PARJINDER KAUR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner, who was an employee as a Staff Nurse in respondent-Medical College, has a grievance that the benefit of maternity leave had not been given to her. She had applied for maternity leave before she had actually delivered of the child on 30.05.2011, but it was denied to her. Thankfully, she had delivered of the child on 10.06.2011, but her grievance is that she had been compelled to take casual leave and was not given maternity leave which she was entitled to.

(2.) The petitioner would rely on a judgment of the Division Bench in Ruksana Versus State of Haryana and others in CWP No.4229 of 2011 as completely governing her issue. The said judgment was with reference to a person, who was appointed as a multipurpose health worker in the State of Haryana, who complained that the instruction that denied maternity benefit to a mother for the birth of 3 rd child was not entitled to the benefits under the Maternity Benefit Act was bad in law. The Court held that while the instructions could be for advancing the State policy of family planning, so long as the principal enactment, namely, the Maternity Benefit Act itself was not amended, the instructions could not be given effect to. Referring to Section 5 of the Maternity Benefit Act, the Court ruled that the right of a woman to receive payment of maternity benefits was statutorily protected. Section 27 of the said Act gave a non-obstante application of the Act notwithstanding any other law to the contrary. The Court, therefore, ruled that Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I that denied the benefit to a mother beyond 2 children would stand eclipsed by the provisions of the Maternity Benefit Act and that it cannot be given effect to. The Bench ruled that the petitioner in that writ petition could not be deprived of the maternity benefit for the birth of the 3 rd child.

(3.) Responding to these contentions, the State would contend that the petitioner is governed by the Haryana Aided College Leave Rules of 2002 which provided under Rule 22 maternity leave to a female employee only for less than two surviving children. According to the State, the Maternity Benefit Act was not applicable since by virtue of Section 2 it would apply only to an establishment being a factory, mine or plantation or to an establishment belonging to Government or establishment where persons were employed for exhibition of equestrian, acrobatic and other performances. By operation of Clause (b), the Act would also be extended to 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. The provisions of the Maternity Benefit Act itself was not applicable and, therefore, the denial of maternity benefit to the petitioner cannot be objected to.