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2018 DIGILAW 297 (KER)

Leema Kuruvila v. State of Kerala

2018-04-02

P.V.ASHA

body2018
JUDGMENT : 1. Petitioner is aggrieved by the denial of maternity leave. 2. Petitioner has been working as a School Counselor under the Psycho Social Programme under the Social Welfare Department, right from 07.03.2011 onwards. She submitted Ext.P3 application requesting for grant of maternity leave for the period from 01.02.2018 to 31.07.2018. As per Ext.P4 letter, issued on 18.11.2007, she was informed that the matter regarding grant of maternity leave has already been taken up before the Government. In Ext.P3 representation along with her application for leave, petitioner had claimed that she is entitled to maternity leave along with wages. 3. Learned Government Pleader made available a copy of the proceedings dated 05.02.2018 of the District Social Justice Officer granting the petitioner maternity leave for the period from 01.02.2018 to 31.07.2018, but without honorarium. Learned Government Pleader also submits that the second respondent had already recommended sanctioning of honorarium for those who are availing maternity leave and orders are awaited from Government. 4. There cannot be any justification for denial of wages to petitioner when maternity leave is granted to petitioner, who has been working from 2011 onwards without any break. Maternity leave with wages is a benefit provided under the Maternity Benefit Act, 1961 as well as the provisions contained in Kerala Service Rules, even to those employed on daily wages who have worked more than one year. Though her engagement is on contract basis, petitioner is continuing from 2011 onwards. The service conditions relating to those who are employed on contract basis are governed by Appendix VIII of Kerala Service Rules. Note below Rule 2 of Appendix VIII of Part I KSR provides that. “Maternity leave under Rules 100 and 101 will be admissible to female officers appointed on contract basis continuing in service beyond one year provided they would continue in service but for proceeding on such leave”. 5. As per Rules 100 provides that “A competent authority may grant to a female officer, maternity leave on full pay for a period of 180 days from the date of its commencement”. 6. Respondents cannot deny that the provisions under KSR or even the principles under Appendix VIII of Part I KSR will not apply in the case of employees engaged on contract basis. 7. 6. Respondents cannot deny that the provisions under KSR or even the principles under Appendix VIII of Part I KSR will not apply in the case of employees engaged on contract basis. 7. Apart from the above, Section 5 of the Maternity Benefit Act, 1961 provides that “Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.” 8. Subsection 3 provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. 9. Petitioner cannot be therefore denied the wages/honorarium for the period during which maternity leave is allowed by the District Officer as per order dated 05.02.2018. 10. Learned counsel for the petitioner relied on the judgment in Rakhi v. State of Kerala in W.P. (C).No.30561 of 2017 in which also this Court, relying on the judgment in Mini v. Life Insurance Corporation of India [ 2018 (1) KLT 530 ] held the entitlement of the female employees for maternity leave. 11. However, in this case maternity leave has already been granted, but without wages. Once the respondents found the petitioner is eligible for maternity leave and petitioner has been working on honorarium on all these years, she cannot be denied the wages/honorarium for the leave period, in violation of her statutory right. Any such action would be derogatory to her dignity also, which the respondents cannot be permitted to do. In the above circumstances, writ petition is allowed, directing the respondents to see that petitioner is paid honorarium admissible to her for the period covered by the order dated 05.02.2018 i.e., from 01.02.2018 to 31.07.2018 granting her maternity leave, in accordance with law, as and when it is due.