Monday, March 19, 2018

Govt Contract Workers Eligible for Six-month Maternity Leave: Kerala High Court [JUDGMENT]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT:

                   THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

           TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

                           WP(C).No. 30561 of 2017


PETITIONERS:

1          RAKHI P.V., AGED 36 YEARS,
           D/O.VIJAYAN, PALLATHUPADY HOUSE,
           P.O. NAYARAMBALAM, ERNAKULAM DISTRICT,
           KERALA- 682509.

2          NISHA K.S., AGED 31 YEARS,
            W/O.SUSANNAN, MEENAMBIKA HOUSE,
           KARUTHEDATH KALAM, THEKKE DESAM,
           P.O. NALLEPPILLY, PALAKKAD DISTRICT- 678 553.

3          REEJAMOL SCARIA, AGED 31 YEARS,
           W/O.SINTO SABU, CHARUVULAYIL HOUSE,
           P.O. THARIODE NORTH, PADINJARATHARA,
           WAYANAD- 673 575.

4          JAYAPRABHA J., AGED 34 YEARS,
           W/O.SANTHOSH.K.S,
           C/O. NAGRAJ K., TELECOM SECTION,
           KDHP CO. (P) LTD, MUNNAR WORKSHOP,
           P.O. MUNNAR, IDUKKI - 685 612

5          BITHAMOL K.T., AGED 32 YEARS,
           W/O. MANJITH C., GREESHMAM (H),
           CALICUT, VELLIPARAMBA P.O.,
           KOZHIKODE- 673008.

     BY ADVS.SRI.M.R.VENUGOPAL
             SMT.DHANYA P.ASHOKAN



RESPONDENTS:

1.         THE STATE OF KERALA,
           REPRESENTED BY THE SECRETARY TO GOVERNMENT,
            EDUCATION DEPARTMENT,THIRUVANANTHAPURAM, PIN- 695 001.

2.         THE STATE PROJECT DIRECTOR,
           RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN,
           SEVENTH FLOOR, TRANS TOWER BUILDING,
           VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014.


       BY SR. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-02-2018,
     ALONG WITH WPC.39828/2017 AND WPC.40564/2017, THE COURT ON THE SAME DAY
     DELIVERED THE FOLLOWING:

EL
WP(C).No. 30561 of 2017 (U)

                                     APPENDIX


PETITIONER(S)' EXHIBITS


EXHIBIT P1       TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
                 THE NAME OF 1ST PETITIONER

EXHIBIT P2       TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
                 THE NAME OF 2ND PETITIONER

EXHIBIT P3       TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
                 THE NAME OF 3RD PETITIONER

EXHIBIT P4       TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
                 THE NAME OF 4TH PETITIONER

EXHIBIT P5       TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
                 THE NAME OF 5TH PETITIONER

EXHIBIT P6       TRUE COPY OF THE REPRESENTATION DATED 22.8.2017
                 SUBMITTED BY THE 1ST PETITIONER

EXHIBIT P7       TRUE COPY OF THE COMMUNICATION DATED 12.4.2017
                 ISSUED BY THE MINISTRY OF LABOUR & EMPLOYMENT

EXHIBIT P8       TRUE COPY OF THE CLARIFICATION ISSUED BY
                 MINISTRY OF LABOUR & EMPLOYMENT

EXHIBIT P9       TRUE COPY OF THE CIRCULAR NO.760/P4/2017-18/
                 R.M.S.A DATED 16.8.2017 ISSUED BY 2ND RESPONDENT

EXHIBIT P10      TRUE COPY OF THE ORDER NO.110/2014/G.E.D DATED
                 7.9.2017


RESPONDENT(S)' EXHIBITS


EXHIBIT R2(A)    TRUE COPY OF THE LETTER NO.214/2017/G.EDN
                 DATED 22.12.2017




                                                                TRUE COPY



                                                             P.S. TO JUDGE

EL

13.3.2018

                         ANU SIVARAMAN, J.
                   = = = = = = = = = = = = = = =
                      W.P.(C).Nos.30561,39828
                           and 40564 of 2017
                   = = = = = = = = = = = = = = =
               Dated this the 27th day of February, 2018

                             JUDGMENT

1. These   writ petitions are filed seeking directions to the

  respondents to grant six months Maternity leave to the

  petitioners as is being granted to the State Government

  employees.



2. Petitioner in W.P.(C).No.39828/17 is a Programme Manager in

  Additional   Skill   Acquisition   Programme     under   the    Higher

  Education Department of the Government of Kerala.              She was

  initially appointed on contract basis for a period of one year from

  21.9.2014. The period of contract has been extended twice and

  the petitioner is still continuing in service.    The petitioners in

  W.P.(C).Nos. 30561/2017 and 40564/2017 are Resource teachers

  working in Government Schools in the State of Kerala on

  contract basis. It is stated that they are working under the

  Inclusive Education for Disabled Secondary Stage under the

  Rashtriya Madhyamic Siksha Abhiyan of the MHRD.                   It is
W.P.(C).No.30561/17 & con.cases

                                      2



  contended that the petitioners, who are women employees, had

  applied     for   maternity     leave   during   the   period   of   their

  employment.         In W.P.(C).No.39828/2017, the petitioner was

  granted maternity leave of 135 days and was required to return

  duty on the expiry of the said period of 135 days. The petitioner

  contended that going by the provisions of the Kerala Service

  Rules (KSR) as well as the provisions of the Maternity Benefit

  Act, 1961, every woman employee working in any establishment

  is entitled to maternity leave of 180 days. It is contended that

  the petitioner is entitled to the said period of leave.               The

  petitioner had been permitted to continue on leave in terms of

  judgment in W.A.No.2594/2017 dated 18.12.2017. In the other

  two writ petitions, the petitioners had sought maternity leave

  for 180 days, but they have been told that they are entitled

  maternity leave only for 12 weeks and the extension of leave

  cannot be considered on the basis of the orders in force.



3. Heard learned counsel for the petitioners and the learned

  Government Pleader.
W.P.(C).No.30561/17 & con.cases

                                  3



4. It is submitted by the learned counsel for the petitioners that

  the provisions of the Kerala Service Rules as well as the

  Maternity Benefit Act, 1961 and the service rules applicable to

  Government servants of the Central Government, provide for

  grant of maternity leave extending to 26 weeks.            It is

  contended that the grant of maternity leave being in the

  nature of welfare legislation, the contention of the respondents

  that the benefit of 26 weeks of maternity leave is not to be

  granted to employees of the Central Government funded

  projects under the Education Department of the Government

  of Kerala because the projects are not notified establishments

  going by the provisions of the Maternity Benefit Act cannot be

  countenanced.



5. Relying on a decision of this Court in Mini v. Life Insurance

  Corporation of India [2018 (1) KLT 530], the learned counsel

  for the petitioners contends that the grant of leave to fulfill

  essential maternal obligations involves an essential human

  rights issue and that the State is duty bound to address the
W.P.(C).No.30561/17 & con.cases

                                      4



  special needs of women employees working in the organised

  and unorganised sectors. The State has a responsibility to see

  that a restricted meaning is not given to welfare legislation so

  that rights of women employees to avail leave is restricted. It

  is stated that the right to maternity leave is an essential

  element of the fundamental right to life as far as a woman

  employee is concerned and the issue has to be seen in the

  context of Articles 14, 15 and 16 of the Constitution of India.

  It is stated that a woman employee cannot be discriminated on

  account of compelling family responsibilities and that the said

  aspects of the matter are also to be taken into account while

  considering the issue of grant of maternity leave.



6. A detailed counter affidavit has been placed on record by the

  learned      Government         Pleader   in   W.P.(C).No.39828/2017

  contending that the petitioners' engagement is under the

  Additional Skill Acquisition Programme (ASAP), which is a

  joint initiative of General Education and Higher Education

  Departments and the administrative powers are vested on the
W.P.(C).No.30561/17 & con.cases

                                   5



  Empowered Committee chaired by the Chief Secretary. It is

  stated that the Government Order which provides for the

  service conditions of employees of ASAP permitted the grant of

  135 days of maternity leave to contract employees. It is stated

  that     the     Government     has   implemented       the   Project

  Management Pool in the ASAP by Government Order dated

  11.4.2017 and going by the said Government Order only 90

  days is provided as maternity leave to female employees of the

  project. It is stated that the petitioner had been granted 135

  days leave, since her application for leave was before Ext.R1(b)

  amendment was brought into effect.         It is contended that the

  petitioner would not be entitled to 26 weeks of maternity leave

  as provided in the Maternity Benefit Act or the 180 days of leave

  as provided in the Kerala Service Rules, since the petitioner was

  a contract employee under a project and that she would not be

  entitled to the benefits of either of the provisions.



7. In W.P.(C).No.30651/2017 also, a counter affidavit has been filed

  on behalf of the 2nd respondent stating that the petitioners are

  contract employees under the the Centrally sponsored Scheme
W.P.(C).No.30561/17 & con.cases

                                         6


  of Inclusive Education for Disabled Secondary Stage implemented

  through the Rashtriya Madhyamic Siksha Abhiyan of the MHRD.

  The provisions of the Scheme provided only 90 days of maternity

  leave to Special Educators appointed on contract basis.                  It is

  stated that teachers under the Scheme as well as under the

  Sarva Shiksha Abhiyan are entitled only to 3 months of maternity

  leave, going by the Government Orders in force.               The learned

  Government Pleader also relies on a decision of a Division Bench

  of this Court in Jisha P. Jayan v. Sree Sankaracharya

  University of Sanskrit, Kalady and others [2013 (3) KLT 533]

  wherein it has been held that Sree Sankaracharya University, not

  being an establishment notified under the Maternity Benefits

  Act, an employee of the University could not claim maternity

  leave as provided in the Act.



8. I have considered the contentions advanced on either side. It is

  not in dispute that women employees directly employed by the

  Government would be entitled to 180 days of maternity leave,

  going     by   the   provisions   of       the   KSR.   Employees   in   any

  establishment as provided in Maternity Benefit Act, 1961, ie.,
W.P.(C).No.30561/17 & con.cases

                                  7


  employees of mines, factories or plantations and establishments

  where persons are employed for execution of acrobatic and other

  performances and employees of other establishments within the

  meaning of any law for the time being in force in relation to

  shops and establishments in the State would be entitled to

  maternity leave in terms of the statutes and the orders in force.



9. The petitioners are also admittedly women employees working

  on a contract basis under state funded projects. The benefits of

  enhanced maternity leave to woman employees is undoubtedly a

  piece of welfare legislation which is intended to give women

  equal opportunities in public employment. In the above view of

  the matter, the contention raised to the effect that the contract

  employees under the projects are entitled only to 90 days of

  maternity leave, according to me, cannot be countenanced, since

  it would amount to discrimination against woman employees only

  for the reason that they are engaged in projects in contractual

  capacities. The inalienable obligations of maternity should not

  and cannot be a reason to deny equal opportunities to woman

  employees. This precisely would be the result of limiting
W.P.(C).No.30561/17 & con.cases

                                         8


  maternity leave to women employees, irrespective of the nature

  of their employment. The further contention to the effect that the

  contractual appointment of the petitioners have a duration of

  only one year and the grant of six months paid leave would

  obliterate the benefit to the project of the engagement is also not

  tenable because the petitioners are persons who are continuing

  in service on the basis of successive extension of contract. The

  contention therefore can have no application in the instant cases.



10.In the above view of the matter, I am of the opinion that in the

  light of the principles laid down by this Court in Mini's case

  (supra) the contention raised that the petitioners herein are

  entitled    only    to   90     days   of   maternity   leave   cannot   be

  countenanced. The petitioners herein will also be entitled to

  maternity leave as is due to women employees under the Service

  Rules applicable to State and Central Government servants and

  to women employees under the Maternity Benefit Act, 1961. In

  the above view of the matter, the impugned orders are set aside.

  There will be a direction to the respondents to grant 26 weeks of

  maternity leave to the petitioners. Orders shall be passed within
W.P.(C).No.30561/17 & con.cases

                                   9


     a period of two weeks from the date of receipt of a copy of this

     judgment.



     These writ petitions are ordered accordingly.

                                                                 Sd/-

                                              Anu Sivaraman, Judge


sj



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