Thazhekkodu Grama Panchayath v. Arifa M. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** **OP(KAT) NO. 30 OF 2022** **AGAINST THE ORDER DATED 16.08.2021 IN OA (EKM) 1343/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER/RESPONDENT NO.3 IN O.A:** ## **THAZHEKKODU GRAMA PANCHAYAT,** **THAZHEKKOD P.O., MALAPPURAM DISTRICT-679322, REPRESENTED BY ITS SECRETRY ANEESH S., S/O. SHOUKATH, KAYAVIL HOUSE, MAYYANAD P.O., KOLLAM-691303.** **BY ADV K.S.ARUN KUMAR** **RESPONDENTS/APPLICANT IN O.A & RESPONDENT NO.1, 2 & 4 IN O.A:** **1 ARIFA M., AGED 30 YEARS** **W/O. MUHAMMAD FAIZAL, NOW WORKING AS TECHNICAL ASSISTANT ON CONTRACT BASIS AT THAZHEKODE GRAMA PANCHAYAT, THAZHEKODE P.O., MALAPPURAM DISTRICT-679322, RESIDING AT MUTHUKUTTY HOUSE, MUTHIRAMANNA, THAZHEKODE WEST P.O., MALAPURAM DISTRICT-679341. MOB-8811953730** **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 THE DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYAT DEPARTMENT, PANCHAYAT BUILDING OFFICE, LMS, VELLAYAMBALAM ROAD, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695033.** O.P(KAT) No.30 of 2022 2 **4 DEPUTY DIRECTOR OF PANCHAYATH, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, MALAPPURAM P.O. MALAPPURAM DISTRICT-676505.** **BY ADV P.SATHEESH KUMAR (S-3441)** **SRI. SATHEESH KUMAR FOR R1, SRI. B.UNNIKRISHNA KAIMAL, GP.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.30 of 2022 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **=================================** ## **O.P(KAT) No.30 of 2022** - [ _arising out of the order dated 16.08.2021 in O.A (Ekm) No.1343/2021 on the file of the KAT, Tvm. Bench (Addl. Bench at Ekm._ ] **=================================** Dated this the 03[rd] day of February, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The 1[st] respondent herein has filed the instant Ext.P-1 original application, O.A (Ekm) No.1343/2021 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench (Addl. Bench at Ernakulam) with the following prayers : - _“1. Call for the records leading to the issuance of Annexure-A17 and to set aside the same since it is illegal, arbitrary and against natural justice principles and against the Judgements of the Hon'ble Supreme Court and High Court of Kerala and the provisions of Maternity Benefit Act, 1961_ _2. To declare that the applicant is eligible for Maternity Leave and retention in Thazhekkode Grama Panchayath as per Rules and Annexure-A11._ _3. Order of direction may kindly be issued to the Respondents to issue orders for sanctioning Maternity leave and its benefits to the applicant and for the retention of the applicant in Thazhekkode Grama Panchayath as per Annexure-A11 and as per various Judgements of the Hon'ble Hon'ble Supreme Court and High Court of Kerala_ _4. To direct the 3[rd] respondent not to terminate the applicant from the post of Technical Assistant and to retain the applicant in Thazhekkode Grama panchayath._ O.P(KAT) No.30 of 2022 4 _5. Such other orders or direction as this Hon'ble Tribunal may consider fit and proper in the facts and circumstances of the case._ _6. Award the cost of these proceedings.”_ 2. The interim relief sought for in Ext.P-1 O.A is as follows : - _“.............. that this Hon'ble Tribunal may be pleased to direct the 3[rd] respondent not to terminate the applicant from the post of Technical Assistant and to retain the applicant in Thazhekkode Grama Panchayath pending disposal of this Original Application.”_ 3. The Tribunal after hearing both sides, has rendered the impugned Ext.P-2 interim order dated 16.08.2021 in the instant O.A (Ekm) No.1343/2021 noting that the applicant is working as Technical Assistant on contract basis in the Panchayat concerned (R3 therein) and that she is on maternity leave from 16.07.2021 and that her maternity leave application has been rejected by the Panchayat as per the impugned Annexure-A17 proceedings dated 22.07.2021 and the Tribunal has directed that the Panchayat (R3 in the O.A) shall not terminate the service of the applicant on contract basis and that any interim arrangement made to man the post held by the applicant during her maternity leave period shall not affect the right of the applicant to return to service after expiry of the period of maternity leave applied for, etc. It is this order at Ext.P-2 that is under challenge in the instant original petition filed under Articles 226 & 227 of the Constitution of India, on 28.01.2022, at the instance of R3 in the O.A O.P(KAT) No.30 of 2022 5 (Thazhekkodu Grama Panchayat). The prayers in the instant O.P are as follows : _“...............stay all the of Exhibit-P2 interim order dated 16.08.2021 in O.A (EKM) No.1343/2021 of Kerala Administrative Tribunal, Thiruvananthapuram, pending the disposal of the above Original Petition.”_ 4. Heard Sri.K.S.Arun Kumar, learned counsel appearing for the petitioner in the O.P/R3 in the O.A, Sri.P.Satheesh Kumar, learned counsel appearing for R1 in the O.P/original applicant and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for official respondents 2 to 4 in the O.P/respondents 1, 2 & 4 in the O.A. 5. A brief reference to the facts of the case is necessary. According to the original applicant, she is an experienced information technology professional having first class graduation in B.Tech Computer Science from the University of Calicut and that she has been appointed as Technical Assistant in the respondent-Grama Panchayat on contract basis from 2016 onwards based on her selection to the said post on 17.10.2016 in compliance with the prescribed norms issued by the Government, as per Annexure-A1 G.O(Rt.) No.1772/2012/LSGD dated 27.06.2012, etc. That her contractual period of appointment was extended from time to time, on the basis of Government orders issued in the matter of such extension. That the last spell of her contract period was upto 31.03.2021. Even before the O.P(KAT) No.30 of 2022 6 expiry of the said contract period, the competent authority of the State Government in the Local Self Government Department had issued Annexure-A7 G.O(Rt.) No.265/2021/LSGD dated 01.02.2021, for the purpose of effectuation of e-governance activities in local bodies, it has been ordered that the contractual period of Technical Assistants engaged on contractual basis for the local bodies, after performance appraisal, will stand extended from 01.04.2021 to 31.03.2022. The operative portion of Annexure-A7 G.O dated 01.02.2022, as contained in para No.2 thereof reads as follows : " **2)** സർക�ർ ഇക�ര�� വ�ശദമ�യ� പര�ശശ�ധ�ച�. പര�മർശ� ല� നടപട� ക�റ�പ�ല� ഇന� പപക�രമ�ള ത ര�മ�നങള�ലട അട�സ�നത�ൽ, തശ'ശ സ(യ�ഭരണ സ�പനങള�ല� ഇ- ഗലവർണൻസ പപവർതനങൾക/ സ�ശ0ത�ക സഹ�യ� നൽക�നത�ന�യ� കര�ർ അട�സ�നത�ൽ ന�യമ�തര�യ ലടകന�കൽ അസ�സനറ�മ�ര�ലട കര�ർ ക���വധ�, ഇവര�ലട ലപർശ7�മൻസ അപപപസ��ന വ�ശധയമ�യ�, 01.04.2021 മ�തൽ 31.03.2022 വലര ദ ർഘ�പ�ച� നൽക� ഉതരവ പ�റലപട�വ�ക�ന�.” 6. It appears that the case of the original applicant is that pursuant to the said extension order granted by the State Government as per Annexure-A7 dated 01.02.2021, she had continued on contractual basis in the Panchayat even after 01.04.2021. That for the sake of completing the formalities, she had even given a representation dated 09.02.2021 before the Panchayat, for the formal extension of her contractual period upto 31.03.2022 in compliance with Annexure-A7 G.O dated 01.02.2021. O.P(KAT) No.30 of 2022 7 Further that, for reasons not known to the applicant, the panchayat had not taken any decision on her representation dated 09.02.2021, which again constrained her to submit Annexure-A9 representation dated 31.05.2021 to the Panchayat requesting for formal extension of her contract period on the basis of Annexure-A7 G.O dated 01.02.2021. That no orders have been passed either on her representation dated 09.02.2021 or her subsequent representation as per Annexure-A9 dated 31.05.2021, etc. That later, the Government themselves have passed yet another Government order as per Annexure-A10 G.O(Rt.) No.1067/2021/LSGD dated 01.06.2021 ordering that for effectuating activities to meet with Covid-19 issues of all contractual employees in local bodies performing such activities, ordering that the service of all contractual employees of local bodies engaged in such activities, will stand extended until further orders. Further that, the applicant was pregnant at that time and her expected date of delivery was 04.08.2021 and despite her difficulties, she continued to work till 09.07.2021 and due to health issues, she was constrained to submit Annexure-A13 application dated 09.07.2021 to the Panchayat seeking for maternity leave from 16.07.2021 and she had also enclosed Annexure-A13 (2) medical certificate dated 19.06.2021. She had also submitted Annexure-A13 medical certificate dated 19.06.2021, wherein it has been O.P(KAT) No.30 of 2022 8 stated that the expected date of delivery is 04.08.2021, etc. That the Panchayat has illegally rejected the said maternity leave application, as per Annexure-A13, as per the impugned Annexure-A17 proceedings dated 22.07.2021, on the ground that since her contractual period after 31.03.2021 has not been extended by the Panchayat, she cannot be granted maternity leave benefits, etc. Being aggrieved by Annexure-A17, she has approached the Tribunal in the aforementioned prayers, wherein Ext.P-2 interim order has been passed, etc. The main contention urged by Sri.K.S.Arun Kumar, learned counsel appearing for the petitioner in the O.P is that the contractual period of employment of the original applicant has not been extended by the Panchayat after 31.03.2021 and therefore, the applicant is not entitled for the grant of maternity leave benefits. Sri.P.Satheesh Kumar, learned counsel appearing for R1 herein (original applicant) would submit that based on the directives of the Government as per Annexure-A7 dated 01.02.2021 and Annexure-A10 dated 01.06.2021, the original applicant had continued to work as contractual employee in the post of Technical Assistant and the Panchayat was legally obliged to pass orders formally extending her contract period and that the Panchayat has no case that for performance was in any manner unsatisfactory, etc. and that althroughout from 2016 onwards, her contractual period has been O.P(KAT) No.30 of 2022 9 extended from time to time by the Panchayat based on the Government orders and that the non-grant of the benefit of extension ordered by the Government as per Annexure-A7 & Annexure-A10, is illegal and _ultra vires_ . Further that, she had continued to work in the respondent-Panchayat, till the date of submission of maternity leave application as per Annexure-A13, etc. Further that, it is well settled that even a contractual employee is entitled for maternity leave benefits and that the law in that position is well settled by a series of rulings as in _**Rakhi.P.V** v._ _**State of Kerala & anr.**_ [2018 (2) KHC 251], _**Jeslin Jose.A** v._ _**Cochin Port Trust**_ [2019 (2) KHC 797] and _**Municipal Corporation of Delhi** v._ _**Female Employees**_ [(2000) 3 SCC 224], etc. That she gave birth to a baby on 16.07.2021, as evident from Annexure-A16. Further that, in compliance with Ext.P-2 interim order dated 16.08.2021, the Panchayat has already given her pay and allowances for the period upto 31.12.2021 by treating as if she is on maternity leave and that after the expiry of the maternity leave, she had reported before the Panchayat officials to re-admit her to duty on 12.01.2021, then the Panchayat authorities refused to re-admit her to duty and the substitute, who was engaged in the place of the applicant was allowed to continue, etc. Further that, this impelled the original applicant to file contempt petition (C) (Ekm) No.12/2022 arising out of Ext.P-2 O.A O.P(KAT) No.30 of 2022 10 (Ekm) No.1343/2021 and notice has been issued by the Tribunal. That it is only after 28.01.2022 that the Panchayat has chosen to file the present O.P(KAT) before this Court and that too, after partial compliance of the impugned Ext.P-2 interim order. 7. After hearing both sides, it is seen that the main ground urged by the Panchayat is that the contractual period of the applicant has not been extended by the Panchayat from 01.04.2021 onwards, etc. and therefore, she is not entitled for the maternity leave benefits, etc. We need not make any final adjudication on these issues, as the matter is arising out of an interim order of the Tribunal. Prima facie, we are of the view that the Tribunal had sufficient materials to be convinced that the applicant was otherwise entitled for the benefit of extension of the contractual employment pursuant to orders of extension issued by none other than the State Government, as per Annexure-A7 G.O dated 01.02.2021 and Annexure-A10 G.O dated 01.06.2021, etc. So also, materials and pleadings on record would show that the applicant has been allowed to continue in contractual service by the Panchayat since 01.04.2021 and her formal request for getting the benefit of extension, as per the Government Orders, has not been acted upon by the Panchayat, though such representations have been given as early as on 09.02.2021 and as per Annexure-A9 dated O.P(KAT) No.30 of 2022 11 31.05.2021. No reasons are now urged before the Tribunal or before this Court to show that the applicant is not entitled for the benefit of the extension of service, as ordered by the Government in the above G.Os. Of course, the learned counsel for the petitioner- Panchayat has a case that Annexure-A10 G.O, can be invoked only in the case of contractual employees engaged in connection with Covid activities, etc. We are not pronouncing any opinion on the applicability or otherwise of Annexure-A10 G.O dated 01.06.2021, to the facts and circumstances of this case. There cannot be any doubt that at least _prima facie_ that the applicant can claim his benefit of Annexure-A7 G.O dated 01.02.2021, in which it has been ordered that the contractual Technical Assistants engaged in local bodies, can get their services extended upto 31.03.2022. So also, it is well-settled that a contractual woman employee is also entitled for the benefits of maternity leave, as per the Maternity Benefits Act. In the light of these aspects, we do not find any sufficient grounds to interdict with the well-considered interim order granted by the Tribunal as per Ext.P-2. It appears that the Panchayat has also substantially and partially complied with Ext.P-2 interim order by granting full pay and allowances due to the applicant till 31.12.2021 by treating as if she is on maternity leave, in compliance with Ext.P-2 interim order. The applicant has given birth to a O.P(KAT) No.30 of 2022 12 baby on 16.07.2021. The dispute has now arisen only when the applicant has chosen to report before the Panchayat to re-admit her duty and the Panchayat is now faced with contempt proceedings. Those are all matters which fall within the domain of the Tribunal, while adjudicating the contempt proceedings. Suffice to say, that we do not find any strong grounds in public law to interfere with the interim order passed by the Tribunal at Ext.P-2. With these observations and directions, the above Original Petition, will stand dismissed. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** ## **Sd/-** **VIJU ABRAHAM, JUDGE** vgd O.P(KAT) No.30 of 2022 13 ## **APPENDIX OF OP(KAT) 30/2022** ## **PETITIONER'S EXHIBITS & ANNEXURES** **EXHIBIT P1 A TRUE COPY OF OA (EKM) NO.1343/2021. ANNEXURE A1 TRUE COPY OF GO(RT) NO.1772/2012/LSGD DATED 27/06/2012. ANNEXURE A2 TRUE COPY OF AGREEMENT FOR CONTRACT OF STAFF EXECUTED BETWEEN THE APPLICANT AND THIRD RESPONDENT DATED 17/10/2016. ANNEXURE A3 TRUE COPY OF GO(RT) NO.756/2017/LSGD DATED 18/03/2017. ANNEXURE A4 TRUE COPY OF GO(RT) NO.571/2018/LSGD DATED 27/02/2018. ANNEXURE A5 TRUE COPY OF GO(RT) NO. 445/2019/LSGD DATED 27/02/2019. ANNEXURE A6 TRUE COPY OF GO(RT) NO.722/2020/LSGD DATED 31/03/2020. ANNEXURE A7 TRUE COPY OF GO(RT) NO. 265/2021 DATED 01/02/2021. ANNEXURE A8 TRUE COPY OF RESOLUTION NO.7/1 OF THE THAZHEKODE GRAMA PANCHAYATH COMMITTEE DATED 12/02/2021. ANNEXURE A9 TRUE COPY OF THE APPLICATION SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT DATED 31/05/2021. ANNEXURE A10 TRUE COPY OF GO(RT) NO.1067/2021 DATED 01/06/2021. ANNEXURE A11 TRUE COPY OF LETTER NO.DDP-MPM/11432/2018 DATED 04/06/2021 BY DDP (DEPUTY DIRECTOR OF PANCHAYATH, MALAPPURAM).** O.P(KAT) No.30 of 2022 14 **ANNEXURE A12 TRUE COPY OF GO(P) NO.2/2021/FIN DATED 04/01/2021. ANNEXURE A13 TRUE COPY OF APPLICATION SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT DATED 09/07/2021. ANNEXURE A14 TRUE COPY OF CONTINGENT PAYMENT BILL IN TR 59(E) DATED 30/06/2021 BY THE 3RD RESPONDENT. ANNEXURE A15 TRUE COPY OF LETTER NO. DDP-MPM/1268/2021 DATED 15/07/2021 BY DDP (DEPUTY DIRECTOR OF PANCHAYAT, MALAPPURAM) ANNEXURE A16 TRUE COPY OF BIRTH CERTIFICATE ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, PERINTHALMANNA MUNICIPALITY DATED 20/07/2021. ANNEXURE A17 TRUE COPY OF RESOLUTION NO.4(1) OF THAZHEKODE GRAMA PANCHAYATH COMMITTEE DATED 22/07/2021. EXHIBIT P2 A TRUE COPY OF THE INTERIM ORDER DATED 16/08/2021 IN OA (EKM) NO.1343/2021.**