Birth Of First Child Before Joining Service not a bar for availing Maternity Leave After Joining Service Under AAI Regulations: Bombay High Court

A Division bench of the Bombay High Court comprising of Justice A. S. Chandurkar and Justice Jitendra Jain in the case of Airports Authority of India Workers Union & Anr Vs The Under Secretary, Ministry of Labour & Anr has held that birth of a first child before joining the service is not relevant for considering of maternity leave after joining the service. The object of Maternity Benefit Regulation under AAI Regulations is not to curb the population but to give such benefit only on two occasions during the service period. Background Facts Kanakavali Raja Armugam (Petitioner) got married in July 1997 and gave birth to one child from the said wedlock. However, the husband of the Petitioner passed away in 2000 and the Petitioner was given compassionate appointment with Airports Authority of India (Respondent) as junior attendant in 2004. The Petitioner remarried in 2008 and gave birth to 2 more children out of the wedlock, one in 2009 and another in 2012. At the time of delivering the third child in 2012, the Petitioner applied to the Respondent for Maternity Leave which was rejected on the ground that the Petitioner was already having more than 2 children surviving and thus she was not eligible for grant of medical leave as per the Airport Authority of India (Leave) Regulations, 2003 (2003 Regulations). Thus, the writ petition was filed. It was contended by the Petitioner that the 2003 Regulation would not be applicable to her since she only gave birth to 2 children after being appointed and her first child was born before her appointment. Considering the objective of maternity leave, the Respondent was not justified in rejecting the maternity leave benefit application of the Petitioner. On the other hand, it was contended by the Respondent that as per the 2003 Regulation, since the Petitioner was already having 2 surviving children at the time of giving birth to the third child, she was not eligible to maternity leave. For the purpose of the 2003 Regulations, it is the number of children born to the Petitioner which is to be seen. Findings of the Court The court observed that as per the 2003 Regulations, a female employee with less than 2 surviving children may be granted Maternity Leave of 135 days twice in their service period. An “employee” means a person in whole time service of the Respondent. Further the court observed that Article 42 of the Constitution of India provides that the state shall make provision for securing just and humane conditions of work and for maternity relief. Thus, validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 of the Constitution of India which is although not enforceable, can be used to determine the legal efficacy of an action complained of. Also, the right to reproduction has been recognized as an important facet of a person's right to privacy, dignity and bodily integrity under Article 21. The court relied upon the case of B. Shah Vs. Presiding Officer, Labour Court, Coimbatore wherein the Supreme Court held that the legislation for maternity leave is intended to achieve the object of doing social justice to women workers. The court observed that the objective of the maternity leave provision under the 2003 Regulations was to enable the employee to nurse her child, to make up for her dissipated energy, and to regain the level of her efficiency as it was prior to her pregnancy. Due to the use of the terms “less than 2 surviving children” and “twice in their service period”, the objective of the regulation is to give maternity leave benefit only 2 times during the service period. Thus if the words condition of “2 surviving children” is read in this context, it would mean that the female employee needs to give birth to the 2 surviving children only during the service period. The objective of the Regulation was to give maternity benefit and not curb population. The Regulation was to ensure that the organization is not without the services of the employee for more than two times. The court held that the first child of the Petitioner was born before her appointment and the Petitioner did not take her maternity benefit at the time of giving birth to her second child. It was only at the time of the third child that the Petitioner had applied for maternity benefit. Thus the court held that the Petitioner was entitled to maternity leave as the said leave was sought to be availed only once after joining the service. The court further held that “The object of the Maternity Benefit Regulation which is posed for our consideration is not to curb the population but to give such benefit only on two occasions during the service period and, therefore, it is in that context that the condition of two surviving children is imposed” Thus the court held that the birth of the first child from the first...

Birth Of First Child Before Joining Service not a bar for availing Maternity Leave After Joining Service Under AAI Regulations: Bombay High Court

Udai Yashvir Singh

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