Bindhu M. Thomas v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** ## **WP(C).No. 2150 of 2016** ## **PETITIONER:** **BINDHU M.THOMAS, AGED 37 YEARS, W/O.ADV.JOSE CYRIAC, KUNNAPALLIL HOUSE, VAIKKOM, THEKKENADA.P.O., VAIKKOM, KOTTAYAM, PIN-684 142. NOW RESIDING AT KUNNAMPALLIL HOUSE, CHIRAKKADAVU.P.O., KANJIRAPPALLY. PIN-686 520.** **BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.JOSE CYRIAC SRI.K.N.ABHILASH SRI.M.A.AHAMMAD SAHEER** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001. 2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF CIVIL SUPPLIES, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 3 THE SECRETARY STATE CONSUMER DISPUTE REDRESSAL COMMISSION, SISUVIHAR LANE, VAZHUTHACAUD.P.O., THIRUVANANTHAPURAM. PIN-695 014. 4 THE SENIOR SUPERINTENDENT, CONSUMER DISPUTE REDRESSAL FORUM, KOTTAYAM, PIN-686 002. SMT.DIVYA C.BALAN, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2150 of 2016** **2** ## **P.V.ASHA J. -----------------------------------W.P.(C) No.2150 of 2016 -------------------------------------** Dated this the 06[th] day of March, 2019 ## **J U D G M E N T** **The petitioner was a member of the Consumer Disputes Redressal Forum, Kottayam, for the period from 08.02.2008 to 07.02.2013, on being appointed as such as per Ext.P1 order dated 08.02.2008. She is aggrieved by the denial of maternity leave, for which she had submitted an application, Ext.P2 for the period from 13.09.2011 to 11.03.2012. The application was forwarded as per Ext.P3, letter of the Senior Superintendent.** **2. The petitioner points out that the government had as per Ext.P5 order issued on 30.10.2001 granted maternity leave to one Smt. Rekha Sukumar a member of CDRF for a period of 135 days from 17.08.2001.** **3. In this order, it was stated that, the members of the commission are appointed for a specified period** **WP(C).No. 2150 of 2016** **3** **and therefore, the rules in the KSRs are not attracted in their cases. However, the Government Ordered that Smt. Rekha Sukumar would be given honorarium for 90 days from 17.08.2001 without having to attend the work as member of CDRF taking a lenient view on humanitarian grounds. Eventhough the petitioner submitted Ext.P4 representation, before the Minister, pointing out the provisions contained in Rule 100 of Part 1 KSR, extending the benefit of maternity leave to the female officers for a period of 135 days, there was no action.** **4. The respondent filed a counter affidavit, stating that the conditions of service of the members of the CDRF are governed by the Kerala Consumer Protection Rules, 2005. Rule 15 thereof deals with salary, honorarium and other conditions of service including leave. Rule 15 (9) provides that a member would be eligible for causal leave for 20 days in a calender year, that too on condition that the members shall attend office on all working days, and during the office hours. Sub Rule 10 provides that, leave shall** **WP(C).No. 2150 of 2016** **4** **not be claimed as a matter of right. Therefore, according to the respondents the application for maternity leave submitted by the petitioner was not liable to be granted and she was eligible only for causal leave that too for a period of 20 days. According to Government, the Rules do not provide for any other leave than causal leave. However, the Government does not refer to the order issued on the basis of Smt. Rekha Sukumar in Ext.P5 order in respect of Smt. Rekha Sukumar.** **5. The petitioner had been working for a period of 5 years continuously. She applied for the leave on unavoidable reasons. The benefit cannot be denied to her on the ground that provisions in KSR are not applicable in her case. Under Articles 42 of the Constitution of India the State is duty bound to make provision for securing just and humane conditions of work and for maternity relief. In the judgment in** _**Municipal Corporation of Delhi v. Female Workers (Muster Roll): (2000) 3 SCC 224**_ **, while considering the** **WP(C).No. 2150 of 2016** **5** ## **claim of casual labourers in Delhi Municipality for maternity benefit, the apex court observed as follows:** **“ 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.”** **It is also pertinent to note the obligation of India, being a signatory to the United Nations Convention on the Elimination of all Forms of Discrimination against Women. Article 11(2) of the Convention provides as follows:** **“Article 11** ## **1. xxxxxx** **2. In order to prevent discrimination against** **WP(C).No. 2150 of 2016** **6** **women on the grounds of marriage or maternity and to ensure their effective right to work, States/parties shall take appropriate measures:** - **(a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;** - **(b) to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; ”** **The apex court in the judgment in Female Workers (Muster Roll)'s case directed that the principles which are contained in Article 11 of the convention shall be read into the contract of service between the Municipal Corporation of Delhi and the women employees (muster roll) and then those employees would become entitled to all the benefits conceived under the Maternity Benefit Act, 1961. Similarly if Article 11(2) is read into the service conditions of the female members of the CDRF, they would also be entitled to maternity benefit, as was rightly done in the case of Smt. Sobha years before.** **WP(C).No. 2150 of 2016** **7** **6. The denial of maternity benefit, to the** **petitioner is in violation of the constitutional obligation of the State and will amount to an act in derogation of her dignity. Absence of Rules cannot be a** **reason for denying maternity leave to a member of the CDRF. The petitioner who was eligible for honorarium will therefore, be entitled to maternity leave with the benefit of honorarium for a period of 135 days from 13.09.2011.** **There shall be a direction to the respondents to consider the application Ext.P3 and to grant maternity leave to the petitioner for a period of 135 days with the benefit of honorarium within three months from the date of receipt of a copy of this judgment.** ## **Sd/-** ## **P.V.ASHA** **JUDGE** VPK **WP(C).No. 2150 of 2016** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 P1- TRUE COPY OF THE APPOINTMENT LETTER DATED 08.02.2008 ISSUED BY THE STATE OF KERALA TO THE PETITIONER.** **EXHIBIT P2 P2- TRUE COPY OF THE APPLICATION DATED 20.10.2011 ALONG WITH ITS COVERING LETTER SUBMITTED BEFORE THE 3RD RESPONDENT.** **EXHIBIT P3 P3- TRUE COPY OF THE LETTER DATED 14.11.2011 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.** **EXHIBIT P4 P4- TRUE COPY OF THE REPRESENTATION DATED 07.03.2012 SUBMITTED BY THE PETITIONER TO THE HON'BLE FINANCE MINISTER, GOVERNMENT OF KERALA.** **EXHIBIT P5 P5- TRUE COPY OF THE ORDER DATED 30.10.2001 ISSUED BY THE 2ND RESPONDENT TO SMT.REKHA SUKUMAR, MEMBER OF CDRF, THRISSUR ALONGWITH TYPED COPY OF THE SAME.** ## **//TRUE COPY //** ## **PA TO JUDGE** VPK