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]
