मानदेय पर कार्यरत महिला भी मातृत्व अवकाश की हकदार : इलाहाबाद हाईकोर्ट की लखनऊ बेंच का फैसला

Court No. - 24 

Case :- SERVICE BENCH No. - 1206 of 2012

Petitioner :- Dr. Shikha Jain Respondent :- State Of U.P. Through Prin. Secy. Higher Edu. Lko. & Ors.
Petitioner Counsel :- Mandeep Mishra,Manish Jaiswal
Respondent Counsel :- C.S.C.
Hon'ble Rajiv Sharma,J.
Hon'ble Surendra Vikram Singh Rathore,J.

Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel and perused record.

With the consent of parties counsel, we proceed to decide the writ petition at the admission stage.

The petitioner is serving as Lecturer (Political Science) on honorarium basis in Antarra Post Graduate College, Antarra, Banda. She is in family way and in advanced stage of pregnancy. She has applied for maternity leave under the Maternity Benefit Act, 1961 but no decision has been taken by the respondents. However, it has been submitted by the petitioner's counsel that respondents are not giving maternity leave only on the ground that the petitioner is working on honorarium basis.

Learned Standing Counsel submits that the petitioner is not a regular employee. She is working on honorarium basis and that the provisions of the maternity leave applicable to the teachers and employees of the State Government and other Colleges as well as Maternity Benefit Act, 1961 are not strictly applicable to her.

In Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and another (2000) 3 SCC 224, the Supreme Court, after considering the rights of a lady for maternity leave held that the Maternity Benefit Act, 1961 extended the benefits even to the muster roll employees. It was observed by the Supreme Court that a just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of the society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman, whenever leave 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 workplace 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 victimised for forced absence during the pre- or post-natal period. 

The petitioner has a right to avail the maternity leave, which is applicable to regularly employed lecturers in the Government Degree Colleges. Although the respondents have not yet taken a decision on the leave application, we do not find that the objection taken by the Standing Counsel, that a contractual employee/honorarium employee is not entitled to maternity leave, is justified. The purpose of the maternity leave does not change with the nature of employment. It is concerned with human rights of the women. The employers and courts are bound under the constitutional scheme, guaranteeing right to life, including right to live with dignity and to protect the health of both the mother and child to preserve these rights.

The writ petition is accordingly disposed of with directions to respondents to consider and decide petitioner's application for maternity leave within a period of fifteen days from the date of receipt a certified copy of this order in accordance with the judgment in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and others cited as above, and the observations made in this judgment.

Order Date :- 29.8.2012
Ajit/-

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