Should a woman have to choose between employment and motherhood? Should an employee on a contractual basis be denied maternity benefits just because she has not been made permanent by the organization she works for?
Recently, a Kerala High Court bench, through Justice A Muhamed Mustaque, answered both these questions in the negative. The single bench, hearing a petition filed by 35-year old Rasitha, who was denied maternity leave by the Calicut University on the ground that the terms of her contract did not allow the grant of such leave, held:
“The maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement. This court consistently held that it is attached with the dignity of a woman...” therefore and no distinction can be drawn between an employee on contract and a permanent employee.
The petitioner, Rasitha, has been working as a lecturer in medical microbiology and medical biochemistry at the Centre for Health Sciences, Calicut University for a decade since 2018. When she applied for maternity leave in September 2018, the university said that she was entitled only to 15 days’ medical leave on grounds of maternity, because her contract did not have any provision for maternity leave. The university, in its arguments, specifically referred to Clause 11 of the employment agreement which reads:
“Clause 11: The party of the first part will not be entitled to any claim for future appointment in the University service whether permanent/temporary/contract by virtue of this engagement on contract.”
It is pertinent to mention here that under the provisions of the Kerala Service Rules as well as the Maternity Benefits Act, 1961, every woman employee is entitled to maternity leave of 180 days.
What the law says
For women who are employed on an agency or contract basis, this is a most intriguing question. However, Section 2(o) of the Maternity Benefit Act, 1961 evidently eliminates the apprehension as it defines “women” as a woman employed, whether directly or through any agency, for wages in any establishment.
Thus, the definition of a woman under the Act extends the benefit to all women employees including those employed through an agency or on a contract basis.
In wake of the recent amendment to the Maternity Benefit Act i.e. Maternity Benefit (Amendment) Act, 2016, several doubts had been raised by stakeholders and one among them was whether the Amendment Act extending maternity leave of 26 weeks was applicable to contractual or consultant women employees?
Subsequently, the Ministry of Labour and Employment issued a clarification dated April 12, 2017, wherein it was stated that as there was no amendment to Section 2(o) of the Act of 1961, the Act is applicable to all women who are employed in any capacity, directly or through any agency i.e. contractual or consultant employment.
Precedents Considered
Justice Mustaque, while adjudicating the issue, relied upon two precedents of the Kerala High Court, both delivered in 2018. One was the case of Mini Vs. Life Insurance Corporation of India [2018 (1) KLT 530] and the other was that of Rakhi & ors v State of Kerala and Anr decided on 27 February 2018.
The Rakhi case is more relevant to the present topic. That decision, pronounced by the single judge bench of Justice Anu Sivaraman, came in a writ petition filed by women working on contract basis with the Additional Skill Acquisition Programme under the Higher Education Department of the Government of Kerala and the Inclusive Education for Disabled Secondary Stage under the Rashtriya Madhyamic Siksha Abhiyan of the MHRD.
The petitioners submitted that they were given maternity leave only for 135 days in the former case and 12 weeks in the latter. They contended that under the provisions of the Kerala Service Rules as well as the Maternity Benefits Act, 1961, every woman employee is entitled to maternity leave of 180 days and hence they were entitled to the same.
Justice Sivaraman held: “The benefits of enhanced maternity leave to woman employees is undoubtedly apiece of welfare legislation which is intended to give women equal opportunities in public employment. In the above view of the matter, the contention raised to the effect that the contract employees under the projects are entitled only to 90 days of maternity leave, according to me, cannot be countenanced, since it would amount to discrimination against woman employees only for the reason that they are engaged in projects in contractual capacities. The inalienable obligations of maternity should not and cannot be a reason to deny equal opportunities to woman employees. This precisely would be the result of limiting maternity leave to women employees, irrespective of the nature of their employment. The further contention to the effect that the contractual appointment of the petitioners have a duration of only one year and the grant of six months paid leave would obliterate the benefit to the project of the engagement is also not tenable because the petitioners are persons who are continuing in service on the basis of successive extension of contract. The contention, therefore, can have no application in the instant cases.”
Supreme Court and CAT Precedents
Justice Mustaque’s ruling is in line with the Supreme Court’s 2000 judgement in the Municipal Corporation of Delhi case, in which the apex court held that the provisions of the Maternity Benefit Act allow women who are engaged on a casual basis or on a muster roll basis on daily wages to avail of the maternity leave and not only those in regular employment. The court had added that the provisions of the Act in this regard are wholly in consonance with the Directive Principles of State Policy contained in Arts 39, especially in Articles 42 and 43.
In 2017, the Central Administrative Tribunal in the case of Anuradha Arya categorically stated that benefits of maternity leave with full salary cannot be denied to a female employee appointed on a contractual basis and they are entitled to maternity leave as per the provision under Section 5 of the Maternity Benefit Act, 1961.
In sum, the Kerala High Court’s present judgement seems to have struck all the right notes, but then a question arises — in all the precedents Justice Mushtaq has relied on, motherhood has been treated as integral to the dignity of women and thus protected under the right to life guaranteed by Article 21 of the Constitution, but what about women contractual employees who choose the path of surrogate motherhood? Would they enjoy the same judicial benevolence and indulgence?
Views expressed are author's own.