Shemy K.H. v. Chief Executive Officer, Arogyakeralam, represented by the District Medical Officer (H), Health and Family Welfare Society, Kottayam; State Mission Director, Arogyakeralam; District Program Manager, National Rural Health Mission (NRHM), Kottayam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 ``` ## **`WP(C) NO. 25646 OF 2022`** ## **`PETITIONER:`** ``` SHEMY K.H. AGED 46 YEARS W/O. RASHEED, RESIDING AT KUNNUMPURATH HOUSE, MUNDAKKAYAM POST, PUTHENCHANTHA, KOTTAYAM 686 513. BY ADVS. T.C.SURESH MENON B.DEEPAK P.BHASKARAN ``` ## **`RESPONDENTS:`** - **`1 THE CHIEF EXECUTIVE OFFICER, AROGYAKERALAM, REPRESENTED BY THE DISTRICT MEDICAL OFFICER (H), HEALTH AND FAMILY WELFARE SOCIETY, KOTTAYAM, 686 001.`** - **`2 THE STATE MISSION DIRECTOR, AROGYAKERALAM, THRIVANANTHAPURAM-095 001.`** - **`3 THE DISTRICT PROGRAM MANAGER, NATIONAL RURAL HEALTH MISSION (NRHMD), KOTTAYAM 680001. V.K.SUNIL, SR.GP M.AJAY, SC`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 25646 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 1[st] day of December, 2022** ## This writ petition is filed seeking the following prayers: _“(i) call for the records leading to the passing of Ext.P5 by the 3[rd] respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction in so far as the same relates to the sanction of leave without allowance._ _(ii) issue a writ in the nature of mandamus directing the 3[rd] respondent to consider Ext.P3 application for maternity leave and sanction the same forthwith taking into account the dictum laid down by the Honorable Supreme Court as well as this Honorable Court._ _(iii) issue a writ in the nature of mandamus directing the 1[st] respondent to consider on merits Ext.P4 representation and pass appropriate orders thereon expeditiously after affording to the petitioner a reasonable opportunity of being heard”_ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Public Relations Officer in the District Health and Family Welfare Society, Kottayam on 27.08.2008 on contract basis. The contract was being renewed from time to time with a day’s break in service every year. While so, the petitioner conceived and she applied for maternity leave for the period from 23.03.2022 to ``` WP(C) NO. 25646 OF 2022 ``` ``` 3 ``` 31.03.2022 and from 03.04.2022 to 20.09.2022. It is submitted that Ext.P3 application was received and duly forwarded, but the leave was sanctioned only for 9 days from 23.03.2022 to 31.03.2022 and the period of leave from 03.04.2022 to 20.09.2022 was granted as leave without allowance. The petitioner rejoined duty on 21.09.2022 and was permitted to continue thereafter also. 4. The learned counsel for the petitioner submits that the petitioner had been continuing in service from 2008 onwards and that her application was specifically for maternity leave for the period from 23.03.2022 to 31.03.2022 and from 03.04.2022 to 20.09.2022 as evidenced by Ext.P3. It is submitted that the refusal on the part of the respondents to grant the maternity leave for the entire period as sought for and granting only leave without pay for the period from 03.04.2022 to 20.09.2022 is completely unsustainable. 5. A counter affidavit has been placed on record by the 3[rd] respondent wherein it is contended that maternity leave could have been granted to the petitioner only during the period when her contract appointment subsisted. It is contended that her contract was due to ``` WP(C) NO. 25646 OF 2022 ``` ``` 4 ``` expire on 31.03.2022 which is the reason why maternity leave was granted only from 23.03.2022 to 31.03.2022. It is submitted that thereafter, the period was regularized as leave without allowance and the petitioner was permitted to rejoin duty on 21.09.2022. It is further submitted as follows: _“5. That, the petitioner herein was initially engaged as a Public Relation Officer [PRO] under the NHM, Kottayam in 2008. Fresh engagements on contract were offered to the petitioner for subsequent FYs. On account of elections being held to the Kerala Legislative Assembly, the contracts under the NHM for FY 2020-21 that were due to expire on 31.3.21 were extended till 31.5.21 and fresh engagements on contract after performance appraisals were made for FY 2021-22 only on 2.6.21 with 1.6.21 being the break day between the contracts. The petitioner was engaged on contract from 2.6.21 to 31.3.22 for the FY 2021-22. A true copy of the contract entered into between the petitioner and the NHM, Kottayam dated 2.6.21 is produced herewith and marked EXHIBIT R-3(a).”_ It is contended that the benefit of maternity leave would be available only during the period when there is a subsisting contract of appointment and not otherwise. 6. Having considered the contentions advanced, I am of the opinion that in view of the admitted fact that the petitioner had been continuing on a contract basis under the respondents from the year 2008 onwards ``` WP(C) NO. 25646 OF 2022 ``` ``` 5 ``` and since the petitioner was also permitted to rejoin duty after availing leave on 21.09.2022 and is continuing in service, the contention that maternity leave can be granted only for the period from 23.03.2022 to 31.03.2022 is totally misconceived. The petitioner, according to me, would be fully entitled and eligible to a consideration of the application submitted by her as evidenced by Ext.P3 for maternity leave for the period from 23.03.2022 to 20.09.2022 in view of the fact that she was in service even though on contract for the period from 27.08.2008 onwards. 7. The relevant provisions of the Maternity Benefit Act, 1961 reads of follows: ## _“_ _**4. Employment of, or work by, women prohibited during certain period.**_ _(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery,[miscarriage or medical termination of pregnancy]._ _(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery [miscarriage or medical termination of pregnancy._ _(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing,_ ``` WP(C) NO. 25646 OF 2022 ``` ``` 6 ``` _or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health._ _(4) The period referred to in sub-section (3) shall be_ _(a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;_ _(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6._ ## _**5. Right to payment of maternity benefits.**_ _(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 [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_ ``` WP(C) NO. 25646 OF 2022 ``` ``` 7 ``` _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, 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.”_ 8. This Court, in **Rakhi P.V. and others vs. State of Kerala and** **another** [2018 (2) KHC 251], held that contract employees are ``` WP(C) NO. 25646 OF 2022 ``` ``` 8 ``` entitled to maternity leave as is due to women employees under Service Rules applicable to State and Central Government servants and that there cannot be any discrimination for the reason that women employees are engaged in projects in contractual capacities. 9. In the above view of the matter, I am of the opinion that the action of the respondents in having treated the period from 03.04.2022 as leave without allowance was not proper. Ext.P5 decision to treat the period of maternity leave applied for by the petitioner as leave without allowance is set aside. There will be a direction to the respondents to reconsider the application submitted by the petitioner, taking specific note of the provisions contained in Sections 4 and 5 of the Maternity Benefit Act, 1961, within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. ## **`Sd/-`** ## **`ANU SIVARAMAN`** ## **`JUDGE`** ``` NP ``` ``` WP(C) NO. 25646 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 25646/2022`** ``` PETITIONER’S EXHIBITS EXHIBIT P1TRUE COPY OF THE APPOINTMENT ORDER NO. ISSUED BY THE 1ST RESPONDENT, DATED 27.8.2008. EXHIBIT P2TRUE COPY OF THE ORDER NO.DPMSU-KTYM/1760 /OS/2022/ DPMSU (VII) ISSUED BY THE 3RD RESPONDENT, DATED 31.3.2022. EXHIBIT P3TRUE COPY OF THE APPLICATION FOR MATERNITY LEAVE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 2.4.2022. EXHIBIT P4TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 15.7.2022. EXHIBIT P5TRUE COPY OF THE PROCEEDINGS NO.DPMSU KTYM/1453/DEO/2020/DPMSU ISSUED BY THE 3RD RESPONDENT, DATED 8.7.2022. RESPONDENTS’ EXHIBITS EXHIBIT R3 (A)A TRUE COPY OF THE CONTRACT ENTERED INTO BY THE PETITIONER WITH THE NHM, KOTTAYAM DATED 2.6.21. EXHIBIT R3 (B)A TRUE COPY OF THE APPLICATION FOR LEAVE SUBMITTED BY THE PETITIONER TO THE NHM, KOTTAYAM DATED 23.3.22. EXHIBIT R3 (C)A TRUE COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT GRANTING LEAVE TO THE PETITIONER DATED 31.3.22. EXHIBIT R3 (D)A TRUE COPY OF THE CONTRACT ENTERED INTO BY THE PETITIONER WITH THE NHM, KOTTAYAM DATED 2.4.22. EXHIBIT R3 (E)A TRUE COPY OF THE APPLICATION FOR LEAVE SUBMITTED BY THE PETITIONER TO THE NHM, KOTTAYAM DATED 2.4.22. EXHIBIT R3 (F)A TRUE COPY OF G.O. (P) 2/2021 FIN. DATED 4.1.21. ```