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Maternity Benefit case – THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P.No.17425 of 2021 C.RAJAGURU Advocate No.300/183, III Floor Thambu Street Chennai – 600 001.                                                         …Petitioner-in-Person. Vs.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.No.17425 of 2021

C.RAJAGURU

Advocate

No.300/183, III Floor

Thambu Street

Chennai – 600 001.                                                         …Petitioner-in-Person.

Vs.

 

  1. THE SECRETARY

Personnel and Administrative Reforms Department,

Secretariat,

Chennai-600 009.

 

  1. THE PRINCIPAL SECRETARY TO GOVERNMENT

Health and Family Welfare Department

Secretariat,

Chennai-600 009.

 

  1. THE DIRECTOR

Directorate of Medical and Rural Health Services (DMS)

No. 361, Anna Salai,

DMS Complex, Teynampet,

Chennai-600 006.

 

  1. THE DIRECTOR

Directorate of Public Health and Preventive Medicine (DPHS)

No.359, Anna Salai,

DMS Complex, Teynampet,

Chennai-600 006.

 

  1. THE JOIN DIRECTOR

Office of Joint Director of Health Services

Government District Headquarters Hospital Campus

Villupuram District

PIN – 605 602.                                                           …Respondents

 

 

AFFIDAVIT OF THE PETITIONER

I, C.RAJAGURU, S/o. K.Chinnamuthu, aged about 33 years, practising as an Advocate, having an office at 300/183, III Floor, Thambu Street, Chennai – 600 001, do hereby solemnly affirm and sincerely state as follows:-

  1. I am the Petitioner herein and as such I am well acquainted with the facts and circumstances of the case made out hereunder.

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  1. I state that I am an advocate exclusively practising before the Madras High Court for the past 7 years. I am a native of Madhayankuttai village, Mettur Taluk, Salem District. Right from my student days, I have been involving myself in assisting the poorer & deprived sections of society in their quest for justice.
  2. I submit that I have filed a couple of PILs as Party-In-Person before this Hon’ble Court and the some of them are disposed of and some of them are pending for final disposal. The statuses of the above PILs are as follows:
  3. In 2016 I filed PIL against the Tamilnadu State Election Commission before this Hon’ble court and, this court given a positive direction in my favour. Further,
  4. I have filed PIL in W.P.No.23724 of 2017 directing the Mettur Municipality to lay down the Public Tar road, it is still pending before this court.

III. In W.P.No. W.P.No.12499 of 2021 seeking directions to the Respondents to take suitable and appropriate action to install closed circuit television (CCTV) in and around the Village Panchayat offices in the state of Tamilnadu as a measure of crime control. The same is still pending before this court.

  1. I state that on 04.03.2018, I was shocked to read a news report that appeared in the official web pages of “Service Doctors and Post Graduates Association-SDPGA” and “Tamilnadu Medical Officers Association-TNMOA” regarding the struggles faced by the non-reqularised, non-permanent, temporary and contract based women government employees to get maternity leave and salary for their maternity leave in the 2nd Respondent Department. In that news report they discussed the non-implementation of maternity benefits for the women government employees. In order to find out the factual position of implementation of maternity leave benefits, I chosen Villupuram district, a largest district in Tamilnadu, on 27.02.2019, I I have filed an application under RTI Act to the Public Information Officer in the 5th Respondent office, for the same I received replies from the Public Information Officers of the 12 various Government Hospitals located within Villupuram district.

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  1. I state that in that replies, some of the Public information officers from the above said 12 Government Hospitals in the district of Villupuram replied that all the maternity benefits being granted and the salary also paid on the last working day of every month during the maternity leave of non-regularised married women government servants also as per rules and G.Os.
  2. I state that in contrary to that, the Public Information Officers from 1.Thirukovilur, GH, 2.Marakaanam, GH, 3.Chinna Salem GH, 4.Vikkiravandi, GH introduced new set of rules that the non-regularised/ temporary/contract based married women employees and even a permanent employees recruited by the Medical Recruitment Board also cannot claim salary for their maternity leave during their maternity leave period until their regularization of job. Shockingly, more than 10 application for the maternity leave salary for of non-regularised married women government employees were kept pending at 5th Respondent office till to date.
  3. I submit that on 19.07.2019, I have filed an application under RTI Act to the Public Information Officer in the office of Joint Director of Health service of 13 various districts within the State of Tamilnadu. The same was received by all of them on various dates without fail. Very interestingly, I have received various kinds of replies from the Public Information Officers in the office of Joint Director of Health service of above said 13 districts on their whims and fancies. The replies revealed that 28 applications from the permanent women government employees appointed on regular capacity and also the non-permanent married women Government servants employed under the emergency provisions who completed one year of continuous service for the maternity benefit kept pending and they have not been paid salary for their maternity leave due to their non-regularisation of services. The above said officers doesn’t apply their mind even in the humanitarian ground considering. Despite the above said Maternity benefit act and rules, the deciding authorities not dutiful to implement the Maternity benefit act and rules.

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  1. I submit that to become a mother is the most natural phenomena in the life of a woman. The vast majority of women want to have children at some time in their lives. The economic arrangements which were there earlier required them to compromise their family goals. Performance of the biological role of child bearing necessarily involves withdrawal of a woman from their work for some period. During this period she is not only work for her living but also needs extra income for her medical expenses.
  2. I submit further that historically, maternity has been treated as a state of disability in women workers from undertaking any work during the few weeks immediately preceding and following child birth. With the emergence of the system of wage labour in the industrial undertakings, many employers tended to terminate the services of the women workers when they found that maternity interfered with the performance of normal duties by women workers. Many women workers, therefore, had to go on leave without pay during this period in order to retain their employment. Many others had to bear a heavy strain to keep their efficiency during the periods of pregnancy, which was injurious to the health of both, the mother and the child.
  3. I submit that due to the above said facts, to remove this hardship of the women workers, the Government of India enacts a Maternity Benefit Act, 1961 and it was recently amended in 2017 with certain necessary changes. In fact Maternity Benefit Act 2017: Sec.6: stipulates that:

Sec.6 (5) “The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant and the amount due for the subsequent period shall be paid by the employer to the woman within 48 hours of production of such proof as may be prescribed that the woman has been delivered of a child.”

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  1. I state that to implement the above said act the Government of Tamilnadu also enacts the Tamilnadu Maternity Benefit Rules in 1967. The Tamil Nadu government is way ahead in setting the leads compare than other states in India, issued an order enhancing maternity leave for women government employees from 180 days to 270 days i.e. 9-months. The Government Order by the Personnel and Administrative Reforms Department in G.O.(Ms) No. 105 P & AR (FR.III) Department dated.07.11.2016., stated that the woman employees with less than two surviving children were eligible for the 9-month maternity leave with full pay and the period may be “spread over from the pre-confinement rest to post-confinement recuperation, at the option of the woman government servant”.
  2. I submit that furthermore, the 1st Respondent department issued a detailed Government Order in G.O. (Ms).No.91.Personnel and Administrative Reforms (FR.II) Department., dated 28.07.2020 clarified the extension of Maternity leave benefits to the non-permanent married woman Government servants appointed in a regular capacity/ temporary or appointed under the emergency provisions of the relevant service rules as follows:

“1.(i) A competent authority may grant maternity leave on full pay to permanent married women Government servants and to non-permanent married women Government servants, who are appointed on regular capacity, for a period not exceeding 270 days, which may spread over from the pre-confinement rest to post confinement recuperation at the option of the Government servant. Non-permanent married women Government servants, who are appointed on regular capacity and join duty after delivery shall also be granted maternity leave for the remaining period of 270 days after deducting the number of days from the date of delivery to the date of joining in Government service (both days inclusive) for the post confinement recuperation.

(ii) Non-permanent married women Government servants, who are appointed under the emergency provisions of the relevant service rules should take for maternity purposes, the earned leave for which they may be eligible. If however, such a Government servant is not eligible for earned leave or if the
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leave to her credit is less than 270 days, maternity leave may be granted for a period not exceeding 270 days or for the period that falls short of 270 days, as the case may be Non-permanent married women Government servants employed under the emergency provisions should have completed one year of continuous service including leave periods, if any, to become eligible for the grant of maternity leave:

It is crystal clear that the mental agony, physical pain and economical difficulties and financial need of the pregnant or child bearing permanent married woman Government servants and non-permanent married woman Government servants are one and the same.

  1. I submit that factual and legal position of the maternity leave and salary for the maternity leave is said above, the Respondent Nos. 2 to 5 being a medical and health care department they don’t care about the legal rights and needs of maternity leave and the financial aid of the women during the maternity. The Respondent nos. 2 to 5 practicing discrimination and indifferent consideration between pregnant or child bearing permanent married woman Government servants and non-permanent married woman Government servants’ amounts to violation of Article 14 of the Constitution of India.
  2. I state that due to the irresponsibility and insincerity and violative behaviors of some of the officers in the department of Respondent Nos. 2 to 5 very many application for the maternity benefits from non-regularised/non-permanent married women government employees are pending kept pending and waiting for their regularization of their services and an approval of the respective authorities.
  3. I submit that these kinds of act of authorities in the department of Respondent Nos. 2 to 5 are not only insincerity but also amounts to indulging Mate-hara: the word mate-hara is short for maternity harassment. Maternity harassment means workplace discrimination against pregnant or childbearing women, including dismissal, contract non-renewal, demotion and wage cuts. If
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mate-hara is put in place, i.e., if women can be demoted for getting pregnant, then women who care about their careers would hesitate to have children at
all, in other words, would it not amount to turning the clock back on women’s right. The concept of maternity benefit is needed in order to enable the women workers to carry on the social function of child; bearing and rearing without undue strain on their health and loss of wages.

  1. I submit that on 08.06.2019, I have preferred detailed representation to the 5th Respondent explaining the position of maternity benefits in the Villupuram district with enclosure of strange RTI replies received from the Medical officers working under the control of 5th Respondent, the same was received on 10.06.2019 but went on vain. Further, on 24.12.2020, I made detailed representation to the 1st Respondent explaining the fate of the G.Os passed by them and request to take appropriate action the same was received by on 26.12.2020 but there is no positive reaction.
  2. I submit that on 29.07.2021, I made a detailed representation to the Respondent no. 2 to 4 narrating their indulgence of violations of the Maternity benefit Act, Rule, G.Os related to Maternity benefits with enclosure of RTI replies from the various officials regarding the non-implementation of maternity benefits and I request them to take immediate and appropriate action to ensure the proper and effective implementation of the G.O.(Ms).No.91. Personnel and Administrative Reforms (FR.II) Department, dated 28.07.2020., and also to direct the competent authority to take immediate action to grant maternity leave on full pay to permanent married women Government servants appointed on regular capacity and to non-permanent married women Government servants employed under the emergency provisions who completed one year of continuous service without pending arrears from the eligible applicant with regard to the maternity benefit of 270 days of maternity leave with full pay and

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also to clarify that the temporary/contract non-regularised women government servants also eligible for the above said benefits irrespective of their
regularization/ permanency of their job and also ensure the proper and effective implementation of the Maternity Benefit scheme as contemplated in the Maternity Benefit Act (Amended), 2017 and the Tamilnadu Maternity Benefit Rules, and the same was received by them on 02.08.2019, but went on vain.

  1. I submit that all the above Respondents failed to respond to my representation which revealed a serious transgression of the Fundamental right and Women’s rights of the women government employees. The Respondents who are public authorities having a public duty to enforce the legal right of their own employees continued to maintain stoic silent, exhibiting their apathy towards the invaluable rights of the women employees. It would be pertinent to point out here that the grievance of the maternity benefits of the women government servants working in the medical and health care department is very serious problem. Even during the pregnancy they risking their life in the every tragic situation in our society and also they are the front lion warriors in the war against COVID-19 Pandemic.
  2. I submit that in this situation, I have no other immediate efficacious alternative remedy except to knock the doors of this Hon’ble Court invoking Article 226 of the Constitution of India.
  3. I declare that I have not filed any writ petition previously for the relief sought for herein and no such petition is pending before any Court. I have no personal interest whatsoever in the present case. If this PIL is found to be for personal gains or oblique motive, I hereby undertake to pay the costs, if any, so made. I am filling this PIL from out of my own funds. My PAN is AWHPR9932M. I also state that to my knowledge no PIL with a prayer similar to the present one has been filed anywhere.

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Therefore, the petitioner prays that this Hon’ble court may be pleased to issue a Writ, Order or Direction, in the nature of a Writ of Mandamus or any other appropriate Writ, Order or Direction:

a). DIRECTING the respondent Nos. 2 to 5 to take immediate steps to identify the pending application from the non-reqularised married women Government servants appointed on regular capacity, non-permanent married women Government servants employed under the emergency provisions, temporary and contract based married women government employees who completed one year of continuous service for their maternity benefits in the 2nd Respondent Department and immediately grant maternity leave on full pay as per the G.O.(Ms).No.91.Personnel and Administrative Reforms (FR.II) Department, dated 28.07.2020.

(b). DIRECTING the Respondent No.2 to ensure the proper and effective implementation of the Maternity Benefits to the women government employees as per the G.O.(Ms).No.91.Personnel and Administrative Reforms (FR.II) Department, dated 28.07.2020 and Tamilnadu Maternity Benefit Act, Tamilnadu Maternity Benefit Rules.

(c). and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

 

Solemnly affirmed at CHENNAI this

the  11th day of August 2021 and

signed his name in my presence

                  BEFORE ME
 

ADVOCATE : CHENNAI.

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MEMORANDUM OF WRIT PETITION

(Under Article 226 of the Constitution of India)

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.No. 17425 of 2021

 

C.RAJAGURU

Advocate

300/183, III Floor

Thambu Street

Chennai – 600 001.                                                          …Petitioner-in-Person

Vs.

 

  1. THE SECRETARY

Personnel and Administrative Reforms Department,

Secretariat,

Chennai-600 009.

 

  1. THE PRINCIPAL SECRETARY TO GOVERNMENT

Health and Family Welfare Department

Secretariat,

Chennai-600 009.

 

  1. THE DIRECTOR

Directorate of Medical and Rural Health Services (DMS)

No. 361, Anna Salai,

DMS Complex, Teynampet,

Chennai-600 006.

 

  1. THE DIRECTOR

Directorate of Public Health and Preventive Medicine (DPHS)

No.359, Anna Salai,

DMS Complex, Teynampet,

Chennai-600 006.

 

  1. THE JOIN DIRECTOR

Office of Joint Director of Health Services

Government District Headquarters Hospital Campus

Villupuram District

PIN – 605 602.                                                           …Respondents

 

WRIT PETITION

The address for services of all notices and process of this Hon’ble Court on the petitioner is that of his counsel M/s. C.RAJAGURU, V.SIVAKUMAR & M.ABINASH, having office at No.300/183, 3rd Floor, Thambu Street, Chennai-600 001.

The address for services of all notices and process of this Hon’ble Court on the respondents are the same as stated above.

…2…

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For the reasons stated in the accompanying affidavit,the petitioner prays that this Hon’ble court may be pleased to issue a Writ, Order or Direction, in the nature of a Writ of Mandamus or any other appropriate Writ, Order or Direction:

a). DIRECTING the respondent Nos. 2 to 5 to take immediate steps to identify the pending application from the non-reqularised married women Government servants appointed on regular capacity, non-permanent married women Government servants employed under the emergency provisions, temporary and contract based married women government employees who completed one year of continuous service for their maternity benefits in the 2nd Respondent Department and immediately grant maternity leave on full pay as per the G.O.(Ms).No.91.Personnel and Administrative Reforms (FR.II) Department, dated 28.07.2020.

(b). DIRECTING the Respondent No.2 to ensure the proper and effective implementation of the Maternity Benefits to the women government employees as per the G.O.(Ms).No.91.Personnel and Administrative Reforms (FR.II) Department, dated 28.07.2020 and Tamilnadu Maternity Benefit Act, Tamilnadu Maternity Benefit Rules.

(c). and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

DATED AT CHENNAI ON THIS THE 11th DAY OF AUGUST, 2021.

 

PETITIONER-IN-PERSON

 

 

 

 

 

 

 

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