Back
2016 Supreme(UK) 844
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAJIV SHARMA, ALOK SINGH, JJ.
Smt. Dr. Deepa Sharma - Petitioner
Versus
State of Uttarakhand & others - Respondents
Writ Petition No. 54 of 2015 (S/B)
Decided on : 15-12-2016
Advocate Appeared:
For the Petitioner:Mr. S.S. Yadav, Advocate
For the Respondent: Mr. Pradeep Joshi, Standing Counsel with Mr. H.M. Bhatia, Brief Holder
Headnote:(A) Maternity Benefit - The maternity leave is of utmost importance to fight against social injustice, poverty and gender inequality. (Para 10)
(B) Constitution of India, 1950, Art. 42 - The State is required to make provision for securing just and humane conditions of work and for maternity relief. (Para 16)
(C) Constitution of India, 1950, Art. 42 r/w International Labour Organization - Recommendations made by Labour Laws - Objective - To promote motherhood and child care as well as to promote gender quality - Every female employee and male employee whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis have a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) and adoption leave to promote motherhood and child care u/Art. 21, Constitution of India r/w Art. 42, Constitution of India. (Paras 16, 17, 18)
(D) Maternity Benefit Act, 1961, Sec. 5 and U.P. Fundamental Rules, Rule 153 - Provisions of - Construing of - Held that the benefits of maternity leave with full salary could not be denied to a female employee appointed on contractual basis - The decision to deny the maternity leave to the petitioner was arbitrary, thus, violative of Arts. 14 and 16, Constitution of India. (Paras 19, 20)
¼v½ ekr`Ro dk ykHk & lkekftd vU;k;] xjhch o fyax vlekurk ds fo#) yM+us ds fy, NqV~Vh vfr vko';d gSA ¼izLrj 10½
¼c½ Hkkjrh; lafo/kku] 1950] vuqPNsn 42 & jkT; ds fy, vko';d gS fd dk;Z ds fy, o ekr`Ro vuqrks"k ds fy, U;kf;d o n;kyq dk;Z fLFkfr;ksa ds fy, izko/kku lqjf{kr djsaA ¼izLrj 16½
¼l½ Hkkjrh; lafo/kku] 1950] vuqPNsn 42 lifBr vUrZjk"Vªh; deZdkj laxBu & mn~ns'; & ekr`Hkko o f'k'kq ikyu vkSj fyax lekurk dks izksRlkfgr djus ds fy, & izR;sd efgyk ;k iq#"k deZpkjh Hkys gh fu;fer@lafonk vukSipkfjd ;k vLFkk;h vk/kkj ij fu;qDr fd;k x;k gks] mls vUrxZr vuqPNsn 21] Hkkjrh; lafo/kku ;Fkksfpr vof/k ds ekr`Ro o fir`Ro NqV~Vh dk ekSfyd vf/kdkj izkIr gS] ekr`Ro o f'k'kq ikyu dks izksRlkfgr djus ds fy,A ¼izLrj 16] 17] 18½
¼n½ ekr`Ro ykHk vf/kfu;e] 1961] /kkjk 5 ,oa mŒizŒ cqfu;knh fu;ekoyh] fu;e 153 & izko/kku & fuoZpu & lafonkRed vk/kkj ij fu;qDr efgyk deZdkj dks iwjs osru lfgr ekr`Ro ykHk iznku djus ls fu"ks/k ugha fd;k tk ldrk & ;kphdÙkkZ dks ekr`Ro NqV~Vh iznku ugha fd, tkus dk fu.kZ;] euekuh gS o vuqPNsn 14 o 16] Hkkjrh; lafo/kku dk mYya?ku gSA ¼izLrj 19] 20½
Rajiv Sharma, J.
Petitioner was appointed as a Lecturer (Sociology) on contractual basis on 20.09.2010 for the academic session 2010-11. Thereafter, she was given contractual appointment for the academic sessions 2011-12, 2012-13, 2013-14 and also for the session 2014-15. She applied for maternity leave w.e.f. 07.01.2015 to 07.06.2015. However, the fact of the matter is that maternity leave was not sanctioned. Thus, she approached this Hon’ble Court for grant of maternity leave w.e.f. 07.01.2015 to 07.06.2015 with full salary.
2. The case of the respondents is that since, the petitioner was appointed on contractual basis, hence, she was not entitled for maternity leave.
3. It would be apt at this stage to reproduce Section 5 of the Maternity Benefit Act, 1961.
“5. Right to payment of maternity benefit-
[(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.]
Explanation - For the purpose of this subsection, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.]
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than (eighty days) in the twelve months immediately preceding the date of her expected delivery.
Provided that the qualifying period of (eighty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.—For the purpose of calculating under this sub-section the day on which a woman has actually worked in the establishment, [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) [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 the entire period but if the child also dies during the said period, then, for the days up to and including the date of death of the child.]”
4. Rule 153 of the U.P. Fundamental Rules, as applicable to the State of Uttarakhand, reads as under:
153*. Maternity leave on full pay which a female government servant, whether permanent or temporary, may be drawing on the date or proceeding on such leave may be granted to her by the head of the department or by a lower authority to whom power may be delegated in this behalf subject to the following:—
(1) In cases of confinement the period of maternity leave may extend up to the end of three months from the date of the commencement of leave:
Provided that such leave shall not be granted for more than three times during the entire service including temporary service:
Provided also that if any female government servant has two or more livin
