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2021 Supreme(Ker) 633
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
Vandana Sreemedha J. W/o Jobin James – Petitioner
Versus
State of Kerala – Respondent
W.P. (C) No. 10206 of 2021
Decided On : 26-07-2021
Advocate Appeared:
For the Petitioner: Sri. B. Mohanlal.
For the Respondent: Sri. Sunil Kumar Kuriakose.
Point of Law: only a contract employee who has been in service for at least one year or more is entitled to maternity leave and thus contended that the Authorities were justified in having issued Exts.P10 and P12 orders terminating her service.
Headnote:
Service Law – Contract labour – Daily wage – Termination of Service – Unauthorised absence - terminating her services on the allegation that she was on unauthorized absence-3rd respondent to appoint the next rank holder from the selection list, with a threat to the said officer of disciplinary action in having not taken into account that petitioner had delivered a child just prior to her being offered employment and recording that this was contrary to the minimum diligence and caution required of the said officer.
Finding of the Court:
Without requirement for any elaboration, this attitude is not one which this Court can countenance in this century, when women essay several roles, take on variegated responsibilities and require to be adept multitaskers, to survive and find wings to achieve their legitimate ambitions. It is certainly my hortative hope that the endeavors of such industrious women ought to obtain unstinted support and encouragement, but the orders impugned in this writ petition can only serve to undermine the confidence and morale of persons like the petitioner, who bravely face the challenges of life every day, with the steely resolve to balance their personal and official life to the best of their capacity-2nd respondent transpires to have acted on incorrect factual assumptions because he has recorded therein that there was no “valid contract” entered into with the petitioner and therefore, that she is not entitled to claim or avail maternity leave. This understanding of the said respondent certainly is in error
Result:Writ petition allowed
JUDGMENT :
DEVAN RAMACHANDRAN, J.
1. Only a woman knows how acutely difficult it is to balance between motherhood and her career.
2. Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child. The mother's constant proximity to the child is scientifically proven to be absolutely un-expendable and this, primarily and inter-alia, is why the provisions for maternity leave are now internationally accepted.
3. I am beginning exordially as afore because the petitioner in this case has reached this Court after her request for maternity leave was turned down; and to then exacerbate the agony, she was terminated from service, accusing her of having been on unauthorised absence.
4. The petitioner says that she has been striving very hard to make her livelihood and that, being without other option, was forced to work on contract as a Counsellor in the Office of the 3rd respondent-District Child Protection Officer, awaiting better opportunities in life. It is stated that she was initially selected for an one-year spell, after a process of selection, and appointed on contract from 16.12.2016 till 21.08.2017; which was subsequently extended for one year at a time, till 21.08.2020. She says that, thereafter, consequent to a fresh process of selection, she was further appointed with effect from 23.08.2020 till 17.01.2021, albeit, on daily wage basis; and that during this period, she gave birth to her child on 28.11.2020, thus constraining her to avail maternity leave from 26.11.2020 to 17.01.2021.
5. She alleges that her afore request for leave has not yet been acceded to and then goes on to say that, in the next process of selection, she again topped the list, thus directed to join the post of Counsellor in the office of the 3rd respondent on 18.01.2021. She says that since her child was only 51 days old then, and since the doctors had advised her to breastfeed him regularly, she had no other option but to seek leave between 19.01.2021 and 26.03.2021, through Ext.P7 request, dated 19.01.2021.
6. The petitioner submits that this request of hers was recommended by the 3rd respondent- District Child Protection Officer, vide Exts.P8 and P9 but that the 2nd respondent-Director, Women And Child Development Department, rejected it through Ext.P10, on 23.03.2021, a mere three days before the period of the requested leave expired, however, without assigning any cogent reason for doing so.
7. The petitioner submits that, being appalled on receiving Ext.P10, she approached the 3rd respondent through Ext.P11 representation but that Ext.P12 order was abruptly issued by the 2nd respondent-Director, terminating her services on the allegation that she was on unauthorized absence from 19.01.2021 till 23.03.2021; thus consequently, directing the 3rd respondent to appoint the next rank holder from the selection list, with a threat to the said officer of disciplinary action in having not taken into account that petitioner had delivered a child just prior to her being offered employment and recording that this was contrary to the minimum diligence and caution required of the said officer.
8. The petitioner vehemently alleges that Ext.P12 has been issued thoughtlessly and with an insensitive tenor, thus being illegal and consequently prays that Exts.P10 and P12 be set aside; with a adscititious prayer that she be immediately directed to be reinstated in service, with all eligible benefits.
9. I have heard Sri. B. Mohanlal, learned counsel appearing for the petitioner and Sri. Sunil Kumar Kuriakose, learned Government Pleader appearing on behalf of the official respondents.
10. The learned Government Pleader argued in defence of the impugned orders, submitting that petitioner was not entitled to have sought maternity leave one day after she joined service on contr
