When contractual employee is not entitled to get maternity leave?

IN  THE HIGH  COURT OF JUDICATURE  AT BOMBAY 

CIVIL  APPELLATE JURISDICTION
WRIT PETITION NO.2402 OF 2016

Laxmi  Subhash  Yadav
V/s.
Office  of Directorate
Through  Water and Sanitation
Support  Organization (WSSO)
Water Supply and Sanitation Department

CORAM :  S.C.DHARMADHIKARI AND  SMT. BHARATI H.DANGRE, JJ.

Dated : 13th October 2017.
1.   The   Petitioner   has   approached   this   Hon’ble   Court   for quashing and  setting aside of  the termination order,  dated 30th December, 2013 served upon the   Petitioner on 12th  February, 2014, thereby terminating her contractual services and she has further prayed that she be extended the benefits available to a female employee  under the Maternity Benefits  Act, 1961. The Petition  revolves  around certain  facts which are not disputed. The Petitioner  was  appointed as  Document Consultant by an order  dated 2nd April, 2013  appointing  her on the  said post with effect from 9th January, 2013  to  8th December, 2013 on consolidated salary of Rs.30,000/­ per month   on   contractual basis.   The said   appointment order was accompanied   with   a contract containing the terms and conditions of the appointment and Petitioner  had  accepted  the same  by  signing the contract. The terms and conditions clearly  mentioned that the services  of the Petitioner on contract basis are required in the Government of India funded Water and Sanitation Support Organization  (WSSO) under National  Rural Drinking  Water  Programme (NRDWP) in the   Water   Supply   and   Sanitation   department,   Government     of Maharashtra.   The   contractual   assignment   was   for     the   period commencing   from   9th  January,   2013   and   to   continue   till   8th December, 2013 and it was  mentioned that the contractual period of  11 months of the assignment may be shortened or terminated any   time     during   the   period   depending   upon   the   need     and progress   of     the   programme.   The   contractual   assignment contained clause No. (9)  which  reads as follows:

“He/She   will be eligible for total 08 days   of
casual leave (C.L.)  and 10 days  of Medical/sick
leave for a year or equivalent thereof   for the
proportionate   length   of   the   service   rendered.
However, for any assignment less than 3 months,
no Medical/Sick leave will be entitled. Further,
not more than  3  days of C.L.  will be allowed at
a time. In  case of fresh  agreement  signed  with
the contractual person, the leave shall not carry
over to the new contract period. No other kind of
leave shall be  admissible  to the consultant.”

The initial  contract was subsequently  extended for another period of  11 months by order dated 26th December, 2013 and  the appointment   was   continued   from     10th  December,   2013   to   9th November, 2014.

The   Petitioner   absented   herself   from   work   from   30th December,   2013   and   on   8th  January,   2014   she   submitted   an application   for   leave   addressed   to   the   Director,   Water   and Sanitation  Support  Organization, Belapur,   thereby     intimating that  she  was unable to attend the office since 1st January, 2014 due   to   her   ill     health.   It   was     also     informed   that   she   had developed  certain  complications  in her pregnancy  and  doctor had     advised her   complete bed­rest for   next three months. Therefore,   she   requested   for     grant   of   medical   leave   from   1st January,   2014     to   7th  April,   2014   considering   the   pregnancy complications. The said application was accompanied by certificate from a private Maternity  Hospital at Navi Mumbai,  where it was diagnosed       that   the   Petitioner     was   carrying     two   months pregnancy     and   she   was   advised   three   months   rest   from   8th January, 2014.     The   Petitioner   attempted   to   resume     her   services     by submitting  an application to the Director on 10th December, 2014, thereby  intimating that the doctor  had advised  her to  have rest due to complications in her pregnancy, therefore, she had sought leave for three  months, however,  now her health was good and therefore, as per the  doctor’s advice   she  intends  to resume  her duties.   The Petitioner was served with an order of termination dated  12th February, 2014 informing  that  in view of  her absence with effect from 30th December, 2013, her services were put to an end with effect from 30th December, 2013. She was not allowed  to resume   her   duties   and   she     preferred     representation     to   the Principal Secretary, Water Supply and Sanitation Department  on 13th  February, 2014. In the said representation   she mentioned that   she   had   applied   for     medical   leave   for   period   of     three months, however, her file has been processed as maternity leave, however  she had not  made any application for  maternity leave. Thereafter,   the   Petitioner   preferred   various   representations unsuccessfully.   The   Petitioner   has   further   contended   that   the representations  of the Petitioner  and the efforts by her to agitate before the employer that even contractual employee   should be entitled the benefits of maternity leave, ultimately yielded  results by   the   action   of   the   State   Government   issuing   a   Government circular on 20th  March, 2015, thereby extending the benefits of maternity   leave   to   the   contractual   employees   working   in   the District   Water   and   Sanitation   Mission   Cell   of   the   State Government and  by virtue of the State Government  Resolution, all the contractual women   employees working   in the District Water   and   Sanitation   Mission   would   be   entitled   for   maternity leave for  60 days and they would be entitled for  the pay  which they were entitled before proceeding on  leave.  Grievance of the Petitioner     however   is   that   the   benefits   of   such   Government Resolution is not extended to her.

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2. We have extensively   heard Advocate Shri Warunjikar, the learned counsel   for the Petitioner and Shri   B.V.Samant, A.G.P. for the Respondent.   The learned counsel   Shri Warunjikar   has invited our attention  to  International  Covenant  on  Economic Social and Cultural  Rights,  which   include a Covenant   relating to  special  benefits  to women during   period of pregnancy  and post­delivery and would rely upon clause (2)  of Article 10  of the said Covenant  which reads  as follows:

“Special   protection   should   be   accorded   to
mothers during  a reasonable period  before and
after   childbirth.   During   such   period   working
mothers should  be accorded  paid leave or leave
with adequate social security  benefits.”

He  also relied upon Article 25 of the Covenant  which reads as follow:

“Motherhood   and   childhood   are   entitled   to
special care and  assistance. All children, whether
born in or out of wedlock, shall enjoy the same
social protection.”

3. He   also   placed   heavy   reliance   on   the   judgment     of   the Hon’ble Apex Court in case of Municipal Corporation   of Delhi Vs. Female Workers (Muster  Roll and another )  reported in (2000)3 Supreme Court Cases 224, wherein the Hon’ble  Apex Court has conferred the benefits of the Maternity Benefits   Act, 1961, on the   female workers of the Municipal   Corporation   of Delhi, who were on muster roll and not in its regular employment. He emphasized on the observations of the Hon’ble Apex Court that the employer has to be considerate and sympathetic  towards  an employee, who is becoming a mother and he must realize the physical  difficulties, which working women undergo while rearing the child in their womb or while  raising a child  after birth.

4. Per contra,    the  learned  Assistant   Government    Pleader relied upon the affidavit­in­reply filed by the Director, Water and Sanitation Support Organization, Belapur, Navi Mumbai, wherein the Respondents  have categorically  stated that the appointment of the Petitioner was  contractual one and was governed  by the terms and conditions  mentioned in the appointment  order, which were binding between both the parties. It is stated   in the affidavit that the Petitioner  remained absent from duty from 1st January, 2014   to   8th  January,   2014   and   submitted   a   medical   leave application   on   8th  January,   2014   with   the   medical     certificate requesting for grant of  medical leave from 1st January, 2014 to 7th April,   2014   considering   the   pregnancy   complications.   It   is contended that the Petitioner  never  submitted a maternity leave application and since she has only  applied for medical leave, there is  no question of  granting her maternity leave and she was not entitled for medical leave  for  three months as per her terms and conditions of  appointment  which permitted only 8 days of casual leave and 10 days of medical leave as per clause No.9 of the contractual agreement. So far as   applicability   of   Government Circular  of  20th March, 2015 it is stated in the affidavit that the termination of the Petitioner   was effected from 30th  December, 2013 and the circular was  issued on 20th March, 2015,  which is prospective in  nature and did not  extend  to the  Petitioner. It is further contended by the Respondent  that the Petitioner is not in service and her services have been terminated and the issue of maternity  leave is  for the first time  agitated before  the Court and Petitioner  in  fact never applied for maternity  leave.

5. Since the facts are not in dispute,  we proceed to deal with the issue involved  in the present case. The Maternity Benefits Act, 1961  has been enacted  in the backdrop of the fact that  number of   women   are   employed   in   various     establishments   and   it   is necessary to confer certain benefits on such women who need certain  special treatment in a phase when they are rearing  the child in their womb  and also required to nurture the child after his birth. Article 42 of Constitution of India, in form of Directive Principle  mandates  the State to   make provisions  for securing just and humane condition of work and for maternity relief.    In   furtherance   of   the   said   duty   the   cast   on   the   State Government, the Parliament had  enacted the   Maternity  Benefits Act, 1961 and the  benefits  available  under the Act have  been made  available  to  various  class of  the  employees by the State Government  by making enactment  applicable  to them. The Act regulates the employment of  women  in certain  establishments for  certain   periods  before  and after  child birth  and  provide for maternity   benefit   and   certain other benefits. The said Act ensures the right to payment of   maternity benefits  which means the payment  referred to in sub­section 1  of Section 5. Further, the said Act also entitles a woman for payment of  medical  bonus, leave   for   mis­carriage   etc.   The   said   enactment     by     virtue   of Section 10 entitles a woman suffering from illness  arising out of pregnancy, delivery,  premature  birth of a child to be  entitled  to leave  with  wages  at the  rate of  maternity benefit  for maximum period of one month. This beneficial   piece of   legislation also prevents an employer from dismissing the   employee   when she absents herself from work during or  on account of such absence.  There is no quarrel  about the proposition that the said piece of legislation  is beneficial  legislation and is based on the principle of fair­play to the women  employee by   recognizing  the fact that motherhood is the most important  phase  in the life of a woman and she needs special treatment  during the said period.  However, from reading of the provisions of the Act  in   terms of the benefits to which an employee  is entitled under the  provisions of the Act, it is clear that the benefit  conferred upon  an woman employee in terms of the  maternity benefit is the  payment referred to in subsection 1 of Section 5. The said   Section   recognizes the factum that   a   women   needs   rest   preceding   the   crucial   phase   before delivering a child and another  critical  face  after  the  delivery, when   she   has   to   care   and   nurture   the   child   and   therefore,   it prescribes the maximum period for which the women shall be entitled   for   maternity   benefit   by   the   Maternity   Benefits (Amendment) Act of 2017, the said period has been permitted to be  26 weeks out of which not more than 8  weeks shall  precede date of her  expected delivery.     Section 6 prescribes   the manner in which   the maternity benefit   and payment thereof   can be availed and it requires a woman employed in the establishment  to give  notice in writing in such form as prescribed  stating that her maternity  benefit  and the amount to which she may be entitled  under the Act may be paid to her  or to a person  nominated by her  and she will not work during the said period for which she received the maternity benefit.  Further it also  mandates that a women who is pregnant should state in the  notice  the date  from which she will  absent from work not being a date earlier than  six weeks  from the date of her   expected delivery. It is also permissible   to give such a notice after delivery, if   such notice is not given when   she was pregnant  and on receipt of such notice the employer shall permit such women employee to absent herself from the establishment during     the period   when she receives the maternity benefit. Section 7, Section 9(a)  and Section 10 are the different instances of maternity benefits  which entitles a woman to certain benefits arising out of  pregnancy, delivery, miscarriage, premature  birth etc. Section 10 entitles  a woman suffering from illness  arising out of pregnancy,  delivery,  premature birth of a child, miscarriage, medical termination of   pregnancy to be entitled to leave with wages at the rate of maternity benefit for maximum  period of one month  which is   in addition  to  the period of  absence allowed to her under Section 6 or as under Section 9. Thus, the woman can avail   maternity   benefit   for   period of one month in total, in addition  to the period  i.e. prescribed  in Section 6. These are the special benefits  which are available under the Maternity Benefits Act, 1961, to a woman employee.

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6. The Petitioner was appointed   as a contractual employee and the terms and conditions of her  appointment  were governed by  the contract which she had signed on 2nd April, 2013. As  per the said contract, she was eligible for  8 days  casual leave and 10 days of medical  leave. The Petitioner  preferred an application for leave on 8th January, 2014 after  absenting  herself from duty from 30th  December,  2013 and  sought  medical  leave  for    period   of three months as per   doctor’s  advice. As a contractual employee she was not entitled for medical leave of three months, which she applied for. At the  relevant  time in her application she did not claim  the said  leave  as maternity benefit on account of illness arising out of  pregnancy. Her claim was for medical  leave which she   was     not     entitled   as   per   terms     and   conditions   of     the contract. In view of  her absenteeism  from 30th December, 2013 the  employer issued an order of termination with effect from date of her absence  i.e. 30th December, 2013. The Petitioner  herself has placed before us the documents  she  has sought under  the Right     to   Information   Act,     pertaining     to   the   notings   of   the department. Perusal of the note clearly reveal  that the Petitioner had  absented herself  from duty  from 30th December, 2013 and had sought medical leave   from 1st  January, 2014 to   7th  April, 2014 and since  she was working on contractual basis she was not entitled for  three months maternity benefit. The said application came to be rejected  with a   remark from Director that since the Petitioner was   working on contractual basis, she is not entitled for   leave of three   months and therefore, in absence   of   such leave to her credit her absenteeism from 30th  November, 2013 without  availability  of leave period  necessitated  the department to  terminate  the services of the Petitioner. It is further noted that the  circular  which the Petitioner has referred to, was issued on 20th March, 2015 by which the  benefits  of the maternity  leave were extended to the contractual   employees working   with the Respondent­department,   however,     the   said   circular   does   not operate   retrospectively and till the time of issuance of the said circular the contractual employees were entitled   for a limited casual leave and medical   leave during the period of   contract which did not include the   maternity leave.   This   came to be extended   to the contractual employees of the department   only with   effect   from   20th  March,   2015.     The   Petitioner     cannot therefore     claim     benefit of the said circular. The Petitioner thereafter made various  representations  and sought extension of benefit of the said Government Resolution  retrospectively  to her case, however,  the same was turned down.

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It is not  in  dispute that the law relating to maternity benefit has been enacted to  achieve the object of securing  social  justice to the women workers. However, it  has  also to be seen that when a law operates  it has to   strike a balance  between the  individual right and need of the orderly society. The Petitioner’s appointment was governed   by the terms  and conditions of the contract and the same  was binding upon her. By virtue of the contract she was not entitled for  maternity benefit  and  she was only  entitled for medical leave for limited period. She absented  herself  and  after one week submitted her leave application  with medical  certificate and prayed for grant of leave for   three months   when at the relevant time she was in the  very early stage of pregnancy. The policy contained in the social legislation intends  to grant  benefit to women  workers to  have a safe  pregnancy  and to  develop  a bond with the child and nurture   the child   immediately   after delivery,     expects   the   benefit     to   be   conferred   on   the   eve   of delivery  of a child and therefore, it has  bifurcated  the period into two terms namely   first   term, preceding the   delivery and the second  term  post­delivery . However,  the said  benefit  is not available  on the eve of pregnancy and the woman  is  not entitled to claim the said benefit   since the time  when a woman conceives and   during   her     entire     gestational     period.   If   the   maternity benefit is to be conferred in  this manner, it would rather defeat the whole purpose, since the employee  will  also have to look at it from the angle of  running   the administration  and the woman employees  may not claim such privilege  for  such  entire period of   pregnancy,   but   necessarily     have   to   regulate   themselves   in accordance   with   the   provisions   of   the   Maternity   Act.     In   any contingency, the Petitioner   was not entitled for  extension of  the benefits  of maternity leave in terms of her  order of appointment and   she  is   not   entitled   to   claim    benefit     of   the   Government Circular  dated 20th March, 2015, when her services were already terminated with effect from 30th December, 2013.

In view of the aforesaid  observations,  we are not  inclined to  grant  the relief  as prayed by the Petitioner namely reinstating the   Petitioner   till   completion   of   the   contractual   period   of employment. We do not find   merit in the   submission of   the Petitioner and in the result, we dismiss the   writ petition.   No order as to costs.

(SMT. BHARATI H. DANGRE,J.)       (S.C.DHARMADHIKARI,J.)

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