Himachal Pradesh High Court
Smt. Tanvi Thakur vs Himachal Pradesh Power Corp. Ltd. & Ors on 1 May, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 6808 of 2020 .
Reserved on: 29.04.2024 Date of decision: 01.05.2024 Smt. Tanvi Thakur ...Petitioner Versus Himachal Pradesh Power Corp. Ltd. & Ors.
...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? Yes For the Petitioner: Mr. Virbahadur Verma, Advocate.
For the Respondents: Mr. Shashi Shirshoo, Advocate.
Tarlok Singh Chauhan, Judge The instant petition has been filed for grant of the following substantive reliefs:-
(i) That That the impugned Annexure A-5 may kindly be quashed and set aside and respondents authorities be directed to review its decision dated 25.10.2018 (Annexure A-1) in accordance with Himachal Pradesh Government notification dated 21.12.2017 and dated 22.01.2018 and sanction maternity leave for a period of 180 days.
(ii) That the respondents be directed to release the salary of applicant for the period w.e.f. 01.01.2019 to 22.02.2019.
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 22. The undisputed facts of the present case are that the petitioner was initially appointed as Assistant Finance Officer on .
contract basis w.e.f. 23.09.2008 and subsequently his services came to be regularized and she was promoted as Manager (Finance) on 01.01.2017.
3. The petitioner while in service was in family way and had given due notice to respondent No. 3 on 03.07.2018 that she would be proceeding on maternity leave for 180 days w.e.f.
04.07.2018 to 20.12.2018 under "The Maternity Benefit Act, 1961", with a specific request to allow her the benefit flowing out of the notification issued by the Finance Department of the Government of Himachal Pradesh dated 21.12.2017 and 22.01.2018
4. The petitioner proceeded on maternity leave and during the course of which, respondent No. 3 issued order dated 25.10.2018 thereby sanctioning only 135 days maternity leave as against 180 days as sought for by the petitioner.
5. Aggrieved thereby the petitioner filed representation dated 12.11.2018, however, the petitioner was informed vide communication dated 19.11.2018 that maternity leave in her favour has been sanctioned for 135 days as per HPPCL leave rules. It was further intimated that amendment to HPPCL leave ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 3 rules vide which maternity leave has been increased from 135 days to 180 days has not been received in the office.
.
6. This constrained the petitioner to file another detailed representation to respondent No. 2 dated 26.11.2018. In the meanwhile, respondent No. 2 issued Circular No. 12/2018 on 01.01.2019 conveyed the decision of Board of Directors (BoD) taken in its 67th meeting held on 28.11.2018 regarding revision in the maternity leave quota from existing 135 days to "26 weeks rules" for implementation w.e.f. 28.11.2018 instead of 21.12.2017.
7. It is the specific case of the petitioner that the State Government had already increased the maternity leave vide notification dated 21.12.2017 and 22.01.2018 and thereafter as many as three meetings of the BoDs of the respondent-
Corporation were held during the period from 21.12.2017 to 28.11.2018 but the matter of adoption of the same was not considered as a result of the prolonged delay in the implementation of the order to the disadvantage of the petitioner.
8. The long and short of the matter thereafter is that the petitioner yet again preferred representation but the same was rejected on the basis of the BoD's Circular No. 12/2018, constraining her to file the instant petition.
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 49. The only ground taken by the respondents to defend their action is that the petitioner could at best be entitled to .
maternity leave as per the rules prevalent at the time and not in accordance with the provisions of the circular issued by the government from time to time till the same were adopted and the petitioner was not entitled to grant of maternity leave in accordance with the provisions of the Maternity Benefit Act and the petitioner has been rightly sanctioned accordance with the provisions of the Maternity Benefit Act, 1961, which was being followed.
135 days in We have heard learned counsel for the parties and have gone through the record of the case.
10. India is a signatory to various international covenants and treaties. The Universal Declaration on Human Rights adopted by the United Nations on 10.12.1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. These were followed by series of conventions, which reflect on the broad international consensus on important issues of global concern.
11. Article 25(2) of the Universal Declaration of Human Rights, 1948, stipulates that "Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection."
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 512. Article-6 of the same Conventions reads;
"States Parties recognize that every child has the .
inherent right to life.
2. States Parties shall ensure to the maximum extent possible for survival and development of the child."
13. Of the international conventions, two are very relevant for the present issue and the same are "Convention on
14.
r to the Elimination of all Forms of Discrimination against Women"
(CEDAW) and "ILO: Maternity Protection Convention 2000".
The United Nations signed this Convention i.e. CEDAW, on 30.07.1980. India ratified it on 19.07.1993 and acceded to it on 08.08.1993 with reservation on Article 5(e), 16(1), 16(2) and 29 of CEDAW."
15. It was after years of deliberations at National and International level, the right of a woman employee for maternity leave has now been established as supreme by the enactment of the Maternity Benefit Act, 1961. India otherwise was required to make labour laws in conformity with the recommendations made by the International Labour Organization (ILO) read with Article 42 of the Constitution of India. According to Article 42 of the Constitution of India, "the State is required to make provision for securing just and humane conditions of work and for maternity relief".
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 616. The object of ILO to conduct the survey was to promote motherhood and child care as well as gender equality.
.
Every female employee and male employee whether appointed on regular basis, contractual basis, ad hoc basis, tenure/temporary basis have a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) to promote motherhood and child care under Article
17.
r to 21 Constitution of India read with Article 42 of the Constitution of India.
In Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224 (supra), the Hon'ble Supreme Court held that the provisions of Maternity Benefit Act, 1961 entitled maternity leave even to women engaged on casual basis or on muster roll basis daily wage and not only those in regular employment. It is further held that the provisions of the Act in this regard are wholly in consonance with the Directive Principles of the State Policy as contained in Articles 39, 42 and 43 of the Constitution of India.
18. It would be apt to reproduce the relevant observations as contained in paragraphs 6, 11, 27 and 33, which read as under:-
6. Not long ago, the place of a woman in rural areas has been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 7 jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The .
female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with flu's Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the 'State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under: -
"(3) Nothing in this article shall prevent the State from making any special provision for women and children."
11. It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 8 determine whether the denial of maternity benefit by the petitioner is justified in law or not.
.
27. 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.
33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women 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 phenomena 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 work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 9 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.
19. A learned Division Bench of this Court in a judgment authored by one of us (Justice Tarlok Singh Chauhan, J.), in Sushma Devi vs. State of H.P. & Ors. 2021 (2) SLC 923, extended the benefit of maternity leave to a contractual employee who had begotten the child through surrogacy.
20. It is otherwise no longer res integra that a female employee respective of the capacity in which she is working is entitled to maternity leave at par with her female counter parts, who otherwise are regular employees. Reference in this regard can conveniently be made to the judgment render by Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan, J.) was a member, in State of H.P. & Ors. vs. Sudesh Kumari (2015) 1 HLR DB 36, wherein it was held as under:-
8. In law, there is no difference between a female regular employee and a contractual employee/ ad hoc employee because a female employee whether regular, temporary or ad hoc, is a female for all intents and purposes and she has a matrimonial home, matrimonial life, and after conception, she has to undergo the entire maternity period, same treatment, pains and other difficulties which ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 10 a regular employee has to undergo. Thus, there is no occasion for making discrimination and if, less period of .
maternity leave is granted to a contractual employee, it will amount to discrimination, in terms of Article 14 of the Constitution of India.
9. The claim of maternity leave is founded on the grounds of fair play and social justice. There cannot be discrimination and if any discrimination is made, it is in breach of Articles 14 and 15 of the Constitution. Articles 41, 42, and 43 deals with the subject and we deem it appropriate to reproduce the said Articles herein:
"41.Right to work, to education and to public r assistance in certain cases.- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
42. Provision for just and humane conditions of work and maternity relief.- The State shall make provision for securing just and humane conditions of work and for maternity relief.
43. Living wage, etc., for workers.- The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas."::: Downloaded on - 01/05/2024 20:37:00 :::CIS 11
10. In case titled Municipal Corporation of Delhi v. Female Workers and anr. (2000) 3 SCC 224, it has been held as .
under:
"27. 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 rwould 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.
28. 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 kinds 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 regularized. The Tribunal, however, came to the conclusion that the provisions of the Maternity Benefit Act had not been applied to the Corporation ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 12 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."
29...... 30. 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.
........ 33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 13 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 phenomena 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 work place 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."
11. In Ms. Sonika Kohli & Anr. vs. Union of India reported in 2004 (3) SLJ 54 CAT, it has been held in paras 12 and 13, the relevant portion of which is quoted as under:
"12. An almost a new point of controversy has been raised with regard to the admissibility of maternity leave to female teachers. In some of the O.As. it has been prayed that the benefit of maternity leave, which has hitherto been denied by the respondent- Administration, be directed to be extended in accordance with the rules. Mr. R.P. Bali, learned Counsel for some of the applicants urged that the action of the respondents in denying the benefit of maternity leave like other regular employees is ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 14 violative of the principles enshrined in Articles 14 and 15 of the Constitution of India as it denies the .
benefit of beneficial provisions of law to a female teacher. Mr. N.K. Bhardwaj, learned Counsel for the Administration urged that maternity leave is not admissible to contract employees as they are not covered by the Punjab CSR Vol.1, Part-1. According to him, the benefit of maternity leave with pay is payable to permanent/regular female employees and that the Administration is justified in carving out a distinction between the regular female teachers and the teachers appointed on part time or contract basis, as is in the present case. Let us examine the respective contentions of the parties. 13. The claim for maternity leave is founded on grounds of fair play and social justice. Before the advent of the Constitution and for a sufficiently long time, thereafter it was customary or say traditional for women to stick to their homes but now they seek various jobs so as to attain economic independence by utilizing their talent, education, industry etc. Sometimes the jobs are taken up by them to overcome economic hardship. For a woman to become a mother is most natural phenomenon in her life. Whatever is needed to facilitate the birth of a child to a women who is in service, the employer has to be considerate and sympathetic towards her and must realize the physical difficulties which a working women would face in performing her duties at work place while carrying a baby in the womb or while bearing a child after birth. Our constitution which, in its preamble, promises social and economic justice, enshrines certain radical provisions in the form of Articles 42 and 43 which deal with the just and ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 15 humane conditions of work and maternity relief as well as living wage conditions of work ensuring a .
decent standard of life, and full enjoyment of leisure and social and cultural opportunities. These principles are required to be followed by the State as enjoined by Article 39. In the background of these Articles, the Parliament has enacted Maternity Benefit Act, 1961 (Act No. 53 of 1961) with a view to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and rcertain other benefits........................."
12. It is also apt to reproduce para 3 of the judgment delivered in Rattan Lal and others vs. State of Haryana and others reported in 1985 (3) SLR 548 .
"3. We strongly deprecate the policy of the State Government under which 'ad hoc' teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These 'ad hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave shall also be granted such leave in accordance with the rules."
13. The Jammu and Kashmir High Court in case titled Tasneem Firdous vs. State and others reported in 2006 (II) S.L.J 699, held that the employees working on contractual basis are also entitled to maternity leave. The relevant portion of para 6 of the judgment is reproduced as under:
6. In subjective context the matter assumes a larger dimensions because it overflows the contours of an ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 16 individual case or a singular instance and almost borders on the rights of women and obligation of the .
State to protect and preserve them, to which, besides statutory constitutional considerations, the international covenants also bind the government.
Reference in this behalf may be made to "Convention on the Elimination of all Forms of Discrimination against Women" adopted by Community of nations on 18.12.1979 to which government of India too is a signatory............"
14. In paras 6 and 37 of the judgment in Municipal Corporation of Delhi v. Female Workers and anr. (2000) 3 SCC 224, supra, while considering the constitutional contours of the matter, the Hon'ble apex Court observed as under:
"6........... It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with this Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd. v. Workmen, AIR 1967 SC 948 : 1967 (1) SCR 652, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under :- "(3) Nothing in this article ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 17 shall prevent the State from making any special provision for women and children".
.
7-36..........
37.............."2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures :
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary."
15. Having said so, the office memorandum dated 31.7.2009 and circular dated 2.9.2009, made by the State are quashed and all female employees whether on ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 18 contract, ad hoc, permanent and temporary are held entitled to maternity leave at par with the regular .
employees.
21. The object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance to the woman and her child, maternity leave is intended to achieve the social justice to women, motherhood and childhood, both require special attention.
22. It is not in dispute that in terms of the Government of Himachal Pradesh notification dated 21.12.2017, the petitioner was entitled to 26 weeks maternity leave. It is also not in dispute that the respondents enforced the notification but belatedly on 28.11.2018 but nonetheless the fact remains that it is the respondents who delayed the decision despite three BoDs meeting held during the period w.e.f. 21.12.2017 to 27.11.2018.
23. Apart from the above, the decision of the State Government being in favour of the petitioner, was required to be extended to the case of the petitioner once the State Government notification dated 21.12.2017 had been adopted in principle and could not have been restricted to only those of the lady employees, who were still availing maternity leave and had not joined the duties till 28.11.2018.
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 1924. The respondents could not have carved out an artificial distinction and were required to extend the period of .
maternity leave in all those case where the lady employees had been granted only 135 days of maternity leave but had not completed 180 days or else this would otherwise is a clear cut case of invidious distinction.
25. Lastly and more importantly, the respondents were required to extend all the benefits as available to the petitioner under the Maternity Benefit Act, 1961 as this Act over-ride any agreement or contract of service found consistent with the Act.
This has so been held by the Hon'ble Supreme Court in Dr. Kavita Yadav vs. Secretary, Ministry of Health and Family Welfare Department and others (2024) 1 SCC 421, wherein it was held as under:
9. A two Judge Bench of this Court in the case of Municipal Corporation of Delhi vs Female Workers (Muster Roll) & Anr.
[(2000) 3 SCC 224], while dealing with a similar claim by female muster roll workers who were employed on daily wages, opined that the provisions relating to maternity benefits in the 1961 Act would be applicable in their cases as well. That dispute had reached this Court through the Industrial Tribunal and the High Court. Before both these fora, the Union espousing the cause of the female workers was successful. In that case, point of discrimination was highlighted as regular women employees were extended the benefits of the said Act but not those who were employed on ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 20 casual basis or on muster roll on daily wage basis. This Court observed, in paragraph 27 of the said judgment:
.
"27. 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 r 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 dailywage basis."
10. Broadly, a similar view is reflected in a more recent judgment of this Court in the case of Deepika Singh vs Central Administrative Tribunal And Others [(2022) 7 SCR 557]. Though this decision dealt with Central Civil Services (Leave) Rules, 1972, in relation to maternity leave and the 1961 Act was not directly applicable in that case, this Court analysed certain provisions of this Act to derive some guidance on a cognate legislation.
11. This Court observed in the case of Deepika Singh (supra):
"19. Subsection (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Subsection ::: Downloaded on - 01/05/2024 20:37:00 :::CIS 21 (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions .
have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.
20. The Act of 1961 was enacted to secure women's right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In Municipal Corporation of Delhi v.
Female Workers (Muster Roll), a twojudge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India's international obligations under the Universal Declaration of Human Rights 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women to extend benefits under the Act of 1961 to workers engaged on a casual basis or on muster roll on daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules 1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections."
12. In the light of the ratio laid down in the aforesaid two authorities and having regard to Section 27 of the 1961 Act, which gives overriding effect to the statute on any award, agreement or contract of service, in our opinion, the High Court erred in law in holding that the appellant was not entitled to maternity benefits beyond 11.06.2017.
::: Downloaded on - 01/05/2024 20:37:00 :::CIS 2226. In view of the aforesaid discussion, we find merit in this petition and the same is accordingly allowed and the .
petitioner is held entitled for 180 days of maternity leave and consequently she is entitled to continuity of service as also to release of the salary for the period w.e.f. 01.01.2019 to 22.02.2019. The Board of Directors' decision granting maternity leave of 26 weeks only to those of the employees who were still availing the maternity leave and have not joined the duties till 28.11.2018 and not granting the same benefits to those regular female employees who had availed maternity leave upto 28.11.2018 and had not completed 180 days and were still availing any other kind of leave in continuation of maternity leave, is quashed and set aside.
27. The petition is disposed of in the aforesaid terms, so also pending applications, if any. Parties are left to bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
1st May, 2024 Judge
(sanjeev)
::: Downloaded on - 01/05/2024 20:37:00 :::CIS