Parjinder Kaur v. State of Haryana

Judgment

1. The petitioner, who was an employee as a Staff Nurse in respondent-Medical College, has a grievance that the benefit of maternity leave had not been given to her. She had applied for maternity leave before she had actually delivered of the child on

30.05.2011, but it was denied to her. Thankfully, she had delivered of the child on 10.06.2011, but her grievance is that she had been Civil Writ Petition No.13301 of 2011 (O&M) - 2 - compelled to take casual leave and was not given maternity leave which she was entitled to.

2. The petitioner would rely on a judgment of the Division Bench in Ruksana Versus State of Haryana and others in CWP No.4229 of 2011 as completely governing her issue. The said judgment was with reference to a person, who was appointed as a multipurpose health worker in the State of Haryana, who complained that the instruction that denied maternity benefit to a mother for the birth of 3rd child was not entitled to the benefits under the Maternity Benefit Act was bad in law. The Court held that while the instructions could be for advancing the State policy of family planning, so long as the principal enactment, namely, the Maternity Benefit Act itself was not amended, the instructions could not be given effect to. Referring to Section 5 of the Maternity Benefit Act, the Court ruled that the right of a woman to receive payment of maternity benefits was statutorily protected. Section 27 of the said Act gave a non-obstante application of the Act notwithstanding any other law to the contrary. The Court, therefore, ruled that Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I that denied the benefit to a mother beyond 2 children would stand eclipsed by the provisions of the Maternity Benefit Act and that it cannot be given effect to. The Bench ruled that the petitioner in that writ petition could not be deprived of the maternity benefit for the birth of the 3rd child. Civil Writ Petition No.13301 of 2011 (O&M) - 3 -

3. Responding to these contentions, the State would contend that the petitioner is governed by the Haryana Aided College Leave Rules of 2002 which provided under Rule 22 maternity leave to a female employee only for less than two surviving children. According to the State, the Maternity Benefit Act was not applicable since by virtue of Section 2 it would apply only to an establishment being a factory, mine or plantation or to an establishment belonging to Government or establishment where persons were employed for exhibition of equestrian, acrobatic and other performances. By operation of Clause (b), the Act would also be extended to shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed. The provisions of the Maternity Benefit Act itself was not applicable and, therefore, the denial of maternity benefit to the petitioner cannot be objected to.

On behalf of the College, the contention that is taken is that the representation said to have been made itself is not available with the records and an application for maternity leave which she had given, had been taken back by her for whatever reasons. The College would also rely on a judgment of Parkasho Devi Versus Uttar Haryana Bijli Vitran Nigam Limited and others-2008(4) Service Cases Today 84 where the Division Bench of this Court had held that the Nigam was not an 'establishment' within the definition Civil Writ Petition No.13301 of 2011 (O&M) - 4 - of Section 2 of the Maternity Benefit Act. Reliance is also placed on Government instructions restricting maternity benefits only to the first two living children for a female and not beyond.

5. I would not find any reason to apply the Government instructions themselves in view of the judgment of this Court in Ruksana's case, referred to above. The whole case would hinge on whether the Maternity Benefit Act is applicable to the petitioner or not. In Parkasho Devi's case (supra), the Division Bench was considering the application of the Maternity Benefit Act to UHBVN and after restricting the applicability of Section 2 to establishments in the manner defined, the Court held that the employees of the Nigam could not come within the purview of the Act. The best way of understanding the applicability of the Maternity Benefit Act would be to first reproduce Section 2 of the Act and consider whether a medical college would be excluded from an establishment. Section 2 of the Act reads as under:-

2. Application of Act.-(1) It applies, in the first instance,- (a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; Civil Writ Petition No.13301 of 2011 (O&M) - 5 - (b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. (2) Save as otherwise provided in Sections 5A and 5B nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employee's State Insurance Act, 1948, apply for the time being.” The above Section consists of two parts: the first part relates to factory, mine or plantation and includes any establishment belonging to Government employed for exhibition of equestrian, acrobatic and other performances. Medical College does not fall within the scheme of things under the first part. The second part relates to any shop or establishment and the issue would be whether the College could be stated to fall within any such establishment. Civil Writ Petition No.13301 of 2011 (O&M) - 6 - The Division Bench of Bombay High Court in Aruna S. Pardesh (Dr.) Versus Dean, Swami Ramanand Tirth Medical College and others-1987 (2) Bombay CR 311 dealt with the case of a houseman, who was later appointed as an intra Obstetrics and Gynaecology department at Swami Ramanand Tirth Medical College. When she was working as a houseman, she was on casual leave from

15.12.1984 to 21.12.1984 and she tagged on a leave of 20 days from

22.12.1984 to 10.01.1985 and claimed that 20 days leave was by way of maternity leave. The point for consideration, inter alia, was whether she was entitled to maternity leave. The Court held, while dealing with the issue, as follows:- “.....The Act applies to “every establishment being a factory, mine or plantation......” (Section 2(1) of the Act). The petitioner admittedly does not belong to any establishment of this nature. The proviso to section 2(1) of the Act enables the State Government with the approval of the Central Government, to declare that all or any of the provisions of the Act shall apply also to any other establishment or class of establishments. No such notification extending the application to the Houseman of Medical Colleges or to Doctors employed in Hospitals and Medical Colleges has been shown to us. The notification No.MBA-1063-Lab-III, dated 9th August, 1965, of the Government of Maharashtra merely Civil Writ Petition No.13301 of 2011 (O&M) - 7 - notifies the date on which the Act came into force in Maharashtra. Therefore, we hold that the Act does not apply to the petitioner. The submission that she is entitled to maternity leave under the Act is unsound.” In this case, there is no notification shown before me that the provisions of the Act had been extended to the post of a Nurse working in the Medical College. I would also adopt the reasoning as found in the decision in Aruna S. Pardesh's case (supra).

6. I, therefore, hold that the petitioner is not entitled to the maternity benefit in the manner sought for. The writ petition is, consequently, dismissed.

09.05.2012 sanjeev (K.KANNAN) JUDGE