Madhya Pradesh High Court
Dr. Vandna Singh vs The State Of Madhya Pradesh on 30 September, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-10795-2021
The High Court Of Madhya Pradesh
WP-10795-2021
(DR. VANDNA SINGH Vs THE STATE OF MADHYA PRADESH AND OTHERS)
4
Jabalpur, Dated : 30-09-2021
Heard through Video Conferencing.
Shri K.C. Ghildiyal, Advocate for the petitioner.
Shri Shivam Hazari, P.L. for the respondents-State.
With the consent of parties, matters are finally heard. The present petition is being filed challenging the endorsement made on the maternity leave application by the respondent No.4 whereby the maternity leave has been rejected.
It has argued that the petitioner was initially appointed as a Senior Resident in Department of Obstetrics & Gynecology, Shyam Shah Medical College & Sanjay Gandhi Memorial Hospital, Rewa on 20.8.2020. Initially the appointment was for 1 year extended upto 3 years. The petitioner join the services on 31.8.2020. An application seeking maternity leave was submitted on 15.4.2021 for a period of 6 months commencing from 16.4.2021 but same has been returned by the respondent No.4 making an endorsement that except 12 days casual leave, a Senior Resident is not entitled for any other kind of leave. It is pointed out that the endorsement made on the application is contrary to the provision of Maternity Benefit Act, 1961 and also the law laid down in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and another, (2000) 3 SCC 224 and decisions of this Hon'ble Court rendered in the case of Mrs. Priyanka Gujarkar Shrivastava Vs. Registrar General & Another (W.P. No.17004/2015) a n d Smt. Archana Pandey Vs. State of M.P. & others (W.P. No.15523/2016).
It has submitted that the Hon'ble Supreme Court as well as Division Bench in the aforesaid cases has categorically held that granting of maternity leave to a regular employee or contractual employee or an adhoc employee 2 WP-10795-2021 on temporary basis is permissible. It is argued that even a contractual employee or an adhoc employee working on temporary basis is entitled to claim the maternity leave then making an endorsement of the application virtually denying the maternity leave to the petitioner is against the dictum of the Hon'ble Supreme Court as well as the Division Bench of this Court. In such, petition is filed seeking quashment of the condition which has been incorporated.
Per contra counsel appearing for the respondents by filing return has denied the contention and has submitted that in terms of the terms and conditions stated in the appointment order, the petitioner is entitled for 12 days leave in one year and one day in one week and she is not entitled to any other leave. The appointment on the post of Senior Resident is completely temporary and for a specific term, maximum for a period of 3 years, thus petitioner is bound by the terms and conditions of the appointment. In such circumstances, denying the maternity leave to the petitioner is rightly being done and the same does call for any interference.
Heard learned counsel for the parties and perused the record. The law with respect to grant of maternity leave was considered by the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and another, (2000) 3 SCC 224 wherein it was held as under:
32. 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
3 WP-10795-2021 emphasised by this Court in several decisions. In Crown Aluminium Works v. Workmen [AIR 1958 SC 30 : 1958 SCR 651 :
(1958) 1 LLJ 1] 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 Spg. & Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India [AIR 1964 SC 737 :' (1964) 3 SCR 724 : (1963) 2 LLJ 436] Gajendragadkar, J., (as his Lordship then was), speaking for the Court, said:
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, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socio-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."
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 phenomenon in the life of a woman.
Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a 4 WP-10795-2021 working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre-or post-natal period.
37. ........................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)
17. The principle laid down in Municipal Corporation (supra) 5 WP-10795-2021 was followed in the case of Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, wherein it was held that
13. In MCD v. Female Workers (Muster Roll) [(2000) 3 SCC 224 : 2000 SCC (L&S) 331] the short question which was to be decided by this Court was whether having regard to the provisions contained in the Maternity Benefit Act, 1961, women engaged on casual basis or on muster roll basis on daily wages and not only those in regular employment were eligible for maternity leave. The Court while upholding the right of the female workers to get maternity leave relied upon the doctrine of social justice as embodied in the Universal Declaration of Human Rights Act, 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women held that the provisions of the same must be read into the service contracts of Municipal Corporation.
18. This ratio was followed by various High Courts in similar matter. This Court has taken note of this legal journey in the case of Smt. Archana Pandey (supra). The relevant portion of this judgment reads as under:
"' The singular question in this case is whether the petitioner, a contractual employee is entitled to get the benefit of maternity leave. The petitioner's claim is based on Maternity Benefit Act, 1961 and its interpretation by various Court whereas the stand of respondents is based on Clause 6.7 of the Contract of Appointment wherein it is mentioned that the petitioner will get the benefit of maternity leave only after completion of one year's period from the date of appointment. Thus, as noticed, the core issue is whether the petitioner is entitled to get the benefit of maternity leave.
2. Section 27 of the Maternity Benefit Act was considered by 6 WP-10795-2021 the Supreme Court in the case reported in 2000 (3) SCC 224 [Municipal Corporation of Delhi V. Female Workers (Musteroll) and another]. The said Supreme Court judgment was recently considered by the Division Bench of this Court in the case of Mrs. Priyanka Gujarkar Shrivastava Vs. Registrar General& another in W.P.No.17004/2015 whereas this Court opined as under:
"œ12. ...............If we analyse each and every wordand the anxiety expressed by the Hon. Supreme Court in the judgment, we have no hesitation in holding that in the case of a woman irrespective of the place where she If we analyse each and every word and the anxiety expressed by the Hon'ble Supreme Court in the judgment, we have no hesitation in holding that in the case of a woman irrespective of the place where she is working and irrespective of capacity of her appointment, the nature and tenure of her appointment and the duties performed by her, when it comes to granting her the benefit of facilities required to give birth to a child the employer is duty bound under the Constitution to provide her all the benefits and that is why it has been held by the Hon'ble Supreme Court that the benefit of Maternity Benefit Act, 1961 should be conferred to even muster role employees working in the Delhi Municipal Corporation and if the aforesaid principle is applied in the present case, we see no reason as to why the benefit of Maternity Benefit Act should not be given to a woman contractual employee even if she is working in the establishment of the District and Sessions Judge.
13. x x xx
14. x x x x
15. x xxx
16. Identical issue of granting maternity leave 7 WP-10795-2021 to women employees appointed on contract basis or on adhoc or temporary basis have been considered by the Allahabad High Court, the Rajasthan High Court, the Punjab & Haryana High Court and the Uttarakhand High Court and based on the law laid down by the Supreme Court in the case of Female Workers (Muster Roll) (Supra), petitions have been allowed and directions issued to grant benefit to the employees. The Division Bench of the Allahabad High Court in the case of Dr. Parul Mishra Vs. State of U.P. decided on 27 th January, 2010 in the case of a Lecturer working as Government and Post Graduate College on contract basis, after applying the laid down in the Supreme Court Female Workers (Muster Roll) (Supra) held that the employees therein was entitled to avail maternity benefit as is applicable to regularly lecturer in the Government College and identical contention of the State Government counsel to say that contractual employees are not entitled for maternity benefit was rejected. It was held by the learned High Court that the maternity leave does not change with the nature of employment. It is concerned with human right of a women and the employer and the Courts are bound under the constitutional scheme guaranteeing right to life, a right to live with dignity and protect the health of both mother and child, and after taking note of identical principle, petitions have been allowed. Similarly, the Rajsthan High Court in various writ petitions has directed for granting benefit to contract and temporary employees who are also claiming identical benefit in the cases of Civil Writ No.1598/2017 Meenakshi Rao Vs. State of Rajasthan & others decided on 14 th 8 WP-10795-2021 February, 2017 following earlier an judgment of the Rajasthan High Court rendered by Division Bench in the case of Neetu Choudhary Vs. State of Rajasthan & others (2008) Vol.-II RNW page 1404 (Raj). The Punjab & Haryana High Court has also granted similar benefit and allowed identical writ petition in the case of Anima Goel Vs. Haryana State Agricultural Development Corporation (2007) Vol.III LLJ page 64, Punjab & Haryana and the Uttarakhand High Court has allowed a writ petition on identical terms in the case of Smt. Nidhi Choudhary Vs. State of Uttarakhand Writ Petition No.1866/2016 decided on 27.09.2016. Copies of all these judgments available in the website of Indian Kanoon Organization have been produced before us for perusal and we find that in all these cases after applying the law laid down by the Supreme Court as detailed here-in-above, identical writ petitions have been allowed and contractual employees have been directed to be granted the benefit of maternity leave at par with regular employees and we see no reason to take different view.
3. In the light of the judgment of Supreme Court in Female Workers' case (supra) which is followed by this Court in the case of Mrs. Priyanka Gujarkar (supra) curtains are finally drawn on the issue involved in the present case. Accordingly, the action of the respondents whereby the claim of the maternity benefit was denied cannot be accepted. It runs contrary to the legislative mandate flowing from Maternity Benefit Act, 1961. Resultantly, the impugned orders dated 13.7.2016 (Annexure P-1) and 7.9.2016 (Annexure P-2) are set aside to the extent it relates to non-grant of maternity benefits to the petitioner. The respondents are 9 WP-10795-2021 directed to grant maternity benefit to the petitioner as per the Act, 1961."
(Emphasis supplied) From perusal of the legal proposition it is apparently clear that the employees working on contractual basis, adhoc basis and on regular basis are entitled for maternity benefits in terms of Maternity Act, 1961. From the perusal of the endorsement made on the application by the respondent No.4 wherein it is stated as under:-
vkj-vkbZ-vks-%& ewyr% okil dj ys[k gS fd ,l@vkj dks 1 o"kZ esa 12 lh,y ds vykok vU; fdlh Hkh izdkj ds vodk'k ns; ugha gSA The aforesaid endorsement is contrary to the dictum laid down by the Hon'ble Supreme Court as well as High Court in other case. In such circumstances, the endorsement made on the application is unsustainable and is hereby set aside.
The matter is relegated back to the respondent No.4 for fresh consideration of the application for maternity leave of the petitioner. The respondent No.4 is directed to reconsider the application and passed a self contained speaking order taking into consideration the judgment passed in the aforesaid cases, within a period of ten days from the date of receipt of certified copy of this order and communicate the out come to the petitioner.
Petitioner is directed to supply the certified copy of this order to the respondent No.4 within a period of five days.
CC as per rules.
(VISHAL MISHRA) JUDGE irfan Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.10.04 18:03:59 +05'30'