Poonam Patwal @ Poonam Nayal vs Govt. Of NCT Of Delhi

The applicant works as a Guest Teacher TGT (Maths.) since 09.07.2012 and had worked from time to time in broken spells. The last such spells when she worked were from 01.07.2016 to 10.05.2017 at SKV Khajoori Khas, Delhi and thereafter w.e.f. 01.07.2017 at the same school. The applicant was in family way and it was said to be a high risk pregnancy. The applicant pleads that she orally advised the Principal of her school on 15.09.2017 and requested for maternity leave. Thereafter, a formal request for maternity leave was submitted on 22.09.2017, which was received by the Vice Principal, SKV, Khajoori Khas, Delhi, on the same day. This application reads as under:

"In this regard, I would like to say that I have an pregnancy of 8 months. I have been categorized in a high risk pregnancy & advised by the doctor for complete bed-rest in order to parry the complication associated with high risk pregnancy.

Kindly allow me pregnancy/maternity leave. I shall try my level best to join the office as soon as possible."

The applicant pleads that thereafter no reply was received on this application. She eventually gave birth on 11.10.2017 to a baby girl. She remained on such leave upto 15.03.2018 and joined duties w.e.f. 16.03.2018. The applicant pleads that maternity leave for 26 weeks needs to be granted to her w.e.f. 15.09.2017 to 15.03.2018. Neither this maternity leave has been sanctioned nor has she been paid salary for this period. Feeling aggrieved, the instant OA has been filed.

The applicant relied upon gazette notification for Maternity Benefits Act, 1961, which was notified on 12.12.1961. The salient parts of this gazette notification are as under:

"Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows: -

Short title, extend and commencement. -- (1) This Act may be called the Maternity Benefit Act, 1961.

(2) It extends to the whole of India 2 [* * *]

(3) It shall come into force on such date as may be notified in this behalf in the Official Gazette, --

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(b) in relation to other establishments in s State, by the State Government.

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Application of Act. -- (1) It applies in the first instance, to every establishment being a factory, mine or plantation 4 [including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances]:

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(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

(5) Right to payment of maternity benefit.

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(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery:

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Explanation: - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day:"

The applicant also mentioned that the maternity leave for 12 weeks, as provided in this notification was subsequently modified vide Maternity Benefits (Amendment) Act, 2017 notified on 27.03.2017, wherein the 12 weeks period was enhanced to 26 weeks.

Certain other clarifications on provisions of this Act, were also issued by Ministry of Labour and Employment vide their notification dated 12.04.2017. The relevant queries and the clarifications notified are reproduced as under:

"Provisions of the Amendment Act have come into force w.e.f. 1st April, 2017, except those relating to crèche facility {Section 4(1)} which would come into force from 01.07.2017.

After the enactment of the said Act, the Ministry has been receiving numerous queries relating the revised provisions of the Act. The Ministry has examined such queries in consultation with Chief Labour Commissioner (Central) and the same are clarified as follows:-

S. No.

Query

Clarification

1.

Applicability of the Act to contractual or consultant women employees.

Since there is no amendment in Sec. 2 of the Act, hence the original provision will prevail. The Act is applicable to all women who are employed in any capacity directly or through any agency i.e. either on contractual or as consultant.

2.

Whether enhanced maternity benefit, as modified by the Maternity Benefit (Amendment) bill, 2016 can be extended to women who are already under maternity leave at the time of enforcement of this Amendment Act?

Yes.

3.

Whether enhance maternity benefit can be extended to those women who have joined after availing 12 weeks of the maternity leave?

Those women employee who had already availed 12 weeks of maternity leave before enforcement of the Maternity Benefit (Amendment) Act, 2017, i.e. 1st April, 2017, shall not be entitled to avail the extended benefit of the 26 weeks leave."

The applicant also brought out that the Government of NCTD had also issued an order dated 23.11.2017, which reads as under:

"It has been decided to extend the benefits under the Maternity Benefits Act, 1961 and Maternity Benefits (Amendment) Act, 2017 to all Guest Teachers working in Directorate of Education, Govt. of NCT of Delhi."

The applicant pleads that the Maternity Benefits Act was adopted by GNCTD and she is covered as a woman employee as per para-2 (o) thereof (para 3 supra). The 12 weeks period of maternity leave was also enhanced to 26 weeks, as per notification dated 27.03.2017 and these amendments have already come into force w.e.f. 01.04.2017 as per notification dated 12.04.2017 (para 4 supra).

The applicant also pleads that even though a woman employee was already covered as per these gazette notifications, however it was also made explicitly clear vide GNCTD order dated 23.11.2017 that it is available to Guest Teachers also and thus she is entitled for it. Since she worked for period exceeding 160 days in the immediate preceding period w.e.f. 15.09.2016 to 15.09.2017 and the delivery took place on 11.10.2017, after the Act came into force, she is covered under the said amendment and she needs to be granted maternity leave benefits for 26 weeks w.e.f. 15.09.2017 to 15.03.2018.

The respondents opposed the OA. It was pleaded that while regular employees were covered by the gazette notification, maternity benefit was extended to Guest Teachers w.e.f. 23.11.2017 only. The delivery in the instant case had occurred prior to this date, i.e., on 11.10.2017 and as such she is not covered by these amendments. Accordingly, the maternity leave is not admissible in this case and the OA is required to be dismissed.

The respondents also pleaded in their counter reply that:

"the matter of benefit of maternity leave is under consideration in Directorate of Education for those employees whose delivery date has taken place prior 21/11/2017, and is still pending as per mail received on dated 20/02/2018 vide mail ID-2002201800235 from the DDE North-East (mail copy enclosed)."

The respondents also pleaded that the applicant had remained unauthorized absent w.e.f. 15.09.2017 to 21.09.2017 and she has availed her leave w.e.f. 22.09.2017 to 14.03.2018 for 173 days.

The matter has been heard at length. Shri K.P. Gupta, learned counsel represented the case of the applicant and Mrs. Pratima Gupta, learned counsel for the respondents represented the respondents.

The Maternity Benefits Act was notified in the year 1961 wherein a provision was kept for 12 weeks paid leave to all women employees, whether they are employed directly or through any agency for wages in any establishment. The GNCTD is covered under the definition of establishment as per the said Act. This was admittedly adopted by the GNCTD in respect of all regular employees (para 3 supra).

The applicable period for 12 weeks paid maternity leave was increased to 26 weeks paid maternity leave vide amendments dated 27.03.2017. These amendments were also applicable to all those women employees who were covered in the Original Act of 1961.

The clarifications dated 12.04.2017 also very clearly specified that the Act is applicable to all women employees whether contractual or consultants or regular.

Therefore, the notification by GNCTD dated 23.11.2017 is in the nature of a clarification to explicitly indicate that the benefit is available to a Guest Teacher also, as all women employees were already covered. It cannot be said to mean that such benefit was not available to Guest Teachers earlier.

The Maternity Act was a welfare measure adopted by the Government as a way to provide good health to the mother and good care to the newly born child. This benefit cannot be denied on the mere technicality that the clarification was not issued by GNCTD prior to 23.11.2017. It is in keeping with this that the respondents are already considering extension of Maternity Benefits Act to the Guest Teachers where delivery had occurred prior to 21.11.2017 but decision is awaited (para 8 supra). In view of this, denial of maternity leave to the applicant is not inconformity to the letter and spirit of said Act.

The present OA is disposed of with directions to the respondents to take a considered policy decision in this regard for the Guest Teachers, where delivery took place prior to 21.11.2017, within a period of three months from the date of receipt of a certified copy of these orders, keeping in view the observations made above by the Tribunal.

Thereafter, a reasoned and speaking order shall be passed on the applicant's representation dated 22.09.2017, addressed to the Principal, SKV, Khajoori Khas, Delhi, who is respondent no.4 within a further period of four weeks. The applicant shall have liberty to approach the Tribunal, if some grievance still subsists.

There shall be no order as to costs.