Point of Law: maternity benefit means the payment referred to in sub-section (1) of Section 5 of 1961 Act. Section 5 of 1961 Act provides that every woman shall be entitled to and an employer shall be liable for the payment of maternity benefit at a certain rate. Sub-section (3) of Section 5 of 1961 Act provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. Section 6 of 1961 Act provides that any woman employed in an establishment and entitled to any maternity benefit under the provisions of 1961 Act may give notice in writing to her employer stating that her maternity benefit be paid to her or to such person as she may nominate in the notice. Sub-section (4) of Section 6 of 1961 Act provides that on receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit

JUDGMENT :

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 and 3, Sri Ajay Kumar, learned counsel appearing for respondent no.2, and Sri Kartikey Dixit holding brief of Ms. Jyoti Sikka, learned counsel appearing for respondent nos.4 and 5.

2. Learned counsels for the respondents contend that as only a short question of law is involved in the present petition as such they do not intend to file any counter affidavit and submit that the matter may be decided finally.

3. Under challenge is the order dated 13.11.2019 passed by respondent no.5 on the application of the petitioner, a copy of which is Annexure-1 to the writ petition. Also under challenge is the order dated 27.11.2019 passed by respondent no.4, a copy of which is Annexure5 to the writ petition, by which the claim of the petitioner for grant of maternity leave has been rejected.

4. Learned counsel for the petitioner while seeking to challenge the aforesaid orders contends that the rejection of the claim of the petitioner has been made on the ground that in terms of Rule 153(1) of the Financial Handbook Volume 2 Part 2 to 4 and Rule 101, the maternity leave due to the petitioner would only be admissible in case there is a difference of at least two years between the end of first maternity leave and grant of second maternity leave. It has also been indicated in the order dated 27.11.2019 that as the first maternity leave of the petitioner ended on 30.12.2017 and the second leave has been applied w.e.f. 18.11.2019, as such, placing reliance on the aforesaid rules, the claim of the petitioner for grant of maternity leave for the period from 18.11.2019 to 15.05.2020 has been rejected.

5. Learned counsel for the petitioner contends that the said order would run contrary to the mandatory provisions of the Maternity Benefit Act, 1961 (hereinafter referred to as the 1961 Act'). He contends that Section 3 (h) of 1961 Act defines maternity benefit as the payment referred to in sub-section (1) of Section 5 while Section 5 (3) of 1961 Act provides that the maximum period for which any woman would be entitled to maternity benefit shall be 26 weeks. It is also contended that Section 6(4) of 1961 Act categorically provides that on receipt of the notice for maternity leave, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.

6. It is contended that taking into consideration the mandatory provisions of 1961 Act once the petitioner had applied for maternity leave for the aforesaid period consequently there was no occasion for respondent no.5 and respondent no.4 to reject her application.

7. As regards the reliance that has been placed on Rule 153(1) of the Financial Handbook, learned counsel for the petitioner contends that Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after the coming into force of 1961 Act. Learned counsel for the petitioner contends that taking into consideration the aforesaid mandatory provisions of 1961 Act more particularly when Rule 153(1) of the Financial Handbook runs contrary to the mandatory provisions of 1961 Act then considering the provisions of Section 27 of 1961 Act Rule 153(1) would have to be read down and it is the provisions of 1961 Act which would prevail.

8. On the other hand, Sri Kartikey Dixit, learned counsel appearing for the respondent nos.4 and 5 and Sri Ajay Kumar, learned counsel appearing for respondent no.2, have supported the impugned orders by contending that once Rule 153(1) of the Financial Handbook categorically stipulates that no such leave would be admissible prior to expiry of two years from the date of end of the first maternity leave consequently there would not be any occasion for the respondents to grant maternity leave to the petitioner and henc