Contractual employees are entitled to 12 weeks' maternity leave as per the Maternity Benefit Act, 1961, and cannot claim parity with regular employees who are entitled to six months' maternity leave.

A.K. Sikri, J.

The petitioner is working with the respondent - University, admittedly on contract basis, meaning thereby she is not the regular employee of the University. Dispute raised in this petition pertains to the admissibility of maternity leave. In the year 2008, when the petitioner was in family way, she applied for maternity leave from 11.9.2008 to 1.10.2008, which was granted to her, vide sanction letter dated 26.9.2008. Thereafter, she proceeded on further leave w.e.f. 7.10.2008, which was also sanctioned vide letter dated 15.10.2008 up to 15.3.2009. However, the leave for latter period was granted without pay. The petitioner submits that she is entitled to six months' maternity leave which is admissible to the regular employees. On the other hand, the respondents are granting three months' maternity leave to ad hoc/contractual employees for which instructions dated 22.6.2009 have been issued. In this petition, the petitioner has challenged the validity of the aforesaid instructions dated 22.6.2009 on the ground that these are discriminatory, inasmuch as the petitioner cannot be given different treatment than those employees who are working on regular basis insofar as benefit of maternity leave is concerned. In support of this plea, the petitioner has relied upon a bunch of petitions with lead case titled as Raj Bala Vs. State of Haryana decided by a Division Bench of this Court on 11.4.2002. In the counter-affidavit filed by the respondents, the respondents have sought to justify the instructions dated 22.6.2009. It is stated that the ad hoc/daily wage/contractual employees cannot be treated at par with the regular employees. Insofar as these employees, in which category the petitioner falls are concerned, they are given the statutory benefit contained in Section 5(3) of the Maternity Benefit Act, 1961 (hereinafter referred to as the Act) which provides for 12 weeks' maternity leave. It is further argued that insofar as regular employees are concerned, if they are granted some benefit, which is more favourable and better than the statutory provision contained in the Act, that cannot be extended to these contractual employees. This provision contained in instructions dated 22.6.2009 is sought to be traced in the Supreme Court judgment in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806.

2. From the facts narrated above, it becomes clear that the petitioner has been granted benefit, which is provided under the Act. Section 5(3) thereof, which entitles such employees to 12 weeks' maternity leave, reads as under:--

The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:--

Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:--

Provided further that where a woman, having been, delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.

3. The question is as to whether the petitioner can claim parity with the regular employees since regular employees are entitled to six month's maternity leave, which provision is better than what is provided in the Act. No doubt, in Raj Bala (supra), the Division Bench of this Court held that it was not permissible to draw any line of distinction between regular employees and contractual employees insofar as entitlement of maternity benefit is concerned. However, a close scrutiny of the said judgment would reveal that the entire matter was in the context of provisions cont