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Whether Employee Appointed On Contractual Basis, Ad Hoc / Temporary Basis Has A Fundamental Right To Seek Maternity Leave Under Article 21 And 42 Of The Constitution?

Whether female engaged/appointed on contractual basis/Ad hoc / Temporary / Daily Rated / On Muster Roll is entitled to maternity benefits and is entitled to all medical, monetary and other benefits that accrued in her favour on account of her pregnancy?

"Maternity Benefits" do not merely arise out of statutory right or contractual relationship between an employer and employee but are a fundamental and integral part of the identity and dignity of a woman who chooses to start a family and bear a child. The liberty to carry a child is a fundamental right that the Constitution of the country grants its citizens under Article 21. Further, the choice not to carry a child is an extension of this fundamental right. However, to stand in the way of exercise of this right by a woman, without procedure or intervention of law, is not only violative of the fundamental rights granted by the Constitution of India but also against the basic tenets of social justice.

For centuries, in the conventional concept of family, the men were assigned the role of gatherers and the women were assigned the role of bearers. It was only gradually that women of the family started to find their place in the society and stepped out of the four walls of their home. However, the liberty did not come easy to them. For decades, women had to fight their way towards equal treatment in services, whether skilled or unskilled.

At this stage, it is extremely important to understand that equal treatment does not mean identical treatment. There are certain inherent differences amongst the natural biological beings. A woman is bestowed the gift and blessing of motherhood. Hence, when a woman chooses to conceive and carry a child, she undergoes changes in her body that are beyond the biological aspects of a woman but also bring about a great deal of hormonal, emotional, psychological and other changes in her.

To push a woman, undergoing such degree of dynamic changes while she is in the process of childbirth, to work at par with those who are not, at the same extent of labour, physical and/or mental, tantamount to grave injustice and is in no manner reasonable. This is certainly not the definition of equity and equality of opportunities that the framers of the Constitution had in their mind. Even Article 15 (3) of the Constitution of India provides that there shall be no embargo upon the State to make special provisions for women and children, which in itself is a testament to qualitative equality as stipulated under the Constitution.

As a society, we must ensure that all citizens are made to feel secure in all aspects of their life. To make sure that the women of the society are made to feel safe and secure, she should be able to make decisions in her personal and professional life, without having an implication or bearing of one on the other. The work environment should be conducive enough for a woman to facilitate unimpaired decision making regarding personal and professional life and to ensure that a woman who chooses to have both, a career and motherhood, is not forced to make an �either-or‟ decision.

A conducive environment would also mean a workplace that creates and provides equality in opportunities, pay, liberties, protection, security of job and facilitates gender equality etc. To create a conducive environment is all the more essential when a woman working is carrying a child so as to make sure that she is provided with an atmosphere that is positive and encouraging. In such environment the productivity of the woman is also bound to increase.

Having said so, while the liberty, decision and welfare of the woman is of extreme importance when considering the implication of maternity benefits, the consideration of welfare and well-being of the child so birthed is also tremendously necessary, especially at the very beginning phase of his/her life. There is crucial care and nurturing which the newborn child needs and which cannot be dispensed with for his/her essential development. Apart from the nutritional and bodily requirements, there are essential physical and emotional bonding requirements that need to be taken care of right after the birth of a child.

The newborn babies do not realize that they are a separate person and hence most of their movements and physical activity is involuntary. To communicate with the newborn babies is essential to ensure that they understand the basics of being and existing and they are able to understand human connection.

The UNICEF says that a newborn baby, for some time right after birth, should be provided ways to see, hear, move freely and touch the parent. It is suggested that to make the baby feel comforted, calm and secure, he/she should be held, gently stroked and soothed. Skin to skin contact is also found fruitful in aiding the baby to become familiar with the presence of his/her parent and also for him/her to feel secured. The UNICEF also recommends that when a child is 1-6 months old, the parent should laugh and smile with the child. To tend to such sensitive needs of the child, the mother needs her time with the child so as to ensure that the right amount of care is being received by the baby.

The importance of maternity leave and benefits is, hence, recognized worldwide to secure the health and best interest of the mother and the child. Such benefits also are a benefactor for ensuring that women are given the liberty to thrive in their work, which in turn would also mean a boost in the economic growth of the country. Amongst several other national and international documents, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention of the Elimination of All Forms of Discrimination against Women make provision for maternity benefits to the working women, showcasing the importance of granting such reliefs.

The legislature in India, has also time after time laid down the law for the welfare of the child and the mother. The Maternity Benefit Act, 1961, is one such legislation introduced with the objective to regulate the employment of women for certain periods before and after childbirth. An overview of the Act reveals that the intent to provide for health benefits, leaves before, during and after childbirth, payment / remuneration and medical bonus etc., provision for breast feeding facilities and cr�che facilities, job protection and non-discrimination amongst others.

Vide its 259th Law Commission Report, the Law Commission of India, regarding the made a strong recommendation for amendment to the Act of 1961 and suggested that the Maternity Benefit Act be amended in accordance with the forward-looking provisions in the Central Civil Services Rules, whereby maternity benefits should be increased from twelve weeks to 180 days.

The Law Commission was also of the view that the provision of maternity benefits should be made obligatory on the State and not left to the will of the employers. Moreover, the provisions for maternity benefits should accrue to all women, including women working in the unorganized sector and private sector as well. The strong recommendation by the Law Commission of India led to the amendment in the Maternity Benefit Act in the year 2017 which extended the time period for the maternity benefits from 12 weeks to 26 weeks.

Relevant Provisions Of Law
That in the light of the aforesaid submission when a reference is made to Article 42 of the Constitution of India which is in the following terms; it is clearly made out that State is to make provisions for securing just and humane conditions of work and for maternity relief.

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.

Article 43 of the Constitution of India is also relevant which is in the following terms:
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 fill 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.

The case of the female contractual employees / female daily rated workers needs to be examined in the light of both these Articles as well as provisions of Article 157-A of the J&K Civil Service Regulations, 1956. No doubt Article 42 of the Constitution of India is a part of Directive Principles of State Policy, thus may not be enforceable like right conferred on a citizen under the chapter dealing with the fundamental rights.

However, for purpose of ensuring that action of Respondents is just and fair, these Articles can always be invoked. Particularly in the light of what is required by Article 42 of the Constitution of India which speaks of providing for securing just and humane condition of the work and for maternity relief. This will be a step in aid in achieving social justice. Reliance on Social Justice has been attending the attention of Supreme Court of India from time to time.

For effective adjudication, the relevant provisions of the Maternity Benfits Act, 1961 are reproduced as under:
5. Right to payment of maternity benefit.
  1. Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

    Explanation. � For the purpose of this subsection, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest.]
  2. No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than (eighty days) in the twelve months immediately preceding the date of her expected delivery:

    Provided that the qualifying period of (eighty days) aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

    Explanation. For the purpose of calculating under the subsection the days on which a woman has actually worked in the establishment (the days for which she has been laid off or was on holidays declared under any law for the time being enforced to be holidays with wages) during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
  3. The maximum period for which any woman shall be entitled to maternity benefit shall be (twenty six weeks of which not more than eight weeks) shall precede the date of her expected delivery]:

    [Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:]

    [Provided further that] where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:

    [Provided also that] where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, than, for the days upto and including the date of death of the child.]
  4. A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.
  5. In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.
8. Payment of medical bonus.
  1. Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of one thousand rupees, if no prenatal confinement and postnatal care is provided for by the employer free of charge.
  2. The Central Government may before every three years, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of twenty thousand rupees.]
12. Dismissal during absence of pregnancy.
  1. Where a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
  2. (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge of dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:

    Provided that where the dismissal is for any prescribed gross misconduct the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

    (b) Any woman deprived of maternity benefit or medical bonus or both, or discharged or dismissed during or on account of her absents from work in accordance with the provisions of this Act, may, within sixty days from the date on which the order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.

    (c) Nothing contained in this subsection shall affect the provisions contained in subsection (1).

27. Effect of laws and agreements inconsistent with this Act.
  1. 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, whether made before or after the coming into force of this Act:

    Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.
  2. Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter, which are more favourable to her than those to which she would be entitled under this Act.
In ["M/S Crown Aluminum Works Vs Their Workmen", AIR 1958 SC 30], it was observed that Constitution of India seeks to achieve democratic, social welfare and secular and social and economic justice to its citizens.

Even the Hon'ble Supreme Court of India in ["Rattan Lal & Ors Vs. State of Haryana & Ors.", 1985 (3) SLR 548], struck down the action of Respondents denying the benefit of salary and allowances to adhoc teachers during summer vacations. At the same time it was also observed that they are also entitled to maternity and medical leave.

In ["Mrs. Savita Ahuja Vs. State of Haryana", 1988(1) SLR 735], Punjab & Haryana High Court, struck down the action of the State of denying maternity leave benefit to its adhoc employees as was available to its regular female employees, being violative of Articles 14 & 16 on the basis of sex.

A Two Judge Bench of Hon'ble Supreme Court in the case of ["Municipal Corporation of Delhi Vs Female Workers (Muster Roll) & Anr.", (2000) 3 SCC 224], while dealing with a similar claim by female muster roll workers who were employed on daily wages, opined that the provisions relating to maternity benefits in the 1961 Act would be applicable in their cases as well. That dispute had reached this Court through the Industrial Tribunal and the High Court. Before both these fora, the Union espousing the cause of the female workers was successful. In that case, point of discrimination was highlighted as regular women employees were extended the benefits of the said Act but not those who were employed on casual basis or on muster roll on daily wage basis. This Court observed, in Paragraph 27 of the said Judgment:

"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 dailywage basis."

The High Court of Himachal Pradesh in ["State of H.P. & Ors. Vs. Sudesh Kumari"], 2014 SCC OnLine HP 4844], while upholding the decision of the Writ Court quashing the Office Memorandum in question, on the issue of 'maternity benefits' being extended to all employees equally held as follows:

"8. 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.

15. Having said so, the office memorandum dated 31.7.2009 and circular dated 2.9.2009, made by the State are quashed and all female employees whether on contract, ad hoc, permanent and temporary are held entitled to materiality leave at par with the regular employees."

Further, the Punjab & Haryana High Court also upheld the view that the benefit of maternity leave and consequential benefits extend to employees who are working on contractual basis, as has been held in ["Raj Bala Vs. State of Haryana", 2002 SCC OnLine P&H 1297] and followed in ["Harjinder Kaur Vs. State of Haryana & Ors.", 2019 SCC OnLine P&H 1153].

Broadly, a similar view is reflected in a more recent Judgment of Hon'ble Supreme Court in the case of ["Deepika Singh Vs Central Administrative Tribunal & Ors", (2022) 7 SCR 557]. Though this decision dealt with Central Civil Services (Leave) Rules, 1972, in relation to maternity leave and the 1961 Act was not directly applicable in that case, the Supreme Court analysed certain provisions of this Act to derive some guidance on a cognate legislation. The Supreme Court observed in the case of Deepika Singh (supra):

"19. Sub-section (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub-section (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.

20. The Act of 1961 was enacted to secure women's right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In Municipal Corporation of Delhi Vs Female Workers (Muster Roll), a Two-Judge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India's international obligations under the Universal Declaration of Human Rights 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women to extend benefits under the Act of 1961 to workers engaged on a casual basis or on muster roll on daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules, 1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections."

Recently, the Hon'ble Supreme Court of India in ["Dr. Kavita Yadav Vs Secretary, Ministry of Health & Family Welfare & Ors.", 2023 LiveLaw (SC) 701] held that maternity benefits have to be granted even if the period of benefit overshoots the term of contractual employment. Maternity benefits can travel beyond the term of contractual employment. The court directed the employer to pay maternity benefits as would have been available in terms of Sections 5 & 8 of the Maternity Benefits Act, 1961 and payment to be made within 3 months. Relevant Paras No 6 & 10 are extracted below;

6��Section 12 (2(a)) of the Maternity Benefit Act, 1961 contemplates entitlement even for an employee who is dismissed/discharged during her pregnancy. Thus, inbuilt in the statute itself there is a provision for extending benefits for a period beyond the term of employment. What the statute contemplates is the entitlement of medical benefit which accrues by fulfillment of condition under section 5 and benefit can travel beyond the term of employment also and it's not co-terminus with the employment period.

10. In our opinion, a combined reading of these provisions in the factual context of this case would lead to the conclusion that once the appellant fulfilled the entitlement criteria specified in Section 5 (2) of the Act, she would be eligible for full maternity benefits even if such benefits exceed the duration of her contract. Any attempt to enforce the contract duration term within such period by the employer would constitute "discharge" and attract the embargo specified in Section 12 (2)(a) of the 1961 Act. The law creates a fiction in such a case by treating her to be in employment for the sole purpose of availing maternity benefits under the 1961 Act."

To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear, of being victimized for forced absence during the pre or post-natal period.

The Social Welfare Legislation of the Maternity Benefit Act, 1961 as also the Article 157-A of J&K Civil Service Regulations, 1956 certainly do not discriminate on the basis of the nature of employment of the beneficiaries. It is also certain that the mere creation of the Welfare Legislation is not enough. A duty is cast upon the State and all those who are subjects of the Act to uphold the integrity, the objective and the provisions of the legislation in its letter and spirit. Moreover, even the Constitution of the India advances the ideals which have been culminated and translated into the Maternity Benefit Act, 1961 and Article 157-A of J&K Civil Service Regulations, 1956. The law stands settled in this regard that the nature of employment shall not decide whether a woman employee would be entitled to maternity benefits. Therefore, it appears that the Supreme Court's decision in the Kavita Yadav's Case has now aligned maternity-related practices in India with global standards on the extension of maternity benefits to working women beyond their contractual tenure.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
[email protected], [email protected]

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