NIMA.K.V. v Union of India and Others (WP(C).No.19310 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **WP(C).No.19310 OF 2019(K)** ## **PETITIONER:** **NIMA.K.V, AGED 33 YEARS, W/O. RAJEEV E.R, RESIDING AT EZHAKKANATE HOUSE, OCHANTHURUTHU P.O, VALAPPU, PIN-682508, ERNAKULAM DISTRICT.** **BY ADVS.** **SRI.RAJESH VIJAYENDRAN SRI.BIMAL PRASAD SMT.PRIYANKA GOPI** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI-110001.** - **2 STATE OF KERALA, REPRESENTED BY SECRETARY GOVERNMENT, LABOUR DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 FERTILISERS AND CHEMICALS TRAVANCORE LIMITED(FACT), REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ELOOR-683501.** - **4 GENERAL MANAGER (HR), FACT, UDYOGAMANDAL, ELOOR-683501.** - **5 DEPUTY GENERAL MANAGER(HR), FACT, UDYOGAMANDAL, ELOOR-683501. BY ADVS. SMT.SOWMIAVATHY T.C., CGC SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.SUNIL KUMAR KURIAKOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19310 OF 2019(K)** **2** ## **JUDGMENT** **The petitioner is aggrieved by the denial of the Maternity Leave for a period of 26 weeks and the benefits thereafter. She seeks a declaration that the proviso to Section 5(3) of the Maternity Benefit Act, 1961 does not deprive a woman employee from availing 26 weeks' Maternity Leave for her 2[nd] delivery.** **2. The petitioner is working as a Senior Manager at Fertilisers Engineering and Designing Organisation (FEDO) in FACT. She joined FACT in the year 2009. She gave birth to twin girl children on 09.05.2015. She was granted Maternity Leave, as requested by her and in accordance with rules. In the year 2019, she submitted Ext.P1 application on 16.02.2019 requesting for Maternity Leave for a period of 6 months. But the Assistant General Manager as per Ext.P2 letter dated 01.03.2019 informed her that as per Ext.P3 Circular dated 18.08.2017, Maternity Leave for 26 weeks' is** **WP(C).No.19310 OF 2019(K)** **3** **admissible only to a woman employee with less than two surviving children; a woman employee having two or more surviving children are eligible for Maternity Leave for 12 weeks only, of which not more than 6 weeks shall precede the date of her expected delivery. This writ petition is filed aggrieved by the same.** **3. It is stated that even though petitioner submitted Ext.P4 representation before the General Manager (HR) requesting for 6 months' Maternity Leave, pointing out that she had availed Maternity Leave for 4½ months only for her first delivery in 2015, there was no response.** **4. Respondents 3 to 5 filed a counter affidavit stating that Ext.P3 Circular was issued directly in tune with Section 5(2) of Maternity Benefit Act, which restricts grant of maternity benefits for a woman having two or more surviving children to 12 weeks.** **5. On behalf of the 1[st] respondent, learned CGC** **WP(C).No.19310 OF 2019(K)** **4** **has filed a statement, according to which, no specific relief is sought from the Ministry of Labour and Employment nor the vires of the Maternity Benefit Act, 1961 are challenged. It is relevant to note the reliefs sought by the petitioner, which are the following:** - _**“i) Call for the records leading to Exhibit P-2 and Exhibit P-3 and grant the following reliefs.**_ - _**(a) To issue appropriate Writ order or direction declaring that the 1[st] proviso to Section 5(3) of Maternity Benefit Act, 1961, does not deprive the woman employee from availing 26 weeks maternity leave for her 2[nd] delivery.**_ - _**(b) Issue a Writ of Certiorari quashing Exhibit P-3 Circular to the extent it purports to deny maternity leave for 26 weeks for the second delivery of a woman employee for the sole reason that she had delivered twin children in her first delivery.**_ - _**ii) Writ of Mandamus directing the respondents 3 to 5 to grant 26 weeks leave to the petitioner.**_ **WP(C).No.19310 OF 2019(K)** **5** _**iii) Pass such other orders or directions as may be deemed necessary in the facts and circumstances of the case and in the interests of justice.”**_ **6. The learned counsel for the petitioner relying on the judgment dated 19.10.2016 in WP(MD) No.13555/2009 and judgment dated 19.10.2016 in WP(MD) No.9227/2015 and 9274/2015 argued that petitioner is also entitled to Maternity Leave for a period of 6 months. In those cases the Madras High Court held that there cannot be any distinction on the basis of the number of children in a birth for the purpose of granting maternity benefits.** **7. The Sri. E.K Nandakumar, the learned senior counsel appearing for the respondents 2 and 3, duly assisted by Adv. Ann Maria, pointed out that the said judgment was reversed by the Division Bench of the Madras High Court in its judgment dated 27.02.2020 in W.A.No.4343/2019.** **8. Relying on Article 16(3) and 25(2) of the Universal Declaration of Human Rights the learned** **WP(C).No.19310 OF 2019(K)** **6** **counsel for the petitioner argued that petitioner is entitled to 26 weeks' paid leave. According to her, Section 5(3) of the Maternity Benefit Act envisages two deliveries. Just because twins were born in the first delivery, the petitioner cannot be denied the benefit of the entire Maternity Leave i.e., paid leave for 26 weeks.** **9. Relying on the judgments in** _**Air India v. Nergesh Meerza & Others**_ **[(1981) 4 SCC 335];** _**Javed v. State of Haryana**_ **[(2003) 8 SCC 369]; judgment dated 17.09.2019 of the Uttarakhand High Court in** _**State of Uttarakhand v. Urmila Masih and others;**_ **judgment dated 27.02.2020 in W.A.No.4343/2019 of Madras High Court, the learned senior counsel argued that the petitioner does not have any right to insist grant of Maternity Leave for 26 weeks when he did not fulfill the conditions stipulated for the same.** **10. In view of the rival contentions from both sides it is necessary to examine Section 5 of the Maternity Benefit Act, 1961.** **WP(C).No.19310 OF 2019(K)** **7** “ _**5. Right to payment of maternity benefit.—(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.**_ _**Explanation.—For the purpose of this sub-section, ‘the average daily wage’ means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948), or ten rupees, whichever is the highest.**_ _**(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 eighty days in the twelve months immediately preceding the date of her expected delivery:**_ _**Provided that the qualifying period of**_ **WP(C).No.19310 OF 2019(K)** **8** _**eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.**_ _**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 or was on holidays declared under any law for the time being in force to be holidays with wages, 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 twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:**_ _**Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:**_ _**Provided further that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:**_ _**Provided also that where a woman,**_ **WP(C).No.19310 OF 2019(K)** **9** _**having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery, for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.**_ _**(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.**_ _**(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.”**_ **11. Thus it can be seen that even for a woman** **having two or more surviving children, there is no total denial of Maternity Leave; there is only a** **WP(C).No.19310 OF 2019(K)** **10** **reduction in the admissible period of leave. She gets 12 weeks' Maternity Leave. When it is prescribed that not more than 6 weeks shall be availed before the date of expected delivery, it can be seen that the intention is to safeguard the health of the mother as well as child.** **12. Now it is necessary to have a look at the provisions in the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10.12.1948, relied on by the learned Counsel for the petitioner. Articles 16(3) and 25(2) read as follows:** _**“Article 16(3). The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.**_ _**Article 25(2). Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”**_ ## **13. Special care and assistance mentioned in** **WP(C).No.19310 OF 2019(K)** **11** **Article 25(2) cannot be construed to mean that the mother should be granted 26' weeks of Maternity Leave. It does not also provides that benefit shall be granted or limited with reference to the number of children. It is relevant to note that in the judgment in** _**Nargesh Meerza's case**_ **(supra), the Apex Court has, as early as in 1981, held as follows in paragraph 101 of the judgment:** _**“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 whichever 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.**_ **WP(C).No.19310 OF 2019(K)** **12** _**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.”**_ **14. So while declaring that Regulation 46(1)** **(c) of the Air India Employees' Service Regulations to the extent it provided for retirement of an Air Hostess on her first pregnancy was unconstitutional, the Apex Court permitted amendment of the regulations for making provision preventing third pregnancy with two** **WP(C).No.19310 OF 2019(K)** **13** **surviving children, as it would be in the larger interest of health of the Air Hostess concerned as also for the good upbringing of the children.** **15. The provisions contained in Section 175(1) (q) and 177(1) of the Haryana Panchayath Raj Act, which disqualify persons having more than two living children from contesting election to the Gram Panchayath was upheld in** _**Javed's case**_ **(supra). One of the contentions was that such a restriction was not imposed in other states. The Apex Court found that the said provision was a legislative measure to check the menace of growing population. It was held that when right to life under Article 21 of the Constitution of India is to be construed in a reasonable and rational manner, it would not include the right to procreate as many children as one pleases. It was held that the number of children mentioned in the rules is a matter of legislative wisdom and a matter of policy decision which is not liable to** **WP(C).No.19310 OF 2019(K)** ## **14** **be interfered with. It was held that the lofty ideals envisaged under Articles 38 and 47 cannot be achieved without controlling population menace and that the concept of sustainable development, which emerges as a fundamental duty under Article 51A would also require to keep the expansion of population within reasonable bounds. It was held that freedom under Article 25 is subject to public order and it permits a legislation in the interest of social welfare and reform which are part of public order,morality and health of the people.** **16. In the judgment dated 17.09.2019 in** _**State of Uttarakhand v. Urmila Masih and others**_ **, the Division Bench of the Uttarakhand High Court considered a similar issue with respect to Rule 153 of U.P Fundamental Rules, which is adopted by the State of Uttarakhand. The 1[st] proviso to FR 153 provided that if any female Government servant has two or more living children, she shall not be granted Maternity Leave even though such leave may** **WP(C).No.19310 OF 2019(K)** **15** **otherwise be admissible to her. In a case, where either of the two living children is suffering from incurable disease or is crippled since birth or becomes disabled or crippled later, she may, as an exception, be granted Maternity Leave till one more child is born. In that case, it was found that petitioner did not have any such case.** **17. In the judgment of the Madras High Court in W.P.No.13555 of 2009, a learned Single Judge considered the claim of a Government employee, who had already two surviving children, for Maternity Leave with benefits. As per a Government order issued on 27.06.1997, Maternity Leave was admissible to only a woman employee with less than 2 surviving children. In that case also, the employee had given birth to twins in the first delivery as in the present case. After analysing the history behind the enactment of 1961 Act in tune with the provisions contained in Article 42 of the Constitution of India, the Maternity** **WP(C).No.19310 OF 2019(K)** **16** **(Protection) Convention, 1952 adopted by the General Council of the International Labour Organisation(ILO), it was observed that Convention 103 of the ILO had guaranteed maternity protection with effect from 07.09.1955. Referring to the report on National Plan of Action and its recommendations and National Perspective Plan for women for the year 1988-2000 of the Department of Women and Child development recommending extension of maternity benefit to unorganised sectors, the learned Single Judge found that the State Government had at the same time restricted the benefits, as per its order dated 29.06.1993, introducing two children norm for grant of the maternity benefit. Referring to the judgments of the Apex Court in** _**Nergesh Meerza's case**_ **(supra) and in** _**Javed's case**_ **(supra), the learned Single Judge held that in none of these cases the nonobstante clause contained in Section 27 of the Maternity Benefit Act was considered and that in the light of that clause it was not open to the** **WP(C).No.19310 OF 2019(K)** **17** **State Government to deny the maternity benefit protection and such protection cannot be denied by issuing an executive order. It was finally concluded that the intention of the State Government was to protect the women for her second delivery and that cannot depend upon the number of children one delivers in each delivery and it was held that petitioner therein was entitled to paid Maternity Leave.** **18. In the judgment dated 19.10.2016 of the Madurai Bench of Madras High Court in W.P.(MD) No. 9227 of 2015 another learned Single Judge considered a similar question and held that unless there is a law prohibiting/restricting the number of delivery in order to have indirect control over population, then the Government cannot decline Maternity Leave fixing the number of children delivered in each delivery.** **19. However a Division Bench of the Madras High Court in the judgment dated 27.02.2020 in** **WP(C).No.19310 OF 2019(K)** ## **18** **W.A. No.4343/2019, considered a case where Maternity Leave was denied to a CISF personnel governed by Rule 43 of CCS(leave) Rules, on the ground that she had more than 2 children. There also she was having twin children in the first delivery. The judgment of the learned Single Judge was reversed observing that the same was rendered without taking note of the relevant rules. It was held that the admissibility of the benefit would be limited if one has more than two children and it does not depend on number of deliveries.** **20. In the present case, the FACT has only adopted the provisions contained in Subsection 3 of Section 5 of the Maternity Benefit Act, 1961. The petitioner is already granted leave for a period of 12 weeks. It cannot be said that the number of deliveries can only be the factor to determine the eligibility for maternity benefit. The Central Government has found that the benefit** **of Section 5 i.e., the provisions for paid** **WP(C).No.19310 OF 2019(K)** **19** **Maternity Leave need be extended only to those who do not have two children. Petitioner's claim that she is entitled to 26 weeks' paid leave towards her second delivery, cannot be accepted when the Government of India has enacted the law to see that the labourers are protected and at the same time the population explosion is also kept under check, which will also be a measure towards protection of the health of the women labourers. At any rate, there is no prohibition with respect to the number of children an employee can have. The restriction is in granting 26 weeks' Maternity Leave. The woman employee is given 12 weeks' paid leave irrespective of the number of children. By way of amendment effected in 2015, the 12 weeks' Maternity Leave has been enhanced to 26 weeks' leave. It cannot be also said that there is no purpose in limiting the number of surviving children irrespective of the number of deliveries to make one eligible for grant of Maternity Leave. The Government have been granting incentives to** **WP(C).No.19310 OF 2019(K)** **20** **those, who did not have more than two children. Maternity Leave is not admissible at all for the third child for a mother working in a Central Government establishment and governed by CCS(leave) Rules. It cannot be said that just because petitioner has given birth only twice, she should be given the maternity benefit for her second delivery, to the third child also, when Government found it necessary to restrict the benefits only to those having children less than two.** **21. Either the Universal Declaration of Human Rights under the United Nations, or the Maternity Benefit Act, 1961 or any of the prevailing legislation, insist that maternity benefit to the extent of 26 weeks' paid leave should be given to an employee/worker even in a case where there are two children.** **It is true that the benefit is intended to the mother and children. There is no provision** **WP(C).No.19310 OF 2019(K)** **21** **that the 26 weeks' paid leave shall be granted to any woman employee whenever she gives birth to a child. When a benefit is granted on certain conditions, it is necessary for the respective respondents to see that the conditions are fulfilled before granting the benefit. The provisions contained in Section 5(3) of the Maternity Benefit Act, 1961 has been introduced in the interest of the public at large, while ensuring the benefit to the mother and child in cases where the number of children is less than two. Therefore there is nothing wrong in denying paid leave to petitioner for the entire period of leave requested by her in her application.** **Therefore the writ petition fails and is** **dismissed.** **Sd/P.V.ASHA JUDGE** WW **WP(C).No.19310 OF 2019(K)** **22** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MATERNITY LEAVE APPLICATION DATED 16.02.2019 SUBMITTED BY THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE LETTER BEARING NO.AGM(HR)513 DATED 01.03.2019 ISSUED BY THE AGM(HR).** **EXHIBIT P3 TRUE COPY OF THE CIRCULAR BEARING NO.GM(HR & A)-225 DATED 18.08.2017 ISSUED BY GENERAL MANAGER.** **EXHIBIT P4 TRUE COPY OF THE MATERNITY LEAVE APPLICATION DATED 08.03.2019 SUBMITTED BY THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE MATERNITY LEAVE APPLICATION DATED 30.03.2019 SUBMITTED BY THE PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 29.03.2019 ISSUED BY THE DOCTOR OF OCCUPATIONAL HEALTH & COMMUNITY SERVICE CENTRE, UDYOGAMANDAL.**