Karnataka High Court
Smt. Rekha N vs State Of Karnataka on 24 May, 2023
-1-
WP No. 22228 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.22228 OF 2021 (S-RES)
BETWEEN:
SMT. REKHA N.
W/O VISHWANATH,
AGED ABOUT 33 YEARS,
NO.133/1, NANJUNDESHWARA NILAYA,
5TH CROSS
KASTURBHA NAGAR,
PIPELINE WEST MYSORE ROAD,
BENGALURU - 560026.
...PETITIONER
(BY SRI. SUBRAMANI M. A., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF MEDICAL EDUCATION
M. S. BUILDING
Digitally signed by
ARUN KUMAR M S
BENGALURU - 560001
Location: HIGH COURT REPRESENTED BY ITS
OF KARNATAKA
PRINCIPAL SECRETARY.
2. BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
FORT, K.R. ROAD
BENGALURU - 560002
REPRESENTED BY ITS
DEAN AND DIRECTOR
...RESPONDENTS
(BY SRI. M.S.NAGARAJA, AGA FOR R1;
SRI B. SUDHAKAR, ADVOCATE FOR R2)
-2-
WP No. 22228 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE DIRECTION, DIRECTING THE RESPONDENT 2 TO
CONTINUE THE SERVICES OF THE PETITIONER AS COMPUTER
OPERATOR; DIRECT THE RESPONDENT 2 TO GRANT
MATERNITY BENEFITS TO THE PETITIONER AS REQUESTED BY
THE PETITIONER IN HER REPRESENTATION DATED 10.01.2020
AT ANNEXURE-L.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is seeking writ of mandamus, to the respondent No.2, to continue the service of the petitioner as computer operator interalia sought for maternity benefits as per the representation dated 10.01.2020 (Annexure- L) made by the petitioner.
2. It is the case of the petitioner that, the petitioner was appointed temporarily as Computer Operator with the respondent No.2, on 28.11.2011, and thereafter, the petitioner was transferred to respondent No.1 as per Annexure-B. The service of the petitioner was continued regularly, by the respondent No.1. It is further stated in the writ petition that, -3- WP No. 22228 of 2021 the petitioner has sought for maternity benefits, in terms of the provisions under Maternity Benefit Act, 1961 (for short, hereinafter referred to as Act). The petitioner delivered child on 24.12.2019 (Annexures-H and J). In the meanwhile, 2nd respondent addressed letter dated 09.01.2020 (Annexure- Q) to the 1st respondent to transfer the petitioner to the BMCRI as there was no work load in the 2nd respondent. The benefit sought for by the petitioner under provisions of the Act was not considered and in the meanwhile, the respondent has not allowed the petitioner to work in BMCRI or in the 1st respondent and the petitioner was not allowed to resume the work, after the completion of the maternity leave. Hence, this writ petition is filed.
3. I have heard Sri M.A.Subramani, learned counsel appearing for the petitioner; Sri M.S.Nagaraja, learned Additional Government Advocate for respondent-State and Sri B.Sudhakar learned counsel appearing for the respondent No.2.
4. Sri M.A.Subramani, learned counsel appearing for the petitioner contended that, the respondent No.2, has not complied with the direction issued by the respondent No.1 as -4- WP No. 22228 of 2021 per letter dated 09.01.2020 (Annexure-K) and further, the respondents herein have not sanctioned the maternity leave and such other benefits under the Act and therefore, learned counsel appearing for the petitioner places reliance on the judgment of the Hon'ble Apex Court in the case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and another reported in (2000) 3 SCC 224 and sought for interference of this Court.
5. Per contra, Sri M.S.Nagaraja, learned Additional Government Advocate and Sri B. Sudhakar, learned counsel appearing for the respondent No.4 submitted that this Court cannot issue writ of mandamus as there is no infringement of the right of the petitioner.
6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the petitioner was appointed temporarily on 28.11.2011, (Annexure-A) and thereafter, the service of the petitioner was continued without break, by the respondent-authorities. As per letter dated 09.01.2020, (Annexure-K), respondent No.1 addressed letter to the respondent No.2, to take back the petitioner to BMCRI as there is no workload in the respondent -5- WP No. 22228 of 2021 No.1. During the said interregnum period, the petitioner gave birth to a child on 24.12.2019 (Annexure-J). In the backdrop of these undisputed facts, it is the duty of the respondents to comply with the direction issued by the Hon'ble Apex Court in the case of Female Workers (supra) and the provisions under the Act. The Hon'ble Apex Court at paragraphs 33 to 38 of the said judgment reads as under:
"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 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 -6- WP No. 22228 of 2021 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.
34. Next it was contended that 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 the 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.
35. Now, it is to be remembered that the municipal corporations or boards have already been held to be "industry" within the meaning of "the Industrial Disputes Act". In Budge Budge Municipality v. P.R. Mukherjee [(1952) 2 SCC 619 : (1953) 1 LLJ 195 :
AIR 1953 SC 58] 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. Workmen [(1957) 1 LLJ 8 : AIR 1957 SC 110] in which the Court observed that those branches of -7- WP No. 22228 of 2021 work of the municipalities which could be regarded as analogous to the carrying-on of 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 Corpn. of the City of Nagpur v. Employees [(1960) 1 LLJ 523 : AIR 1960 SC 675] . In this case, various departments of the Municipality were considered and certain departments including the General Administration Department and the 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 : 43 FJR 382 (P&H)] held that the fire brigade service, maintained by the Municipal Committee, was an "industry". But a contrary view was taken by the Bombay High Court in Administrator of the City of Nagpur Municipal Corpn. v. Labour Court, Nagpur [1967 Lab IC 107 (Bom)] 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 a dispensary as also -8- WP No. 22228 of 2021 sanitary and conservancy activities to be an "industry". (See: Sirur Municipality v. Workmen [(1960) 2 LLJ 657 (Bom)] and Municipal Council, Washim v. Manguji Zenduji Dhamane [1978 Lab IC 881 : 1977 Mah LJ 805 (Bom)] .) The Andhra Pradesh High Court in Rajendranagar Municipality v.
B.V. Perraju [1995 Lab IC 2102 (AP)] has held that storing and distribution of water was a systematic activity of the Corporation which would fall within the definition of "industry".
36. 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.
37. Delhi is the capital of India. No other city or corporation would be more conscious than the city of -9- WP No. 22228 of 2021 Delhi that India is a signatory to various international covenants and treaties. The Universal Declaration of 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. This was followed by a series of conventions. On 18-12-1979, 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
- 10 -WP No. 22228 of 2021
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 safety 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
- 11 -WP No. 22228 of 2021
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)
38. These principles which are contained in Article 11, reproduced above, have to be read into the
- 12 -
WP No. 22228 of 2021contract 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 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."
7. In view of the law declared by the Hon'ble Apex Court, I am of the view that, the petitioner is entitled for maternity leave of six months, in terms of the amended Act of 2017. Though it is the case of the respondents that the petitioner was appointed temporarily, however, that itself is not a ground to deny reinstatement in the very same post after availing the benefits under the Act. It is settled principle in law that, motherhood is the fundamental right and during the said
- 13 -
WP No. 22228 of 2021period, it is the duty of the respondent to protect the interest of the female employees in terms of the object enshrined under the Act and during the said period, the respondent- authority/Employer should not resorted to relieve the female employee. Under the service jurisprudence and to effectuate the scope and ambit of the Act, there is no difference or distinguishing facts of temporary or permanent post. In the instant case, the respondent No.1 is the Department of Medical Education and respondent No.2 is Medical College are duty bound to execute the provisions under the Act in favour of such female employees and being an authority in law, the respondents herein ought not to have refused the petitioner to work in their Department. Apart from this, these two Departments are the mainstream to advance the justice by implementing the provisions of the Act. I have also noticed that, nothing is produced by the respondents to relive the petitioner from the service nor to discontinue her services. In that view of the matter, respondents herein are directed to allow the petitioner to work in their Department with all consequential benefits derived in terms of the Act, as well as to pay the salary to the petitioner which are due to her till the
- 14 -
WP No. 22228 of 2021date of reinstatement as the respondents have not allowed the petitioner to work with them, even after the completion of the maternity leave despite the petitioner made representations dated 10.01.2020, 22.01.2020, 22.06.2020, 29.09.2021 (Annexure-L to Q). Respondents are also directed to reinstate the petitioner forthwith in the light of the judgment passed by this Court in the case of Smt. B.T.Netravati vs. State of Karnataka disposed of on 05.09.2019 (Annexure-R) in W.P.No.44563 of 2013, confirmed by the Division Bench in W.A.No.3259 of 2018 disposed of on 21.08.2019 (Annexure-S) and in the case of Smt B.S.Rajeshwari vs. State of Karnataka, disposed of on 04.02.2021 in W.P.No.10677 of 2020 (Annexure-T). In the result, I pass the following:
ORDER
i) The writ petition is allowed;
ii) Respondent No.2 herein are directed to reinstate the petitioner forthwith in the post she held earlier, with 50% back wages from the 10.01.2020 (Annexure-L) till the date of reinstatement.
- 15 -
WP No. 22228 of 2021
iii) Respondents herein are directed to pay Rs.25,000/- as cost of litigation to the petitioner within four weeks from the date of receipt of certified copy of this order.
SD/-
JUDGE SB List No.: 1 Sl No.: 18