Central Administrative Tribunal - Delhi
Smt. Shweta Tripathi vs Govt. Of Nct Of Delhi on 17 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 4212/2012 Reserved On:11.09.2013 Pronounced on:17:09.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) 1. Smt. Shweta Tripathi D/o Shri S.C. Tripathi R/o 126, Ground Floor, Pratap Nagar, New Delhi. 2. Smt. Madhu W/o Shri Parvesh Kumar Khandwal R/o 248, Prahlad Puri, New Delhi. ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary, New Sectt. Players Building, I.P. Estate, New Delhi. 2. The Director, Department of Women & Child Development, Govt. of NCT of Delhi, 1, Canning Lane, K.G. Marg, New Delhi. 3. The Superintendent (Administration), Department of Women & Child Development, Govt. of NCT of Delhi, 1, Canning Lane, K.G. Marg, New Delhi. Respondents (By Advocate: Shri Vijay Pandiata). ORDER
The Applicants in this Original Application are two female contract employees working under the Respondent No.2, namely, Department of Women & Child Development. Their grievance is that they have been denied the maternity leave admissible to them under the Rules.
2. The brief facts of the case are that the first and second Applicants have been appointed as Welfare Officers on contract basis under the Department of Social Welfare with effect from 25.8.2009 and 14.7.2010 respectively. They are presently posted in Children Home for Girls, Nirmal Chaya Complex, Jail Road, New Delhi. Applicant No.1, vide her representation dated 20.06.2012 applied for maternity leave through proper channel expecting her date of delivery as 27.7.2012 but the Respondent No.2 rejected it by returning the said representation in original itself on 26.07.2012 but scribbling on it as under:-
R/o with the remarks that the leave is not entitled as per circular dated 14.9.2009. This is not understood why the Superintendent recommending/forwarding the same when the circular has already been issued.
Similarly, Applicant No.2 applied for maternity leave with effect from 15.8.2012 for six months but in her case, the Respondent No.3, vide its order dated 02.11.2012, granted only 12 weeks leave with effect from 15.08.2012 to 06.11.2012.
3. However, the contention of the learned counsel for the Applicants is that just because the Applicants are contractual employees in the matter of maternity leave there cannot be any discrimination. In this regard, he has relied upon the Order of this Tribunal in OA No.939/2011 Dr. Shipla Sharma Vs. The Chairman, NDMC and Others, the relevant part of which reads as under:-
13. On a careful consideration, even this letter issued by the respondents is found to be misconceived, having proceeded on an erroneous premise. Extra Ordinary Leave is dealt with under Rule 32 which falls in Chapter IV dealing with kinds of leave due and admissible. As against this, the maternity leave falls in Chapter V dealing with special kind of leaves other than study leave. The maternity leave is dealt with in Rule 43 falling in Chapter V referred to above which is a self contained provision and has not been subjected to the conditions applicable to extra ordinary leave. The respondents have, thus, erred on proceeding on an incorrect premise. As a matter of fact, CCS (Leave) Rules are not applicable to the applicant in view of rule 2 (h) which excludes the applicability of the said Rule to persons employed on contract except when the contract provides otherwise. A plain reading of the Agreement entered into between the parties, as referred to above, does not satisfy the requirement of Clause 2 (h) of the CCS (Leave) Rules for there is no provisions whatsoever with regard to the leave admissible to the applicant in the said Agreement. That being so, the question now arises as to how the applicants entitlement to the maternity leave is to be determined. In this regard, the applicants counsel has placed much reliance on the judgment of the Honble High Court in the case of Dr. Hemlata Saraswat (supra). In that case, the petitioner questioned the communication dated 27.4.2006 (Annexure 3) denying her maternity leave on the ground that she was working as Medical Officer on consolidated salary and there was no provision in the rules for granting her maternity leave. Thus, the question that arose for consideration in that case was that if there was no provision in the Rules for granting maternity leave, could the petitioner still claim special maternity leave. The question was answered in the affirmative. The respondents on the other hand have taken conscious decision that the case of Dr. Hemlata Saraswat (supra) is not applicable to the applicant herein for the reason, as stated in the impugned order, as the State Government of Rajasthan had taken a decision to grant maternity leave to the temporary female employees and thus, the contractual employees are also entitled to get the same benefits. I have carefully perused the judgment in the case of Dr. Hemlata Saraswat (supra) and found that the stand taken by the respondents is misconceived. For better understanding of this aspect of the matter, it is considered appropriate to refer to the judgment in the said case in details. The Honble High Court clearly expressed its opinion in para 6 of its judgment to the effect that the communication dated 27.4.2006 (Annexure 3) emanating from the Directorate of Medical and Health Services, Rajasthan, Jaipur denying maternity leave to the petitioner with cryptic observation that the rules do not mention about grant of such leave to the Medical Officer working on consolidated salary cannot be said to be justified nor appear bona fide, particularly for having been issued even after the decisions of this Court in the case of Neetu Choudhary (decided on 19.4.2005) and Smt. Sumitra Choudhary (decided on 19.9.2005; and this writ petition deserves to be allowed with costs. Although law on the question in issue has been well settled yet the Rajasthan High Court proceeded to deal with the matter in more details with a view to ensure avoidance of avoidable litigation and also to sound warning against unjustified denial of maternity leave for which the officer concerned might be held personally responsible for the costs and consequences. The Court thus observed that As shall be noticed hereafter, the aforementioned decision in Neeta Choudhary has been affirmed by the Honble Division Bench with rather strong comments on the attempt on the part of the Government to deny maternity benefit to its employees against the basic norms of quality, and so also against the propositions of gender justice and betterment of status of women; and, in view of settled position of law, there would not have been any necessity to expound further on the principles applicable but for the reason that such litigations are still of recurrence before this Court, it appears apposite to deal with the aspect a bit more in detail in the hope that such perfunctory approach would be corrected by the authorities concerned obviating the necessity of such avoidable litigation and also for the warning that for any such unjustified denial of maternity leave, the Officer concerned might be held personally responsible for the costs and consequences. The Court then proceeded to deal with the case law on the subject. The Court heavily relied upon the Supreme Courts judgment in the case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., 2000(3) SLJ 369, in paragraphs 8 to 16.
14. After referring to certain cases decided earlier by the Rajasthan High court, viz., Neetu Chandhary vs. State of Rajasthan and others, 208(2) RLW 1404, Smt. Sumitra Choudhary and others vs. State of Rajasthan and others, S.B. Civil Writ Petition No.3295/2005 decided on 19.9.2005 and Smt. Pooja Arora vs. State of Rajasthan and others in S.B. Civil Writ Petition No.493/2007 decided on 29.1.2007, the High Court observed that Merely because the respondents would chose to put her on consolidated salary and state it to be a contractual appointment, the fact that she is a women employee cannot be lost sight of and the essential benefits fundamentally dealing with the very basis of human rights of allowing maternity benefit to the woman cannot be and ought not to have been ignored; and the petitioner ought to have been allowed maternity leave as applied for. It may be pointed out that there had not been any other reason of denying maternity leave to the petitioner except that she was working on consolidated salary on contract basis. Such being a proposition already declared unacceptable, the action of the respondents is not only illegal but mala fide too. The above observations apply to the applicant herein with full force. The Municipal Council of Delhi is held to be an industry in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., (supra). It has further been held in this case by the Honble Court that the provisions in International Convention where India is signatory should be read in the contract of the employment. Reference in this regard has been made to the Convention of Elimination of All Forms of Discrimination against Women adopted by the United Nation on 18.12.1979. Accordingly, even casual female workers and female workers employed on daily wage basis are entitled to the benefit of Maternity Benefit Act. As a matter of fact, the Honble Supreme Court directed issuance of notification under the proviso to sub Section (1) of Section 2 of the Maternity Benefits Act, 1961, if that is not already issued. Section 27 of the Maternity Benefits Act, 1961, deals with effect of laws in agreement inconsistent with that Act. Sub section (1) of Section 27 of the Maternity Act, 1961 provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service. Sub Section (2) of this Section, however, provides that it will be open to the woman to enter into agreement with her employer for granting her rights and privileges in respect of any matters which are more favourable to her than those to which she would be entitled to under this Act. (Para 23 of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., (supra)). In view of the aforesaid, the respondents NDMC too can be viewed as an industry to which provisions of the Maternity Benefits Act, 1961, are extendable. Furthermore, the applicant having been appointed in Charak Palika Hospital, Moti Bagh, New Delhi, hospitals too are reckoned in law as an industry, as held by the Honble Supreme Court in the case of Bombay Water Supply and Swaging Board vs. A. Rajappa, 1978 LIC 467. Although the agreement for service between the parties does not contain any provisions with regard to grant of maternity leave, the same has to be read into the contract of service between New Delhi Municipal Council and the applicant and thus the applicant becomes entitled to all the benefits under the Maternity Benefits Act, 1961. Absence of such a provision in the agreement between the parties will not help so as to deprive the applicant of her maternity leave in view of Section 27 of the Maternity Benefits Act, 1961, as referred to above, which would have the effect of rendering such a condition as unlawful. Any condition in the agreement, which tends to deprive a woman of maternity leave, would also be viewed as opposed to public policy as well as law and consequently void in terms of Section 23 of the Indian Contract Act, 1872.
15. The present case is a glaring instance of avoidable litigation. Had the authorities concerned dealt with the matter with due regard to their constitutional duties, this litigation could have been avoided. Instead, they have chosen to proceed in utter disregard of their duties in flagrant violation of the requirements of rules and even disregard to the decisions rendered by the Courts. The Application thus deserves to be allowed with costs.
16. The application is, therefore, allowed. The impugned order dated 13.1.2011 stands quashed. The respondents shall take up the matter for consideration of sanctioning of maternity leave to the applicant as applied for and consequential benefits thereof shall be accorded to the applicant within a period of 30 days from the date of receipt of a certified copy of this order. The applicant shall also be entitled to cost quantified at Rs.10,000/- (Rupees Ten Thousand only). It shall be permissible for the respondents, if they so desired but only after making payment to the applicant, to recover the amount of costs strictly in accordance with law from the person/persons responsible for this unnecessary litigation.
4. The learned counsel for the Applicants has also relied upon the judgment of the Apex Court in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and Another 2000 SCC(L&S) 331 wherein it has been held that the provisions of the Maternity Benefit Act, 1961 are applicable even to women engaged on casual basis or muster roll basis. The relevant part of the said judgment reads as under:-
24. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily wage basis.
25. The Industrial Tribunal, which has given an award in favour of the respondents, has noticed that women employees have been engaged by the Corporation on muster roll, that is to say, on daily wage basis for doing various of works in projects like construction of buildings, digging of trenches, making of roads, etc., but have been denied the benefit of maternity leave. The Tribunal has found that though the women employees were on muster roll and had been working for the Corporation for more than 10 years, they were not regularised. The Tribunal, however, came to the conclusion that the provisions of the Maternity Benefit Act had not been applied to the Corporation and, therefore, it felt that there was a lacuna in the Act. It further felt that having regard to the activities of the Corporation, which had employed more than a thousand women employees, it should have been brought within the purview of the Act so that the maternity benefits contemplated by the Act could be extended to the women employees of the Corporation. It felt that this lacuna could be removed by the State Govt. by issuing the necessary notification under the Proviso to Section 2 of the Maternity Act. This Proviso lays down as under :
"Provided that the State Government may, with the approval of the Central Government, after giving not less than two month's notice of its intention of so doing, by notification 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."
26. It consequently issued a direction to the management of the Municipal Corporation, Delhi to extend the benefits of Maternity Benefit Act, 1961 to such muster roll female employees who were in continuous service of the management for three years or more and who fulfilled the conditions set out in section 5 of the Act.
27. We appreciate the efforts of the Industrial Tribunal in issuing the above directions so as to provide the benefit of the Act to the muster roll women employees of the Corporation. This direction is fully in consonance with the reference made to the Industrial Tribunal. The question referred for adjudication has already been reproduced in the earlier part of the judgment. It falls in two parts as under :
(i) Whether the female workers working on muster roll should be given any maternity benefit?
(ii) If so, what directions are necessary in this regard.
28. The award made by the Industrial Tribunal completely answers the question in both the respects.
29. Learned counsel for the Corporation contended that since the provisions of the Act have not been applied to the Corporation, such a direction could not have been issued by the Tribunal. This is a narrow way of looking at the problem which essentially is human in nature and anyone acquainted with the working of the Constitution, which aims at providing social and economic justice to the citizens of this country, would outrightly reject the contention. The relevance and significance of the doctrine of social justice has, times out of number, been emphasised by this Court in several decisions. In Messrs Crown Aluminium Works v. Their Workmen,1958 SCR 651 : (AIR 1958 SC 30), this Court observed that the Constitution of India seeks to create a democratic, welfare State and secure social and economic justice to the citizens. In J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. Badri Mali, (1964) 3 SCR 724 : (AIR 1964 SC 737), Gajendragadkar, J., (as his Lordship then was), speaking for the Court, said (Para 19) :
"Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, onesided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of social-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach."
5. The Respondents have filed their reply stating that the judgment of this Tribunal in Dr. Shipla Sharmas case (supra) is not applicable in the facts and circumstances of the present case and it is distinguishable. They have stated that the said judgment was passed in respect of the employees working in NDMC, which is an autonomous body, whereas the Applicants are working under the Govt. of NCT of Delhi. Further, they have submitted that assuming that maternity leave is applicable to the Applicants, even then they can get only 12 weeks in total as per Section 5(3) of the Maternity Benefit Act, 1961 which provides as under:-
5(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
6. They have also submitted that the leave terms to be granted to officers appointed on contract in various posts are governed by the Government of India, Department of Personnel & Training, O.M. No.12016/3/84-Estt.(L) dated the 12th April, 1985, as amended by OM No.12016/1/90-Estt.(L), dated 5th July, 1990 and OM No.12016/2/99-Estt.(L), dated the 12th July, 1999 contained in Appendix-II to the Central Civil Services (Leave) Rules, 1972 and accordingly the same has been circulated by Respondent No.2 vide its Annexure R-2 Circular No.F.42(74)/06/DSW/Estt.23615-689 dated 14.09.2009. The aforesaid OM reads as under-
The undersigned is directed to state that the leave terms to be granted to officers who are appointed on contract in various posts under the Central Government have been under consideration of the Government for some time.
sIt has now been decided that the officers appointed on contract in various posts under the Government will be entitled to leave as follows:-
(i) Earned leave as admissible to a Central Government servant governed by the Central Civil Services (Leave) Rules, 1972.
(ii) Half pay leave/commuted leave as admissible to a temporary Government servant under the Central Civil Services (Leave) Rules, 1972.
(iii) Extraordinary leave -
(a) in the case of contract appointments for one year or less, no extraordinary leave;
in the case of contract appointments for more than one year but not more than 5 years, extraordinary leave as admissible to a temporary Government servant under the Central Civil Services (Leave) Rules, 1972, subject to the condition that the total extraordinary leave sanctioned during the entire contract period shall not exceed 90 days;
(c ) where the contract appointment is for more than 5 years, extraordinary leave as admissible to a temporary Government servant, under the Central Civil Services (Leave) Rules, 1972;
where the contract appointment is for an indefinite period, the officer will be entitled to extraordinary leave as admissible to an officer in permanent Government service under the Central Civil Services (leave) Rules, 1972.
2. Encashment of Leave The contract officers will suo motu be allowed encashment of earned leave at their credit on the date of termination of contract subject to the ceilings mentioned below:-
Period of contract appointment Maximum Earned Leave for which encashment will be allowed at the time of termination of contract Upto 2 years No encashment More than 2 years upto 5 years 50 days More than 5 years upto 10 years 100 days More than 10 years upto 15 years 150 days More than 15 years upto 20 years 200 days More than 20 years upto 25 years 250days More than 25 years 300 days
3. The encashment of leave as admissible above will, however, be subject to the condition that the total earned leave for which encashment will be allowed together with the earned leave or full pay leave for which encashment had been allowed in previous appointments, if any, under the Government or Autonomous Body or Bodies or Public Sector Undertaking(s) is not more than 300 days.
4. These Orders take effect from 1st July, 1997 and will be applicable in cases of termination of contract on or after this date. Accordingly, encashment of earned leave beyond 240 days shall be restricted to the quantum of such leave earned after 1st July 1997 onwards.
5. The grant of encashment of leave will be subject to the conditions prescribed in the Central Civil Services (Leave) Rules, 1972.
6. In so far as the application of these orders to the officials employed in the Indian Audit & Accounts Department is concerned, this issues with the concurrence of the Office of the Comptroller and Auditor General of India.
7. As the aforesaid instructions are applicable for all contractual staff, the Applicants herein are also entitled for Earned Leave as admissible to Central Government servants and Half Pay Leave/commuted leave as admissible to temporary Government servants but the number of days of extraordinary leave would depend upon the respective period of their appointment. Further, according to the Respondents, in condition No.11 of the offer of appointments issued to all contractual Welfare Officers also prescribe the entitlement for Earned Leave, HPL and commuted leave as mentioned in the said Office Memorandum.
8. I have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri Vijay Pandita. The statements made by the Respondents in their reply are contradictory. On the one hand, they have stated that the contractual employees are governed by Section (5) 3 of the Maternity Act, 1961 according to which the maximum admissible period of maternity leave is 12 weeks. On the other hand, they have submitted that the contractual employees are governed by the CCS (Leave) Rules, 1972 with the conditions contained in the DOP&T OM dated 12.4.1985 as amended from time to time. From a reading of Section 2 of The Maternity Act, 1961 it would be seen that the said Act is not applicable to the Applicants herein. The said Section reads as under:-
2. Application of Act.- 4[(1) It applies, in the first instance,--
(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shopsand establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:] 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 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.
(2) 5[Save as otherwise provided in 6[sections 5A and 5B], nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948),apply for the time being.
On the other hand, there is no doubt that the Applicants are covered by the CCS (Leave) Rules, 1972 and the Government of India OM dated 12.4.1985 amended by subsequent OMs dated 5.7.1990 and 12.7.1999 extracted above. From above position, it is clear that except what are separately mentioned in the aforesaid OM, all other provisions contained in the Leave Rules are applicable to contract employees. Therefore, Rule 43 of Leave Rules is applicable to contract employees like the Applicants. The said rule reads as under:-
43. Maternity Leave (1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of [180 days] from the date of commencement.
(2) During such period, she shall be paid leave salary equal to the pay drawn immediate before proceeding on leave.
NOTE-In the case of a person to whom the Employees State Insurance Act, 1984 (34 of 1948), applies, the amount of leave salary payable under this rule shall be reduced by the amount of benefit payable under the said Act for the corresponding period.
(3) Maternity leave not exceeding 45 days may also be granted to a female Government servant (irrespective of the number of surviving children) during the entire service of that female Government servant in case of miscarriage including abortion on production of medical certificate as laid down in Rule 19:
Provided that the maternity leave granted and availed of before the commencement of the CCS (Leave) Amendment Rules, 1995, shall not be taken into account for the purpose of this sub-rule.
(4)(a)Maternity leave may be combined with leave of any other kind.
(b) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of any kind due and admissible (including commuted leave for a period not exceeding 60 days and leave not due) up to a maximum of [two years] may, if applied for, be granted in continuation of maternity leave granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave account.
9. In Dr. Shilpi Sharmas case (supra), this Tribunal has already dealt with this issue in detail. In the said OA, this Tribunal has also considered the judgment of the High Court of Rajasthan in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., 2000(3) SLJ 369 wherein it has been held as under:-
Merely because the respondents would chose to put her on consolidated salary and state it to be a contractual appointment, the fact that she is a women employee cannot be lost sight of and the essential benefits fundamentally dealing with the very basis of human rights of allowing maternity benefit to the woman cannot be and ought not to have been ignored; and the petitioner ought to have been allowed maternity leave as applied for. It may be pointed out that there had not been any other reason of denying maternity leave to the petitioner except that she was working on consolidated salary on contract basis. Such being a proposition already declared unacceptable, the action of the respondents is not only illegal but mala fide too.
10. In the above facts and circumstances of the case, I allow this OA with the direction to the Respondents to treat the period of absence of both the Applicants for duty to the extent of 180 days as maternity leave with consequential benefits, in terms of Rule 43 of the CCS (Leave) Rules, 1972. They shall also comply with the aforesaid direction issuing appropriate orders and giving the monetary benefits to the Applicant within a period of 2 months from the date of receipt of a copy of this order.
11. We also notice, while dealing with the request of the Applicant No.1, Mrs. Shweta Tripathi, the Superintendent, Children Home for Girls, Nirmal Chaya Complex, Jail Road, New Delhi was totally arbitrary and unconcerned. She has not even forwarded the application of the Applicant to the competent authority but returned her application in original scribbling on it and finding fault with the officer who forwarded her request. As a result, the said Applicant was forced to approach the Tribunal incurring financial loss. In the case of the second Applicant, the Respondents have allowed only 12 weeks Maternity Leave whereas she was entitled for 180 days. In the above circumstances, I also allow cost of litigation quantified at Rs.5000/- to Applicant No.1 and Rs.2500/- to Applicant No.2 which shall be paid to them within the aforesaid period of 2 months.
12. There shall be no order as to costs.
(G. GEROGE PARACKEN) MEMBER (J) Rakesh