At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE P. GOPINATH
For the Appellant: G. Krishnakumar, Advocate. For the Respondents: R1-R3, Aysha Youseff, SC.
A.K. Jayasankaran Nambiar, J.1. The petitioner in W.P (C) No.39889/2018 is the appellant before us aggrieved by the judgment dated 15-02-2019 of the learned Single Judge. The brief facts necessary for disposal of the writ appeal are as follows:2. The appellant is stated to be a skilled causal worker who was appointed as such in the Kerala Agricultural University in 2003. It is stated that consequent to the formation of the Kerala Veterinary and Animal Sciences University, she was transferred as a casual worker under the said University in 2010. During the period between 24-03-2016 and 15-06-2016 the petitioner availed, and was sanctioned, a maternity leave and it is not in dispute that she rejoined duty as a casual labourer on 16-06-2016 itself. It is also not in dispute that during the leave period she received the maternity benefits from the respondent University for a total period 84 days.3. The grievance of the petitioner in the writ petition was as regards the ranking of casual labourers effected by the respondent University, on the basis of the number of days actually worked as casual labourer. It was pointed out by the petitioner that, Ext.P1 Leave Rules contemplated that casual labourers who had discharged service of 160 days in a year would be entitled upto 12 weeks of maternity leave which would be treated as continuous service and that it was further made clear in the said Rules that the average daily wage together with the D.A that was paid to the casual labourer for the period of 3 months (90 days) immediately prior to the date of delivery would be basis for computation of the maternity benefit. It was her case that while the respondent University had granted her the maternity benefits as above, while drawing up the seniority list of casual labourers prepared based on the number of days actually worked by them, the petitioner was placed at Sl. No.68 as against Sl.No.23 which she claimed. This change in the seniority position apparently arose on account of the respondent University having computed the number of working days during the maternity leave period by reckoning only 6 days in a week as against 7 days in a normal week. It was the contention of the petitioner that in as much as the leave Rules mandated a grant of maternity leave computed in weeks, the respondent University could not have taken 6 days as constituting those weeks for the purposes of the seniority list aforementioned.4. The learned Single Judge who considered the writ petition found that as per the University Rules, a weekly off is compulsory for every casual employee. It followed therefore that a casual labourer could work only for 6 days in a week and had necessarily to be given the seventh day as an off. It was found therefore that when ordinarily a casual employee could not claim to have worked on the 7th day of the week, the petitioner who had proceeded on maternity leave could not claim a differential treatment. It was accordingly found that the University was justified in counting 6 days in a week, during the maternity period, for the purposes of reckoning the position of the petitioner in the seniority list aforementioned. A review petition filed by the petitioner against the said judgment of the learned Single Judge did not meet with any success and the same was also dismissed by order dated 22-08-2019 in R.P No.680/2019.5. Before us it is contention of Sri. Krishnakumar, learned counsel for the appellant that the University having reckoned 7 days a week for the purposes of grant of maternity benefits, was not justified in resorting to a different computation for the purposes of reckoning the actual number of days worked by the petitioner, during the maternity period, for inclusion in the seniority list. He places reliance on the judgment of the Supreme Court in (1997) 4 SCC 384 = 1977 KHC 220: [B. Shah v. Presiding Officer, Labour Court, Coimbatore and others] where while dealing with a computation of the benefits contemplated under the Maternity Benefits Act, 1961 the court found that in as much as the Act did not contain any definition of the word “week” it had to be understood in its ordinary dictionary meaning which implies a period of 7 days, and that the benefit of the wages for all the Sundays and rest days falling within the period defined would ultimately be conducive to the interests of both woman worker and her employers.6. It must be noticed here that the judgment aforesaid was rendered while interpreting the provisions of Section 5 of Maternity benefits Act that provided for a formula that governed the payment of maternity benefits to the woman employee. As per the said formula, the employer would be liable for payment of maternity benefits at the rate of the average daily wage for the period of actual absence immediately preceding and including the day of delivery, and for the 6 weeks immediately following that day. Through an explanation it was also provided what had to be paid by the employer was the average of the daily wages payable to her for the days on which she has worked during the period of 3 calender months immediately preceding the date from which she absented herself on account of maternity or one rupee a day whichever was higher. In other words, the provision that came up for consideration before the court clearly mandated that the average daily wage paid to the woman employee, for the days actually worked during the immediately preceding 3 months from which she absented herself on account of maternity, had to be first determined, and then the said figure applied to the period during which the woman employee proceeded on maternity leave.7. On the facts of the case before us, we note that the maternity benefits due to the petitioner, computed in accordance with the Rules, has already been paid to the petitioner and this is not in dispute. We are concerned here with the computation that should govern the appellant's position in a seniority list prepared based on the actual number of days worked by her as a casual employee for the purposes of regularisation of her services. In that context, the number of days which the petitioner is deemed to have worked during the maternity leave period can only be taken as a reference to the number of days on which she was exempted from presenting herself for work at the University. By that yardstick, the Sundays that fell during the maternity period, on which days the petitioner was not even otherwise expected to present hers
Please Login To View The Full Judgment!
elf for work at the University, and which therefore did not attract the exemption from work offered by the leave, had to be necessarily excluded. It might not also be out of place to point out that, even going by the Leave Rules produced as Ext.P1 in the writ petition, the number of working days that would have accrued to the credit of the petitioner if she had not availed the maternity leave would have been the same as computed by the University.We therefore find no reason to interfere with the findings of the learned Single Judge in the impugned judgment, which we uphold for the reasons stated therein, as supplemented by the reasons contained in this judgment. The Writ appeal fails and is accordingly dismissed.