SUJITHA R v. CHAIRMAN (GOVERNING COUNCIL-FLUID CONTROL RESEARCH INSTITUTE) AND DIRECTOR, FLUID CONTROL RESEARCH INSTITUTE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **WP(C).No.15218 OF 2018(B)** ## **PETITIONER:** ## **SUJITHA R** **D/O.RAGHAVAN, MURIKKAVE WEST YAKKARA,PALAKKAD JUNIOR ENGINEER (CONTRACT), FLUID CONTROL RESEARCH INSTITUTE,KANJIKODE WEST, PALAKKAD-678 623.** **BY ADVS. SRI.PRATHEESH.P SMT.RENY ANTO** ## **RESPONDENTS:** - **1 THE CHAIRMAN (GOVERNING COUNCIL-FLUID CONTROL RESEARCH INSTITUTE JOINT SECRETARY, DEPARTMENT OF HEAVY INDUSTRIES,UDYOGBHAVAN, NEW DELHI-110 011.** - **2 THE DIRECTOR FLUID CONTROL RESEARCH INSTITUTE,KANJIKODE, PALAKKAD.** **R1 BY SRI.SUVIN R.MENON, CGC R1-2 BY ADV. SRI.C.ANIL KUMAR R1 BY ADV. SMT.ASHA K.SHENOY R1 BY SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL R1 BY ADV. SRI.T.C.KRISHNA R1 BY ADV. SMT.PREETHI RAMAKRISHNAN P-212 R1 BY ADV. SRI.PRATAP ABRAHAM VARGHESE R1 BY ADV. SRI.P.RAMAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2019, THE COURT ON 27-08-2019 DELIVERED THE FOLLOWING:** W.P.(C).No.15218/18 2 ## **JUDGMENT** 1.The petitioner, who is an employee of the Fluid Control Research Institute has approached this Court seeking the sanction of maternity leave from 05.05.2017 to 03.11.2017 and for disbursal of salary and benefits to her. The petitioner contends that she was appointed as Junior Engineer (Civil) on contract basis on 19.12.2007 and had been continuing for more than ten years, on the basis of subsequent contracts without break. It is stated that she had submitted Exhibit P3 application for maternity leave from 5.5.2017 to 3.11.2017. She had delivered a baby girl on 29.5.2017 and had rejoined duty on 3.11.2017. She was denied sanction for her maternity leave and no salary was paid to her for the period in question. Though several applications have been preferred, no action was taken by the respondents and hence this writ petition. - 2.The petitioner relies on the provisions of CCS (Leave) Rules, 1972 as also the Maternity Benefit Act, 1961 to contend that she is entitled to maternity leave with full salary for the period W.P.(C).No.15218/18 3 as sought for in Exhibit P3. Reliance is placed on the decisions of this Court in **Thresia v. Corporate Manager, C.M.S.Schools** [2005 KHC 22], **Rakhi P.V. and others v. State of Kerala and another** [2018 (2) KHC 251], **Jeslin Jose v. Cochin Port Trust** [2019 (1) KLT 298 **and Lourdes Hospital and others (M/s.** ) **v. Dr.Abraham Mathew and another** [2019 (1) KHC 250 (DB)] as also the Apex Court in **Municipal Corporation of Delhi v. Female Workers** [ 2000 KHC 504] to contend that the right to conceive and give birth is a fundamental given right and that fetters cannot be put on such right by denying due benefits which are available under law. It is further contended that the Maternity Benefits Act is a beneficiary legislation and should be so construed as to make the benefits contemplated therein available to all women employees in public employment. It is contended that the fundamental right which forms the part of Article 21 and Articles 14 and 15 of the Constitution of India cannot be defeated by raising hyper technical contentions as to the applicability of the enactment. W.P.(C).No.15218/18 4 3.A counter affidavit has been placed on record by the 2[nd] respondent. It is stated that the petitioner is working on contract basis in the Fluid Control Research Institute (FCRI), which is an autonomous organization registered under the Societies Registration Act, 1960 and under the administrative control of the Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises, Government of India. It is stated that the petitioner had not been sanctioned the leave sought for by her in Exhibit P3 and as such, she is not entitled to pay for the period in question. It is further stated that Section 2 of the Maternity Benefits Act provides for the application of the Act. It is stated that the Act applies only to factories, mines or plantations and to establishments where persons are employed for the exhibition of equestrian, acrobatic and other performances and to every 'shop or establishment' within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed. It is stated that the Kerala Shops & Commercial Establishments Act defines commercial establishments in Section 2(4) and shops W.P.(C).No.15218/18 5 ## in Section 2(15). Relevant portions of the definitions read as ## follows:- “Section 2(4)“commercial establishment” means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, café or any other refreshment house, a theatre or any other place of public amusement or entertainment.......” Section 2(15) “shop” means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store-rooms, godowns or warehouses, whether in the same premises or otherwise …..” 4. It is contented that the 2[nd] respondent is neither a commercial establishment nor a shop as defined under the Kerala Shops & Commercial Establishments Act and therefore is not an establishment coming under the purview of Section 2 of the Maternity Benefits Act. It is stated that in the absence of any notification under Section 1(3) of the Maternity Benefit Act extending the benefits to the 2[nd] respondent, the benefits under Maternity Benefit Act could not be applicable to the contract employee, the petitioner. It is stated that the CCS (Leave) Rules are also not applicable to the petitioner and the petitioner is governed only by Exhibit P1 contract and the terms contained therein. W.P.(C).No.15218/18 6 5.The learned counsel for the petitioner would place reliance on the website of the 2[nd] respondent to contend that the 2[nd] respondent is a national certifying authority and high quality calibration laboratory and commercial services are offered therein to customers. It is further stated that Post Graduate Certificate Programs were also conducted by the 2[nd] respondent and that such process are being offered on a commercial basis. It is stated that the institute is a quality assurance centre and impart services in calibration, testing training etc. and answers the definition of a commercial establishment. The learned counsel for the petitioner places reliance on the decision of the Apex Court in **Municipal Corporation of Delhi's** case (supra) and contends the Maternity Benefit Act, which is a beneficial legislation, aims to provide benefits to working women to work in a dignified manner and to conceive and give birth honourably and peacefully without the fear of adverse effects on her employment and that as such the benefits are to be granted to all eligible women employees in all establishments especially W.P.(C).No.15218/18 7 those under the Central and State Governments. The decision of this Court in **Rakhi P.V'** s case (supra) is also relied on to contend that women employees working on contract basis under State Funded Projects have also been found to be entitled to maternity leave. It is stated that this Court had found that there will not be any discrimination or denial of leave on the ground that the employees are engaged only in contractual capacity, especially in view of the fact they had been in service for reasonably long periods. The learned counsel also places reliance on decisions of the Division Bench of this Court in **Lourdes Hospital and others (M/s.** ) **v. Dr.Abraham Mathew and another** [2019 (1) KHC 250 (DB)] and in **Thresia v. Corporate Manager, C.M.S.Schools** [2005 KHC 22] to contend that the schools and hospitals functioning even on charitable basis would fall within the purview of the Kerala Shops and Commercial Establishments Act. The decision of this Court in **Jeslin Jose v. Cochin Port Trust** [2019 (1) KLT 298] is also relied on to contend that the Maternity Benefit Act permits no distinction as to women employees working on contract or on a regular basis. W.P.(C).No.15218/18 8 6.The learned counsel appearing for the respondents on the other hand place reliance on the decision of **Jisha P.Jayan v. Sree Sankaracharya University of Sanskrit** [2013 (3) KLT 533], to contend that where contract is for less than one year, the women employee has no right to seek the benefit of maternity leave either under the Maternity Benefit Act or under the Service Rules. The provisions of FCRI Leave Rules are also relied on to contend that maternity leave is not available to contractual employees. 7. I have considered the contentions advanced with specific reference on the decision of the Apex court and of this Court which are relied on. The Maternity Benefit Act is an Act intended to reduce disparities and to provide maternity protection to women employees in all establishments, including mines, factories and plantations, expect those establishments to which the Employees' State Insurance Act, 1948 applies. The statement of objects and reasons of the Act would show that the legislation seeks to reduce the existing W.P.(C).No.15218/18 9 disparities in maternity benefits being extended in different fields and is intended to apply to all establishments, except the those to which the Employees State Insurance Act, 1948 applies. Section 2(1) provides that it applies to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishment in the State in which ten or more persons are employed. Section 3(d) defines employer. Section 5 provides for the entitlement of every women for payment of maternity benefits for a maximum period of 26 weeks of which not more than 8 weeks shall precede the date of an expected delivery. - 8.The attempt by the respondents to contend that the 2[nd] respondent is not a commercial establishment under the Kerala Shops and Commercial Establishments Act would, therefore, be an exercise in futility for the simple reason that Section 2(b) provides for application of the Act to shops and establishments and not to 'commercial establishments' as defined in the State law. It cannot be disputed that the 2[nd] respondent is an establishment where more than ten persons W.P.(C).No.15218/18 10 are employed during the relevant period. The petitioner has succeeded in showing that there are commercial activities carried out in the institute as well. According to me, in view of the provision with regard to the applicability of the Maternity Benefit Act as contained in Section 2 and the definition clauses as provided in the Act, the commercial nature of the activities of the 2[nd] respondent would not be the deciding factor to consider whether the Maternity Benefit Act applies to the 2[nd] respondent. Section 3 of the Shops and Commercial Establishment Act exempts establishments under the Central or any State Governments, local authorities, the Reserve Bank of India and cantonment authorities from the provisions of the said Act. However, Section 3(d) of the Maternity Benefit Act makes it clear that the said Act is applicable to Government establishments as well. In view of the specific wording of Section 2(b) of the Maternity Benefits Act, I am of the opinion that the contention that the establishment would have to be a commercial establishment as defined under the Shops and Commercial Establishment Act to make it amenable to applicability under the Maternity Benefit W.P.(C).No.15218/18 11 Acts is completely misconceived. As such, the contention that the 2[nd] respondent is not a commercial establishment is not relevant and the petitioner, who was admittedly working as a contract worker under the 2[nd] respondent from the year 2007 onwards, would be entitled to the benefit of maternity leave with full pay as provided in terms of the Maternity Benefit Act, 1961. The contentions to the contrary raised in the counter affidavit are unsustainable. The respondents are directed to pay the amounts due to the petitioner as wages for the period of leave as sought for in Exhibit P3 within a period of one month from the date of receipt of a copy of the judgment. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.15218/18 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER NO.FGR1/PRA/APPT(CONT)/07/5769, 19.2.2007.** **EXHIBIT P2** **EXT.P2; TRUE COPY OF THE OFFICE ORDER FCRI/P&A/08 DTD.01.01.2008.** **EXHIBIT P3** - **EXT.P3; TRUE COPY OF THE LEAVE APPLICATION ALONG WITH MEDICAL CERTIFICATE.** **EXHIBIT P4 EXT.P4: TRUE COPY OF THE RELEVANT ENDORSEMENT OF THE ADMINISTRATIVE OFFICER IN THE LEAVE APPLICATION DTD.28.04.2017.** - **EXHIBIT P5 EXT.P5: TRUE COPY OF THE LEAVE APPLICATION ALONG WITH MEDICAL CERTIFICATE.** **EXHIBIT P6 EXT.P6; TRUE COPY OF THE PAY SLIP FOR THE MONTH OF APRIL 2017.** **EXHIBIT P7 EXT.P7: TRUE COPY OF THE REPRESENTATION DTD.22.02.2018.** **EXHIBIT P8 EXT.P8: TRUE COPY OF THE POSTAL RECEIPT DTD.23.2.2018.** W.P.(C).No.15218/18 13 ## **RESPONDENT'S/S EXHIBITS:** **EXHBIT R2(A) 1. TRUE COPY OF SUSPENSION ORDER DATED 19/5/2018 ISSUED TO THE PETITIONER. 2. TRUE COPY OF PUNISHMENT ORDER DATED 12/11/2018 ISSUED TO THE PETITIONER.** **EXHIBIT R2(B)** **TRUE COPY OF SHOW CAUSE NOTICE DATED 19/5/2018 ISSUED TO THE PETITIONER.** True copy PS to Judge