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2014 Supreme(HP) 1858
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
MANSOOR AHMAD MIR, ARLOK SINGH CHAUHAN, J.
State of H.P. and others - Appellants
Versus
Sudesh Kumari - Respondent.
LPA Nos. 194 and 195 of 2014.
Decided on : 18-11-2014
For the Appellant :Mr.Shrawan Dogra, Mr. V.S. Chauhan, Mr. Romesh Verma, Additional Advocate Generals with Mr. J.K. Verma and Mr. Kush Sharma,
For the Respondent:Mr. Naresh Verma and Mr. Rajiv Jiwan, Advocates.
The central legal point established in the judgment is the entitlement of maternity leave to all female employees, irrespective of their employment status, based on the principles of fair play, social justice, and non-discrimination as enshrined in Articles 14 and 15 of the Constitution of India, along with the provisions of Articles 41, 42, and 43, and relevant legal precedents.
Headnote:
Maternity Leave - Female Contractual Employees - Article 41, 42, 43, Maternity Benefit Act, 1961, Municipal Corporation of Delhi v. Female Workers and anr. (2000) 3 SCC 224, Ms. Sonika Kohli & Anr. vs. Union of India 2004 (3) SLJ 54 CAT, Rattan Lal and others vs. State of Haryana and others 1985 (3) SLR 548, Tasneem Firdous vs. State and others 2006 (II) S.L.J 699 - The court discussed the entitlement of maternity leave to female contractual employees at par with regular employees, citing relevant legal provisions and precedents. It emphasized the principles of fair play, social justice, and non-discrimination as enshrined in Articles 14 and 15 of the Constitution of India, along with the provisions of Articles 41, 42, and 43. The court also referred to the Maternity Benefit Act, 1961 and various judgments to support its decision to grant maternity leave to all female employees irrespective of their employment status.
Fact of the Case:
The writ petitioners sought quashing of an office memorandum and order that reduced maternity leave for female contractual employees. The Writ Court quashed the impugned order restraining the State from effecting recovery from the petitioner. Subsequently, another writ petitioner was granted the same reliefs. The State challenged both judgments through LPAs.
Finding of the Court:
The court held that all female employees, whether on contract, ad hoc, permanent, or temporary, are entitled to maternity leave at par with regular employees, emphasizing non-discrimination and fair treatment based on Articles 14 and 15 of the Constitution of India, along with the provisions of Articles 41, 42, and 43. The LPAs were dismissed.
Issues: Entitlement of maternity leave to female contractual employees at par with regular employees, legality of reducing maternity leave for contractual employees, and the applicability of constitutional and legal provisions in granting maternity leave.
Ratio Decidendi: The court's decision was based on the principles of fair play, social justice, and non-discrimination as enshrined in Articles 14 and 15 of the Constitution of India, along with the provisions of Articles 41, 42, and 43. It also considered the Maternity Benefit Act, 1961 and various judgments supporting the entitlement of maternity leave to all female employees irrespective of their employment status.
Final Decision: The LPAs were dismissed, and the office memorandum and circular reducing maternity leave for female contractual employees were quashed. All female employees, regardless of their employment status, were held entitled to maternity leave at par with regular employees.
JUDGMENT :
Mansoor Ahmad Mir, Chief Justice.
Ms. Alpana writ petitioner in CWP No. 3363 of 2009 had invoked the jurisdiction of this Court for quashing Office Memorandum dated 31.7.2009, Annexure P3 and order dated 2.9.2009 Annexure P4, on the grounds taken in the memo of writ petition.
2. The case of the writ petitioner is that as per law and the Rules occupying the field, all the female contractual employees are entitled to maternity leave at par with the regular employees and that is why their maternity leaves were enhanced from 84 days to 135 days in terms of Annexure P3. The petitioner while working as Lecturer, on contract basis, had availed maternity leave. The leave availed by her was duly sanctioned in her favour. Subsequently, vide Office Memorandum Annexure P3, appended with the writ petition as also letter dated 2nd September, 2009 Annexure P4, it was decided to grant only 12 weeks (84 days) maternity leave to the female employees working on contract basis and earlier instructions Annexure P2 were withdrawn by the respondent. Thus, the petitioner had sought writ of certiorari for quashing Annexures P3 and P4 commanding the respondents-State to provide all the female contractual employees 135 days materiality leave to which regular employees are entitled to. It is apt to reproduce reliefs claimed in the writ petitions filed by Ms. Alpana herein:
“(a) That the order dated 2.9.2009 (Annexure P-4) effecting recovery of alleged over payment made to the petitioner on account of availing Maternity leave of 135 days may kindly be quashed by way of issuance of writ in the nature of certiorari.
(b) That the office Memorandum dated 31.7.2009 (Annexure P-3) may also be quashed.”
3. The Writ Court, after considering the case of the petitioner, quashed the impugned order restraining the State from effecting recovery from the petitioner.
4. Ms. Sudesh Kumari, writ petitioner in another writ petition, after noticing the judgment, also filed CWP No. 1617 of 2014 for the grant of same reliefs.
5. It is also apt to reproduce reliefs claimed by writ petitioner Sudesh Kumar in the writ petition herein:
“1.That the writ of certiorari to quash Annexure P1 dated 31st July, 2009 (office memorandum) and specially annexure P-4 by which Annexure P-3 office order of dated 10.3.2009 vide which the maternity leave to the contractual employees was enhanced from 85 days to 135 days on the ground that there cannot be any discrimination between the regular and contractual employees, has been withdrawn.
2. Issue a writ of mandamus directing the respondent’s authorities to extend the Maternity leave to present petitioner for 135 days.”
6. The said writ petition was also granted in favour of the petitioner, in terms of the judgment passed in Alpana’s case in CWP No.3363/2009, supra.
7. The State has questioned both these judgments by the medium of these LPAs, on the grounds that the petitioners were not entitled to maternity leave at par with the regular employees and the judgments made by the Writ Courts are not legally sustainable. The argument advanced by the learned Advocate General is not tenable for the following reasons.
8. In law, there is no difference between a female regular employee and a contractual employee/ ad hoc employee because a female employee whether regular, temporary or ad hoc, is a female for all intents and purposes and she has a matrimonial home, matrimonial life, and after conception, she has to undergo the entire maternity period, same treatment, pains and other difficulties which a regular employee has to undergo. Thus, there is no occasion for making discrimination and if, less period of maternity leave is granted to a contractual employee, it will amount to discrimination, in terms of Article 14 of the Constitution of India.
9. The claim of maternity leave is founded on the grounds of fair play and social justice. There cannot be discrimination and if any discrimination is made, it is in breach of Articles 14 and 15 of the Constitution
