extended period of maternity leave would be applicable to you

2) make application for extension of maternity leave

3) you would be entitled for salary for period of your maternity leave

Central Administrative Tribunal - Delhi

Dr. Shilpa Sharma vs The Chairman on 11 October, 2011

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

OA No.939 of 2011

New Delhi this the 11th day of October, 2011

Honble Dr. Dharam Paul Sharma, Member (J)

Dr. Shilpa Sharma

W/o Shri Pankaj Sharma,

R/o 22-A/8, East Punjabi Bagh,

New Delhi-110026.

.... Applicant

( By Advocate Shri R.K. Shukla )

VERSUS

1. The Chairman,

New Delhi Municipal Council,

Near Park Hotel, NDMC Building,

New Delhi.

2. The Director (M.S.)

Charak Palika Hospital,

Moti Bagh, New Delhi.

.. Respondents

( By Advocate Ms. Harvinder Oberai )

O R D E R

By way of this Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has questioned the legality and correctness of the order dated 13.1.2011, as at Annexure A1, denying her maternity leave on the ground of having been appointed on contract for one year and was, therefore, not entitled to maternity leave being an extra ordinary leave. While passing the said order, the respondents have distinguished the judgment of the Honble Rajasthan High Court in the case of Dr. Hemlata Saraswat vs. State of Rajasthan & Ors., 2009 (1) IV AISLJ 424, for the reason that the Government of Rajasthan had taken a decision to grant maternity leave to the temporary female employees and thus, the contractual employees are also entitled to get the same benefits.

2. The applicants case is that vacancy for the post of General Duty Medical Officer Grade-II (in short GDMO) was published in newspaper for appointment thereof on contract basis for a period of one year. The applicant applied for the same and her application was duly considered by the respondents. Thereafter she was offered the post of GDMO in the consolidated salary of Rs.8,000/- per month plus N.P.A. plus 75% of admissible allowances, excluding H.R.A. for a period of one year. An agreement was entered into between the applicant and the respondent no.1 on 12.7.2007, a copy of which is at Annexure A2. In order to ensure that the submissions made by the parties herein are examined in proper prospective, it is considered expedient to reproduced this agreement in full as follows:-

Articles of agreement made this on 12 July 2007 between Dr. Shilpa Sharma w/o Dr. Pankaj Sharma r/o H.No.22-A/8, East Punjabi Bagh, New Delhi-26 (herein after referred to a party of the first part) and the Chairperson, NDMC, New Delhi (hereinafter called the party of second part).

NOW THESE PRESENT WITNESSES AND THE PARTY HERE TO RESPECTIVELY AGREE AS FOLLOWS:-

1. Whereas the party of the second part has agreed to engage the party of the first part on a fixed remuneration of Rs._______/__ p.m. and the party of the first part has agreed to serve the council as GDMO Grade-II on the terms and conditions herein contained.

2. Whereas the party of the first part shall devote his/her while time to his/her duties and shall, whenever required, perform duties, as assigned to him/her by the party of the second part and the officers and the authorities under whom he/she may from time to time be placed.

3. The contractual agreement of the first part will be subject to the following terms and condition.

a. The contract is valid for a period of One Year and it shall be deemed to have automatically ceased on 17.6.208.

b. The contractual engagement is purely temporary and can be terminated at any time by the party of the second part without assigning any notice or reason.

c. The party of the first part will be required to give one-month notice or deposit one months contractual salary in the Municipal Treasury before leaving the service during the currency of the contract.

d. The party of the first part will be entitled to a fixed remuneration of Rs.______/- p.m. w.e.f. 18.6.2007 for the duties actually performed.

e. That the contract agreement will not confer any right for the regular appointment on the post.

f. That the temporary contract service of the party of the first part can be terminated by the party of the second part even during the currency of this agreement, if the party of the second part finds any violation of the terms and conditions of this agreement and further finds his conduct unsatisfactory and not according to the discipline of the institution of the party of the second part.

In witness whereof of the party of the first part and the Chairman, New Delhi Municipal Council have here unto set and subscribe their respective hands on the day, month and year first above written.

3. A plain reading of the aforesaid agreement would reveal that it does not provide for the applicants entitlement to leave, if any, during her contractual service with the respondents. Upon execution of the aforesaid agreement, an order was issued on 14.6.2007 by CMO (I.S.M.) in connection with the appointment of the applicant. Thereupon the original testimonials of the applicant were duly verified. She was duly subjected to medical examination. The applicant then reported for duty on 18.6.2007 in Charak Palika Hospital, Moti Bagh, New Delhi. The applicant was pregnant at the time of joining her duty. On 3.9.2007, the applicant submitted details in respect of expected date of delivery as per her letter dated 3.9.2007, a copy of which is at Annexure A6, addressed to the Secretary, NDMC, and requesting for grant of maternity leave. In her aforesaid letter, the applicant has inter alia stated that As told by Administrative Block, no Maternity Benefit is available to GDMOs at present. But as of Office Memorandum No.13018/1/97-Estt. (L) & No.13018/2/98-Estt.(L) and Maternity Benefit Act of 1961, I am entitled for same as I have been appointed for a period of one year and I will complete more than requisite eighty days (from 18th June to 86h Sep., 2007 = 13+31+31+8 days) before my expected day of delivery on 9th Sep. 2007. Kindly grant me maternity leave from 9th September, 2007 in continuation of my weekly duty off on 8th September, 2007. However, the request of the applicant for grant of maternity leave was not responded to even when she gave birth to a baby on 6.9.2007. The applicant pursued the matter with the respondents for grant of maternity leave but of no avail and feeling aggrieved by non action of the respondents, she resigned on 23.2.2008. On 22.10.2008, the applicant was asked by the respondents to deposit Rs.5328/- being salary from 23.2.2008 to 28.2.2008 which was duly complied with by the applicant. The applicant sought information under Right to Information Act on 27.11.2007, as to her request for grant of maternity leave when she was informed that she was not entitled to maternity leave. The applicant then made an appeal to higher authorities on 2.1.2008 complaining about non-payment of her maternity leave from 9.9.2007 for a period of 135 days. The applicant was informed that the issue has been referred to Law Department for getting their opinion whether maternity benefits are admissible to the contractual employees or not. The applicant also submitted medical bills for reimbursement. The applicant made a number of representation claiming that she was entitled to maternity leave under the Maternity Benefits Act, 1961. She also raised her grievance regarding non-payment of HRA allowance. Having failed to obtain necessary relief at the hands of the respondents, the applicant has filed OA 3565/2010 which was disposed of vide order dated 27.10.2010 with the directions to the respondents to re-consider the request of the applicant for grant of maternity leave and other benefits in the light of the judgment of the Honble High Court of Rajasthan and take a decision thereon through issue of a speaking order within the period prescribed therein. In compliance there with, the respondents have passed the orders, which is being impugned in these proceedings.

4. While assailing the impugned order, the applicant has inter alia submitted that the CCS (Leave) Rules, are not applicable to the applicant in the matter of grant of maternity leave. The administrative action of the respondents in denying the maternity leave benefit to the applicant has to be examined on the anvil of the Article 42 of the Constitution of India which is available for determining the legal efficacy of the action. The provisions of Maternity Benefits Act, 1961, have been made applicable to a class of employees of NDMC but the same was not made available to woman employees engaged on muster roll on the ground that the were not regular employees of the Corporation. There was no justification to deny the maternity leave benefits to the applicant. A woman employee at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and safety. The maternity leave is fundamental human right of the applicant, which could not be denied to her being a contractual employee. The action of the respondents is violative of Articles 21 and 39 (d) of the Constitution of India. In the Application, the applicant has claimed certain other reliefs, such as reimbursement of medical expenses and grant of HRA. However, at the hearing, the learned counsel for the applicant did not press these reliefs and confined his submissions to the grant of maternity leave alone.

5. The learned counsel for the applicant submitted that the case is squarely covered by the judgment of the Honble Rajasthan High Court in the case of Dr. Hemlata Saraswat (supra) and all the points raised by the respondents have been duly considered.

6. The respondents have filed their counter reply opposing the applicants claim wherein it has inter alia been stated that the CCS (Leave) Rules, 1972 are not applicable to a person employed on contract except the contract provides otherwise (vide Rule 2 (h)) The said leave Rules provides for maternity leave in Rule 43. In the present case merely perusal of the contract would show that contract did not provide for maternity leave to be availed by the applicant and, therefore, request of the applicant for the grant of maternity leave was rejected. Since the terms and conditions of the contract were duly accepted by the applicant, she cannot now have any grievance at this stage. As such the applicant is not entitled for any relief. The Original Application is, therefore, liable to be dismissed forthwith.

7. Ms. Harvinder Oberai, learned counsel appearing on behalf of the respondents sought to distinguish the Honble Rajasthan High Courts judgment, referred to above, with reference to the fact that the applicant was working on contract basis and as such she was not entitled to maternity leave under the CCS (Leave) Rules. Under the said Rules, maternity leave, which is also an extra ordinary leave, can not be granted in a case of a contract for one year or less. Ms. Harvinder Oberai strongly urged that in the present case, the applicant has not even served for one year and has resigned even before completion of her one year tenure. In view of this Rule position, the applicant is not entitled to any maternity leave. Even the Rajasthan High Courts judgment in the case of Dr. Hemlata Saraswat (supra) is also not of any help to the applicant wherein the Rajasthan Government has taken a decision to grant maternity leave to temporary employees.

8. The learned counsel for the applicant has drawn my attention to para 5 at page 2 of the applicants rejoinder wherein it is submitted that in terms of sub Rule (5) of Rule 43 of CCS (Leave) Rules, maternity leave shall not be debited against the leave account meaning thereby maternity leave is the special benefit to pregnant woman employees during the pregnancy and has no connection with any other kind of leave.

9. I have given my careful consideration to the respective submissions made by both the parties. I have also carefully perused the records of the case.

10. There is apparent contradiction in the stand taken by the respondents in the matter.

11. On the one hand, they claim that CCS (Leave) Rules are not applicable to the applicant in terms of Rule 2 (h). Rule 2 is the applicability clause. It provides for extent of application of the said rules. Accordingly, the save as otherwise provided in these Rules, the said Rules shall apply to Government servants appointed to the civil services and posts in connection with the affairs of the Union but shall not apply to persons who are mentioned in clauses (a) to (k) thereof. Clause (h) of Rule 2 provides that the said Rule shall not apply to persons employed on contract except when the contract provides otherwise. In the present case, the contract between the applicant and the respondents do not provide otherwise in this regard and, therefore, the provisions of the CCS (Leave) Rules are not applicable. Yet, on the other hand, the respondents claim that the applicant is not entitled to maternity leave under the rules for the reason that she has not completed one year of contractual service. While doing so, the respondents have relied upon the guidelines/instructions issued by Government of India, Ministry of Personnel and Training vide OM No.12016/1/90-Estt.(L) dated 12th April, 1985, as amended by OM No.12016/1/90-Estt.(L) dated 5th July, 1990 and OM No.12016/2/99-Estt.(L) dated 12th July, 1999 regarding Leave terms to be granted to officers appointed on contract in various posts, published in Swamiji Compilation of FRSR Part-III Leave Rules. The Officers appointed on contract in various posts under the Govt. are entitled to following leaves:

i) Earned Leave as admissible to a Central Government Servant governed by the Central Services (Leave) rules, 1972.

ii) Half Pay Leave/Commuted Leave as admissible to a temporary Government Servant under the Central Civil Services (Leave) Rules, 1972.

iii) Extra Ordinary Leave (a) in case of contract appointment for one year or less, no extra ordinary leave.

12. Relying upon clause iii) above, the respondents have held that the applicant is not entitled to maternity leave for it being extra ordinary leave which is not permissible in case of contract employee for one year or less.

13. On a careful consideration, even this letter issued by the respondents is found to be misconceived, having proceeded on an erroneous premise. Extra Ordinary Leave is dealt with under Rule 32 which falls in Chapter IV dealing with kinds of leave due and admissible. As against this, the maternity leave falls in Chapter V dealing with special kind of leaves other than study leave. The maternity leave is dealt with in Rule 43 falling in Chapter V referred to above which is a self contained provision and has not been subjected to the conditions applicable to extra ordinary leave. The respondents have, thus, erred on proceeding on an incorrect premise. As a matter of fact, CCS (Leave) Rules are not applicable to the applicant in view of rule 2 (h) which excludes the applicability of the said Rule to persons employed on contract except when the contract provides otherwise. A plain reading of the Agreement entered into between the parties, as referred to above, does not satisfy the requirement of Clause 2 (h) of the CCS (Leave) Rules for there is no provisions whatsoever with regard to the leave admissible to the applicant in the said Agreement. That being so, the question now arises as to how the applicants entitlement to the maternity leave is to be determined. In this regard, the applicants counsel has placed much reliance on the judgment of the Honble High Court in the case of Dr. Hemlata Saraswat (supra). In that case, the petitioner questioned the communication dated 27.4.2006 (Annexure 3) denying her maternity leave on the ground that she was working as Medical Officer on consolidated salary and there was no provision in the rules for granting her maternity leave. Thus, the question that arose for consideration in that case was that if there was no provision in the Rules for granting maternity leave, could the petitioner still claim special maternity leave. The question was answered in the affirmative. The respondents on the other hand have taken conscious decision that the case of Dr. Hemlata Saraswat (supra) is not applicable to the applicant herein for the reason, as stated in the impugned order, as the State Government of Rajasthan had taken a decision to grant maternity leave to the temporary female employees and thus, the contractual employees are also entitled to get the same benefits. I have carefully perused the judgment in the case of Dr. Hemlata Saraswat (supra) and found that the stand taken by the respondents is misconceived. For better understanding of this aspect of the matter, it is considered appropriate to refer to the judgment in the said case in details. The Honble High Court clearly expressed its opinion in para 6 of its judgment to the effect that the communication dated 27.4.2006 (Annexure 3) emanating from the Directorate of Medical and Health Services, Rajasthan, Jaipur denying maternity leave to the petitioner with cryptic observation that the rules do not mention about grant of such leave to the Medical Officer working on consolidated salary cannot be said to be justified nor appear bona fide, particularly for having been issued even after the decisions of this Court in the case of Neetu Choudhary (decided on 19.4.2005) and Smt. Sumitra Choudhary (decided on 19.9.2005; and this writ petition deserves to be allowed with costs. Although law on the question in issue has been well settled yet the Rajasthan High Court proceeded to deal with the matter in more details with a view to ensure avoidance of avoidable litigation and also to sound warning against unjustified denial of maternity leave for which the officer concerned might be held personally responsible for the costs and consequences. The Court thus observed that As shall be noticed hereafter, the aforementioned decision in Neeta Choudhary has been affirmed by the Honble Division Bench with rather strong comments on the attempt on the part of the Government to deny maternity benefit to its employees against the basic norms of quality, and so also against the propositions of gender justice and betterment of status of women; and, in view of settled position of law, there would not have been any necessity to expound further on the principles applicable but for the reason that such litigations are still of recurrence before this Court, it appears apposite to deal with the aspect a bit more in detail in the hope that such perfunctory approach would be corrected by the authorities concerned obviating the necessity of such avoidable litigation and also for the warning that for any such unjustified denial of maternity leave, the Officer concerned might be held personally responsible for the costs and consequences. The Court then proceeded to deal with the case law on the subject. The Court heavily relied upon the Supreme Courts judgment in the case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., 2000(3) SLJ 369, in paragraphs 8 to 16.

14. After referring to certain cases decided earlier by the Rajasthan High court, viz., Neetu Chandhary vs. State of Rajasthan and others, 208(2) RLW 1404, Smt. Sumitra Choudhary and others vs. State of Rajasthan and others, S.B. Civil Writ Petition No.3295/2005 decided on 19.9.2005 and Smt. Pooja Arora vs. State of Rajasthan and others in S.B. Civil Writ Petition No.493/2007 decided on 29.1.2007, the High Court observed that Merely because the respondents would chose to put her on consolidated salary and state it to be a contractual appointment, the fact that she is a women employee cannot be lost sight of and the essential benefits fundamentally dealing with the very basis of human rights of allowing maternity benefit to the woman cannot be and ought not to have been ignored; and the petitioner ought to have been allowed maternity leave as applied for. It may be pointed out that there had not been any other reason of denying maternity leave to the petitioner except that she was working on consolidated salary on contract basis. Such being a proposition already declared unacceptable, the action of the respondents is not only illegal but mala fide too. The above observations apply to the applicant herein with full force. The Municipal Council of Delhi is held to be an industry in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., (supra). It has further been held in this case by the Honble Court that the provisions in International Convention where India is signatory should be read in the contract of the employment. Reference in this regard has been made to the Convention of Elimination of All Forms of Discrimination against Women adopted by the United Nation on 18.12.1979. Accordingly, even casual female workers and female workers employed on daily wage basis are entitled to the benefit of Maternity Benefit Act. As a matter of fact, the Honble Supreme Court directed issuance of notification under the proviso to sub Section (1) of Section 2 of the Maternity Benefits Act, 1961, if that is not already issued. Section 27 of the Maternity Benefits Act, 1961, deals with effect of laws in agreement inconsistent with that Act. Sub section (1) of Section 27 of the Maternity Act, 1961 provides that 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. Sub Section (2) of this Section, however, provides that it will be open to the woman to enter into agreement with her employer for granting her rights and privileges in respect of any matters which are more favourable to her than those to which she would be entitled to under this Act. (Para 23 of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr., (supra)). In view of the aforesaid, the respondents NDMC too can be viewed as an industry to which provisions of the Maternity Benefits Act, 1961, are extendable. Furthermore, the applicant having been appointed in Charak Palika Hospital, Moti Bagh, New Delhi, hospitals too are reckoned in law as an industry, as held by the Honble Supreme Court in the case of Bombay Water Supply and Swaging Board vs. A. Rajappa, 1978 LIC 467. Although the agreement for service between the parties does not contain any provisions with regard to grant of maternity leave, the same has to be read into the contract of service between New Delhi Municipal Council and the applicant and thus the applicant becomes entitled to all the benefits under the Maternity Benefits Act, 1961. Absence of such a provision in the agreement between the parties will not help so as to deprive the applicant of her maternity leave in view of Section 27 of the Maternity Benefits Act, 1961, as referred to above, which would have the effect of rendering such a condition as unlawful. Any condition in the agreement, which tends to deprive a woman of maternity leave, would also be viewed as opposed to public policy as well as law and consequently void in terms of Section 23 of the Indian Contract Act, 1872.

15. The present case is a glaring instance of avoidable litigation. Had the authorities concerned dealt with the matter with due regard to their constitutional duties, this litigation could have been avoided. Instead, they have chosen to proceed in utter disregard of their duties in flagrant violation of the requirements of rules and even disregard to the decisions rendered by the Courts. The Application thus deserves to be allowed with costs.

16. The application is, therefore, allowed. The impugned order dated 13.1.2011 stands quashed. The respondents shall take up the matter for consideration of sanctioning of maternity leave to the applicant as applied for and consequential benefits thereof shall be accorded to the applicant within a period of 30 days from the date of receipt of a certified copy of this order. The applicant shall also be entitled to cost quantified at Rs.10,000/- (Rupees Ten Thousand only). It shall be permissible for the respondents, if they so desired but only after making payment to the applicant, to recover the amount of costs strictly in accordance with law from the person/persons responsible for this unnecessary litigation.

(Dr. Dharam Paul Sharma) Member (J) /ravi/

you will have to file application before CAT to direct ESI to pay your salary during leave period

In a writ petition decided in State of HP Vs. Sudesh Kumar on 18.1.2014 in LPA 194 and 195 of 2014, the following among other issues were observed by the high court:

In law, there is no difference between a female regular employee and a contractual employee/ ad hoc employee because a female employee whether regular, temporary or ad hoc, is a female for all intents and purposes and she has a matrimonial home, matrimonial life, and after conception, she has to undergo the entire maternity period, same treatment, pains and other difficulties which a regular employee has to undergo. Thus, there is no occasion for making discrimination and if, less period of maternity leave is granted to a contractual employee, it will amount to discrimination, in terms of Article 14 of the Constitution of India.

Maternity Leave Rules for Women Government Employees

;

Women employees are eligible for maternity leaves of 180 days for maximum two surviving children. Maternity leaves can be combined with any other kind of leaves including CCL and can be taken without medical certificate up to one year in continuation. These leaves cannot be debited against leave account and the period of leave will be included in service period for increment and pension. The women employee will be given full pay during the leave period. But one should be careful not to join office back during maternity leave period as this leave can be taken in one spell at a stretch.

The claim of maternity leave is founded on the grounds of fair play and social justice. There cannot be discrimination and if any discrimination is made, it is in breach of Articles 14 and 15 of the Constitution. Articles 41, 42, and 43 deals with the subject and we deem it appropriate to reproduce the said Articles herein:

“41.Right to work, to education and to public assistance in certain cases.- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

42. Provision for just and humane conditions of work and maternity relief.- The State shall make provision for securing just and humane conditions of work and for maternity relief.

43. Living wage, etc., for workers.- The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.”

10. In case titled Municipal Corporation of Delhi v. Female Workers and anr. (2000) 3 SCC 224, it has been held as under:

“27. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily wage basis.

If ESI deny to pay my salary of maternity leave then what action I can take?

The rule is very clear in this regard.

You are entitled to full pay and allowances during maternity leave also.

If the authority deny to pay the salary, you may move a representation in writing to the department head or the employer seeking relief.

If your application is rejected quoting any relevant rule, you may consult with the lawyer about the relevancy of the same and then decide further course of legal action on it.

1. The Maternity Benefit Act 1961 mandates that: "The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance to the woman on production of proof that the woman is pregnant and the amount due for the subsequent period shall be paid to the woman within 48 hours of production of proof that the woman has been delivered of a child."

2. You are entitled to 2 weeks of extra leave.

If your salary is not paid then you may move the Labour Commissioner for an appropriate relief.