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IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Naziya B. W/o Deepu P.V. – Petitioner
Versus
State of Kerala – Respondent
W.P. (C) No. 26904 of 2021
Decided On : 10-05-2022
Constitution of India - Article 226 - Contract Basis - Maternity Benefits - Denial of - Maternity Leaves - Rejection on ground that maternity leave under Rule 100 and 101 of the KSR would be admissible to female officers appointed on a contract basis continuing on service beyond one year.
Finding of the Court:
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 with all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. The employer has to be considerate and sympathetic to the cause of the female officer and no action shall be taken to lower the dignity of the women employee in the workplace. The employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects. 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 victimized for forced absence during the pre or post-natal period.
Result: Allowed.
JUDGMENT :
1. The petitioners herein while working as Programmers (IT) at the Kerala University of Health Sciences on a Contract basis were denied Maternity Benefits. They have approached this Court with this Writ Petition filed under Article 226 of the Constitution of India challenging the stand taken by the respondents.
2. Bare facts are as under:
The 1st petitioner was appointed as a Programmer in the 2nd respondent University with effect from 25.6.2012 for a period of 12 months. After the expiry of the said period, the 2nd respondent has extended the contract by 179 days at a time by giving an artificial break of two days. As per the last appointment order, a copy of which is produced as Ext.P1, the 1st petitioner has been appointed for a period of 179 days with effect from 23.6.2021 on a consolidated pay of Rs. 35,300/- per mensem. The 2nd petitioner joined the services of the 2nd respondent as a Programmer with effect from 2.7.2012. Her contract was regularly renewed for 179 days at a time and as per Ext.P1, the contract was for the period from 24.6.2020 to 18.6.2021 on a consolidated pay of Rs. 35,300/- per mensem. The 3rd petitioner joined the services of the 2nd respondent on a contract basis with effect from 21.8.2017 on a consolidated pay of Rs. 30,000/- per mensem. The original appointment was for a period of 179 days. Later, her service was periodically extended for 179 days at a time by giving an artificial break of two days between consecutive contracts. As per Ext.P2 appointment order, she was granted fresh appointment order for a period of 179 days with effect from 18.8.2021.
3. While working as aforesaid, the petitioners have all applied for maternity leave and the same was granted by the 2nd respondent. However, the petitioners were denied any allowance.
4. The materials produced before this Court shows that the 1st petitioner had applied for maternity leave during her contract period from 27.12.2018 to 21.12.2019. The 2nd respondent was granted maternity leave without allowance for a period of 155 days starting from 19.1.2019 to 22.6.2019. The 2nd petitioner applied for maternity leave for the period of 174 days commencing from 24.12.2020 to 15.6.2021 and the 2nd respondent has granted the same without allowance. The 3rd petitioner requested maternity leave for the period from 15.3.2019 to 14.8.2019 and the same was granted by the 2nd respondent, however, without allowance.
5. The petitioners contend that the request for maternity leave with benefits was rejected by the 2nd respondent by Ext.P3 order initially on the ground that the contract period was for a period of 179 days which is less than one year. It was on the premise that the benefit provided under Rule 100 and 101 of Part I of the KSR could be extended only to those contract employees whose tenure of contract is for a minimum period of one year.
6. Later, the Government has issued G.O. (P) No 2/2021/Fin dated 4.1.2021, wherein, taking note of the law laid down by this Court in Rakhi P.V. and Others vs. State of Kerala, 2018 (2) KLT 864, the Government took a decision to extend the benefit of maternity leave on full pay in terms of Rule 100, Part I of the Kerala Service Rules up to a period of 180 days or till the expiry of the existing contract whichever is earlier to female officers, appointed on contract basis, irrespective of the tenure of the contract, subject to the condition that the leave will not be admissible from a date before 3 weeks from the expected date of confinement as certified by the medical officer. By the aforesaid order, leave on full pay as per Rule 101, Part I Kerala service Rules was also extended to female officers appointed on a contract basis, irrespective of the tenure of contract, up to a period of 6 weeks or till the expiry of the existing contract whichever is earlier, subject to the condition that the application for leave is supported by a Certificate from the medical officer. However, as per clause (4) of Ext.P4 order,
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