ORDER(ORAL)

Per.: M.S. Latif, Member(J)

1. Through the medium of the instant petition the petitioner seeks for the following reliefs which are reproduced as under-

(a). Issue an appropriate order or direction to the respondents to grant the applicant maternity leave benefits on account of the birth of her third child, as per the statutory provisions of the Maternity Benefit Act or as the hon’ble Tribunal may deem fit and proper in the circumstances of the present case.

(b). Declare that denial of maternity leave benefits for the birth of third child as illegal, and arbitrary, in contravention of the Maternity Benefit Act, 1961, as amended by the Maternity Benefit (Amendment) Act, 2017.

(c). Any other appropriate relief as this Hon’ble Tribunal may deem fit and proper may also be passed in favour of the petitioner either in lieu or in addition to any of the relief claimed, herein above, on the facts and circumstances of the case.

2. Alongside the main reliefs the petitioner has also sought for the interim relief which are also reproduced as under-

That, till pending final decision on the application (O.A.), the applicant requests the Hon’bel Tribunal to direct the employer herein the respondents to allow the applicant to avail maternity leave immediately after expiry of the medical leave applied by the applicant as per the advice of the consultant surgeon, so that she can benefit herself of the necessary leave benefits post-delivery period, which interim leave would prevent her from undue hardship, aligning with the maternity Benefit Act’s intention to support the health of the mother and child and any other appropriate relief which would be just and proper in the interest of justice.

3. The case of the petitioner as projected in the is that the applicant is working as a Grade-I Nurse at the Pediatric Surgery ward at SKIMS Soura Srinagar.

4. It is next averred that the petitioner has begotten two daughters who surviving as such had availed 180 days each of the maternity leave benefits for her previous maternities as per the leave rules.

5. It is also averred in the petition that the petitioner is aggrieved by the denial of the maternity leave benefit for the birth of her third child by the respondent department. It is next averred in the petition that the applicant who was expecting her third child has approached the respondent department to avail of the maternity leave benefit of 12 weeks as per the Maternity Benefit Act 1961 read with the Maternity Benefit (Amendment) Act 2017, but the applicant was asked to move a formal representation for availing maternity leave benefit for third child.

6. Learned counsel for the petitioner seeks relief on the grounds as mentioned in the O.A. which are reproduced as under-

Grounds of Relief:

5.1 The Maternity Benefit Act, 1961, and its Amendment Act, 2017, provide maternity leave and related benefits to all women employees, with reduced leave for more than two surviving children (i.e., the third child and subsequent child), without a bar on eligibility for the third or subsequent children.

5.2 That under the act employed women are entitled to 26 weeks maternity leave benefit for the first two children each and 12 weeks maternity leave benefit each for subsequent children without a bar on the number of children.

5.3 Section 27 of the Maternity Benefit Act provides that the Act has an overriding effect on all inconsistent rules, regulations, or policies, meaning that state rules cannot validly limit maternity leave to two children. 5.4 The verbal denial of maternity benefits violates procedural fairness and the applicant's statutory rights under the Maternity Benefit Act.

5.5 The Hon'ble Himachal Pradesh High Court dealing with a maternity leave benefit case has reiterated that every woman, irrespective of her employment status, is entitled to maternity leave. Maternity leave aims to protect the dignity of motherhood and ensure the well-being of both the woman and her child, the court also remarked that Mat