VERY IMPORTANT POINTS
1. Women workers who are engaged on casual basis or on muster roll on daily wage basis are entitled to maternity benefits provided under the Maternity Benefits Act.
2. 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".

Headnote:Maternity Benefit Act, 1961-Section 5-Right to payment of maternity benefit-Female muster roll workers of Delhi Municipal Corporation-Entitlement of benefit-Denial of claim by corporation on ground services not regularised and provisions of Act not extended to Municipal Corporation-Untenable-There is nothing in provisions of Act which enables only regular women employees to benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily wages basis-Muster roll female workers entitled to maternity benefit-Government directed to issue necessary notification under proviso to Section 2 to extend Act to Municipal Corporation.
       Since Article 42 specifically speaks of "just and humane conditions of work" and "maternity relief", the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. (Para 10)
       The Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner-Corporation. But the benefit is not being made available to the women employees engaged on muster-roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily wage basis. (Para 11)
       The provisions of the Act indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily wage basis. (Para 23)
       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 phenomena 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 work place 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 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 postnatural period. (Para 28)
       The principles cantained in Article 11 of the United Nations "Conventions on the Elimination of All forms of discrimination against women" have to be read into the contract of service between 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. (Para 33)
       The Industries Tribunal s direction to extend the benefits of Maternity Act, 1961 to muster roll female employees who were in continuous service of the management for three years or more and who fulfilled the conditions set out in Section 5 of the Act is fully justified. (Paras 24, 25 & 26)
       (ii) Industrial Disputes Act, 1947-Section 2(j) r/w Maternity Benefit Act, 1961-Industry-Activity of Municipal Corporation undertaking of construction work, laying road, digging trenches fall within definition of Industry.
       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. (Para 31)

JUDGMENT

S. Saghir Ahmad, J.-Female workers (muster roll), engaged by the Municipal Corporation of Delhi (for short, the Corporation ), raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services were not regularised and, therefore, they were not entitled to any maternity leave. Their case was espoused by the Delhi Municipal Workers Union (for short, the Union ) and, consequently, the following question was referred by the Secretary (Labour), Delhi Administration to the Industrial Tribunal for adjudication :-

"Whether the female workers on Muster Roll should be given any maternity benefit? If so, what directions are necessary in this regard?"

2. The Union filed a statement of claim in which it was stated that Municipal Corporation of Delhi employs a large number of persons including female workers on muster roll and they are made to work in that capacity for years together though they are recruited against the work of perennial nature. It was further stated that the nature of duties and responsibilities performed and undertaken by the muster roll employees are the same as those of the regular employees. The woman employed on muster roll, which have been working with the Municipal Corporation of Delhi for years together, have to work very hard in construction projects and maintenance of roads including the work of digging trenches etc. but the Corporation does not grant any maternity benefit to female workers who are required to work even during the period of mature pregnancy or soon after the delivery of child. It was pleaded that the female workers required the same maternity benefits as were enjoyed by regular female workers under the Maternity Benefit Act, 1961. The denial of these benefits exhibits a negative attitude of the Corporation in respect of a humane problem.

3. The Corporation in their written statement, filed before the Industrial Tribunal, pleaded that the provisions under the Maternity Benefit Act, 1961 or Central Civil Services (Leave) Rules were not applicable to the female workers, engaged on muster roll, as they were all engaged only on daily wages. It was also contended that they were not entitled to any benefit under the Employees State Insurance Act, 1948. It was for these reasons that the Corporation contended that the demand of the female workers (muster roll) for grant of maternity leave was liable to be rejected.

4. The Tribunal, by its Award dated 2nd of April, 1996, allowed the claim of the female workers (muster roll) and directed the Corporation to extend the benefits under the Maternity Benefit Act, 1961 to muster roll female workers who were in the continuous service of the Corporation for three years or more. The Corporation challenged this judgment in a Writ Petition before the Delhi High Court which was dismissed by the Single Judge on January 7, 1997. The Letters Patent Appeal (LPA No. 64 of 1998), filed thereafter by the Corporation was dismissed by the Division Bench on March 9, 1998 on the ground of delay.

5. Learned counsel for the Corporation contended that the Division Bench was not justified in rejecting the appeal on the ground of delay which ought to have been condoned as there was only a 33 days delay in filing the Letters Patent Appeal which was caused on account of the opinion of different Departments which had to be obtained before filing the Letters Patent Appeal. Since the High Court has already exercised its discretion and has not condoned the delay in filing the appeal, we find it difficult to enter into that controversy and examine the reasons why the appeal was filed before the Division Bench after the expiry of the period of limitation. However, since the question involved in this case is important, we deem it fit to express ourselves on the merits of the matter as we have heard the counsel for the Corporation on merits also.

6. Not long ago, the place of a woman in rural area

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2000 Supreme(SC) 523

Cases Referred (7)