How Uttarakhand's New Maternity Leave Ruling Impacts All Female Employees, Even Temporary Workers

In a landmark judgment, the Uttarakhand High Court has directed the government to grant maternity leave to all female employees with full pay for 180 days, even if they are working on a contractual, ad hoc/tenure, or temporary basis. The high court also held that a female employee appointed on a regular, contractual, ad hoc/tenure, or temporary basis is entitled to child adoption leave for 135 days in the case of the valid adoption of a 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. Maternity leave is key for maternal and child health and family support. It 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 entitled to 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 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 labor 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 directed to grant maternity leave to all female employees with full pay for 180 days, even if working on a contractual, ad hoc/tenure, or temporary basis.

B.) The State Government is further directed to grant at least 60 days of maternity leave to 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 with the facility of a crèche having 50 or more employees, with liberty reserved for 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 female employees, whether appointed on a regular, contractual, ad hoc/tenure, or temporary basis, having minor children with the condition that the child should not be more than 18 years of age. 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 of paternity leave to a male employee appointed on a regular, contractual, 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 directed that a female employee appointed on a regular, contractual, 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, or remove any female employee, whether appointed on a contractual, 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

Has the judiciary, by awarding verdicts of this kind, rendered legislation redundant? This is a clear encroachment on legislative powers. A bill on 180 days of maternity leave is pending in parliament. However, that does not imply that a High Court will pass judgment on this matter.

The Supreme Court has banned liquor shops on highways and has threatened to jail the chief of BCCI. Prior to that, it also ruled to make Indians a little more patriotic by mandating the playing of the national anthem before the commencement of movies.

While this judicial activism may seem appropriate, it could potentially spark tensions between the legislative and judicial branches. Consider a scenario where a state assembly passes a resolution to condemn the court's verdict! If the judiciary continues to overstep, it should also be prepared to face retaliation. In such circumstances, taking the moral high ground, it should neither cry out loud.

I request your valuable views on this matter.

Thanks,
Dinesh Divekar

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 influenced by the recommendations of the 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 consistently 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 rule 153 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.

Regards

Thanks for your reply. In fact, I provided my comments without reading the complete judgment, which is wrong, as newspaper reports are occasionally distorted. The same judgment applies to temporary and casual workers employed in one of the states of India. Nevertheless, recommending legislation to make law is one thing, and giving a sweeping judgment 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 a 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 for maternity leave in India? Why is paternity leave only for government employees? Why has the Hon'ble High Court discriminated between employees of the private sector and government employees? In all practical aspects, the Uttarakhand assembly will just sit on the judgment and do nothing, which everyone knows anyway.

Thanks,

Regards, Dinesh Divekar

The pending amendment to the Maternity Benefit Act is for the private sector. The government departments have already been given 180 days leave from the last year or more. I think the judgment must have been because of attempts by the government departments to deny it to temporary employees.

I feel that this verdict is about the state government's responsibility to provide maternity benefits to contractual employees and temporary employees. It should be considered as an independent case and not as an umbrella verdict covering the entire private sector companies.

Madhu.T.K

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