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In a landmark judgment, Uttarakhand High Court has directed the government to grant maternity leave to all the female employees with full pay for 180 days, even working on contractual basis, ad hoc/tenure or temporary basis.

The high court also held that a female employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis is also entitled to child adoption leave for 135 days, in case of valid adoption of child below the age of one year.

A division bench comprising Justice Rajiv Sharma and Justice Alok Singh has held that maternity benefit is a social insurance.

“There should be a system for breastfeeding/ nursing care at the workplace. The maternity leave is key for maternal and child health and family support. The maternity leave is of utmost importance to fight against social injustice, poverty and gender inequality,” the bench said.

It also held that a male government servant is also entitled paternity leave for at least three weeks to enable the father to look after the mother and child.

Child Care Leave

The bench also held that a female government employee is also entitled to Child Care Leave (CCL), as per the recommendation of the 6th Central Pay Commission, of 730 days during the entire service.

“However, it will not be admissible, if the child is 18 years of age or older. The women employees shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. It can be availed of in more than one spell. As per the Government of India, Department of Personnel and Training order dated 11.09.2008, it can be combined with leave of the kind due and admissible,” it said.

The bench observed that we are required to make labour laws in conformity with the recommendations made by the International Labour Organization read with Article 42 of the Constitution of India.

Summary of Directions

A.) The respondent-State is also directed to grant maternity leave to all the female employees with full pay for 180 days, even working on contractual basis, ad hoc/tenure or temporary basis.

B.) The State Government is further directed to grant at least 60 days’ maternity leave to the daily wage female employees working for more than 240 days’ in a block of 12 months calendar with full wages.

C.) The State Government is directed to provide every establishment to have the facility of crèche having 50 or more than 50 employees with liberty reserved to the mother to visit the crèche/nursing care at least four times daily, including the interval for rest allowed to the employees.

D.) The State Government is also directed to grant Child Care Leave (CCL) of 730 days’ to all the female employees, whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis having minor children with a rider that the child should not be more than 18 years of age or older. The female employees shall be entitled to paid leave equal to the pay drawn immediately before proceeding on leave. CCL can be combined with leave of the kind due and admissible.

E.) The State Government is also directed to grant 15 days’ paternity leave to a male employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis to enable the father to look after the mother and child. This leave can be combined with leave of any other kind.

F.) The State Government is also directed that a female employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis, with fewer than two surviving children, on valid adoption of a child below the age of one year be granted child adoption leave for a period of 135 days’ immediately after the date of valid adoption.

G.) The State Government shall not dismiss, terminate, remove any female employee whether appointed on contractual basis, ad hoc/tenure or temporary basis immediately before her delivery and thereafter to deprive her of maternity leave, adoption leave and child care leave etc.

H.) The Chief Secretary shall personally be responsible to comply with these mandatory directions in letter and spirit.

Source:

Grant 180-Day Maternity Leave For All Female Employees Including Temporary Workers: Uttarakhand HC [Read Judgment] | Live Law
18th December 2016 From India, Malappuram

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Dear Senior members,
By awarding verdict of this kind has judiciary rendered legislation redundant? This is clear encroachment on legislative powers. Bill on 180 days maternity leave is pending at the parliament. But that does not mean that some High Court will pass on judgement on this count.
The Supreme Court has banned liquor shops on highways and has threatened to jail the chief of BCCI. Before that it also gave verdict to make Indians little more patriot by enforcing playing of national anthem before commencement of the movies.
This judicial activism looks fine but it could set off tension between legislation and judiciary. Imagine a situation wherein some state assembly passing a resolution to condemn court's verdict! If judiciary continues to overstep, then it should also be prepared to face retaliation. Under such circumstances taking moral high ground neither it should not cry out loud.
I request you to provide your valuable views.
Thanks,
Dinesh Divekar
18th December 2016 From India, Bangalore
Thank you, Dinesh for your message. A careful reading of the judgment of the Division Bench of the Hon'ble High Court leaves the impression that the hon'ble Judges were more infuenced by the recommendations of ILO and the VIth Central Pay Commission on the issues of Maternity Leave, Paternity Leave, Child Care Leave and Child Adoption Leave than the existing provisions of the Maternity Benefit Act,1961 and U.P Fundamental Rules.

While sharing the concern you expressed about the probable implications of conflict between the two supreme estates of our constitution, I think that another concern of equal importance is the callous attitude and lackadaisical approach of the other estate viz., the Executive consistantly noticed in employment matters. Time and again the Judiciary has been insisting that the State should try to be a model employer of the nation. For example, in the given case, though the contract lecturer is entitled to maternity leave under rule153 of the State Fundamental Rules, how the authorities dared to make a plea that she was not eligible because of her contractual appointment which was continuously effective since 2011-12.
18th December 2016 From India, Salem
Dear Mr M Umakanthan,

Thanks for your reply. In fact I have given my comments without reading complete judgement. Which is wrong as occasionally newspaper reports are also distorted ones. The same judgement is for the temporary and casual workers employed in one of the states of India. Nevertheless, recommending legislation to make law is one thing and giving sweeping judgement is another.

In another news item it is written that "The State Government is also directed to grant 15 days’ paternity leave to a male employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis to enable the father to look after the mother and child. This leave can be combined with leave of any other kind.

Where is the provision of maternity leave in India? Why paternity leave only to the government employees? Why Hon'ble High Court has done discrimination between employees of private sector and the government employees? In all practical aspects Uttakhand assembly will just sit on the judgement and do nothing that anyway everybody knows.

Thanks,

Dinesh Divekar
18th December 2016 From India, Bangalore
The pending ammendment to maternity benifit act is for private sector
The government departments have already been given 180 days leave frm the last year or more.
I think the judgement must have been because of attempts by the government departments to deny it to temperory employees.....
19th December 2016 From India, Mumbai
I feel that this verdict is about the state government's responsibility to give maternity benefits to contractual employees and temporary employees and it should be taken as an independent case and not an umbrella verdict covering the entire private sector companies.
Madhu.T.K
19th December 2016 From India, Kannur
It appears that the case arose under the Government Fundamental rules. If the State Government has any problem in implementing the decision, it can appeal against the decision in the Apex Court as the decisions of the High Court are appealable.
B.Saikumar
HR & Lab.Law Advisor
Navi Mumbai
20th December 2016 From India, Mumbai
As per my view, now our nation has reached to such a position that, it is the high time to amend all the acts and simplify. We are having so many acts and we cannot follow all the acts and rules.

In Labour Laws the various acts giving different formats in different rules (Wages Register, Muster Rolls, OT Register, Register of Advance, Fine & Loss or Damages) will make everyone get confused and eventhough we know about that there is some provision in all the acts, that we can maintain any one format, the Officials are using the same for getting some undue benefits.

At present requirement is once a baby took birth, the Government must allot with a Numerical / Alphanumerical code for all the babies while issuing the birth certificate and it must only be used for taking admission in school, college, and the same code only will be given for Passport, Driving Licence, Bank Account and even the employment Id. No.

Further the Government also must ensure free education as per their eligibility and interest and free Medical facilities for all the citizens. The Private Educational Institution and Private Hospitals must be closed. Otherwise we will have to see such judgements very often.
21st December 2016 From India, Kumbakonam
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