CAV Order

1. The petitioner has filed the present petition against the memo dated 04.09.2017 to the extent by which respondents have not granted pay for maternity leave to the petitioner for the period from 20.09.2017 to 19.03.2018 though sanctioned the maternity leave to her for the said period as she was a contractual employee of the respondents No. 1 to 3.

2. The brief facts reflected from the record are that the Petitioner was appointed as Project Assistant at IIT Bhilai, Raipur (C.G.) vide appointment letter, dated 15/07/2016 on Ad-hoc basis for three months. Looking to the conduct, working and behavior of petitioner, she was re- appointed at the same post for a period of one year with the revised salary of Rs.17,000/- vide appointment letter dated 09/08/2016. Petitioner was given extension of one year tenure in her service i.e. from 12/08/2017 to 11/08/2018, vide letter dated 12/06/2017. In between petitioner became pregnant and thus applied for the maternity leave for a period of six months i.e. from 20/09/2017 to 19/03/2018 vide application dated 11/08/2017. The respondents granted the maternity leave, but without pay, vide impugned memo dated 04/09/2017. This memo has been assailed by the petitioner in the writ petition.

3. It has been contended that the Petitioner came back after her maternity leave to join her service on 19/03/2017, but she was maltreated by the governing members of administration of IIT, Bhilai. Due to such grave mental harassment, petitioner resigned from her service on the very next day i.e. on 20/03/2018, mentioning the reasons in her resignation letter to the Director IIT, Bhilai. Petitioner's resignation letter was accepted by the Deputy Registrar Administration, IIT Bhilai and she was relieved from her services vide relieving letter dated 09/05/2018. Petitioner approached Asst. Labor Commissioner, Raipur (C.G.), Labor Commissioner, Raipur (C.G.), PMO, New Delhi but the redressal of her grievances for grant of maternity benefit has not been redressed, therefore, she has filed present writ petition.

4. The respondents have filed their reply denying the allegation made in the writ petition contending that the petitioner was given an adhoc appointment as project assistant purely on temporary basis at the respondent Institute. i.e. IIT Bhilai, Raipur Chhattisgarh for three months. Respondent No. 1 issued advertisement wherein the petitioner applied and got selected as project staff and was appointed afresh for a period of one year purely on temporary basis vide appointment letter dated 09th Aug 2016 and the period of engagement was for one-year. The period of engagement of petitioner was further extended from 12th Aug 17 to 11th August 18 on the same terms and condition as of the original offer dated 09th Aug 2016. On very last date of earlier adhoc appointment tenure i.e. 11th August 2017 petitioner had applied for maternity leave from 20th September 2017 to 19th March 2018 by concealing information with regard to her pregnancy. It has been further contended that the maternity leave as demanded by the petitioner was allowed, but without pay as adhoc staff she is not entitled for pay for the long leave as the adhoc employment was only for a period of one year. It is also noteworthy to mention that the adhoc engagement of the petitioner was only for a limited period of one year for a specified work of working as project staff. It has been further contended that the petitioner visited respondent Institute after availing her maternity leave to join her service and was allowed to re-join as already stated, but she submitted resignation letter citing her priorities for her child. Thus, the Petitioner never had worked in the Respondent institute since 20.09.2017, when she proceeded on maternity leave hence she is not entitled to get monetary benefits under the Maternity Leave Act 1961. The petitioner has misinterpreted the conditions of Maternity Benefit Act 1961 and ignored the fact that she was sanctioned maternity leave without pay and advised to join after completion of leave period as a special case. The allegations of the petitioner are totally false and frivolous and cannot stand, therefore, the petition may kindly be dismissed.

5. Learned counsel for the respondent would further submit that since the petitioner was not a regular employee she cannot claim benefits under the Maternity Benefit Act, 1961. Treating her case to be special case leave has been granted, which is a reasoned order and does not warrant any interference by this Court and pray for dismissal of the writ petition.

6. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

7. The issue involved in this petition is whether contractual employees are entitled to get maternity leave benefit or not under the Maternity Benefit Act, 1961 (for short "the Act, 1961").

8. From preamble of the Act, it is quite vivid that this Act, 1961 has been enacted by the Legislature with aims and object to regulate the employment of women in certain establishments for certain period before and after child birth and to provide maternity benefits and certain other benefits. The Sections which are relevant for adjudication of this case are extracted below :-

2. Application of Act.-- (1) It applies, in the first instance,--

(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:] Provided that the State Government may, with the approval of the Central Government, after giving not less than two month's notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

3. Definitions.--In this Act, unless the context otherwise requires,

(a) "appropriate Government" means, in relation to an establishment being a mine 1[or an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances] the Central Government and in relation to any other establishment, the State Government;

(b) "child" includes a still-born child;

(c) "delivery" means the birth of a child;

(d) "employer" means--

(i) in relation to an establishment which is under the control of the Government a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

(n) "wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes--

(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to, (2) Incentive bonus ; and (3) the money value of the concessional supply of food grains and other articles, but does not include--

(i) any bonus other than incentive bonus;

(ii) over-time earnings and any deduction or payment made on account of fines;

(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and

(iv) any gratuity payable on the termination of service;

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

13. No deduction of wages in certain cases.--No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of--

(a) the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or

(b) breaks for nursing the child allowed to her under the provisions of section 11.

27. Effect of laws and agreements inconsistent with this Act.—

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

9. The Maternity Benefit Act, 1961 is a social welfare legislation and enacted with the object to regulate the employment of women for certain period and after child birther to provide maternity benefits and certain benefits. The Act, 1961 has come up for consideration before Hon'ble the Supreme Court in case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) ((2000) 3 SCC 224) wherein Hon'ble the Supreme Court has held in paragraph 6 and 11 as under:-

"6. Not long ago, the place of a woman in rural areas has been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with flu's Article vis-a- vis the Labour Laws, this Court in Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the 'State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under: -

"(3) Nothing in this article shall prevent the State from making any special provision for women and children."

11. It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not."

10. Thereafter, this issue has been adjudicated before various High Courts whether women working on contractual basis are entitled to get maternity benefit or not? Hon'ble High Court of Delhi in case of Dr. Baba Saheb Ambedkar Hospital Govt. of NCT of Delhi and Others vs. Krati Mehrotra (Writ Petition (C) No. 1278/2020 dated 11.03.2022) has held as under:-

"12.2. The provisions of the 1961 Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker. This position stands unambiguously articulated in the judgement of the Supreme Court rendered in Municipal Corporation of Delhi (MCD) v. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224.

13. Pertinently, the 1961 Act does not tie in the grant of maternity benefit to the tenure of the woman employee.

13.1 There are two limiting factors for the grant of maternity benefits.

(i) First, the woman-employee should have worked in an establishment of her employer for a minimum period of 80 days in 12 months immediately preceding the date of her expected delivery.

(ii) Second, the maximum period for which she can avail maternity leave benefit cannot exceed 26 weeks, of which, not more than 8 weeks shall precede the date of her expected delivery.

13.2. For a woman employee who has two or more surviving children, although the maximum period for which she can claim maternity benefit is 12 weeks, the period preceding the date of expected delivery cannot be more than 6 weeks.

13.3. Therefore, linking the tenure of employment, in this case, a contractual employee, with the period for which maternity benefits can be availed by a woman employee, is not an aspect that emerges on a plain reading of the provisions of the 1961 Act.

13.4. Section 27 of the 1961 Act, which embeds, a non- obstante clause, expounds that the provisions of the said Act would apply notwithstanding Signature Not Verified Digitally Signed By:ATUL JAIN Signing Date:12.03.2022 19:35:55 the provisions contained, inter alia, in any other law, agreement or contract of service, to the extent it is inconsistent with the provisions of the said Act.

13.5. The object and purpose of the 1961 Act being, to not only regulate employment but also maternity benefits which precede and follow childbirth, point in the direction that tying up the tenure of the contract with the period for which a woman employee can avail of maternity benefit is contrary to the mandate of the legislation i.e., the 1961 Act.

14. Thus, as long as conception occurs before the tenure of the contract executed between a woman-employee and her employer expires, she should be entitled to, in our opinion, maternity benefits as provided under the 1961 Act."

11. Hon'ble High Court of Madhya Pradesh in case of Dr. Vandna Singh vs. The State of Madhya Pradesh 3 has held as under :-

"3. In the light of the judgment of Supreme Court in Female Workers' case (supra) which is followed by this Court in the case of Mrs. Priyanka Gujarkar (supra) curtains are finally drawn on the issue involved in the present case. Accordingly, the action of the respondents whereby the claim of the maternity benefit was denied cannot be accepted. It runs contrary to the legislative mandate flowing from Maternity Benefit Act, 1961. Resultantly, the impugned orders dated 13.7.2016 (Annexure P-1) and 7.9.2016 (Annexure P-2) are set aside to the extent it relates to non-grant of maternity benefits to the petitioner. The respondents are 9 WP-10795-2021 directed to grant maternity benefit to the petitioner as per the Act, 1961."

12. Hon'ble High Court of Bombay in case of Archana D/o Nanabhau Dahifale vs State of Maharashtra and Another 4 has considered the judgment passed by the Hon'ble Supreme Court and held as under :-

"27. The Division Bench of the Madhya Pradesh High Court in the case of Mrs. Priyanka Gujarkar Shrivastava 3 WP-10795 - 2021 dated 30th September, 2021 4 (2019) AIR BombR 123 (supra) had an occasion to consider whether the petitioner therein who was working as a Court Manager on a contract basis on consolidated salary is entitled to maternity leave at par with regular employees of the State Government. After considering the observations made by the Apex Court in the case of (1) J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. Badri Mali (supra) and (2) Municipal Corporation of Delhi Vs. Female Workers (Muster roll) and anr. (supra), the Division Bench of the Madhya Pradesh High Court held thus :

"12. If we take note of the aforesaid principle laid down by the Hon'ble Supreme Court, it is crystal clear that the Supreme Court has expressed its concern in the matter of treatment given to women and goes to observe that women constitute half the segment of our society. They have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties or avocation, in the place where they work, they must be provided with all facilities to which they are entitled to. If the anxiety expressed by the Hon'ble Supreme Court is taken note of, we find that the Hon'ble Supreme Court does not approve the act of discriminating a woman based on the place where she works and the nature of avocation and the nature of duties performed by her. The Hon'ble Supreme Court says that all facilities available to a woman should be provided irrespective of the place where their work, the nature of duties performed by them which would also include the nature of appointment provided to them. Hon'ble Supreme Court goes on to say that this is more so necessary because she becomes a mother, which is the most natural phenomena of life of a woman and for the same and for giving birth to a child she needs all the facilities which are to be provided to her and therefore, the employer while doing so has to be considered and sympathetic towards her. The employer should be more realistic to the physical disabilities which a woman has to face when on family way and therefore taking note of all these aspects, the conclusion arrived at is that for a woman irrespective of the place where she is working, the benefit of Maternity Benefit Act should be conferred as the aim of this law is to provide all facilities to a working women in a dignified manner so that she can overcome the state of motherhood honorably, feasibly and without any clear victimization or without being a victim of forced absence from her place of work. If we analyse each and every word and the anxiety expressed by the Hon'ble Supreme Court in the judgment, we have no hesitation in holding that in the case of a woman irrespective of the place where she is working and irrespective of capacity of her appointment, the nature and tenure of her appointment and the duties performed by her, when it comes to granting her the benefit of facilities required to give birth to a child the employer is duty bound under the Constitution to provide her all the benefits and that is why it has been held by the Hon'ble Supreme Court that the benefit of Maternity Benefit Act, 1961 should be conferred to even muster role employees working in the Delhi Municipal Corporation and if the aforesaid principle is applied in the present case, we see no reason as to why the benefit of Maternity Benefit Act should not be given to a woman contractual employee even if she is working in the establishment of the District and Sessions Judge."

28. It has further been observed that identical issue of granting maternity leave to women employees appointed on contract basis or on adhoc or temporary basis has been considered by the Allahabad High Court, the Rajasthan High Court, the Punjab & Haryana High Court and the Uttarakhand High Court and based on the law laid down by the Supreme Court in the case of Female Workers (Muster Roll) (Supra), petitions have been allowed and directions issued to grant benefit to the employees. Though the view of the Division Bench of the Madhya Pradesh High Court is not binding on us, as the same has only persuasive value, we are nonetheless persuaded to accept the said view as we are in respectful agreement with the view taken. In this view of the matter, we hold that the petitioner, who is appointed as a Project Officer with respondent No.2 on contractual basis on a consolidated monthly honorarium of Rs.25,000/- per month is entitled to the maternity leave benefits of salary from 13th June, 2017 to 30th November, 2017.

29. In our opinion, therefore, the action of the respondents in denying the claim of the petitioner for grant of maternity benefits

during her maternity leave period runs contrary to the legislative mandate flowing from the provisions of the said Act. Since this Court has already held that the benevolent object of grant of 180 days maternity leave to the woman employees cannot be and should not be limited to the women Government servants of the State of Maharashtra only, the same are also extended to the petitioner who is working as a Project Officer with the respondent No.2 on contractual basis." 13. In light of the above stated position and considering the law laid down by the Hon'ble Supreme Court and various High Courts, it is quite vivid that the Maternity Benefit Act, 1961 does not differentiate between contractual employee and regular employee as the Act, 1961 is a welfare legislation which has no bearing with the nature of employment whether the woman- employee is regular or contractual employee. Differentiating employee on the basis of regular or contractual employment is not the object of the Maternity Benefit Act, 1961. Difference in the status of employment for grant of benefit under the Act, 1961 is not permissible and against the aims, object and provisions of the Act, 1961. The Act, 1961 does not provide such differentiation. In the present case, the differentiation is an artificial discrimination which has been carried out by the respondent establishment without any foundation. Therefore, the memo dated 04.09.2017 so far as it relates to non payment of salary is quashed. In light of the above stated factual, legal and material placed on record, it is quite vivid that the respondents authorities had granted maternity leave for the period from 20.09.2017 to 19.03.2018, but erred in denying salary for the said period as the Act, 1961 does not discriminated between regular employee, contractual employees or adhoc employees. It applies to establishment as provided in Section 2 of the Act, 1961, as such, the impugned memo dated 04.09.2017 is illegal and liable to be quashed to the extent that it has denied the salary to the petitioner and the respondents are directed to release salary of the petitioner for the period from 20.09.2017 to 19.03.2018 as per the provisions of the Maternity Benefits Act, 1961 within two months from the date of receipt of copy of this order 14. With the aforesaid observations and directions, the writ petition is allowed.