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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, Talwant Singh, JJ.
Dr. Baba Saheb Ambedkar Hospital Govt. Of Nct Of Delhi & Anr. - Appellants
Versus
Dr. Krati Mehrotra - Respondent
W.P.(C) 1278 of 2020 & CM No. 4405 of 2020;
Decided On : 11-03-2022
Constitution of India, 1950 - Articles 15 (3) and 42 - Maternity Benefit Act, 1961 - Section 5 and 27 - Object and purpose of 1961 - Maternity benefit - Whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond tenure of the contract - Seeking to regulate the employment of women in certain establishments for given periods before and after child-birth, and, in particular, endeavours to provide for maternity benefit - Respondent was offered an appointment, albeit, on an ad hoc basis as Senior Resident in Department of Dermatology in the petitioner-hospital - The offer made to the respondent provided that the appointment would be for a period of 45/89 days or till a regular incumbent joins the post, whichever is earlier.
Finding of the court :
Section 5(1), broadly, provides that every woman would be entitled to payment of maternity benefit at the rate provided therein, for a period when she is absent i.e., period immediately preceding day of her delivery, actual day of her delivery and any period immediately following that day. The employer's liability to grant maternity benefits is absolute. For purposes of this case, the explanation appended to Section 5(1) of 1961 Act is not of any particular relevance, and, hence, one need not allude to it - The expression “maternity benefit” is defined in section 3(h) of 1961 Act. The said provision simply states that maternity benefit means payment referred to in sub-section (1) of Section 5 of the 1961 Act - Section 27 of 1961 Act, which embeds, a non-obstante clause, expounds that provisions of said Act would apply notwithstanding provisions contained, inter alia, in any other law, agreement or contract of service, to extent it is inconsistent with the provisions of the said Act - The object and purpose of 1961 Act being, to not only regulate employment but also maternity benefits which precede and follow childbirth, point in direction that tying up tenure of contract with period for which a woman employee can avail of maternity benefit is contrary to mandate of legislation i.e., the 1961 Act - The benefit granted to the respondent under Section 5 of the 1961 Act should have a full play, in our view, once prerequisites contained therein are fulfilled by the claimant i.e., the woman-employee.
Result: Writ petition dismissed
ORDER
1. This writ petition is directed against the order dated 03.05.2019, passed by the Central Administrative Tribunal (in short, the "Tribunal") in O.A.No.508/2018.
2. The narrow but important issue which arises for consideration in this writ petition is: whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract?
Background:
3. This issue arises in the backdrop of the following broad facts :
3.1. In and about 22.03.2016, the respondent was offered an appointment, albeit, on an ad hoc basis as Senior Resident in the Department of Dermatology in the petitioner-hospital. The offer made to the respondent provided that the appointment would be for a period of 45/89 days or till a regular incumbent joins the post, whichever is earlier.
3.2. Based on the offer made, the respondent joined the petitioner-hospital on 05.04.2016. A formal office order to this effect was taken out by the petitioner-hospital on 24.05.2016. The first span of 89 days, thus, stretched between 05.04.2016 and 02.07.2016.
3.3. Thereafter the respondent's tenure was extended four times. Notably, each time the respondent's tenure lasted 89 days, and after a short break of one day, the contract was renewed for another 89 days.
3.4. The respondent's last tenure culminated on 27.06.2017. The record, however, shows that on 17.04.2017, the respondent applied for emergency maternity leave as her pregnancy had become complicated. Via this communication, the petitioner averred that she was suffering from antepartum haemorrhage and was advised bed rest by her gynaecologist. The apprehension expressed in this letter was that the respondent may be required to undergo an emergent caesarean section procedure, to facilitate childbirth.
3.5. In response to this request, the petitioner-hospital passed an office order dated 23.05.2017, whereby the petitioner-hospital, instead of granting maternity leave, terminated the services of the petitioner, albeit retrospectively i.e., with effect from 24.04.2017.
4. Aggrieved by the order dated 23.05.2017 passed by the petitioner-hospital, the respondent filed an action in the Tribunal. This action was numbered as O.A.No.1956/2017 and was disposed of by the Tribunal on 31.05.2017. In this O.A., the respondent had raised several grievances including the fact that she had not been granted maternity leave and had not been paid salary for April 2017. Besides this, the respondent had also assailed the order dated 23.05.2017 whereby her services had been brought to an end w.e.f. 24.04.2017.
4.1. The Tribunal, after adverting, broadly, to the aforesaid grievances disposed of the aforementioned O.A. with a direction that the respondent will make a "comprehensive representation" to the petitioner-hospital; and upon such a representation being made, the petitioner-hospital would dispose of the same by passing a speaking order. Furthermore, the petitioner-hospital was prodded to look into the matter "sympathetically". Succour was given by the Tribunal- inasmuch as a specific direction was issued to the petitioner-hospital and Government of NCT of Delhi (GNCTD) i.e., petitioner no.2, to release the unpaid salary of the respondent. For this purpose, four weeks were granted to the petitioner-hospital.
4.2. It appears that, pursuant to the directions of the Tribunal, the respondent preferred a representation on 01.06.2017; an aspect which is not refuted by the petitioner-hospital.
4.3. The record shows that the respondent also sought the intervention of the National Commission for Women (NCW); besides, as noticed above, making a representation to the petitioner-hospital. It appears that, because the matter was escalated by respondent and hearing was held before the Member, NCW on 29.06.2017, the petitioner-hospital "revalidated" its earlier order i.e., order dated 03.04.2017 [whereby the respondent h
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