Central Administrative Tribunal - Delhi
Dr. Swati W/O Dr. Vishal Chaudhary vs Govt. Of Nct Of Delhi Through Its ... on 12 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1761/2015
New Delhi this the 12th day of August, 2015
Honble Mr. A.K.Bhardwaj, Member (J)
Honble Mr. V.N.Gaur, Member (A)
1. Dr. Swati W/o Dr. Vishal Chaudhary,
Aged about 28 years,
R/o C-10/205, Yamuna Vihar,
Delhi-110053
2. Dr. Ritika Malhotra W/o Mr. Kunal Malhotra,
Aged about 28 years,
R/o C-107, Anand Vihar, Delhi-110092
(Both the Applicants are working as Senior Residents
(Dentistry) at GTB Hospital, Dilshad Garden,
Delhi. Applicants
(By Advocate Mr. Amit Verma for Ms. Aishwarya Bhati )
VERSUS
1. Govt. of NCT of Delhi through its Secretary,
Department of Health and Family Welfare,
9th Level, A Wing, Delhi Secretariat,
I.P. Estate, New Delhi-110002
2. Medical Superintendent,
Guru Teg Bahadur Hospital,
Govt. of NCT of Delhi, Dilshad Garden,
Delhi-110095 ... Respondents
(By Advocate Mr. Vijay Kumar Pandita )
O R D E R
(Honble Mr. A.K.Bhardwaj, Member (J):
The facts of the case as mentioned in the pleadings of the parties are that in the year 1974 on the basis of the recommendations of the Kartar Singh Committee, Government of India introduced a six year residency Scheme comprising of junior residency and senior residency doctors in place of the existing system of House Surgeon, post graduate student and Registrar in the Central Institutions/hospitals. The salient features of the residency Scheme amended from time to time reproduced in the order dated 03.02.2015 read thus:-
3(b)(iv) The tenure of senior residency will be three years. However, the candidature of a person who is already working as Senior Resident in a Central Institution/Hospital may be considered for appointment as Senior Resident in another Central Institution/Hospital if his application is received through proper channel. In such cases the pay drawn in the previous post will not be protected. The total period, however, should not exceed the maximum period of Senior Residency of three years. On being recommended by the Staff Selection Commission, the Medical Superintendent, GTB Hospital offered the applicants appointment to the post of Senior Resident for a maximum period of 89 days or till the appointment of regular Senior Resident Doctors, whichever could be earlier. The offer was given to them on 23/26.08.2013. Both the applicants joined the posts. The relevant terms and conditions of appointment mentioned in Memorandum N.F 1-5(20)/E-1/GTBH/SR-JR/2013/10547-57 dated 23.08.2013 issued to applicant no. 2 read thus:-
1. Tenure: Maximum up to 89 days or till regular incumbents join whichever is earlier.
xxx xxx
13. Leave Entitlement: Only 2-1/2 days leaves are
admissible for each month of service. In case
of unauthorized/willful absence of duties for
more than 7 days, the appointment shall
terminated without assigning any reason.
Maximum of 7-1/2 days leaves are admissible
during the period of 89 days.
As can be seen from the aforementioned terms and conditions the applicants are entitled only to 2-1/2 leaves for each month of service and their services could be brought to an end without assigning any reason. After joining the applicant No.1 Dr.Swati proceeded on maternity leave for 84 days from 19.02.2015 to 13.05.2015. Nevertheless in view of the fact that delivery was pre-mature and the child required intensive care for longer period, she applied for maternity leave for 180 days. No facts regarding details of maternity break availed by the applicant No.2, if any, has been mentioned in the OA. Rather, it is not clear that how applicant No.2 could join the applicant No.1 in the present OA. The salient grounds espoused by the applicants to buttress the claim of ad hoc Senior Residence for 180 maternity leave are:-
(i) In view of the judgment of Honble Supreme Court in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and Anr. (2000) 3 SCC 224), the benefit of maternity leave should also be given even to such women who were engaged on casual or muster roll basis.
(ii) In view of the OM No.13018/2/2008-Estt.(1) dated 11.09.2008, the female employees are entitled to the benefit of maternity leave for a period of 180 days.
(iii) Certain other doctors, namely, Dr. Sonal and Dr. Neha were granted maternity leave for 180 days.
2. On the other hand, the stand taken by the respondents in the counter reply is that:-
(i) In view of the judgment of Honble Delhi High Court in Chief Secretary, Govt. of NCT of Delhi and Anr Vs. Satish Kumar and Ors etc.etc. (W.P(C) 2915/2013) decided on 01.11.2013, the ad hoc employees can be granted the maternity leave only in terms of the provisions of Maternity Benefit Act, 1961 i.e. 84 days maternity leave.
(ii) The CCS (Leave) Rules, 1972 are applicable to Government employees appointed on regular basis and not to those who are employed on ad hoc basis.
(iii). The appointment of the applicant was not
continuous and was in broken spells of 89 days each.
(iv) In terms of the provision of Maternity Leave
Benefit Act, 1961 women employees are entitled to maternity leave maximum upto 12 weeks after completion of 160 working days.
3. We heard counsels for parties and perused the record. When both the applicants herein had completed 1 = years of residency period, they approached this Tribunal seeking issuance of direction to respondents to allow them to complete their residency period of three years. The OA was allowed with direction to respondents, inter-alia, to allow the applicants (herein) to complete their tenure of three years residency. Para 9 and 10 of the order passed by the Tribunal read thus:-
9. Therefore, the OA is allowed with direction to the respondents to let the applicants complete their tenure of three years residency.
10. Before parting we would also advise the respondents to take a fresh look at the scheme of recruitment of Senior Residents. Since the authorities themselves insist on a three year Senior Residency period for certain jobs, whenever recruitments are made for Senior Residents it should be done through a transparent procedure through an open advertisement for a period of three years. In the wake, it cannot be disputed that the applicants herein were entitled to maternity leave as per the provisions of Maternity Leave Benefit Act, 1961. The moot question is whether they should be given maternity leave for 180 days or not.
4. In Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and Another (2000) 3 SCC 224), the female workers (muster roll) engaged by the Municipal Corporation of Delhi raised a demand for grant of maternity leave which was made admissible only to regular female workers but was denied to them on the ground that their services were not regularized. Their case was espoused by the Delhi Municipal Workers Union and the following question was referred by the Secretary (Labour), Delhi Administration to the Industrial Tribunal for adjudication:-
Whether the female workers working on Muster Roll should be given any maternity benefit? If so, what directions are necessary in this regard? The stand of the Corporation before the Industrial Tribunal was that the provision of the Maternity Leave Benefit Act, 1961 or Central Civil Services (Leave) Rules were not applicable to the female workers, engaged on muster roll, as their appointment was only on daily wages. The Tribunal allowed the claim of the female workers (muster roll) and directed the Corporation to extend the benefits under the Maternity Leave Benefit Act, 1961 to muster roll female workers who were in continuous service of the Corporation for three years or more. Challenge to award before the Honble High Court was dismissed by Honble Single Judge on 07.01.1997. The Letters Patent Leave (LPA No.64/1998) filed by the Corporation before the Division Bench was dismissed on 09.03.1998 on the ground of delay. Finally, the matter was taken up before the Honble Supreme Court and having analyzed the relevant statutory provisions on the subject, Honble Supreme Court ruled that a just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Their Lordships ruled that to become a mother is the most natural phenomena in the life of a woman and whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic to give and must realize 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. Relevant excerpt of the judgment read thus:-
14. With regard to the period of 240 days, the Select Committee remarked as under:
"The Committee are of the view that the qualifying condition of employment for a period of 240 days during the 12 months immediately preceding the expected date of delivery to entitle a worker to maternity benefit is too rigorous and the period should be reduced to 160 actual working days inclusive of the period of 'lay-off', if any."
15. Section 5-A provides that if the Employees' State Insurance Act, 1948 is applied or becomes applicable to the establishment where a woman is employed, such woman shall continue to be entitled to receive the maternity benefits under this Act so long as she does not become qualified to claim maternity benefits under Section 50 of that Act.
16. It may be stated that Section 50 of the Employees' State Insurance Act, 1948 provides as under:
"Maternity benefit - The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government."
17. Section 5-B of the Maternity Act speaks of payment of maternity benefit in certain cases. Section 6 provides notice of claim for maternity benefit and payment thereof. Section 8 provides that every woman entitled to maternity benefit under this Act shall also be entitled to receive her employer a medical bonus of 250 rupees, if no pre-natal confinement or post-natal care is provided by the employer free of charge.
18. Section 9 contemplates leave for miscarriage or medical termination of pregnancy. Section 9-A contemplates leave for tubectomy operation whereas Section 10 provides for leave for illness arising out of pregnancy, delivery, premature birth of a child or miscarirage. Section 11 provides as under:
"11. Nursing breaks - Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months."
19. Section 12, which contains a very significant prohibition in regard to the service of a woman employee, provides as under:
"12. Dismissal during absence or pregnancy - (1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus.
Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.
(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissal shall be final.
(c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1)."
20. This section prohibits dismissal of a woman employee during or on account of her absence on maternity leave. It ensures that the conditions of her service would not be varied to her disadvantage during her absence.
21. Contravention of the provisions of this Act has been made an offence under Section 21 of the Act which provides as under:
"21. Penalty for contravention of Act by employer - (1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharge or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees :
Provided that the Court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lessor term or fine only in lieu of imprisonment.
(2) If any employee contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both:
Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the Court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto."
22. Cognizance of offences has been provided for in Section 23, which is reproduced under:
"23. Cognizance of offences - (1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 or an Inspector, may file a complaint regarding the commission of an offence under this Act in any Court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the office is alleged to have been committed.
(2) No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act."
23. Section 27 deals with the effect of laws and agreements inconsistent with this Act. Sub-section (1) 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 a woman to enter into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those she would be entitled to under this Act.
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."
30. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. When 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 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.
31. Next it was contended that therefore the benefits contemplated by the Maternity Benefit Act, 1961 can be extended only to workwomen in an 'industry' and not to the muster roll women employees of the Municipal Corporation. This is too stale an argument to be heard. Learned counsel also forgets that Municipal Corporation was treated to be an 'industry' and, therefore, a reference was made to the Industrial Tribunal, which answered the reference against the Corporation, and it is this matter which is being agitated before us.
32. Now, it is to be remembered that the Municipal Corporations or Boards have already been held to be "industry" within the meaning of "Industrial Disputes Act". In Budge Budge Municipality v. P. R. Mukherjee, (1953) 1 Lab LJ 195 (SC), it was observed that the Municipal activity would fall within the expression "undertaking" and as such would be an industry. The decision was followed in Baroda Borough Municipality v. Its Workmen, (1957) 1 Lab LJ 8 : (AIR 1957 SC 110), in which the Court observed that those branches of work of the Municipalities which could be regarded as analogous to the carrying-on a trade or business, would be "industry" and the dispute between the Municipalities and their employees would be treated as an "industrial dispute". This view was reiterated in the Corporation of the City of Nagpur v. Its Employees, (1960) 1 Lab LJ 523 : (AIR 1960 SC 675). In this case, various Departments of the Municipality were considered and certain Departments including General Administration Department and Education Department were held to be covered within the meaning of "industry". The Punjab and Haryana High Court in Municipal Committee, Bhiwani v. Padam Singh, 1973 Lab IC 1512, held that fire-brigade service, maintained by Municipal Committee, was an "industry". But a contrary view was taken by the Bombay High Court in Administrator of the City of Nagpur Municipal Corporation v. Presiding Officer, Labour Court, Nagpur, 1976 Lab IC 107, which held that the fire-brigade service, maintained by the Municipal Corporation, was not an "industry". We are not, in this case, attempting to resolve the conflict between the Punjab and Haryana High Court and the Bombay High Court but what we intend to emphasise is that this Court has already held some of the Departments of the Municipal Corporation to be an "industry". The High Courts have also held the running of dispensary as also sanitary and conservancy activities to be an "industry". (See Sirur Municipality v. Its Workmen, (1960) 2 Lab LJ 657 : (AIR 1961 Bombay 75); Municipal Council, Washim v. Manguji Zenduji Dhamane, 1978 Lab IC 881). The Andhra Pradesh High Court in Rajendranagar Municipality v. B. V. Perraju, 1995 Lab IC 2102, has held that storing and distribution of water was a systematic activity of the Corporation which would fall within the definition of "industry".
33. Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of "industry". The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be "workmen" and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.
34. Delhi is the capital of India. No other City or Corporation would be more conscious than the City of Delhi that India is a signatory to various International covenants and treaties. The Universal Declaration of Human Rights, adopted by the United Nations on 10th of December, 1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. This was followed by a series of Conventions. On 18th of December, 1979, the United Nations adopted the "Convention on the Elimination of all forms of discrimination against women". Article 11 of this Convention provides as under:-
"Article 11
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular;
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.
(f) The right to protection of health and to satisfy in working conditions, including the safeguarding of the function of reproduction.
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.".
(Emphasis supplied)
35. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between Municipal Corporation of Delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to Sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages.
36. For the reasons stated above, the Special Leave Petition is dismissed.
5. In Chief Secretary, Govt. of NCT of Delhi and Anr Vs. Satish Kumar and Ors etc.etc. (W.P(C) 2915/2013), relied upon on behalf of respondents, the Lordships of Honble High Court left the issue open for the consideration of the respondents. Para 29 and 30 of the judgment read thus:
29. On the subject of maternity benefits we find that a Central Act called the Maternity Benefits Act,1961 has been promulgated as per which maternity benefits have to be provided by all employers, irrespective of the nature of employment, be it tenure, contractual or of a kind which has acquired a status but only in releation to such establishments as fall within the definition of Establishment in Section 3 (e) of the Act.
30. Since there are no pleadings on the applicability of the Maternity Benefits Act, 1961 we leave the issue open but with a direction to the Government of NCT of Delhi to consider whether the Maternity Benefits Act, 1961 is applicable to its employees as per the concept of an Established propounded by the Supreme Court in the decision reported as AIR 2000 SC 1274 Municipal Corporation of Delhi Vs. Female Workers (Muster Roll). The ratio decendi of the judgment of Honble High Court in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) is that for the purpose of maternity leave, the muster roll and regular workers need to be treated at par. It was way back in the year 1961 that the Maternity Leave Benefit Act, 1961 provided for maximum 12 weeks leave maternity leave. At that time, the beneficiary of CCS (Leave) Rules were also entitled to maternity leave only upto 3 months (90 days). It was only in the year 2008 that vide OM No.13018/2/2008-Estt. (L) dated 11.09.2008, the benefit of maternity leave for a period of 180 days from the date of its commencement is given to female Government servants. Thus the respondents need to consider the entitlement of the applicants for maternity leave with due regard to the ancillary legal provisions in vogue at that point of time when such leave is needed/availed by the ad hoc employees. In the wake, we dispose of Original Application with direction to respondents to examine the claim of the applicants for maternity leave upto 180 days, with due regard to the fact that in the year 1961 when the Maternity Leave Benefit Act, 1961 provided for 84 days maternity leave, the beneficiary of CCS (Leave) Rules were also entitled to such relief only upto 90 days and in 2008 the duration of such leave admissible in terms of the CCS (Leave) Rules has been increased to 180 days, thus the adhoc female employees also need to be benefited proportionately and give the applicants benefit of maternity leave upto 180 days. No costs.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sk .