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Sheetal Dinkarrai Trivedi v/s State of Gujarat

    R/S.C.A. No. 12942 of 2021. (On note for speaking to minutes of Order, dated 22.3.2022 in R/S.C.A. No. 12942 of 2021)
    Decided On, 07 April 2022
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV
    For the Petitioner: D.G. Chauhan & Ruchaben A. Gami, Advocates. For the Respondents: Surbhi Bhati, Government Pleader.


Judgment Text
Perused the speaking to minutes note.

In Para 6 of the Order, dated 22.3.2022 passed in captioned Petition, the date '22.5.2005' shall be replaced with the date '22.2.2005' and be read accordingly.

The Order, dated 22.3.2022 is modified accordingly.

Speaking to Minutes note is accordingly allowed.

1. Rule returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule for the Respondent — State.

2. With the consent of the learned Advocates for the respective parties, the Petition is taken up for final hearing today.

3. Heard Ms. Rucha Gami, learned Counsel for the Petitioner and Ms. Surbhi Bhati, learned AGP for the Respondent-State. Perused the record.

4. By way of this Petition, under Article 226 of the Constitution of India, a lady Petitioner, who was working as an Assistant Teacher has been denied the benefit of maternity leave of 98 days.

5. While issuing notice, the coordinate Bench of this Court on 16.9.2021 passed the following order:

“Heard learned Advocate Ms. Rucha A. Gami for the Petitioner and learned AGP Ms. Dharitri Pancholi for the Respondent State.

By way of this Petition, the Petitioner challenges the decisions passed by the Respondent Authorities, dated 11.9.2019 & 22.10.2020, whereby the maternity leave availed by the Petitioner has not been treated as period in service.

Having regard to the same, issue Notice to the Respondents, returnable on 11.10.2021.

Learned AGP waives service of notice on behalf of Respondent No.1.

Direct service is permitted.”

6. The case of the Petitioner is that she was appointed pursuant to the GR, dated 2.7.1999 as an Assistant Teacher (Vidhya Sahayak) on a fixed pay of Rs. 4,500 by an Order, dated 22.2.2000. She completed five years of continuous service on 22.5.2005.

7. According to Ms. Gami, learned Counsel for the Petitioner, the Resolution of the State Government from time to time entitled lady Employees to seek benefits of maternity leave. Accordingly, she took maternity leave for a period of 98 days from 15.4.2002 to 3.5.2002 and 11.6.2002 to 28.8.2002. By the impugned Orders, the request for leave was rejected on the ground that the Petitioner was on fixed pay.

7.1. Ms. Gami would rely on a decision, dated 23.12.2003 passed in S.C.A. No.5692 of 2002 of this Court rendered in a case of Bhartiben Babulal Joshi v. Administrative Officer. She would also rely on Rule 69 of the Gujarat Civil Services (Leave) Rules, 2002. Rule 69 of the Rules would provide that a female Employee in permanent employment shall be entitled for maternity leave for a period of 135 days. Such leave shall not be debited to the leave account. Sub-rule (2) of Rule 69 further states that a female Employee not a permanent Employee, who has put in one year of continuous service is entitled to maternity leave as provided under sub-rule (1) of Rule 69. Therefore, her submission would be that having completed two years of service on the date when she applied for maternity leave, the Petitioner was entitled to the benefits of Rule 69.

8. Ms. Bhati, learned Assistant Government Pleader for the Respondent-State submits that the stand of the Respondent is justified, inasmuch as, she being a fixed term Employee could not avail of the benefit of being paid wages for the period when she was on leave as maternity leave.

9. Considering Rule 69 of the Rules, 2002, it is clear that an Employee even if she is not a permanent female Employee and who has completed at least one year of service is entitled to maternity leave. Even the decision in the case of Bhartiben Babulal Joshi (Supra) indicates that the Coordinate Bench of this Court considering the decision in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll), 2000 (2) LLN 390 (SC): 2000 (3) GLH 163 considered the question of benefits of maternity leave under the Maternity Benefit Act, 1961. The stand of the Government was that in the case of Bhartiben Babulal Joshi (Supra) the Petitioner there was not as a Vidhya Sahayak and, therefore, was not entitled to the benefit of maternity leave. In that context, considering the decision in the case of Female Workers (Muster Roll) (Supra), the Court held as under:

"The short question arising for consideration of this Court is as to whether the Petitioner, who is working as Vidya Sahayak (Assistant Teacher) with the Respondents is entitled for the maternity leave with Salary or not. The facts of the present Petition are to the effect that the Petitioner was appointed as Vidya Sahayak (Assistant Teacher) under the control of the Respondents by order dated 5.11.1998. The Petitioner resumed duties as such in School No.3 in Nagrik Prathmik Shala Palitana. Thereafter, the Petitioner had proceeded on maternity leave from 7th September, 1999 to 28th October, 1999 and thereafter from 24.11.1999 to 24.12.1999, in all, 83 days the Petitioner remained on maternity leave. The maternity leave was sanctioned by the Respondents in favour of the Petitioner but it was a leave without pay. The Petitioner therefore approached the Respondents by way of representation and her representation in that regard was also rejected by the Respondents. The Petitioner, thereafter, served the Respondents with a Legal Notice, dated 1.4.2002 through her Advocate in that regard, which was replied by the Respondents through their Advocate Shri Kakadia on 29.4.2002 wherein contention was raised by the Respondents that according to the Government Resolution, the Petitioner is not entitled for the maternity leave and at the relevant time, the Petitioner was working on probation and was not regularly appointed and, therefore, the Petitioner is not entitled for the benefit of maternity leave with pay. It has also been contended by the Respondents in their reply to the Legal Notice that the maternity leave was enjoyed by the Petitioner with break and, therefore, the Petitioner is not entitled for such benefit. I have taken into consideration these contentions raised by the Respondent in its reply to the Legal Notice.

No affidavit in reply has been filed by either of the Respondents before this Court.

Learned Advocate Mr. Thakkar appearing for the Petitioner has submitted that the matter at issue was considered by the Apex Court the matter of Municipal Corporation of Delhi v. Female Workers (Muster Roll) & anr., 2000 (3) GLH 163 and in the said matter, benefit of maternity leave was granted by the Apex Court to the Daily Wager woman. Relying upon the said Judgment of the Apex Court, learned Advocate Thakkar submits that the Petitioner is also entitled for the same benefits as were granted by the Apex Court in the aforesaid matter.

On the other hand, learned AGP Mr. Ghori appearing for the Respondent No.2 has submitted that according to the Government Resolution, Vidya Sahayaks, who is not regularly appointed is not entitled for such benefit and, therefore, the Respondents were right in not granting such benefit to the Petitioner. Therefore, according to him, there is nos substance in this Petition and the same is, therefore, required to be dismissed with costs.

I have considered the averments made by the Petitioner in the Memo of Petition as well as the submissions made by the learned Advocates for the parties. I have also considered the Judgment of the apex court in the matter of Municipal Corporation of Delhi v. Female Workers (Muster Roll) & anr., 2000 (3) GLH 163. I have also taken into consideration relevant provisions of the Maternity Benefit Act, 1961.

It is not in dispute that at the relevant time when the Petitioner enjoyed the leave, the Petitioner was working with the Respondents. However, she was not made regular at the relevant time when the leave was enjoyed by her but the question is that while working during the probation, initially appointment on the post of Vidya Sahayak, whether the Petitioner is entitled for the benefit of maternity leave with Salary or not. Same situation was examined by the Apex Court in the matter of Municipal Corporation of Delhi v. Female Workers (Muster Roll) & anr., 2000 (3) GLH 163, wherein the Female Workers working on daily wage basis raised demand for grant of maternity leave, which was denied by the Corporation taking a stand that it is available only to the regular female Workers and not to those whose service was not regularized. In the facts of the said case, it was held by the Apex Court that the provisions of the Maternity Benefit Act, 1961 apply even to casual female Workers and they are entitled to maternity benefits. In Para 32 of the said decision, it has been observed by the Apex Court as under:

“32. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Workmen, who constitute amongst half of the segment of our society have to be honoured and treated with dignity at places where they work to ear their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realize the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being vitalized for forced absence during the pre or post nanal period.”

After observing as aforesaid, the apex court has considered the Universal Declaration of Human Rights adopted by the United Nations on 10th of December, 1948, set in motion the universal thinking that human rights are supreme ad ought to be preserved at all case. In Para 36 of the said Judgment, the Apex Court has also considered Article 11 of the Convention on the Elimination of all forms of discrimination against women. Thereafter, the Apex Court further observed as under in Para 37 of the Judgment:

"37. These principles, which are contained in Article 11 reproduced above, have to be read into the contract of service between Municipal Corporation of Delhi and the Women Employees (Muster Roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by providing that the direction issued by the Industrial Tribunal shall be complied with by the Municipal Corporation of Delhi by approaching the State Government as also the Central Government for issuing necessary Notification under the Proviso to sub-section (1) of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the benefits under the Act shall be provided to the women (muster roll) Employees of the Corporation, who have been working with them on daily wages."

Therefore, considering the provisions of the Maternity Benefit Act, 1961 and also considering the observations made by the Apex Court in the aforesaid decision and also considering the facts of the present Petition, according to my opinion, the ratio of the decision of the Apex Court would also apply to the facts of the present case because here also, benefit of maternity leave has been, in substance, denied to the Petitioner only on the ground that she is not regularly appointed on the post of Vidya Sahayak and, therefore, she is not entitled for such benefit on the basis of the Government Resolution, though maternity leave has been sanctioned by the Respondents but without wages. Considering these facts of the present case, according to my opinion, decision of the Apex Court would squarely apply to the facts of the present case and would cover the matter at issue. I am, therefore, of the opi

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nion that the Petitioner is entitled for the maternity leave for the period from 7th September, 1999 to 28th October, 1999 & 24th November, 1999 to 24th December, 1999, in all, for 83 days with wages for the said period." 10. Thus, it is clear that the Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being vitalized for forced absence during the pre or post nanal period. The stand of the Respondent in not granting maternity leave to the Petitioner is wholly unjustified. When the Apex Court has time and again held that even casual female Workers are entitled to maternity leave, the Respondent — State cannot deny such a benefit to the Petitioner. 11. Having considered the decision and the law laid down referred hereinabove the Petition is allowed. The Respondents are directed to consider the period of maternity leave for the period from 15.4.2002 to 3.5.2002 & 11.6.2002 to 28.8.2002 as maternity leave that the Petitioner is entitled too in accordance with the Rules and the Orders, dated 11.9.2019 & 22.10.2020 passed by the Respondent authorities are quashed and set aside. 12. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No Costs.
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