Tuesday 8 August 2017

Dr. (Mrs.) Richa Tiwari, MBBS, MD, Lecturer, T-2, B-2, T-3, Medical College Campus, Shaikh-Ul-Hind Maulana Mahmood Hasan Medical College, Saharanpur E-mail : tiwariricha219@gmail.com Vodafone : 8588988979

From :
Dr. (Mrs.) Richa Tiwari,
MBBS, MD,
Lecturer,
T-2, B-2, T-3, Medical College Campus,
Shaikh-Ul-Hind Maulana Mahmood Hasan Medical College, Saharanpur
E-mail : tiwariricha219@gmail.com
Vodafone : 8588988979



To,
The Dean/ Principal,
Shaikh-Ul-Hind Maulana Mahmood Hasan Medical College, Saharanpur
Phone : 0132-2971131
Fax : 0132-2971132

Subject : Representation regarding grant of Maternity Leave.

Through Proper Channel.


Respected Sir,

1.   I was appointed as a Lecturer in this Medical College on a contractual basis vide office memorandum No. ME-02/ 2016/ 1763-69 dated 13.07.2016 issued by director General, Medical Education & Training, Government of Uttar Pradesh, Lucknow for a period of 1 year or till the regular appointment is made through Public Service Commission, whichever is earlier on your recommendation of selection. The same was extended vide order dated ___________.

2.   I have already submitted an application for grant of Maternity Leave, but the same was not considered. It is most humbly submitted that the Division Bench of the Allahabad High Court in the case of Dr. Parul Mishra Vs. State of U.P. decided on 27 th January, 2010 in the case of a Lecturer working as Government and Post Graduate College on contract basis, after applying the laid down in the Supreme Court Female Workers (Muster Roll) (Supra) held that the employees therein was entitled to avail maternity benefit as is applicable to regularly lecturer in the Government College and identical contention of the State Government counsel to say that contractual employees are not entitled for maternity benefit was rejected. It was held by the learned High Court that the maternity leave does not change with the nature of employment. It is concerned with human right of a women and the employer and the Courts are bound under the constitutional scheme guaranteeing right to life, a right to live with dignity and protect the health of both mother and child, and after taking note of identical principle, petitions have been allowed.


Judgment of the Hon’ble High Court of Madhya Pradesh in the case of Smt. Brijlata Sharma vs The State Of Madhya Pradesh decided on 11 July, 2017
3.   The singular question in this case is whether the petitioner, a contractual employee is entitled to get the benefit of maternity leave. The petitioner’s claim is based on Maternity Benefit Act, 1961 and its interpretation by various Court whereas the stand of respondents is based on Clause 6.7 of the Contract of Appointment wherein it is mentioned that the petitioner will get the benefit of maternity leave only after completion of one year’s period from the date of appointment. Thus, as noticed, the core issue is whether the petitioner is entitled to get the benefit of maternity leave.

4.   Section 27 of the Maternity Benefit Act was considered by the Supreme Court in the case reported in 2000 (3) SCC 224 [Municipal Corporation of Delhi V. Female Workers (Musteroll) and another]. The said Supreme Court judgment was recently considered by the Division Bench of this Court in the case of Mrs. Priyanka Gujarkar Shrivastava Vs. Registrar General & another in W.P.No.17004/2015 whereas this Court opined as under:

“12”. If we analyse each and every word and the anxiety expressed by the Hon. Supreme Court in the judgment, we have no hesitation in holding that in the case of a woman irrespective of the place where she If we analyse each and every word and the anxiety expressed by the Hon’ble Supreme Court in the judgment, we have no hesitation in holding that in the case of a woman irrespective of the place where she is working and irrespective of capacity of her appointment, the nature and tenure of her appointment and the duties performed by her, when it comes to granting her the benefit of facilities required to give birth to a child the employer is duty bound under the Constitution to provide her all the benefits and that is why it has been held by the Hon’ble Supreme Court that the benefit of Maternity Benefit Act, 1961 should be conferred to even muster role employees working in the Delhi Municipal Corporation and if the aforesaid principle is applied in the present case, we see no reason as to why the benefit of Maternity Benefit Act should not be given to a woman contractual employee even if she is working in the establishment of the District and Sessions Judge.
13. x x x x
14. x x x x
15. x x x x

5.   Identical issue of granting maternity leave to women employees appointed on contract basis or on adhoc or temporary basis have been considered by the Allahabad High Court, the Rajasthan High Court, the Punjab & Haryana High Court and the Uttarakhand High Court and based on the law laid down by the Supreme Court in the case of Female Workers (Muster Roll) (Supra), petitions have been allowed and directions issued to grant benefit to the employees. The Division Bench of the Allahabad High Court in the case of Dr. Parul Mishra Vs. State of U.P. decided on 27 th January, 2010 in the case of a Lecturer working as Government and Post Graduate College on contract basis, after applying the laid down in the Supreme Court Female Workers (Muster Roll) (Supra) held that the employees therein was entitled to avail maternity benefit as is applicable to regularly lecturer in the Government College and identical contention of the State Government counsel to say that contractual employees are not entitled for maternity benefit was rejected. It was held by the learned High Court that the maternity leave does not change with the nature of employment. It is concerned with human right of a women and the employer and the Courts are bound under the constitutional scheme guaranteeing right to life, a right to live with dignity and protect the health of both mother and child, and after taking note of identical principle, petitions have been allowed. Similarly, the Rajsthan High Court in various writ petitions has directed for granting benefit to contract and temporary employees who are also claiming identical benefit in the cases of Civil Writ No.1598/2017 Meenakshi Rao Vs. State of Rajasthan & others decided on 14 th February, 2017 following earlier an judgment of the Rajasthan High Court rendered by Division Bench in the case of Neetu Choudhary Vs. State of Rajasthan & others (2008) Vol.-II RNW page 1404 (Raj). The Punjab & Haryana High Court has also granted similar benefit and allowed identical writ petition in the case of Anima Goel Vs. Haryana State Agricultural Development Corporation (2007) Vol.III LLJ page 64, Punjab & Haryana and the Uttarakhand High Court has allowed a writ petition on identical terms in the case of Smt. Nidhi Choudhary Vs. State of Uttarakhand Writ Petition No.1866/2016 decided on 27.09.2016. Copies of all these judgments available in the website of Indian Kanoon Organization have been produced before us for perusal and we find that in all these cases after applying the law laid down by the Supreme Court as detailed here-in-above, identical writ petitions have been allowed and contractual employees have been directed to be granted the benefit of maternity leave at par with regular employees and we see no reason to take different view.


Maternity leave can be granted to women government servant even if she is working on contractual basis, ad hoc/tenure or temporary basis

6.   The Uttarakhand High Court while hearing a petition relating to the issue of maternity leave not been granted to the petitioner since she was a contractual employee working under the respondent, the Bench comprising of Rajiv Sharma and Alok Singh, JJ., observed that even though the petitioner is appointed on a contractual basis she is entitled to maternity leave with full pay as per Section 5 of the Maternity Benefit Act read in conjunction with Rule 153 of U.P. Fundamental Rules. The petitioner has moved the court as her maternity leave was not sanctioned. However, the case of the respondents is that since, the petitioner was appointed on contractual basis, and working as a Lecturer (Sociology) hence, she was not entitled for maternity leave.

7.   The Court rejecting the contentions of the respondent observed that in a welfare State it is the obligation of the State to ensure the creation and sustaining of the conditions congenial to good health therefore maternity leave, being social insurance benefit, is a key for maternal and child health and family support hence a employer should be considerate and sympathetic toward a working women and grant maternity leave with full pay for 180 days, even if she is working on contractual basis, ad hoc/tenure or temporary basis under the mandate of under Article 21 of the Constitution read with Article 42. The Court further stated that a female government employee is also entitled to Child Care Leave (CCL) for a child below 18 years of age, as per the recommendation of the 6th Central Pay Commission, of 730 days during the entire service. The Court also highlighted the provisions of paternity leave for a male government servant for a period of at least three weeks to enable the father to look after the mother and child. [Dr. Deepa Sharma v. State of Uttarakhand, 2016 SCC OnLine Utt 2015, decided on 15th December, 2016]. Following direction was made :

a.) Respondents are directed to grant maternity leave to the petitioner with full pay w.e.f. 07.01.2015 to 07.06.2015 within eight weeks from today.
b.) The respondent-State is also directed to grant maternity leave to all the female employees with full pay for 180 days, even working on contractual basis, ad hoc/tenure or temporary basis.
c.) The State Government is further directed to grant at least 60 days' maternity leave to the daily wage female employees working for more than 240 days' in a block of 12 months calendar with full wages.
d.) The State Government is directed to provide every establishment to have the facility of crèche having 50 or more than 50 employees with liberty reserved to the mother to visit the crèche/nursing care at least four times daily, including the interval for rest allowed to the employees.
e.) The State Government is also directed to grant Child Care Leave (CCL) of 730 days' to all the female employees, whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis having minor children with a rider that the child should not be more than 18 years of age or older. The female employees shall be entitled to paid leave equal to the pay drawn immediately before proceeding on leave. CCL can be combined with leave of the kind due and admissible.
f.) The State Government is also directed to grant 15 days' paternity leave to a male employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis to enable the father to look after the mother and child. This leave can be combined with leave of any other kind.
g.) The State Government is also directed that a female employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis, with fewer than two surviving children, on valid adoption of a child below the age of one year be granted child adoption leave for a period of 135 days' immediately after the date of valid adoption.
h.) The State Government shall not dismiss, terminate, remove any female employee whether appointed on contractual basis, ad hoc/tenure or temporary basis immediately before her delivery and thereafter to deprive her of maternity leave, adoption leave and child care leave etc. i.) The Chief Secretary shall personally be responsible to comply with these mandatory directions in letter and spirit.

 

 

Maternity Benefit (Amendment) Act, 2017 Is Effective From 1 April 2017


8.   The Ministry of Labour and Employment, Government of India ("Ministry of Labour") vide Official Gazette notification dated 31 March 2017 has appointed 1 April 2017 as the date on which the Maternity Benefit (Amendment) Act 2017 ("MB Amendment Act") has come into force. However, the relevant provision on the "work from home" option will come into effect from 1 July 2017. The MB Amendment Act had received Presidential assent on 27 March 2017 and was published in the Official Gazette on 28 March 2017.

 

Key Amendments

9.   The MB Amendment Act regulates paid maternity leave entitlement and other related benefits for women employed in factories, mines and shops or commercial establishments employing 10 or more employees. For ready reference, we have summarised below key amendments introduced in the MB Amendment Act:

  • Increased Paid Maternity Leave: The MB Amendment Act has increased the duration of paid maternity leave available for women employees from the existing 12 weeks to 26 weeks.  Under the MB Amendment Act, this benefit could be availed by women for a period extending up to 8 weeks before the expected delivery date and remaining 18 weeks can be availed post childbirth. For women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks (i.e., 6 weeks pre and 6 weeks post expected date of delivery).

  • Maternity leave for adoptive and commissioning mothers: The MB Amendment Act extends certain benefits to adoptive mothers as well and provides that every woman who adopts a child shall be entitled to 12 weeks of maternity leave, from the date of adoption.

  • Work from Home option : The MB Amendment Act has also introduced an enabling provision relating to "work from home" for women, which may be exercised after the expiry of the 26 weeks' leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.

  • Crèche facility: The MB Amendment Act makes crèche facility mandatory for every establishment employing 50 or more employees. Women employees would be permitted to visit the crèche 4 times during the day.

  • Employee awareness: The MB Amendment Act makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.

10.                The MB Amendment Act has come into force from 1 April 2017. All establishments covered under the MB Amendment Act would be required to amend their existing maternity benefit policies in accordance with the MB Amendment Act with effect from 1 April 2017. 

It is humbly submitted that in all these cases after applying the law laid down by the Supreme Court as detailed here-in-above, identical writ petitions have been allowed and contractual employees have been directed to be granted the benefit of maternity leave at par with regular employees and therefore it is requested that the maternity leave as claimed for and as applicable to the regular employees working in the establishment may kindly be granted in my favour, in the larger interest of justice

Thanking you in anticipation

PLACE : SAHARANPUR                                 Yours faithfully


DATED : 05.08.2017                            [Dr. (Mrs.) Richa Tiwari]



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