New Delhi, Aug 16 (PTI): The Supreme Court on Tuesday said that a working woman cannot be denied her statutory right to maternity leave for her biological child only because her husband has two children from previous marriage and she had availed the leave to take care of one of them.
The top court said that the grant of maternity leave is intended to encourage women to join and continue in the workplace but it is a matter of harsh reality that despite such provisions, women are compelled to leave their place of work on the birth of a child since they are not granted leave and other facilitative measures.
According to rules, a woman employee with less than two surviving children can seek maternity leave.
A bench of Justices DY Chandrachud and AS Bopanna said that childbirth has to be construed in the context of employment as a natural aspect of the life of the working women and the provisions under the law must be construed in that perspective.
The court said the rules on maternity benefits are formulated in terms of the provisions of Article 15 of the Constitution under which the State can adopt a provision for the protection of the interest of the women.
Unless a purposive interpretation is adopted, the object and intent of grant of maternity leave would be completely defeated, it said.
The top court was hearing a plea of the woman, working as a nurse at the Postgraduate Institute of Medical Education and Research (PGIMER), Chandigarh, who was denied maternity leave for her only biological child on the ground that she had two children from her husband’s previous marriage and had earlier availed the leave to take care of one of them after the death of his first wife.
“It is a matter of harsh reality that despite such provisions women are compelled to leave their place of work on the birth of a child, since they are not granted leave and other facilitative measures… “Childbirth has to be construed in the context of employment as a natural aspect of the life of the working women. Hence, the provision which has been made should be construed in that perspective,” the bench said.
The top court bench, which sat till 6.40 pm to decide the case among other matters, said that the provisions of the central civil service rules regarding maternal leaves need to be purposefully interpreted in line with the intent of the Maternity Benefit Act enacted by the Parliament.
“The provisions of rule 43 (1) must be imparted to a purposive construction. For the purpose of interpreting Rule 43, it should be appropriate to look into the Maternity Benefit Act…”, it said, adding that nonetheless, the provisions of the Maternity Benefit Act, 1961, are indicative of the objects and intent of Parliament in enacting cognitive legislation on the subject.
Referring to the provisions of the Act, the bench said that these provisions have been made by Parliament to ensure that absence of a woman from her place of work for the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter the period for which she should be granted leave to look after the child after giving the birth.
“Rule 43 (1) of the CCS Rules contemplate the grant of maternity leave for a period of 180 days, independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of two eldest surviving children, whether for rearing or for looking after their need such as education, sickness and alike,” it said.
The top court said that the child care leave can be availed of not only at the point when the child is born but at any subsequent period as is evident from the illustrative part of the rules.
The bench said that the facts of the present case indicate that the spouse of the appellant has prior marriage which has ended with the death of his wife after which the appellant was married to him.
The bench said that “the fact that he (her spouse) had two-biological children from a prior marriage would not impinge upon the statutory entitlement of the appellant for grant of maternity leave for her sole biological child in the present case”.
It said the fact that she was granted child care leave for one of the two children born to her spouse from earlier marriage may be a matter where a compassionate view was taken by authorities at the relevant time.
However, this cannot be used to disentitle her from the entitlement of leave under Rule 43 of Central Civil Services leave rules, 1972.
“Unless such a purposive interpretation is adopted, the object and intent of grant of maternity leave would be completely defeated”, the bench said, adding that these rules are formulated in terms of the provisions of Article 15 of the Constitution, under which the State can adopt a provision for the protection of the interest of the women.
The top court set aside the High Court refusing to accept her plea for grant of maternity leave to take care of her biological child and the order of the Central Administrative Tribunal and allowed her plea.
“For the above reason, we hold that the appellant was entitled for the grant of maternity leave and the communication of the third respondent (hospital authorities) denying her maternity leave was contrary to the provision of rule 43.
“We accordingly set aside the impugned judgement of the high court and the judgement of the CAT. The OA of appellant shall stand allowed. The appellant shall be granted maternity leave as otherwise was admissible under rule 43 of CCS leave rules, 1972”, the bench said.
It directed that whatever benefit which was her entitlement should be paid within two months of the order.