20 Feb 2021 3:37 PM GMT
The Karnataka High Court recently quashed a notice issued by the Directorate of Municipal Administration by which it terminated the services of a woman employed on contract basis, after rejecting her application seeking maternity leave.The Court held that even a contractual staff is entitled to maternity leave."..the petitioner was entitled to maternity leave of six months in all in terms...
The Karnataka High Court recently quashed a notice issued by the Directorate of Municipal Administration by which it terminated the services of a woman employed on contract basis, after rejecting her application seeking maternity leave.
The Court held that even a contractual staff is entitled to maternity leave.
"..the petitioner was entitled to maternity leave of six months in all in terms of the amended Act of 2017 (supra). The action of the second respondent cannot be countenanced, as maternity or the Act does not classify or qualify a mother to be, a government servant, temporary employee, employee on contract basis or an employee on daily wages. The order impugned infers such an harrowing classification", the Court observed.
The Court noted that after the 2017 amendment to the Maternity Benefit Act, a pregnant woman is entitled to maternity leave for a period 26 weeks which would come to 6 months and 15 days.
A single bench of Justice M Nagaprasanna on going through the conduct of the authority which was apprised about the Maternity Benefit Act and the orders of the High Court in the representation made by the woman seeking for permission to allow her rejoin services said "men who man such offices become insensitive to the issue of the kind that is alleged in the petition, it would become "power at wrong hands".
Noting that it is a fit case where, apart from granting back wages to the petitioner, in the peculiar facts, the second respondent will have to be mulcted with exemplary costs, Justice Nagaprasanna imposed a cost of Rs 25,000 on the state government which has to be paid to the woman. Further, she has to be reinstated within two weeks to the post that she held earlier with 50% back wages from the date of cancellation of appointment till the date of reinstatement.
B.S.RAJESHWARI was appointed as Project Information Officer on contract basis for a with effect from 27.11.2009. The contract was being renewed from time to time on an annual basis and the latest of the renewal of such contract was on 01.04.2019 to be in operation upto 31.03.2020.
During the subsistence of the aforesaid period of contract, the petitioner by an application dated 11.06.2019, sought for maternity leave. On the application given by the petitioner, a notice was issued on 25.06.2019, by the second respondent directing her to report to duties forthwith, despite her application seeking maternity leave. When the petitioner did not report back to duties, despite the notice on 25.06.2019, referring to the same, an order dated 29.08.2019 is passed terminating the service of the petitioner / canceling the contract entered into with the petitioner appointing her as a Project Information Officer / MIS Expert on the score that the petitioner remained absent.
The woman challenged this order before the court. In her plea she stated that "I chose motherhood the State chose to terminate me." Further, lamenting that the pendulum of her fate swung from the buoyance of hope to the fatigue of despair as she was terminated on the score that she opted to become a mother and had sought maternity leave.
Advocate Subramani M.A appearing for the woman submitted that denial of maternity leave and termination or cancellation of the employment of any employee on that ground which is the subject matter of the present writ petition is covered by the order of this Court in writ petition No.44563/2013 dated 05.09.2018, and the same is affirmed by the learned Division Bench in W.A.No.3259/2018. He would submit that the law being so clear, the second respondent could not have passed the order of termination/cancellation of contract, contrary to law.
It was also contended that this Court by an order dated 21.10.2020, referring to the judgment/order of the Apex Court as well as this Court on the issue which concerns in the present writ petition, passed a detailed interim order staying the impugned notice dated 29.08.2019, till the next date of hearing and the stay order is in operation even as on date. Despite the same the second respondent has not taken the petitioner back to duties.
Arguments put forth by the State
Additional Government Advocate argued that the petitioner was a contract employee and contract itself gave a right to the second respondent to terminate her services at any point in time and seek to justify the notice impugned.
Justice Nagaprasanna in its order before deciding on the issue at hand looked back in history to find the emergence of the concept of maternity and child care. It was recorded that the United Nations recognized rights of both women and children. The foundation of those rights is contained in Article 1 of Universal declaration of Human Rights is 'all human beings are born free and have equal dignity and rights' these are inalienable.
Article 42 of the Constitution of India depicts that the State shall make provision for securing just human conditions for work and maternity relief. Therefore, the right of seeking maternity relief by way of leave springs from Article 42 of the Constitution of India. Article 45 of the Constitution of India directs that the State shall endeavour to provide early child care and education for all children until they complete six years.
Further the court made reference to the judgement of Olga Tellis v .Bombay Muncipal Corporation reported in (1985) 3 SCC 545 and subsequently, in the case of MOHINI JAIN (MS.) VS. STATE OF KARNATAKA reported in (1992) 3 SCC 666 in which it has been held that the directive principles are fundamentals in governance of the Country. It went on to observe "Therefore, the State and its instrumentalities cannot deny its obligation to perform its duty as enshrined in the aforesaid Articles."
The court also referred to the apex court judgment in the case of MUNICIPAL CORPORATION OF DELHI VS. FEMALE WORKERS (MUSTER ROLL) AND ANOTHER reported in (2000) 3 SCC 224, In which the issue as to whether a contract employee is entitled to maternity leave under the Maternity Benefit Act, 1961 was decided. Reference was also made to the Maternity Benefit Act.
After which the bench opined "In terms of afore-narrated facts of the case, the Act and the judgment of the Apex Court as followed by this Court in the aforesaid judgments, the writ petition deserves to succeed."
Notably, the High Court of Kerala has held in two decisions - Rasitha C H v State of Kerala and Rakhi P V v State of Kerala - that contractual employees are also entitled to benefits under the Maternity Benefit Act.
Other High Court judgments on the similar point, allowing relief to contractual/ temporary employees include:
Case Title: B.S.RAJESHWARI And State Of Karnataka
Case No: WRIT PETITION No.10677/2020
Date of Order: 04TH DAY OF FEBRUARY, 2021
Coram: JUSTICE M. NAGAPRASANNA
Appearance: Advocate SUBRAMANI M.A for petitioner
Advocate M.C.NAGASHREE for respondent
Click Here To Download Order