Jharkhand High Court
The State Of Jharkhand Through The ... vs Rani Dwivedi Aged About 31 Years on 1 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.668 of 2022
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1. The State of Jharkhand through the Secretary, Rural Development
Department, Government of Jharkhand, having its Office at F.F.P.
Building, H.E.C. Campus, Dhurwa, P.O. & P.S. Dhurwa, District
Ranchi
2. The Special Secretary, Rural Development Department,
Government of Jharkhand, having its Office at F.F.P. Building,
H.E.C. Campus, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi
3. The Deputy Development Commissioner, Garhwa, P.O., P.S. &
District Garhwa .... .... Appellants
Versus
Rani Dwivedi aged about 31 years, wife of Deepak Kumar,
resident of Village Gara Khurd, P.O. Sundipur, P.S. Kandi,
District-Garhwa, Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Sharad Kaushal, AC to AAG-III
For the Respondent : Mr. Birendra Kumar, Advocate
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04/Dated: 01.08.2023
Per Sujit Narayan Prasad, J.
The instant appeal under Clause-10 of the Letters Patent is directed against the order dated 30.11.2022 passed by the learned Single Judge of this Court in W.P.(S) No.5654 of 2022, whereby and whereunder, the part of the order, which has been issued by the learned Single Judge by way of mandamus directing the Chief Secretary of the State to ensure that a complaint is filed against the erring officer by the Inspector appointed under the Maternity Act and if any Inspector has not been appointed then by the Secretary of the 2 Department before the Chief Judicial Magistrate, Ranchi and after doing so, the report be sent to this court within two weeks, is under challenge.
2. The appeal has been filed when the writ petition is lying pending for adjudication of right of the litigant concerned, the petitioner herein.
3. It appears from the pleading made in the writ petition that the writ petitioner is working under the Rural Development Department in the capacity of contractual worker. She, while working, as such, raised a claim for maternity benefits under the provision of the Maternity Benefit Act, 1961 (hereinafter referred to as the Act, 1961). But the said claim was rejected vide decision taken as contained in memo no.3665 dated 17.10.2022.
4. The writ petitioner, being aggrieved with the rejection of the said claim, has approached to this Court by filing the writ petition being W.P.(S) No.5654 of 2022.
5. The issue/ground has been raised by the conferment of right upon the writ petitioner by virtue of enactment of the Maternity Benefit Act, 1961.
6. The learned Single Judge, after taking into consideration the provision as contained under Section 21 read with Section 23 of the Act, 1961 has passed a direction upon the Chief Secretary of the State to ensure that a complaint is filed against the erring officer by the Inspector appointed under the Maternity Act and if any Inspector has not been appointed then by the Secretary of the Department 3 before the Chief Judicial Magistrate, Ranchi and after doing so, the report be sent to this court within two weeks, the said part of the order is under challenge in this appeal.
7. Mr. Sharad Kaushal, learned A.C. to A.A.G.-III appearing for the State-appellants has only argued by taking the ground that the benefit under the Act, 1961 is not admissible to the contractual appointees.
8. While on the other hand, Mr. Birendra Kumar, learned counsel appearing for the writ petitioner who has appeared on being called upon, as would appear from the order dated 06.01.2023, has submitted by referring the intent and object of the Act, 1961, whereby and whereunder, no discrimination has been carved out based upon the nature of appointment.
9. The very object of the Act, 1961 is to extend the maternity benefit, irrespective of the nature of appointment, even though, the concerned employee/worker is working in the establishment.
10. Further, the learned Single Judge has taken into consideration the issue that in case of non-disbursement of the benefit under the Act, 1961 which is a penal offence, and as such, in terms of Section 23 of the Act, 1961, the cognizance is also being taken on complaint being made by the Inspector.
11. The learned Single Judge has passed the said order of institution of the complaint by taking into consideration the very object and intent of the Act, 1961 and as such, the same cannot be said to suffer from an error, hence, the instant appeal is fit to be 4 dismissed.
12. We have heard the learned counsel for the parties and gone across the pleading made in the writ petition as also the order passed by the learned Single Judge.
13. The issue which requires consideration in this case, i.e., "Whether the direction to lodge complaint be said to be unjustified in a case where the maternity benefit if denied to a contractual employee working in the State?"
14. The writ petition, since, is pending for its consideration and as such, this Court deems it fit and proper not to touch the issue on merit. However, the part of the order which pertains to direction for instituting complaint is under consideration in this intra-court appeal, therefore, this Court is required to consider that in the facts and circumstances of the case on passing such direction, the learned Single Judge has committed any error.
15. This Court in order to assess the same, deems it fit and proper to refer the very object and reason for which the Maternity Benefit Act, 1961 has been enacted.
16. The Act, 1961 has been enacted to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits having been enacted by virtue of the Act, 1961 only on 12th December, 1961.
17. The very object, as would appear from the Amendment Act, 21 of 1972 that the Maternity Benefit Act, 1961 does not by reason of 5 the provisions of sub-section (2) of Section 2 thereof, apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948, apply. Therefore, amendment has been carved out in order to remove aforesaid lacuna and the proposal was come to amend the Benefit of 1961 Act so as to provide that in the event of the application of the Employees' State Insurance Act, 1948 to any factory or establishment, maternity benefit under the Maternity Benefit Act would continue to be available to women workers therein, until they become qualified to claim similar benefit under the Employees' State Insurance Act.
18. The amendment has further been carved out by way of Amendment Act 52 of 1973 on the issue of extending the said benefit to the Circus Industry. Accordingly, the amendment has been made under the Act, 1961 applying the provisions of the Maternity Benefit Act, 1961 to establishments in the Circus Industry. Since the Circus Companies move from place to place, it is considered that for the effective enforcement of the Act in relation to establishments in the Circus Industry, the appropriate Government should be the Central Government instead of the State Government.
19. The Act has further been amended by virtue of Amended Act 53 of 1976, whereby and whereunder, the establishments are covered by the Employees' State Insurance Act, 1948, has further been incorporated within the purview of the Act, 1961.
20. It further appears that the provision of Maternity Benefit Act has been enacted in view of the Directive Principles of the State Policy, 6 so as to fulfill the aim and object as set out in Article 39 of the Constitution of India. The reason behind is that the women 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. The said reason was the object so as to provide protection to the pregnant women.
21. The issue of applicability/implication of the Maternity Benefit Act, 1961 fell for consideration before the Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vrs. Female Workers (Muster Roll) & Anr., reported in A.I.R. 2000 SC 1274, wherein, the cases of the female worker working in the muster roll was the issue and keeping the object of the Act, the benefit under the Act, 1961 was directed to be given. For ready reference, paragraphs-11 & 35 of the said judgment are being referred as under:-
"11. Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner Corporation. But the benefit is not being made available to the women employees engaged on muster roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily-wage basis.
35. These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between the 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 7 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."
22. However, the appeal is not with respect to entitlement of the writ petitioner but the direction, so passed by the learned Single Judge for instituting a complaint, is based upon the factual aspect that the appellant who is working on contract basis, is entitled for maternity benefit and as such, the same is required to be considered, since, in absence thereof, the direction, so passed by the learned Single Judge cannot be assessed as to whether it is proper or not.
23. This Court, on the basis of the aforesaid reference of very object and intent is now proceeding to examine the issue as to whether the contractual workers will come under the fold of beneficiaries under the Act, 1961.
24. The 'employee' although has not been defined under the said Act, but the definition of 'employer' is to be seen, as defined under Section 3(d) which means-
(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the 8 Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;
(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;
25. It is evident from the aforesaid definition of the 'employer' which speaks about the establishment which is under the control of the Government a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department, in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority and in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person.
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26. The 'establishment' has been defined as under Section 3(e) which means-
(i) A factory;
(ii) A mine;
(iii) A plantation;
(iv) An establishment wherein persons are employed for the
exhibition of equestrian, acrobatic and other performances; (iv-a) a shop or establishment; or
(v) An establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable.
27. Section 4 is also require to refer herein, whereby and whereunder, it has been provided that no employment of, or work by, women prohibited during certain period.-(1) no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, [miscarriage or medical termination of pregnancy].
28. Sub Section (2) of Section 4 thereof provides that no woman shall work in any establishment during the six weeks immediately following the day of her delivery, [miscarriage or medical termination of pregnancy].
29. While sub section (3) thereof provides that without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do 10 during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
30. Section 5 speaks about right to payment of maternity benefits, which is being referred as under:-
"Right to payment of maternity benefits.-(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.] Explanation.--For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest].11
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 3[eighty days] in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.-For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, 5[the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
[(3) The maximum period for which any woman shall be entitled to maternity benefit shall be 7[twenty-six weeks of which not more than eight weeks] shall precede the date of her expected delivery:] [Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not 12 more than six weeks shall precede the date of her expected delivery:] [Provided further that] where a woman dies during this period, the maternity benefit shall be payable payable only for the days up to and including the day of her death:
[Provided also that] where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the Child.] [(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.
(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.]" 13
31. It is evident from the provision as stipulated under Section 5 thereof that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of average daily wage for the period of her actual absence.
32. The word as referred in Section 5 that "every woman has been made entitled and the employer concerned has been held liable for making payment of the benefit under the Act, 1961.
33. The moment statute refers under the provision carving out right for payment of maternity benefit by insertion of the word holding all the women entitled for the said benefit, which according to our considered view, cannot be said to be not applicable depending upon the nature of appointment, rather, only criteria that the woman is working in any establishment and employer such establishment shall be liable for payment of maternity benefit.
34. The Act, 1961 since is a beneficial piece of legislation, therefore, due care has been taken by the legislature while enacting the Act by taking measures for enforcement of the Act, so as to the very object of the Act be achieved for which the Inspectors have also been decided to be appointed, as would appear from Section 14 thereof.
35. Section 15 speaks about power and duties of Inspectors and Inspectors have been treated to be public servants within the meaning of 21 of the Indian Penal Code.
36. The power of Inspector to direct payments to be made has been dealt with under Section 17 of the Act, 1961.
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37. For ready reference, Sections 14, 15, 16 and 17 are being referred as under:-
"14. Appointment of Inspectors.-The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to by Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their function under this Act.
15. Powers and duties of Inspectors.- An Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely: -
(a) enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection;
(b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself:
(c) require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received form them under this Act; and
(d) take copies of any registers and records or notices or any portions thereof.
16. Inspectors to be public servants.-Every Inspector appointed under this Act shall be deemed to be a public 15 servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
17. Power of Inspector to direct payments to be made. - [(1) Any woman claiming that-
(a) maternity benefit or any other amount to which she is entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld;
(b) her employer has discharged or dismissed her during or on account of her absence from work in accordance with the provisions of this Act, may make a complaint to the Inspector.
(2) The Inspector may, of his own motion or on receipt of a complaint referred to in sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that-(a) payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders;
(b) she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may pass such orders as are just and proper according to the circumstances of the case.] (3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such persons, appeal to the prescribed authority.
(4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final.
[(5) Any amount payable under this section shall be recoverable by the Collector on a certificate issued for that amount by the Inspector as an arrear of land revenue.]"
38. Section 21 speaks about the penalty for contravention of Act by employer and Section 22 speaks about penalty for obstructing 16 Inspector while Section 23 speaks about cognizance of offences, for ready reference, Sections 21, 22 and 23 are being reproduced hereinbelow:-
"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 discharges 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 lesser term or fine only in lieu of imprisonment. (2) If any employer 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 17 maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.]
22. Penalty for obstructing Inspector.-Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment 1[which may extend to one year, or with fine which may extend to five thousand rupees], or with both.
23. Cognizance of offences.--(1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 (21 of 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 offence 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.]"
39. It is, thus, evident by going through the provisions as referred hereinabove more particularly Section 5 and in order to achieve the object, the Inspectors have been appointed and further, non- observance of the Act by not extending the benefit, has been made to be the cognizable offence.18
40. The ground which has been taken in the instant appeal while challenging the part of the order that the writ petitioner is working on contract basis and as such, the learned Single Judge ought to have considered the aforesaid issue before issuance of direction for lodging the complaint.
41. This Court, since, has discussed the very object and intent of the Act, 1961, wherein, even the workers working in the Circus Industry has been directed to be extended with the benefit of the Act, 1961 and as such, we prima-facie are of the view that there cannot be any discrimination for denying such benefit to the contractual employee.
42. We are only expressing our prima-facie view, since, the writ is lying pending before the learned Single Judge for its consideration.
43. The fact remains that when the Act has been enacted making the same in case of non-compliance of the provision to be the cognizable offence and if the learned Single Judge in that pretext, after taking into consideration that the said benefit has not been extended, has passed an order directing the Chief Secretary of the State to ensure that a complaint is filed against the erring officer by the Inspector appointed under the Maternity Act and if any Inspector has not been appointed then by the Secretary of the Department before the Chief Judicial Magistrate, Ranchi, the said finding, according to our considered view, cannot be said to suffer from an error for the reason of achieving the object and intent of the Act as per the discussion made hereinabove.19
44. Therefore, this Court is of the view that the part of the order for which the instant appeal has been filed, i.e., the order directing the Chief Secretary of the State to ensure that a complaint is filed against the erring officer by the Inspector appointed under the Maternity Act and if any Inspector has not been appointed then by the Secretary of the Department before the Chief Judicial Magistrate, Ranchi and after doing so, the report be sent to this court within two weeks, is hereby refused to be interfered with.
45. In the result, the instant appeal fails and is dismissed.
46. Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Rohit/-A.F.R.