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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/10/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.13555 of 2009 and M.P.(MD)NO.1 OF 2009 J.Sharmila .. Petitioner vs 1.The Secretary to Government, Education Department, Fort St. George, Chennai-600 009. 2.The Chief Educational Officer, Sarva Siksha Abiyan, Tuticorin District. 3.The Chief Educational Officer, Sarva Siksha Abiyan Nagapattinam. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order of the third respondent passed in O.Mu.No.222/09/A1/2009, dated 27.10.2009, quash the same and consequently, to direct the respondents to regularise the maternity leave of the petitioner from 16.10.2006 to 11.2.2007 as eligible maternity leave and to pay salary for the said period with all monetary and attendant benefits. For Petitioner … Mr.Veera Kathiravan For Respondents … Mr.R.Janakiramulu, Spl.G.P. ORDER I.Preamble : The rule requiring that unmarried women employees to give up service on marriage was frowned upon by the Supreme Court. The Supreme Court observed “We are not impressed by these reasons for retaining a Rule of this kind. The work in this department is not arduous for the department is concerned with packing, labelling, putting in phials and other work of this kind which has to be done after the pharmaceutical product has been manufactured. Nor do we think that because the work has to be done as a team it cannot be done by married women. We also feel that there is nothing to show that married women would necessarily be more likely to be absent than unmarried women or widows. If it is the presence of children which may be said to account for greater absenteeism among married women, that would be so more or less in the case of widows with children also. The fact that the work has got to be done as a team and presence of all those workmen is necessary, is in our opinion no disqualification so far as married women are concerned. It cannot be disputed that even unmarried women or widows are entitled to such leave as the respondent’s Rules provide and they would be availing themselves of these leave facilities.” See :Bombay Labour Union Vs. International Franchise Pvt. Ltd. reported in 1966 (2) SCR 493 = 1966 (1) LLJ 417. 2.The rule making pregnancy a bar to continuance in service was found to be unreasonable and unconstitutional by the Supreme Court. “92. …. By making pregnancy a bar to continuance in service of an AH the Corporation seems to have made an individualised approach to a woman’s physical capacity to continue her employment even after pregnancy which undoubtedly is a most unreasonable approach. 96…..we are satisfied that the reasons given for imposing the bar are neither logical nor convincing. 101…..we strike down the last portion of Regulation 46(i)(c) and hold that the provision “or on first pregnancy which-ever occurs earlier” is unconstitutional, void and is violative of Article 14 of the Constitution and will, therefore, stand deleted…..” See : Air India v. Nergesh Meerza reported in (1981) 4 SCC 335. 3.The Haryana Panchayati Raj Act, 1994 disqualifying persons having more than two living children from contesting election to village panchayat was upheld by the Supreme Court. “25. In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest.” See: Javed v. State of Haryana reported in (2003) 8 SCC 369. II.Questions Raised in this writ petition : 4.Whether a married woman Government servant is entitled to get fully paid towards maternity leave availed if she has already two surviving children? The Government Order in G.O.(Ms)No.173, P&AR Department, dated 27.6.1997 stipulates that on and from 29.6.1993 maternity leave shall be granted to a woman Government servant with less than two surviving children. III.Petitioner unfortunate victim : 5.The petitioner Block Resources Teacher Educator in Maths in Thoothukudi District had her second delivery during the period between 16.10.2006 to 11.01.2007. For the aforesaid period, she was not given maternity benefit stating that during the first labour, she had given birth to twins and therefore, by the present delivery, she had given birth to a third child and hence by the order of the Government in G.O.Ms.No.237, School Education Department, dated 29.6.1993 she will not be paid wages for her leave. The order communicating these views, dated 27.10.2009 is under challenge in this writ petition. 6.The petitioner though placed reliance upon an order passed in respect of one Mrs.Meri Joshpin Anjali, a Secondary Grade Teacher of St. Alocius Girls Higher Secondary School, who was given an exemption from Rule 5A read with 101(a) of Fundamental Rules and explanation 1 was relaxed in her favour by G.O.Ms.No.367, School Education Department, dated 8.10.1998, the respondent did not choose to grant any exemption. Therefore, the only question that would arise is whether the impugned order refusing to grant her maternity leave for the birth of her third child in the second delivery and to treat her leave to which she was eligible was legally justified? 7.The matter could have been dealt with on technical ground, i.e. intention of the rule is only the grant of maternity leave for the second delivery and not really based upon two children norm. The petitioner had delivered during her first delivery twins and the second delivery was a single child. Therefore, maternity leave was confined only to the second delivery and not based on the third child norm. Therefore, the petitioner should have been granted maternity leave with full pay. If it is not construed in this way it may produce ridiculous result. To cite an example, if during the first delivery a woman Government servant delivers a single child and by the second delivery if she delivers twins or triplets, then should she be disqualified? 8.Yet this court having regard to the legal issue involved, decided to go into the very legality of the Fundamental Rule and its explanation. Therefore, in this context, it is necessary to refer to the historical basis for maternity leave for the women employees as well as various enactments which were made in this regard. IV.History of the legislation regarding maternity benefits : 9.The first provincial law in this field was the Bombay Maternity Benefit Act of 1929 and this was followed by the C.P. Maternity Benefit Act of 1930. As a result of the Royal Commission’s recommendation on the subject, Maternity Benefit Acts were passed in Madras, U.P., Bengal, Punjab and Assam. The Central Government also passed a Mines Maternity Benefit Act in 1941 extending maternity benefits to women employed in mines. The Act which came into force in December 1942 is the first instance of a Central measure dealing with maternity benefits. The Bombay Act was adopted with some modifications by Ajmer-Merwara in 1933 and by Delhi in 1937. Sind Adopted it at the time of separation and amended it in 1939. The Bengal Maternity Benefits (Tea Estates) Bill, 1941, was introduced by the Bengal Government with a view to regularing maternity benefits for women workers in tea factories and plantations in accordance with the recommendations of the Royal Commission. The Bill has been passed by the local Legislative Council but is still before the Legislative Assembly. A draft Maternity Benefit Bill is under the consideration of the Bihar Government. 10.The Labour Investigation Committee appointed by the Government of India vide its reference made by the Tripartite Labour Conference in its resolution in September, 1943 with reference to Maternity Benefits in its report, dated 5.3.1946 in page 378 made the following recommendations: “As regards childbirth, in most of the Provinces, there are Maternity Benefit Acts and there is also the Mines Maternity Benefit Act (which is a Central measure) which impose the liability for the payment of maternity benefit upon the employer. However, we are not satisfied that these Acts are being properly observed or enforced especially in the smaller concerns. There are various devices adopted to evade liability under the Acts. Moreover, there has been some lack of uniformity amongst the various Provincial measures and it is satisfactory that the Government of India propose to include also childbirth in their proposed Unified Insurance Scheme for factory workers.” 11.Subsequent to those recommendations, no uniform legislation by the Central Government was immediately passed. In the meanwhile, the Constitution of India was adopted on 27th January, 1950. For the first time, the care for woman and maternity relief was recognised by the Constitution of India under Article 42, which reads as follows: “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.” (Emphasis added) 12.It was after 11 years after the Constitution was adopted, the Maternity Benefit Act, 1961 came to be enacted on 12.12.1961 to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for maternity benefit and certain other benefits. Section 3(e) defines “establishment” to which the Act applies. After categorising certain list of industries, Section 3(e)(v) enables the Government to apply the provisions of the Act to other establishments also. Section 5 provides for right to payment of maternity benefit. Section 5(3) provides for 12 weeks payment. V.Object of the new Law : 13.The Supreme Court while construing the provisions of the Act in B.Shah Vs. Labour Court and others reported in 1977 (35) FLR 414 = 1977 (4) SCC 384, interpreted the object which is found in paragraphs 18 and 19 which are as follows: “18….It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court. The interpretation placed by us on the phraseology of sub-sections (1) and (3) of Section 5 of the Act appears to us to be in conformity not only with the legislative intendment but also with paras 1 and 2 of Article 4 of Convention 103 concerning Maternity Protection Convention (Revised), 1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference: Article 4: While absent from work on maternity leave in accordance with the provisions of Article 3, the woman shall be entitled to receive cash and medical benefits. The rates of cash benefit shall be fixed by national laws or regulations so as to ensure benefit sufficient for the full and healthy maintenance of herself and her child in accordance with a suitable standard of living.” 14.The Act also provides for non obstante clause under Section 27, which reads as follows: “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 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 benefit 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.” VI.Law based on International obligation : 15.The purpose for bringing this legislation after 11 years after the Constitutional guarantee was given in the form of Article 42 was because of Convention No.103 of International Labour Organisation, had guaranteed maternity protection with effect from 7.9.1955. Article 2 of Convention No.103 reads as follows: “For the purpose of this Convention, the term “woman” means any female person, irrespective of age, nationality, race or creed, whether married or unmarried, and the term “child” means any child whether born of marriage or not.” Article 4 reads as follows: “1.While absent from work on maternity leave in accordance with the provisions of Article 3, the woman shall be entitled to receive cash and medical benefits.” Recommendation No.95 reiterated the said convention. 16.Thereafter, a Commission, which was appointed during the International Women’s Decade, submitted its report on National Plan of Action, 1976 identifying the areas of health, family planning, nutrition, education, employment, social welfare for formulating and implementing the action programme for women and called for action plans to improve the conditions of women in India. 17.Subsequent to the said report, a National Perspective Plan for Women for the year 1988-2000 A.D. was prepared by the Department of Women and Child Development through the Core Group set up by the Ministry of Human Resource Development. It published its report in the year 1988 and its recommendations with reference to maternity benefits. The Core Group recommended that the Maternity Benefit Act should be examined and wherever there is possibility extend it to unorganised and agricultural sectors. VII.State Government applies brakes : 18.Therefore, when the thrust is for expanding the scope of maternity benefit, the State Government by clarification made by G.O.Ms.No.237, School Education Department, dated 29.6.1993 restricted the scope and introduced a two children norm for the grant of maternity leave with full pay. The question is how far it is legal and constitutional? 19.Before proceeding to determine the legality of Explanation 1 of FR 101(a), it is necessary to refer to one or two decisions which arose out of disability faced on account of maternity related problems. When a girl student was denied permission to write examination for want of required attendance due to childbirth, this court in Kavitha Rajagopal Vs. Registrar, Tamil Nadu Dr.Ambedkar Law University, Chennai and another reported in 2008 (4) LLN 299 in paragraph 5 observed as follows: “5….But the cases like the petitioner’s, viz., women students, who want to pursue their studies but are unable to attend the college for the required number of days because of child birth, may not arise frequently but only in exceptional cases. So, I am of the view that a direction can be given as given by the learned Judge in the decision reported in Nithya V. University of Madras referred to supra.” 20.The said vice came to be questioned before a division bench of this Court in A.Arulin Ajitha Rani Vs. Principal, Film and Television Institute of Tamil Nadu, Chennai and others reported in 2008 (4) LLN 308. The division bench made the distinction between the educational institution and maternity leave arising out of employment. In paragraph 10, it was observed as follows: “10.Even assuming that an educational institution may also come within the aforesaid provisions, there is no dispute that the State Government has not issued any notification declaring that the provisions of the Act would be applicable to the educational institutions. There cannot be any dispute regarding the requirement of grant of maternity benefit to the working women. However, the question is, in the absence of any specific provision applicable to educational institution, whether such provision can be extended.” (Emphasis added) VIII.Supreme Court sets the tone for interpretation : 21.The Supreme Court in Municipal Corporation of Delhi v. Female Workers (Muster Roll) reported in (2000) 3 SCC 224 dealt with the scope of the M.B. Act. In paragraphs 12, 32, 33 and 36 observed as follows: “12.Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief”, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. 32.Learned counsel for the Corporation contended that since the provisions of the Act have not been applied to the Corporation, such a direction could not have been issued by the Tribunal. This is a narrow way of looking at the problem which essentially is human in nature and anyone acquainted with the working of the Constitution, which aims at providing social and economic justice to the citizens of this country, would outrightly reject the contention. The relevance and significance of the doctrine of social justice has, times out of number, been emphasised by this Court in several decisions. In Crown Aluminium Works v. Workmen3 this Court observed that the Constitution of India seeks to create a democratic, welfare State and secure social and economic justice to the citizens. In J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India4 Gajendragadkar, J., (as his Lordship then was), speaking for the Court, said: “Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.” 33.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 our 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. 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 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. 36.Taking into consideration the enunciation of law as settled by this Court as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of “industry”. The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be “workmen” and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the industrial law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.” (Emphasis added) IX.Can the object of the M.B. Act is to restrict the maternity leave with wages ? 22.When a question came up for consideration before this court in respect of a woman employee, who sought for maternity leave with pay for her third delivery in terms of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 in N.Mohammed Mohideen and another Vs. Deputy Commissioner of Labour (Inspection), Chennai and others reported in 2008 (3) LLN 362 in paragraph 14, this court had observed as follows: “14.There is no provision under the M.B. Act fixing any ceiling on the number of deliveries made by a female worker. So long as Art.42 of the Constitution read with the provisions of the M.B. Act is available, every female worker covered by the Act is entitled to claim maternity benefits without any ceiling on the number of deliveries made by them. That will be the correct interpretation which will be in tune with the judgment of the Supreme Court rendered in B.Shah V. Labour Court, Coimbatore and others [1977 (2) L.L.N. 606] (vide supra).” X.Laws can be made to restrict the benefits to achieve Family Planning : 23.The Supreme Court in more than one decision tried to justify the rule restricting the benefits beyond two child norm based on public policy and family planning as the goal of the State. In this regard, the following passage found in paragraph 101 in Air India Case (cited supra) may be usefully extracted below: “101. For the reasons given above, we strike down the last portion of Regulation 46(i)(c) and hold that the provision “or on first pregnancy which-ever occurs earlier” is unconstitutional, void and is violative of Article 14 of the Constitution and will, therefore, stand deleted. It will, however, be open to the Corporation to make suitable amendments in the light of our observations and on the lines indicated by Mr Nariman in the form of draft proposals referred to earlier so as to soften the rigours of the provision and make it just and reasonable. For instance, the Rule could be suitably amended so as to terminate the services of an AH on third pregnancy provided two children are alive which would be both salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, as indicated above while dealing with the Rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnancy where two children are already there because when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world.” (Emphasis added) 24.This observation came to be quoted with approval in Javed’s case (cited supra). In paragraph 40 of the said judgment, it was observed as follows: “40. The menace of growing population was judicially noticed and constitutional validity of legislative means to check the population was upheld in Air India v. Nergesh Meerza15. The Court found no fault with the rule which would terminate the services of air hostesses on the third pregnancy with two existing children, and held the rule both salutary and reasonable for two reasons:…” XI.Executive instruction cannot replace substantive law : 25.As held in the Air India case (cited supra), the Supreme Court had suggested an amendment to the rule. In Javed’s case, the Supreme Court was only dealing with the disqualifying provisions found in the Haryana Panchayati Raj Act from contesting election. But in both judgments, the constitutional guarantee as well as non obstante clause found in the Maternity Benefit Act, 1961 were not considered. So long as the non obstante clause is found under Section 27, the constitutional obligation found under Article 42 as well as ILO norms set out above are to be the guiding factor, it is not open to the Government to deny maternity protection including paid leave as provided. By intruding an explanation to FR 101 by an executive instruction cannot be treated as substantial rule to deny the constitutional right of a woman Government servant as had happened in the present case. 26.Further, in Javed case (cited supra) itself when it was argued that in cases of birth of twins or triplets, whether the second delivery would be a disqualification, the Supreme Court did not answer the question in a straight way. But in paragraph 63 and 64 of the said judgment it was observed as follows: “63. It was also submitted that the impugned disqualification would hit the women worst, inasmuch as in the Indian society they have no independence and they almost helplessly bear a third child if their husbands want them to do so. This contention need not detain us any longer. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian womenfolk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that if the legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional. Hypothetical examples were tried to be floated across the Bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.” (Emphasis added) XII.What relief to which the petitioner is entitled to : 27.In the present case, it is suffice to state that if the intention of the State Government is to afford protection of the woman for her second delivery, then it should not be based upon the number of children she delivers during those two deliveries. The importance has to be seen only from the health point of the woman Government servant and not the number of children one delivers during each delivery. Hence this court is not inclined to accept the reasons found in the impugned order based upon the so-called Explanation 1 to Rule 101(a) of the Fundamental Rules. The petitioner who had availed maternity leave for the period from 16.10.2006 to 11.1.2007 during her second pregnancy, is entitled to be paid full salary for that period. 28.In the light of the above, the writ petition will stand allowed. However, there will be no order as to costs. The respondents are directed to pay full salary to the petitioner for the maternity leave availed by her for the period from 16.10.2006 to 11.01.2007 within a period of 12 weeks from the date of receipt of copy of this order. Consequently, connected miscellaneous petition stands closed.