granted the benefit of maternity leave at par with regular employees and we see no reason to take different view."
Thereafter, again this court in the case of Richa Tiwari (supra) while relying upon the decision of the Apex Court has held that the petitioner therein was entitled for the benefit arising out of Maternity Benefit Act, 1961. This Court also considered the fact that during the pendency of the petition, no other faculty member was appointed in place of the petitioner therein, thus, directed the respondents therein to reinstate the petitioner in service while treating the period of absence to be spent on maternity leave.
In the present case, the petitioner herein was engaged on contractual basis thus, in the light of the decision of this court in Smt.Archana Pandey (supra), the petitioner despite being appointed on contractual basis, is entitled for protection which flow from Maternity Benefit Act, 1961.
Thus, in view of the aforesaid analysis, in the considered view of this court, the order impugned dated 22-12-2018 contained in Annexure P/9 deserves to be and accordingly, set aside. Accordingly, while reinstating the Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM 10 petitioner, the respondents are directed to treat and regularize the period of absence from 31-10-2017 till 10-07-2018 on the principle of 'No work no pay" ( as prayed by the petitioner in her reply to show-cause).
The entire exercise shall be carried out within a period of 90 days from the date of production of certified copy of this order. However, the petitioner herein would not be entitled for any backwages.
The petition is allowed to the extent indicated hereinabove.
MANINDER S BHATTI) JUDGE PG Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/15/2022 1:22:42 PM