While speaking out most vocally in favour of the maternity leave of women, the Himachal Pradesh High Court in Shimla in a most learned, laudable, landmark and latest judgment titled State of H.P. & Ors. Vs Sita Devi in CWP No. 647 of 2020 and cited in 2023 LiveLaw (HP) 39 that was finally pronounced on June 12, 2023 has reiterated that every woman, irrespective of her employment status is entitled to maternity leave. There can be no gainsaying that the basic purpose of maternity leave is to protect the dignity of motherhood and ensure the well-being of both the woman and her child. It must be noted that the Division Bench of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Virender Singh forthrightly remarked that, “The respondent in the instant case was a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child health, safety and growth. The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India.” We also ought to note that these observations were made by the Division Bench while hearing the State’s plea against an order that was passed by the H.P. Administrative Tribunal whereby the respondent had been granted the benefit of deemed maternity leave and consequential benefit of conferment of workcharge status on completion of 8 years service.
At the very outset, this brief, brilliant, bold and balanced oral judgment authored by Hon’ble Mr Justice Tarlok Singh Chauhan for a Division Bench of the Himachal Pradesh High Court comprising of himself and Hon’ble Mr Justice Virender Singh sets the ball in motion by first and foremost putting forth in para 1 that, “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 work place 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 ).”
As it turned out, the Division Bench enunciates in para 2 that, “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 workcharge status on completion of 8 years service, the employerState has filed the instant petition for the grant of following substantive reliefs:-
(i) That the order dated 21.11.2018 passed by the State Administrative Tribunal in the Original Application (D) No. 322 of 2018 may kindly be quashed and set aside.
(ii) That the medical certificate of the respondent submitted after 20 years may not be considered for the period of maternity leave as continuous service.”
To put things in perspective, the Division Bench envisages in para 3 that, “It is not in dispute that the respondent had been engaged on daily wage basis and the detail of working days spanning over two decades of service, is as under:
Detail of working days in respect of Smt. Sita Devi, wi/o Sh. Krishan Kant, District Kangra (H.P.)
As we see, the Division Bench then concedes in para 4 that, “It is also not in dispute that in the year 1996, respondent was carrying a child in her womb, which she delivered on 30.05.1996 and after availing maternity leave w.e.f. 01.06.1996 to 31.08.1996 i.e. only 3 months, the respondent assumed duties and it is only on account of pregnancy and subsequent delivery that the respondent could only put in 156 days as against the minimum requirement of 240 days in a year.”
Do note, the Division Bench notes in para 5 that, “The learned Tribunal took these facts into account and thereafter proceeded to pass the following order:-
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.”
As a corollary, the Division Bench reveals in para 6 that, “Aggrieved by the order passed by the learned Tribunal, the State has filed the instant petition. Mr. Ramakant Sharma, learned Additional Advocate General, has vehemently argued that 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. We, however, find no merit in this contention.”
It cannot be glossed over that the Bench points out in para 7 that, “India is a signatory to various international covenants and treaties. The Universal Declaration on Human Rights adopted by the United Nations on 10.12.1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. These were followed by series of conventions, which reflect on the broad international consensus on important issues of global concern.”
Further, the Division Bench mentions in para 8 that, “Article 25(2) of the Universal Declaration of Human Rights, 1948, stipulates that “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
Furthermore, the Division Bench then states in para 9 that, “Article-6 of the same Conventions reads;
“States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible for survival and development of the child.”
Needless to say, the Division Bench then underscores in para 10 stating that, “Of the international conventions, two are very relevant for the present issue and the same are “Convention on the Elimination of all Forms of Discrimination against Women” (CEDAW) and “ILO: Maternity Protection Convention 2000”.”
Still more, the Division Bench hastens to add in para 11 observing that, “The United Nations signed this Convention i.e. CEDAW, on 30.07.1980. India ratified it on 19.07.1993 and acceded to it on 08.08.1993 with reservation on Article 5(e), 16(1), 16(2) and 29 of CEDAW.”
Most remarkably, the Division Bench expounds in para 12 that, “It was after years of deliberations at National and International level, the right of a woman employee for maternity leave has now been established as supreme by the enactment of the Maternity Benefit Act, 1961. India otherwise was required to make labour laws in conformity with the recommendations made by the International Labour Organization (ILO) read with Article 42 of the Constitution of India. According to Article 42 of the Constitution of India, “the State is required to make provision for securing just and humane conditions of work and for maternity relief”.”
While citing the relevant case law, the Division Bench notes in para 14 that, “In Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224 (supra), the Hon’ble Supreme Court held that the provisions of Maternity Benefit Act, 1961 entitled maternity leave even to women engaged on casual basis or on muster roll basis daily wage and not only those in regular employment. It is further held that the provisions of the Act in this regard are wholly in consonance with the Directive Principles of the State Policy as contained in Articles 39, 42 and 43 of the Constitution of India.”
To be sure, the Division Bench specifies in para 18 mentioning that, “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.”
Most decisively, the Division Bench mandates in para 19 that, “The respondent in the instant case was a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child health, safety and growth. The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India.”
Finally, the Division Bench concludes by holding in para 20 that, “In view of the aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any. Parties are left to bear their own costs.”
All told, we thus see that the Himachal Pradesh High Court has made it indubitably clear that maternity leave is a fundamental human right which cannot be denied by the employees. Its denial would tantamount to violation of Articles 29 and 39D of the Constitution of India. The employees must definitely always bear this in mind and adhere strictly to the rule book! No denying it!
