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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, SUSHIL KUKREJA, JJ.
Smt. Tanvi Thakur - Appellant
Versus
Himachal Pradesh Power Corp. Ltd. & Ors. – Respondents
CWPOA No. 6808 of 2020
Decided on : 01-05-2024
Maternity Leave - Employment Rights - The Maternity Benefit Act, 1961 - Article 25(2) of the Universal Declaration of Human Rights, 1948 - Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) - ILO: Maternity Protection Convention 2000
Fact of the Case:
The petitioner, a female employee, sought maternity leave for 180 days in accordance with the Himachal Pradesh Government notification. The respondent sanctioned only 135 days of maternity leave, citing HPPCL leave rules. The petitioner's representations were rejected, leading to the filing of the petition.
Finding of the Court:
The court emphasized the international conventions and treaties, including CEDAW and ILO, to establish the right of a woman employee for maternity leave as supreme. It held that the petitioner was entitled to 180 days of maternity leave as per the Maternity Benefit Act, 1961, and the State Government notification.
Issues: The key issues revolved around the entitlement of the petitioner to 180 days of maternity leave, the delay in implementing the government notification, and the application of international conventions and treaties in determining maternity leave rights.
Ratio Decidendi: The court relied on international conventions, the Maternity Benefit Act, and previous judgments to establish the petitioner's entitlement to 180 days of maternity leave, irrespective of the employment status. It emphasized the need to eliminate discrimination and provide maternity benefits in line with constitutional and international obligations.
Final Decision: The court allowed the petition, holding the petitioner entitled to 180 days of maternity leave and continuity of service, and directed the release of her salary for the specified period. The Board of Directors' decision to grant 26 weeks of maternity leave only to certain employees was quashed and set aside.
The instant petition has been filed for grant of the following substantive reliefs:-
(ii) That the respondents be directed to release the salary of applicant for the period w.e.f. 01.01.2019 to 22.02.2019.
2. The undisputed facts of the present case are that the petitioner was initially appointed as Assistant Finance Officer on contract basis w.e.f. 23.09.2008 and subsequently his services came to be regularized and she was promoted as Manager (Finance) on 01.01.2017.
3. The petitioner while in service was in family way and had given due notice to respondent No. 3 on 03.07.2018 that she would be proceeding on maternity leave for 180 days w.e.f. 04.07.2018 to 20.12.2018 under “The Maternity Benefit Act, 1961”, with a specific request to allow her the benefit flowing out of the notification issued by the Finance Department of the Government of Himachal Pradesh dated 21.12.2017 and 22.01.2018
4. The petitioner proceeded on maternity leave and during the course of which, respondent No. 3 issued order dated 25.10.2018 thereby sanctioning only 135 days maternity leave as against 180 days as sought for by the petitioner.
5. Aggrieved thereby the petitioner filed representation dated 12.11.2018, however, the petitioner was informed vide communication dated 19.11.2018 that maternity leave in her favour has been sanctioned for 135 days as per HPPCL leave rules. It was further intimated that amendment to HPPCL leave rules vide which maternity leave has been increased from 135 days to 180 days has not been received in the office.
6. This constrained the petitioner to file another detailed representation to respondent No. 2 dated 26.11.2018. In the meanwhile, respondent No. 2 issued Circular No. 12/2018 on 01.01.2019 conveyed the decision of Board of Directors (BoD) taken in its 67th meeting held on 28.11.2018 regarding revision in the maternity leave quota from existing 135 days to “26 weeks rules” for implementation w.e.f. 28.11.2018 instead of 21.12.2017.
7. It is the specific case of the petitioner that the State Government had already increased the maternity leave vide notification dated 21.12.2017 and 22.01.2018 and thereafter as many as three meetings of the BoDs of the respondent-Corporation were held during the period from 21.12.2017 to 28.11.2018 but the matter of adoption of the same was not considered as a result of the prolonged delay in the implementation of the order to the disadvantage of the petitioner.
8. The long and short of the matter thereafter is that the petitioner yet again preferred representation but the same was rejected on the basis of the BoD’s Circular No. 12/2018, constraining her to file the instant petition.
9. The only ground taken by the respondents to defend their action is that the petitioner could at best be entitled to maternity leave as per the rules prevalent at the time and not in accordance with the provisions of the circular issued by the government from time to time till the same were adopted and the petitioner was not entitled to grant of maternity leave in accordance with the provisions of the Maternity Benefit Act and the petitioner has been rightly sanctioned 135 days in accordance with the provisions of the Maternity Benefit Act, 1961, which was being followed.
We have heard learned counsel for the parties and have gone through the record of the case.
10. India is a signatory to various international covenants and treaties. The Universal Declaration on Human Rights adopted by the United Nations on 10.12.1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. These were followed by series of conventions, which reflect on the b
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