Plea Filed In Karnataka High Court Against Govt Notification Mandating 1-Day Paid Menstrual Leave In Registered Industrial Establishments

A petition has been filed in the Karnataka High Court challenging a November 20 government notification mandating industrial establishments registered under various laws, to provide one day of paid leave per month to all permanent, contract, outsourced women employees during their menstrual cycle,

The plea pertains to establishments registered under various laws such as the Factories Act, Karnataka Shops and Commercial Establishments Act, Plantations Labour Act,  the Beedi and Cigar Workers (Conditions of Employment) Act, and the Motor Transport Workers Act, and the leaves are restricted to 12 days per annum.

The petition is filed by Bangalore Hotels Association and states that currently the association has around 1540 establishments/owners as its active members. It has been formed with the purpose of promoting and protecting the interest of the members through representation, consultation, advocacy, education besides fostering harmonious relations between its members.

It states that the statutes under which the establishments are registered primarily regulate health, welfare and overall working conditions of the employees including hours of work, weekly holidays, leave with wages etc.

That apart, clause 9 of the Model Standing Orders appended to the Karnataka Industrial Employment (Standing Orders) Rules,  mandates the employers to provide leave with pay as provided under the Factories Act, 1948, and other holidays in accordance with law, contract, custom and usage.

Further, clause 10 of the Model Standing Orders provides for casual leave and a workmen may be granted casual leave of absence with or without pay not exceeding 10 days in a calendar year.

Thus, the petitioner contends that there is a comprehensive statutory framework through the aforesaid statutes mandating the employers to provide sufficient leave to the employees.

However, the plea claims that the notification issued by the state government is not supported by any legislative enactment. In other words, there is no specific provision in the statutes mentioned hereinabove mandating employers to provide menstrual leave to the female employees and as such, the Government is not empowered to direct the industrial establishments to provide menstrual leave by way of an executive order.

The plea claims that the respondent instead of leaving it to the employers to decide appropriately on granting of menstrual leave as part of their HR policies, has unnecessarily interfered in the affairs of the employers.

It is also claimed that respondent has not issued any preliminary notification seeking objections from the stakeholders, proposing the menstrual leave and as such, the Impugned notification has been issued in violation of principles of natural justice.

The plea claims that it was imperative for the Government to issue a preliminary notification seeking objections of the employers, who are one of the important stakeholders.

Further, granting of menstrual leave is likely to cause additional financial burden depending upon the size of the female employees and as such, it causes serious civil consequences, the petitioner has said. 

Accordingly the plea seeks quashing of the notification as being unconstitutional and ultra vires to Article 14 of the Constitution of India.