Maternity Benefit Cases That Were Heard In Indian Courts In Past Three Months

Written By: Megha Chandra

Editor’s Note: This edition of the quarterly legal round-up of cases pertaining to the Maternity Benefits Act and is for the period of June to Aug 2020. In this piece we focus on Dr. Mandeep Kaur v/s UOI and others C. W. P. no. 1400 of 2018 decided on 15.07.2020 and Tanuja Tolia v. State of Uttarakhand (S/B) no. 263 of 2019 decided on 24.07.2020

Facts Dr. Mandeep Kaur v/s UOI

The Petitioner was a medical officer, employed via contract, at an Ex- Servicemen Contributary Health Scheme (ECHS) clinic set up by the state. She applied for maternity leave with effect from 11.02.2018 for 180 days as per the provisions of the Maternity Benefit Act, 1961.

Submissions By Himachal Pradesh:

The ECHS clinic refused her request on the basis that her contract of employment with the clinic did not have any clause under which she could claim “maternity leave”.

Judgment

The Court noted that as per Section 2 of the Maternity Benefit Act, 1961, the benefits apply to every establishment in which ten or more persons are employed, among others.

The Court further noted that the ECHS clinic in question was squarely covered under Section 2 of the Maternity Benefit Act, 1961 and thus the petitioner’s application for availing benefits under the Act could not be refused.

The court also, whilst deciding the question of whether the petitioner despite being a contractual employee could still avail of the benefits under the act, quoted Municipal Corporation of Delhi v/s Female Workers and another[1], of the Supreme Court which has explicitly mandated for the entitlement of maternity leave to be made available to women employees whether permanent, casual or contractual.

The Court, whilst discussing the nature of benefits available to women under the Maternity Benefit Act, 1961 also set out the amended Section 5 of the Act, which extended the time period of maternity leave available to a woman from 12 weeks to 26 weeks, and also provided a  “work from home” option that could be exercised after the expiry of the 26 week leave period, with mutual consultation with the employed.

Since the Petition was filed after the amendment of Section 5, the Court directed the state to grant maternity leave to the Petitioner as per the amended law.

Facts Tanuja Tolia v. State of Uttarakhand

This a full bench judgment, that will now likely be treated as precedent in every court of the country. A petition was filed by a female Aurvedic doctor, who was employed in the State Medical and Health Services (SMHS) Uttarakhand on a contractual basis. Though her contract of employment was for one year initially, it had been consistently renewed.

She applied for maternity leave, and was accordingly granted the same. After her maternity leave expired, she chose to not rejoin and applied for Child Care Leave (CCL), which was denied stating that she was a  contractual employee,  and therefore was not entitled to CCLs.

The application for CCL was made pursuant to a what is knows as Government Order (GO), which clearly stated that a CCL of 730 days was provided for only permanent employees and not contractual employees, and formed the basis of the employer’s refusal to grant her CCL.

The doctor then approached the High Court by way of writ, which writ was also decided against her.

The matter was then listed under a division bench of the High Court of Uttarakhand, where the state argued that a contractual employees’ term of employment is only a year, and under the circumstances, it was practically impossible to grant a CCL of 730 days. If the state was to do so, then it would mean that the state would compulsorily have to keep renewing the contract.

The Court found favor with the State’s argument and found that there were conflicting views of different courts, and thus referred the matter to a larger bench.

Judgment

The Court, whilst deciding the question of law, examined the history of maternity and child care leave. It was observed that the rights of women and children are interdependent.

Many a times when a woman seeks enforcement of her rights ( such as maternity leave and child care leave), it is really the right of a child which is being sought to be enforced. This is also echoed by the Universal Declaration of Human Rights which categorically lays down “Motherhood and childhood are entitled to special care and assistance. All children, born in or out of wedlock, shall enjoy the same social protection”.

This was taken further by the Convention of the Elimination of Discrimination Against Women (CEDAW) which calls upon all nations to take appropriate measures to introduce maternity leave with pay for all women. India is a party to both the aforesaid conventions and as such, must inculcate these covenants into domestic law. Protection of women and children, also finds place in the directive principles of state policy of our Constitution.

In light of the above, the GO which only applied to permanent employees and excluded contractual employees, was analyzed. The Court observed, that CCL’s real beneficiary was the child, and the mother or the father taking the CCL were only an instrument for enforcement of the child’s rights, and no discrimination ought to be accorded between who is entitled to CCL, as the ultimate beneficiary remains the same.

However, the Court was mindful of the practical difficulty faced in giving a CCL of 730 days to a contractual employee whose term of employment is only 365 days and thus agreed with Guwahati High Court, which, in a separate decision had decided that in case of a contractual employment, CCL should be granted on a pro rata basis, but since the Guwahati High Court had failed to establish how the “pro rata” leave was to be calculated, the bench proceeded to lay down the calculation by way of this judgment.

The Court has now held that that an employee whose entire employment is for one year, and if he/she fulfils other parameters referred to in the GO, i.e. if he/she has two children of less than 18 years of age, he/she will be entitled to CCL amounting to a paid leave of 31 days.

About The Author: Megha studied law at Gujarat National Law University (GNLU) and graduated in 2011. Since then, she has always been a litigating lawyer, first in Delhi and now in Mumbai . Apart from a commercial litigation practice, she also takes a keen interest in human rights in india and their enforcement at the grassroots level. 

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