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2018 DIGILAW 778 (KER)

Jeslin Jose A. v. Cochin Port Trust Willington Island

2018-10-03

P.V.ASHA

body2018
JUDGMENT : 1. Petitioner, who was working as Junior Engineer in the Civil Department under the second respondent, applied for maternity leave by submitting Ext.P4 application, for the period from 23.05.2018 to 19.09.2018 and requested to allow her to rejoin duty on 20.09.2018. However, she was not allowed to rejoin duty and the contract period has expired on 30.09.2018. Petitioner seeks a direction to the respondents to pay the salary due to her for the period of maternity leave from 23.05.2018 to 30.09.2018. 2. When the petitioner has been working under the respondents from 2016 onwards, though on contract basis respondents cannot deny her the payment of maternity benefits, in view of the judgment of the Apex Court in Municipal Corp of Delhi v. Female Workers (Muster Roll) and Another [ AIR 2000 SC 1274 ] and the provisions contained in Maternity Benefit Act, 1961. 3. Section 3(o) of the Maternity Benefit Act, 1961 reads as follows: 3(o) “woman” means a woman employed, whether directly or through any agency, for wages in any establishment. 4. Relevant portion of Section 5 of the Maternity Benefit Act, 1961 read as follows : Section 5. Right to payment of maternity benefit 5. Right to payment of maternity benefit.—[(1) Subject to the provisions of this Act, 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.] 5. Therefore, under Subsection 3, a woman is entitled to a maximum of 26 weeks towards maternity leave. As 'woman' as defined in Section 3(o) would include one engaged on contract basis also, petitioner who had been working from 2016 onwards is entitled to maternity leave with full pay. Moreover, Ext.P7 clarification issued by the Central Government subsequent to the Maternity Benefit Amendment Act 2017, evidences the entitlement of contract employees like the petitioner for maternity benefit, for a period of 26 weeks. Moreover, Ext.P7 clarification issued by the Central Government subsequent to the Maternity Benefit Amendment Act 2017, evidences the entitlement of contract employees like the petitioner for maternity benefit, for a period of 26 weeks. In the above circumstances, there shall be a direction to the respondents to pay salary due to petitioner for the period for which she requested for maternity leave as per Ext.P4 application and till the contract period expired within 26 weeks, i.e., for the period from 23.05.2018 to 30.09.2018, within a period of two weeks from the date of receipt of a copy of the judgment.