Reporting By: Amit Kashyap
In a significant judgment that can come to the aid of women who are employed on contractual basis, the Delhi High Court division bench comprising Justices Rajiv Shakdher and Justice Talwant Singh in DR. BABA SAHEB AMBEDKAR HOSPITAL GOVT. OF NCT OF DELHI & ANR. Vs. DR. KRATI MEHROTRA, W.P.(C) 1278/2020 & CM No.4405/2020 has held that an ad-hoc employ will be entitled to maternity benefits under the Maternity Benefits Act, 1961, beyond the period of the contract, for a pregnancy occurring during the tenure of the employment. Since the object of the Maternity Benefits Act is to grant benefits to the woman both during pregnancy and after child-birth, the benefits cannot be tied up to the tenure of the contract. As long as pregnancy occurs during the tenure of the contract, she should be entitled to maternity benefits.
The question which arose in the petition was whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract?
In this case, the employee was working on contractual basis at Dr. Babasaheb Ambedkar Memorial Hospital under the Delhi Government.
The offer made to the employee provided that the appointment would be for a period of 45 / 89 days or till a regular incumbent joins the post, whichever is earlier.
Her tenure was extended four times. Notably, each time the respondent’s tenure lasted 89 days, and after a short break of one one day, the contract was renewed for another 89 days.
Her last tenure was till 27.06.2017. Two months before the expiry of the term, on 17.04.2017, she applied for emergency maternity leave as due to complicated pregnancy, she was advised to undergo an emergent caesarean section procedure.
However, the hospital, instead of granting her maternity leave, terminated her services by an office order dated 23.05.2017, with effect from 24.04.2017.
Aggrieved with this, she approached the Central Administrative Tribunal and also the National Commission for Women. Following that, the hospital agreed to give her maternity benefits, but only till 27.06.2017 (the date of tenure end).
The employee then approached the Tribunal again seeking maternity benefits for 26 weeks with effect from 17.04.2017. The Tribunal directed the hospital to grant her maternity benefits in terms of Section 5(2) of the Act.
Challenging the Tribunal direction, the hospital approached the High Court. The hospital’s primary argument was that Tribunal had erred in directing to grant maternity leave to the respondent for the entire 26 weeks, without having regard to the fact that her tenure had culminated on 27.06.2017.
The Bench observed that the Act seeks to regulate the employment of women in certain establishments for given periods before and after child-birth, and, in particular, endeavours to provide for maternity benefit.
“Clearly, the provisions of the 1961 Act seek to invest a woman with a statutory right to take maternity leave and seek payment for the period that she is absent from duty on account of her pregnancy, albeit in accordance with the provisions of the 1961 Act,” the Bench said.
The Court was also of the view that the provisions of the Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker.
“The provisions of the 1961 Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker. This position stands unambiguously articulated in the judgement of the Supreme Court rendered in Municipal Corporation of Delhi (MCD) v. Femal Workers (Muster Roll) & Anr. (2000) 3 SCC 224“, the Court noted.
Pertinently, the 1961 Act does not tie in the grant of maternity benefit to the tenure of the woman employee”, the Court observed.
The Court noted that the two limiting factors for the grant of maternity benefits are:
-First, the woman-employee should have worked in an establishment of her employer for a minimum period of 80 days in 12 months immediately preceding the date of her expected delivery.
-Second, the maximum period for which she can avail maternity leave benefit cannot exceed 26 weeks, of which, not more than 8 weeks shall precede the date of her expected delivery.
The Court further held : “The benefit granted to the respondent under Section 5 of the 1961 Act should have a full play, in our view, once the prerequisites contained therein are fulfilled by the claimant i.e., the woman-employee”.
“The 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage. Without financial wherewithal, the interest of women-employee and her child is likely to be severely impacted,” the Court said.
Not interfering withthe order passed by the Tribunal, the Court dismissed the petition.
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