ALLAHABAD HIGHCOURT, MATERNITY LEAVE : मानदेय अध्यापिका भी प्रसूति अवकाश की हकदार - क्लिक कर हाईकोर्ट का आदेश देखें।
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 18
Case :- WRIT - A No. - 1337 of 2019
Petitioner :- Manisha Singh
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- J.P.N. Singh
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- J.P.N. Singh
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi
Hon'ble Prakash Padia,J.
Heard Sri J.P.N. Singh, learned counsel for the petitioner, learned Standing Counsel who has accepted notice on behalf of respondent no. 1 and Sri Sanjay Chaturvedi, learned counsel who has put in appearance on behalf of respondent nos. 2 and 3.
The petitioner has preferred the present writ petition with a prayer to issue a mandamus commanding the District Basic Education Officer, Ballia to grant Maternity Leave to the petitioner for six months with honorarium ignoring the recommendation of Block Education Officer, Shiksha Kshetra Nagra, District Ballia dated 27.12.2018.
The facts in brief, as stated in the writ petition are that the petitioner was initially appointed as Shiksha Mitra on 14.08.2006 and posted at Primary School Khari, Shiksha Kshetra, Nagra, district Ballia. Subsequently, she was transferred and joined as Shiksha Mitra on 1.8.2014 at Primary School Siarahi, Shiksha Kshetra, Nagra.
In paragraph 5 of the writ petition it is contented that the petitioner has conceived and she was under continuous treatment. The doctor advised her complete bed rest. Copies of the medial prescriptions were appended along with the writ petition.
After the petitioner was advised for complete bed rest by the doctor, she has submitted an application before the Block Education Officer as well as District Basic Education Officer on 22.11.2018 for grant of maternity leave from 26.11.2018 to 18.5.2019. The request of the petitioner was turned down by the Block Education Officer Nagra, Ballia vide its communication dated 27.12.2018 made by him addressed to the District Basic Education Officer, Ballia. The said communication dated 27.12.2018 is quoted below-
"isz"kd
[k.M f'k{kk vf/kdkjh
uxjk] cfy;k
lsok esa]
ftyk csfld f'k{kk vf/kdkjh
cfy;k
i=kad&@eseks@2018&19 fnukad&27-12-2018
fo"k;%& IGRS la0 40019318033708 esa dh x;h f'kdk;r ds lEcU/k esa vk[;k dk isz"k.kA
egksn;]
lknj voxr djkuk gS fd Jherh euh"kk flag izk0 fo0 fl;jgh] fodkl [k.M&uxjk esa f'k{kk fe= ds in ij dk;Zjr gSA f'k{kk fe= Jherh euh"kk flag }kjk v/;kfidkvksa dh rjg ls izlwrkodk'k ds fy, izkFkZuki= izLrqr fd;k x;k Fkk muds }kjk 6 ekg dh izlwrkodk'k dh ekWx dh tk jgh FkhA fdUrq f'k{kkfe= ds fy, mDr vodk'k vuqeU; u gksus ds dkj.k vLohd`r dj fn;k x;kA
vr% izdj.k fu{ksfir gsrq vk[;k vkidh lsok esa iszf"kr gSA Hkonh;
27@12@18
[k.M fodkl vf/kdkjh
uxjk] cfy;kA"
Heard Sri J.P.N. Singh, learned counsel for the petitioner, learned Standing Counsel who has accepted notice on behalf of respondent no. 1 and Sri Sanjay Chaturvedi, learned counsel who has put in appearance on behalf of respondent nos. 2 and 3.
The petitioner has preferred the present writ petition with a prayer to issue a mandamus commanding the District Basic Education Officer, Ballia to grant Maternity Leave to the petitioner for six months with honorarium ignoring the recommendation of Block Education Officer, Shiksha Kshetra Nagra, District Ballia dated 27.12.2018.
The facts in brief, as stated in the writ petition are that the petitioner was initially appointed as Shiksha Mitra on 14.08.2006 and posted at Primary School Khari, Shiksha Kshetra, Nagra, district Ballia. Subsequently, she was transferred and joined as Shiksha Mitra on 1.8.2014 at Primary School Siarahi, Shiksha Kshetra, Nagra.
In paragraph 5 of the writ petition it is contented that the petitioner has conceived and she was under continuous treatment. The doctor advised her complete bed rest. Copies of the medial prescriptions were appended along with the writ petition.
After the petitioner was advised for complete bed rest by the doctor, she has submitted an application before the Block Education Officer as well as District Basic Education Officer on 22.11.2018 for grant of maternity leave from 26.11.2018 to 18.5.2019. The request of the petitioner was turned down by the Block Education Officer Nagra, Ballia vide its communication dated 27.12.2018 made by him addressed to the District Basic Education Officer, Ballia. The said communication dated 27.12.2018 is quoted below-
"isz"kd
[k.M f'k{kk vf/kdkjh
uxjk] cfy;k
lsok esa]
ftyk csfld f'k{kk vf/kdkjh
cfy;k
i=kad&@eseks@2018&19 fnukad&27-12-2018
fo"k;%& IGRS la0 40019318033708 esa dh x;h f'kdk;r ds lEcU/k esa vk[;k dk isz"k.kA
egksn;]
lknj voxr djkuk gS fd Jherh euh"kk flag izk0 fo0 fl;jgh] fodkl [k.M&uxjk esa f'k{kk fe= ds in ij dk;Zjr gSA f'k{kk fe= Jherh euh"kk flag }kjk v/;kfidkvksa dh rjg ls izlwrkodk'k ds fy, izkFkZuki= izLrqr fd;k x;k Fkk muds }kjk 6 ekg dh izlwrkodk'k dh ekWx dh tk jgh FkhA fdUrq f'k{kkfe= ds fy, mDr vodk'k vuqeU; u gksus ds dkj.k vLohd`r dj fn;k x;kA
vr% izdj.k fu{ksfir gsrq vk[;k vkidh lsok esa iszf"kr gSA Hkonh;
27@12@18
[k.M fodkl vf/kdkjh
uxjk] cfy;kA"
It is further contented by the petitioner that at one hand the Block Education Officer has denied the petitioner maternity leave on the ground that the petitioner was appointed on honorarium basis while on the other hand one Gunjan Rai who was also appointed as Shiksha Mitra was granted maternity leave by the same officer.
In this regard, it is submitted that the Parliament has enacted an Act viz. Maternity Benefit, Act, 1961 (No. 53 of 1961). Certain amendments were made in the said Act by the Parliament by Maternity Benefit Amendment Act, 2017. Various provisions contained in the Act of 1961 was amended in the year 2017 for grant of maternity leave. The only reason given by the respondent for denial of the maternity leave to the petitioner is that the petitioner is not a regular employee and is working only on honorarium basis.
In this regard, it is submitted that the Parliament has enacted an Act viz. Maternity Benefit, Act, 1961 (No. 53 of 1961). Certain amendments were made in the said Act by the Parliament by Maternity Benefit Amendment Act, 2017. Various provisions contained in the Act of 1961 was amended in the year 2017 for grant of maternity leave. The only reason given by the respondent for denial of the maternity leave to the petitioner is that the petitioner is not a regular employee and is working only on honorarium basis.
The Supreme Court in case of Municipal Corporation of Delhi V, Female Workers (Muster Roll) and another reported in (2000) 3 SCC, 224 has held that the benefit of the Act of 1961 shall be provided to the women (Muster Roll) employees. Paragraph 6 and 38 of othe aforesaid judgment is quoted below-
"6. Not long ago, the place of a woman in rural areas has been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with flu's Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the 'State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under: -"(3) Nothing in this article shall prevent the State from making any special provision for women and children."
38. 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."
Learned counsel for the petitioner has also relied upon the judgment delivered by a Division Bench of Lucknow Bench of this Court in Service Bench No.1206 of 2012 (Dr. Shikha Jain Vs. State of U.P. Through Prin. Secy. Higher Edu.Lko. & Ors. decided on 29.8.2012 in which it was held that the petitioner has a right to avail the maternity leave, which is applicable to the regularly employed Lecturer in the Government Degree Colleges.
In view of the same, I am of the prima facie opinion that the petitioner as well as other teachers/employees, even if they are working on honorarium basis also became entitle for maternity leave. The denial of maternity leave to the petitioner is absolutely arbitrary, unjust and illegal and in fact in violation of Article 42 of the Constitution of India.
In view of the aforesaid, learned counsel for the respondent nos. 2 and 3 prays for and is allowed two days time to seek instructions in the matter.
Put up this matter as fresh on 28.1.2019 for further hearing.
Order Date :- 25.1.2019
M.A.Ansari
"6. Not long ago, the place of a woman in rural areas has been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in advance stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the Fundamental Rights contained in Chapter III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with flu's Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652, has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the 'State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this Article provides as under: -"(3) Nothing in this article shall prevent the State from making any special provision for women and children."
38. 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."
Learned counsel for the petitioner has also relied upon the judgment delivered by a Division Bench of Lucknow Bench of this Court in Service Bench No.1206 of 2012 (Dr. Shikha Jain Vs. State of U.P. Through Prin. Secy. Higher Edu.Lko. & Ors. decided on 29.8.2012 in which it was held that the petitioner has a right to avail the maternity leave, which is applicable to the regularly employed Lecturer in the Government Degree Colleges.
In view of the same, I am of the prima facie opinion that the petitioner as well as other teachers/employees, even if they are working on honorarium basis also became entitle for maternity leave. The denial of maternity leave to the petitioner is absolutely arbitrary, unjust and illegal and in fact in violation of Article 42 of the Constitution of India.
In view of the aforesaid, learned counsel for the respondent nos. 2 and 3 prays for and is allowed two days time to seek instructions in the matter.
Put up this matter as fresh on 28.1.2019 for further hearing.
Order Date :- 25.1.2019
M.A.Ansari
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