Court of Adjudicature: High Court Of Himachal Pradesh at Shimla.
Case Number:
CWP No. 647 of 2020
Brief of the Case: Aggrieved by the order passed by the H.P. Administrative Tribunal
(for short the 'Tribunal') whereby the respondent was granted the benefit of
deemed maternity leave and thereafter consequential benefit of conferment of work
charge status on completion of 8 years’ service, the employer State has file
the petition before Hon’ble Court.
Facts and
order passed; Reasoning given by Hon’ble Tribunal while delivering judgement:
5. The
ailment of the applicant forced her to be away from her work. Her period of
maternity leave would be deemed to be continuous service in view of the
provisions of Section 25(B) (1) of the Industrial Dispute Act, which reads as
under:-
·
25(B) (1) a workman shall be
said to be in continuous service for a period if he is, for that period, in
uninterrupted service, including service which may be interrupted on account of
sickness or authorised leave or an accident or a strike which is not illegal,
or a lock- out or a cessation of work which is not due to any fault on the part
of the workman;
6. The
instructions to the contra that the benefit of deemed continuous service is
only available to the indoor patient in violation of express provision is
nonest. The applicant on account of deemed continuous service completed 8 years
of service upto the 01.01.2002.
7. Consequently, the original application is
allowed and the period of maternity leave of the applicant is deemed to be as
continuous service and the respondents are directed to consider the case of the
applicant for conferment of work charge status on completion of 8 years’ service
within two months from today. The actual financial benefits shall be restricted
to three years prior to filing of the original application. The applicant shall
produce certified copy of this order before the respondents/competent authority
within a week.
Argument and Point
of Parties Before Hon’ble High Court:
a.
since there is no
provision in the department for granting maternity leave to the female daily
wage workers in the year 1996, therefore, the learned Tribunal could not have
directed the petitioners to grant said relief.
Reasoning given by Hon’ble High Court
while delivering judgement:
·
Right to life under Article 21
of the Constitution of India includes the right to mother and to become a
mother is the most natural phenomena in the life of a woman. Therefore,
whatever is needed to facilitate the birth of her child to a woman, who is in
service, the employer has to be considerate and sympathetic towards her, must
realise the physical difficulties, which a working woman faced in performing
duties at the workplace while carrying a baby in the womb or while rearing up
the child after birth (See: Municipal Corporation of Delhi vs. Female
Workers (Muster Roll) & Anr. 2000 (3) SCC ). PARA -1.
·
It is otherwise no longer res
integra that a female employee respective of the capacity in which she is
working is entitled to maternity leave at par with her female counter parts,
who otherwise are regular employees. PARA -17.
·
The object of maternity leave
is to protect the dignity of motherhood by providing full and healthy
maintenance to the woman and her child, maternity leave is intended to achieve
the social justice to women, motherhood and childhood, both require special
attention. PARA -18.
Judgment and other case laws/covalent
and Conventions referred by Hon’ble High Court:
1. 1. The Universal Declaration on
Human Rights.
2.
Article 25(2) of the Universal
Declaration of Human Rights, 1948.
3.
Article-6 of Universal
Declaration of Human Rights, 1948.
4.
Convention on the Elimination
of all Forms of Discrimination against Women” (CEDAW)
5.
ILO: Maternity Protection
Convention 2000.
6.
Maternity Benefit Act, 1961.
7.
Recommendations made by the
International Labour Organization (ILO).
8. Articles 14,15,39, 42 and 43 of the
Constitution of India.
9.
In Municipal Corporation of
Delhi vs. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224.
10. Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652.
11 11. Directive Principles of State
Policy,
12.
Sushma Devi vs. State of H.P.
& Ors. 2021 (2) SLC 923.
13.
State of H.P. & Ors. vs.
Sudesh Kumari (2015) 1 HLR DB 36- In law.
14.
Municipal Corporation of Delhi
v. Female Workers and anr. (2000) 3 SCC 224.
15.
Ms. Sonika Kohli & Anr. vs.
Union of India reported in 2004 (3) SLJ 54 CAT “12.
16.
Rattan Lal and others vs. State
of Haryana and others reported in 1985 (3) SLR 548 .
17.
Tasneem Firdous vs. State and
others reported in 2006 (II) S.L.J 699.
1818. Municipal Corporation of Delhi v. Female Workers and anr. (2000) 3 SCC 224.
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