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2024 DIGILAW 1438 (ALL)

Shilpi, Class III (Cashier) v. State of U. P.

2024-05-27

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. This writ petition is directed against an order dated 25.8.2023 passed by the Chief Executive Officer/Secretary of the District Cooperative Bank Ltd., Kanpur, rejecting the petitioner's application for grant of maternity leave and notified by an order of the said date, issued by the Deputy General Manager (Administration), District Cooperative Bank Ltd., Kanpur. 2. The petitioner is a Cashier, a Class-III employee with the District Cooperative Bank Ltd., Kanpur (for short, 'the Bank'). She is posted with Branch Akbarpur, District Kanpur Dehat. The petitioner was appointed vide letter of appointment dated 22.6.2016 and has been working eversince. She moved an application on 18.8.2023 to the Secretary/Chief Executive Officer of the Bank, requesting grant of maternity leave. The said application was forwarded by the competent Authority to the Secretary/Chief Executive Officer of the Bank for consideration. The petitioner's application was rejected by the Secretary/Chief Executive Officer vide order dated 25.8.2023, citing the reason that under the Uttar Pradesh Employees Service Regulations read with Rules 101 and 153 of Chapter III, Volume II, Parts 2-4 of the Financial Handbook, Maternity Leave Rule No. 1 provides that the said leave would not be admissible unless a minimum period of two years has elapsed since the last maternity leave availed had come to an end. The impugned order goes on to remark that the petitioner's first maternity leave ended on 5.3.2022, and, therefore, a period of two years has not elapsed since the end of her last maternity leave. For the said reason, it was held by the Secretary/Chief Executive Officer of the Bank that the petitioner is not entitled to avail her second maternity leave. The said decision was notified by the Deputy General Manager (Administration) vide order dated 25.8.2023, which, in substance, is a communication of the order made by the Secretary/Chief Executive Officer of the Bank. 3. It is the petitioner's case that she had been granted maternity leave earlier, which ended on 5.3.2022, relative to her first pregnancy, and, the present application was made on 25.8.2023, when she conceived a second time. In the normal course of nature, after her first pregnancy, the petitioner was blessed with a daughter, named Kritika, who was born on 19.11.2021. The petitioner says that if her maternity leave is considered for a period of 180 days, she may be granted the said leave since 25.8.2023 to 18.2.2024. In the normal course of nature, after her first pregnancy, the petitioner was blessed with a daughter, named Kritika, who was born on 19.11.2021. The petitioner says that if her maternity leave is considered for a period of 180 days, she may be granted the said leave since 25.8.2023 to 18.2.2024. It is pleaded that according to the foetal biometry, given the estimated time of delivery advised, the petitioner expects on 2nd October, 2023. She has annexed a medical report of hers dated 30.8.2023 in this regard. The petitioner applied for a review of the order dated 25.8.2023 on 28.8.2023, referring to an order passed by this Court, where she would be entitled to a second maternity leave within two years of the end of her first leave of the same category. It is the petitioner's case that she is entitled to the benefit of Section 27 of the Maternity Benefit Act, 1961 (for short, 'the Maternity Act'), which has overriding effect, vis-a-vis any other law, whether made before or after coming into force of the Maternity Act. The petitioner has pleaded a case that the provisions of the Maternity Act prevail over Rule 153(1) of the Financial Handbook, Volume II, Part 2-4. 4. The petitioner has also pleaded that the right to conceive and give birth to a child is a fundamental right of a woman and it cannot be curtailed by law. It is also her case that if any application of a female employee for the grant of maternity leave is rejected, the same would constitute violation of the fundamental right of a person, which includes a woman, under Article 21 of the Constitution. It is urged that any rule, which curtails a woman's right to avail the benefit of maternity leave, would come in conflict with the provisions of the Maternity Act and in such cases, the special law shall prevail over any other rule. 5. A notice of motion in this case was issued on 16.10.2023 and in compliance, the parties have exchanged affidavits. The petition was admitted to hearing on 13.12.2023, which proceeded forthwith, resulting in judgment being reserved. 6. Heard Mr. Ram Pravesh Yadav, learned Counsel for the petitioner and Mr. Satyam Singh, learned Counsel appearing on behalf of respondent Nos. 2, 3 and 4. 7. The thrust of Mr. The petition was admitted to hearing on 13.12.2023, which proceeded forthwith, resulting in judgment being reserved. 6. Heard Mr. Ram Pravesh Yadav, learned Counsel for the petitioner and Mr. Satyam Singh, learned Counsel appearing on behalf of respondent Nos. 2, 3 and 4. 7. The thrust of Mr. Yadav's argument is that the provisions of Rule 153 of the Financial Handbook Volume II Part 2-4 have to yield and give way to the Maternity Act, that has overriding effect. Reliance has been placed by the learned Counsel for the petitioner upon the authority of Sulekha Yadav v. State of U.P. and another, 2022 AHC 83800, where Hon'ble Mr. Justice Siddharth, placing reliance upon an earlier authority in Smt. Richa Shukla v. State of U.P. and others, Service Single No. 32394 of 2019, decided on 11.12.2019, followed it to hold that the proviso to Rule 153 of the Financial Handbook cannot curtail the right of a woman employee to seek maternity leave within two years of the expiry of her last maternity leave. His Lordship held the Bench decision of this Court in District Basic Education Officer, Prayagraj v. Vandana Mishra and others, Special Appeal Defective No. 1119 of 2020, decided on 9.12.2020, virtually per incuriam for not noticing the provisions of the Maternity Act. 8. Learned Counsel for the petitioner has also drawn the Court's attention to the principles laid down in Smt. Richa Shukla (supra) and Smt. Sonali Sharma v. State of U.P. and others, 2023 AHC-LKO 77697. He submits that in view of all these consistent authorities, there is no scope to harness the proviso to Rule 153 of the Financial Handbook in order to restrict the petitioner's right to seek maternity leave within two years of the expiry of the last such leave availed. 9. Mr. Satyam Sngh, learned Counsel appearing on behalf of respondent Nos. 2, 3 and 4, on the other hand, has placed reliance upon a decision of mine in Renu Chaudhary v. State of U.P. and others, 2022 (2) ADJ 14 and submits that the said decision fortifies his stand that the Maternity Act does not apply to the petitioner, inasmuch as the Bank is not an 'establishment' within the meaning of Section 3(e) of the Act last mentioned. He submits, therefore, that the Maternity Act, not being applicable to the Bank, where the petitioner is employed, the rights of the petitioner to seek maternity leave are subject to the rigours of the third proviso to sub-Rule (1) of Rule 153 of the Financial Handbook. 10. This Court has keenly considered the submissions advanced by learned Counsel for the parties and perused the record. 11. Rule 153 of the Financial Handbook (as amended in its application to U.P. vide Office Memorandum No. G-2-2017/10-2008-216/79 dated 8th December, 2008) reads: 12. The question, if the Maternity Act would prevail over Rule 153 of the Financial Handbook, arose for consideration in Smt. Richa Shukla in the context of facts, almost like the ones here. The petitioner's application for sanction of maternity leave was denied on ground that her first maternity leave ended on 30.12.2017, whereas the leave application in question there, that is to say, the second application sought leave w.e.f. 18.11.2019 up to 15.5.2020. The application was rejected for reason that it was moved before the lapse of two years from expiry of the first maternity leave. This was said by the respondents to be in contravention of the third proviso to Rule 153(1) of the Financial Handbook. The petitioner relied upon her right under the Maternity Act. In answering the issue, if the petitioner's application for grant of maternity leave would be governed by the third proviso to Rule 153(1) of the Financial Handbook or Sections 5 and 6 of the Maternity Act, it was held by Hon'ble Mr. Justice Abdul Moin: “11. From perusal of Section 3(h) of 1961 Act, it clearly comes out that maternity benefit means the payment referred to in sub-section (1) of Section 5 of 1961 Act. Section 5 of 1961 Act provides that every woman shall be entitled to and an employer shall be liable for the payment of maternity benefit at a certain rate. Sub-section (3) of Section 5 of 1961 Act provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. Section 5 of 1961 Act provides that every woman shall be entitled to and an employer shall be liable for the payment of maternity benefit at a certain rate. Sub-section (3) of Section 5 of 1961 Act provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. Section 6 of 1961 Act provides that any woman employed in an establishment and entitled to any maternity benefit under the provisions of 1961 Act may give notice in writing to her employer stating that her maternity benefit be paid to her or to such person as she may nominate in the notice. Sub-section (4) of Section 6 of 1961 Act provides that on receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. 12. A perusal of the aforesaid provisions of 1961 Act thus indicate that a woman would be entitled to give notice in writing for grant of maternity benefit and on receipt of notice the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. The 1961 Act does not contain any such stipulation of the time difference between grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook. Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after coming into force of 1961 Act. The proviso to Section 27 of 1961 Act provides that in case a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under 1961 Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she would be entitled to receive benefits in respect of other matters under 1961 Act, meaning thereby that additional benefits that a woman would be entitled in terms of agreement or contract of service would be admissible to her notwithstanding anything contained in 1961 Act. Thus, it is the additional benefits which have not been precluded but in case there is anything contrary or inconsistent to the provisions of 1961 Act pertaining to maternity benefit then it would be the 1961 Act which would be applicable. 13. In the instant case, the maternity leave as applied by the petitioner has been rejected by placing reliance on Rule 153(1) of the Financial Handbook by contending that the same contains a restriction that the second maternity leave cannot be granted and would be admissible in case there is difference of less than two years between the end of the first maternity leave and grant of second maternity leave. Admittedly, the first maternity leave of the petitioner ended on 30.12.2017 and thus the respondents have rejected the claim of the petitioner for grant of second maternity leave. However, once 1961 Act does not contain any such stipulation accordingly it is apparent that the respondents have patently erred in placing reliance on Rule 153(1) of the Financial Handbook in rejecting the application of the petitioner for grant of maternity leave more particularly when Section 27 of 1961 Act provides that it is 1961 Act which would be applicable notwithstanding anything inconsistent contained in any other law or contract of service.” 13. It was this holding in Smt. Richa Shukla, that was followed by the learned Single Judge in Sulekha Yadav (supra). The other authority, that has a profound bearing on the point, is Smt. Anupam Yadav v. State of U.P. and others, 2022 (11) ADJ 669 . The facts in Smt. Anupam Yadav (supra) can best be recapitulated as set out in the report, where the rival contentions that raise the issue involved, are also detailed. The facts in Smt. Anupam Yadav and the point that arose for consideration would be evident from what is said in paragraph Nos. 3 and 4 of the report, which reads: “3. The writ petitioner was appointed as Assistant Teacher at Primary School Dhakatal Mahewa District Etawah vide appointment letter dated 28.6.2016. The petitioner gave birth to a male child on 4.1.2021. Thereafter, the petitioner again became pregnant and applied for maternity leave online on 17.6.2022. The online maternity leave application of the petitioner has been turned down on the ground “not admissible” by the impugned order dated 23.6.2022. The petitioner gave birth to a male child on 4.1.2021. Thereafter, the petitioner again became pregnant and applied for maternity leave online on 17.6.2022. The online maternity leave application of the petitioner has been turned down on the ground “not admissible” by the impugned order dated 23.6.2022. It is contended by learned counsel for the petitioner that rejection of the maternity leave to the petitioner by the impugned order is patently illegal as no reasons whatsoever has been disclosed by the District Basic Education Officer in turning down the maternity leave to the petitioner. He submits that the maternity leave is the right of a women employee during pregnancy and cannot be turned down in the manner as has been done by the respondents. Learned counsel has placed reliance upon a decision of the co-ordinate Bench dated 11.12.2019 passed in Service Single No. 32394 of 2019 (Smt. Richa Shukla v. State of U.P. through Additional Chief Secretary Basic Education Lko and others) to submit that maternity leave to the petitioner therein was refused by orders dated 13.11.2019 and 27.11.2019. The Court proceeded to quash the orders dated 13.11.2019 and 27.11.2019 allowed the writ petition and issued a writ of mandamus directing the respondent No. 4 therein to consider the case of the petitioner for grant of maternity leave. Learned counsel for the petitioner accordingly submits that petitioner is equally circumstanced and is also entitled to the relief as extended to the petitioner of Service Single No. 32394 of 2019. 4. Shri Chandan Kumar, learned Standing Counsel, in opposition, to the writ petition submits that the claim of the writ petitioner for maternity leave has been turned down as the same is not admissible on the ground that period of two years has not elapsed from the date of expiry of the last maternity leave granted to the petitioner under the proviso of Rule 153 (1) of Chapter XIII of U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4. He further submits that the controversy involved in the present writ petition has been settled by a co-ordinate Bench of this Court in the case of Renu Chaudhary v. State of U.P. and others, 2022 (2) ADJ 14 , wherein the Court has proceeded to hold that the petitioner therein who is an Assistant Teacher employed with an Institution established and maintained by the Uttar Pradesh Basic Education Board is governed by the Service Rules applicable to teachers of Primary Schools maintained by the Board and other Rules including rules that apply regarding grant of leave. An employee of the Institution run and managed by the U.P. Basic Education Board is not an employee of an establishment to which the Maternity Act applies. There is no conflict between the second proviso to Rule 153 of the Fundamental Rules and the Maternity Act which does not apply to the establishment of the Basic Education Board or the schools maintained by it. The restriction on the Right to Maternity Leave of a female Government servant with regard to the birth of her child would be reckoned with reference to the number of children living at the time she applies for maternity leave irrespective of the fact whether the two children living were born before or after she entered the Government Service. Shri Chandan Kumar thus prays that the petitioner herein is not entitled to claim parity to the decision passed in Service Single No. 32394 of 2019 and the writ petition is liable to be dismissed.” 14. The decision in Smt. Anupam Yadav is important, because the earlier decision in Renu Chaudhary (supra) was noticed by the Court, which apparently would bind the Court, inasmuch as Smt. Anupam Yadav was decided by Hon'ble Mr. Justice Ashutosh Srivastava, sitting singly. His Lordship noticed the issue and the way Renu Chaudhary had dealt with it and held: “7. Learned counsel for the respondent has placed heavy reliance on the decision of the co-ordinate Bench of this Court in the case of Renu Chaudhary (supra) to non suit the petitioner. Having gone through the aforesaid decision, I find that the decision proceeds on the premise that the Maternity Benefit Act, 1961 is not applicable to the establishment of the Basic Education Board or the Schools maintained by it. Having gone through the aforesaid decision, I find that the decision proceeds on the premise that the Maternity Benefit Act, 1961 is not applicable to the establishment of the Basic Education Board or the Schools maintained by it. The decision further rules that there is clearly no conflict between the second proviso to Rule 153 of the Rules and the Maternity Benefit Act, 1961. Rather no question of any conflict with the Maternity Benefit Act, 1961 can be said to arise with the leave rules i.e. the Fundamental Rule 153 as the Maternity Benefit Act, 1961 is not applicable to the case of the petitioner. On the other hand, the learned counsel for the petitioner has placed reliance also upon a decision of a co-ordinate Bench of this Court passed in Service Single 32394 of 2019 Smt. Richa Shukla (supra) wherein the decision proceeds on the assumption that the Maternity Benefit Act, 1961 applies to the case of the petitioner and has an overriding effect in view of the Section 27 of the Maternity Benefit Act, 1961. 8. The moot question in the opinion of the Court is thus regarding the applicability of the Maternity Benefit Act, 1961 to the case of the petitioner. There is no dispute with regard to the applicability of the Fundamental Rules i.e. Rule 153 (1) of Chapter XIII of U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4. The parties are at variance only with regard to the applicability of the Maternity Benefit Act, 1961. 9. In consonance with the provisions of Article 42 contained in Part IV of the Constitution of India, the Parliament has promulgated the Maternity Benefit Act, 1961. Since Article 42 specifically speaks of “just and humane conditions of work and maternity relief”, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. 10. The provisions of Financial Handbook Volume II to IV on the other hand were made by the Governor in exercise of his powers under Section 241(2)(b) of the Government of India Act, 1935 and are continuing in force on the strength of the provisions contained in Article 13 of the Constitution of India. 10. The provisions of Financial Handbook Volume II to IV on the other hand were made by the Governor in exercise of his powers under Section 241(2)(b) of the Government of India Act, 1935 and are continuing in force on the strength of the provisions contained in Article 13 of the Constitution of India. The Financial Handbook contains rules which governed the services of the person serving in connection with the affairs of a province, and are at best in the nature of executive instructions, and are clearly not in the category of “an enactment” made by the legislature. 11. To attract the provisions of Article 254 of the Constitution the first requirement is that both the laws should be enactments of the respective legislatures, that is, one of the laws should be a enactment of the Parliament while the second should be a law made by the State legislature. The Maternity Benefit Act 1961 has been enacted by the Parliament while the provisions of the Financial Handbook Volume II to IV are at best executive instructions. 12. The Supreme Court in the case of Municipal Corpn. of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224 , has looked into the various provisions of the Constitution for the finding the source and power to legislate with respect to the Maternity Benefit Act, 1961, and observed as under: “6. Not long ago, the place of a woman in rural areas had been traditionally her home; but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour. The female workers who are engaged by the Corporation on muster roll have to work at the site of construction and repairing of roads. Their services have also been utilised for digging of trenches. Since they are engaged on daily wages, they, in order to earn their daily bread, work even in an advanced stage of pregnancy and also soon after delivery, unmindful of detriment to their health or to the health of the new-born. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the fundamental rights contained in Part III of the Constitution. It is in this background that we have to look to our Constitution which, in its Preamble, promises social and economic justice. We may first look at the fundamental rights contained in Part III of the Constitution. Article 14 provides that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Dealing with this article vis-a-vis the labour laws, this Court in Hindustan Antibiotics Ltd. v. Workmen, AIR 1967 SC 948 : (1967) 1 SCR 652 : (1967) 1 LLJ 114 has held that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on equal basis. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of this article provides as under: “15. (3) Nothing in this article shall prevent the State from making any special provision for women and children.” 7. In Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 : 1954 SCR 930 it was held that Article 15(3) applies both to existing and future laws. 8. From Part III, we may shift to Part IV of the Constitution containing the Directive Principles of State Policy. Article 38 provides that the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life. Sub-clause (2) of this article mandates that the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. 9. Article 39 provides, inter alia, as under: “39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing: (a) that the citizens, men and women equally, have the right to an adequate means of livelihood. (b)-(c)*** (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) ***” 10. (b)-(c)*** (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) ***” 10. Articles 42 and 43 provide as under: “42. Provision for just and humane conditions of work and maternity relief.-The State shall make provision for securing just and humane conditions of work and for maternity relief. 43. Living wage, etc., for workers - The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.” 11. It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not. 12. Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief” the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. 13. Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner Corporation. But the benefit is not being made available to the women employees engaged on muster roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily-wage basis. 13. But the benefit is not being made available to the women employees engaged on muster roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily-wage basis. 13. Apart from the provisions contained in the Chapter IV of the Constitution of India it is also noticed that entry 24 of List III of VII Schedule specifically provide for maternity benefits for ready reference entry 24 is as under : “24. Welfare of labour including conditions of work, Provident fund employers liability workmen's compensation, invalidity and old age pension and maternity benefit.” 14. In light of the above, this Court is of the considered opinion that the Maternity Benefit Act 1961 has been enacted by the Parliament on a subject which finds mention in entry 24 of list III, and it was totally within its competence to make such an enactment. Even if the State legislature were to make such a law, overriding the provisions contained in the Maternity Benefit Act then the said Act would be reserved for accent of the President and would be enforceable only after obtaining such an accent as provided in article 254 (2) of the Constitution of India. 20. A perusal of Section 3(h) of 1961 Act, clearly reveals that maternity benefit means the payment referred to in sub-section (1) of Section 5 of 1961 Act. Section 5 of 1961 Act stipulates that every woman shall be entitled to and an employer shall be liable for the payment of maternity benefit at a certain rate. Sub-section (3) of Section 5 of 1961 Act provides that the maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks. Section 6 of 1961 Act provides that any woman employed in an establishment and entitled to any maternity benefit under the provisions of 1961 Act may give notice in writing to her employer stating that her maternity benefit be paid to her or to such person as she may nominate in the notice. Sub-section (4) of Section 6 of 1961 Act provides that on receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. 21. Sub-section (4) of Section 6 of 1961 Act provides that on receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. 21. A perusal of the aforesaid provisions of 1961 Act thus indicate that a woman would be entitled to give notice in writing for grant of maternity benefit and on receipt of notice the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. The 1961 Act does not contain any such stipulation of the time difference between grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook. Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after coming into force of 1961 Act. The proviso to Section 27 of 1961 Act provides that in case a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under 1961 Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she would be entitled to receive benefits in respect of other matters under 1961 Act, meaning thereby that additional benefits that a woman would be entitled in terms of 7 agreement or contract of service would be admissible to her notwithstanding anything contained in 1961 Act. Thus, it is the additional benefits which have not been precluded but in case there is anything contrary or inconsistent to the provisions of 1961 Act pertaining to maternity benefit then it would be the 1961 Act which would be applicable.” 22. So far as the applicability of the provisions of the Maternity Benefit Act, 1961 is concerned, a Division Bench of this Court in the case of Dr. Rachna Chaurasiya v. State of U.P. and others, 2017 (11) ADJ 399 (DB), while considering the grant of maternity leave/child care leave to a Doctor employed as Associate Professor in MLB Medical College, Jhansi in Para 23, 24 and 25 of the decision observed as under: “23. Rachna Chaurasiya v. State of U.P. and others, 2017 (11) ADJ 399 (DB), while considering the grant of maternity leave/child care leave to a Doctor employed as Associate Professor in MLB Medical College, Jhansi in Para 23, 24 and 25 of the decision observed as under: “23. The aforesaid decision of the Central Government has been adopted by the State of U.P. for its employees vide Government Order dated 8.12.2008 and 24.3.2009. Subsequently, certain modifications being made by the Central Government, the same was also adopted by the State Government vide Government Order dated 11th April, 2011. The aforesaid Government Order is being reproduced hereunder: 24. From a perusal of the aforesaid Government Orders, it is clear that the State Government has adopted same policy as is enforced by the Central Government for grant of Maternity Leave as well as Child Care Leave to its employees. 25. Maternity benefit is a social insurance and the Maternity Leave is given for maternal and child health and family support. On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis.” 23. Then again a learned Single Judge in the case of Anshu Rani v. State of U.P. and others, 2019 (4) ADJ 809 , following the dictum of the Division Bench in the case of Dr. Rachana Chaurasiya (supra) in Para 13 of the decision observed as under : “13. The maternity leave is a social insurance. The maternity leave is given for maternal and child health and family support. Rachana Chaurasiya (supra) in Para 13 of the decision observed as under : “13. The maternity leave is a social insurance. The maternity leave is given for maternal and child health and family support. From perusal of the different provisions of the Maternity Benefit Act, 1961 as amended in the year 2017 as well as the policy of the Central Government to grant child care leve and Government orders issued by the State Governments in the State of U.P. adopting the same for its female employees, I am of the firm opinion that the female employees of the State of U.P. are entitled for the benefits of the maternity leave as contained in the Maternity Benefit Act 1961 as amended by the Maternity Benefit (Amendment) Act, 2017.” 24. Thus the State of U.P. in exercise of powers granted under Section 28 has already issued Government Order dated 8.12.2008 and 24.3.2009 adopting the provisions of the Maternity Benefits Act, 1961 for the benefit of its employees. Further, the modifications made by the Central Government have also been adopted by the State of U.P. in its Government Order dated 11.4.2011 reproduced hereinabove. Once the provisions of the Maternity Benefit Act, 1961 has been adopted by the State of U.P. as held by this Court then the said Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which is merely an executive instruction and would in any case be subsidiary to the legislation made by the Parliament. 25. In conclusion it can safely be said that the Maternity Benefit Act, 1961 has been enacted by the Parliament in exercise of powers under Entry 24 in List-III of the Seventh schedule of the Constitution of India and to secure the goals stated in Articles 38, 39, 42 and 43 of the Constitution of India and also to give effect to the provisions contained in Article 15 (3) of the Constitution. The provisions of Financial Handbook are merely executive instructions and would be subsidiary to the Act of the Parliament and in case of any inconsistency, the statutory enactment framed by the Parliament would prevail and hence, the provisions of the Maternity Benefit Act, 1961 would prevail over the provisions of the Financial Handbook and consequently, the provisions of Rule 153 (1) of the Financial Handbook Volume II to IV are read down with regard to the admissibility of leave to a women with regard to second pregnancy which would be governed by the Maternity Benefit Act, 1961 and not Rule 153 (1) of the Financial Handbook Volume II to IV. The State Government already having adopted the provisions of the Maternity Benefit Act, 1961 as recorded by the Division Bench of this Court and followed by the Single Bench in the case of Anshu Rani v. State of U.P. 2019 (4) ADJ 809 , it is clear that the provisions of the Maternity Benefit Act, 1961 would prevail over any law.” 15. The Bench decision in Dr. Rachna Chaurasiya v. State of U.P. and others, 2017 (11) ADJ 399 (DB), for one did not relate to maternity leave at all, but child care leave. The central point, that fell for consideration of the Division Bench in Dr. Rachna Chaurasiya (supra) was if a contractual employee was entitled to child care leave. It was in that context that the provisions of the Maternity Act, the Government Orders dated 8.12.2008, 24.3.2009 and 11.4.2011 were considered by their Lordships of the Division Bench in Dr. Rachna Chaurasiya, besides the provisions of Rule 153 of the Financial Handbook to conclude thus: “27. We are of the considered opinion that the benefit under the Act as well as the Rules of the Government Orders providing for grant of Maternity benefits and Child Care leave are applicable to all female employees, irrespective of their nature of employment whether permanent, temporary or contractual. 28. In view of the aforesaid facts and discussions, order dated 20.5.2017 passed by respondent No. 3 denying Child Care Leave for a period of three months to the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution, cannot be sustained and is hereby quashed.” 16. The reliance, therefore, placed in Smt. Anupam Yadav upon the Bench decision in Dr. Rachna Chaurasiya, with utmost respect, may not be very relevant. The reliance, therefore, placed in Smt. Anupam Yadav upon the Bench decision in Dr. Rachna Chaurasiya, with utmost respect, may not be very relevant. 17. This Court also notices that in Smt. Anupam Yadav, the reference to Government Orders dated 8.12.2008, 24.3.2009 and 11.4.2011, which have been quoted in extenso the way it is in Dr. Rachna Chaurasiya, is again not very relevant to the issue involved, because all the three Government Orders are concerned about the subject of child care leave; not maternity leave. What this Court, therefore, finds is that while it may be trite that wherever the Maternity Act applies, Rule 153(1) of the Financial Handbook would have no application, but it has for a first to be seen if the Maternity Act does apply to the establishment where the employee, seeking maternity leave, serves. The reference in Smt. Anupam Yadav to the provisions of Article 254 of the Constitution, with utmost respect, may not be very relevant. 18. Likewise, the reference to the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another, (2000) 3 SCC 224 , would also not be in point, again with utmost respect, to the holding in Smt. Anupam Yadav. The reason is that while there can be no gainsaying that the Maternity Act is traceable to Entry 24 of List III of Schedule VII of the Constitution, that is to say, the concurrent list, and, therefore, the Maternity Act would prevail over any State Legislation, existing or subsequently enacted, in case of repugnancy between the two, it has always to be established that the Central Legislation occupies the same field as the State Legislation, and a fortiori an executive instruction of the State. Also, if the Central Statute, on its own terms, is not at all applicable to the subject, that is dealt with by a State Legislation or executive instruction, Article 254 would not come into play at all. What was, therefore, emphasized by this Court in Renu Chaudhary was the fact that the first thing to be seen is if the Maternity Act applies to the establishment where the employee, seeking maternity leave, is employed. Establishment is defined under Section 3(e) of the Maternity Act as follows: “3. What was, therefore, emphasized by this Court in Renu Chaudhary was the fact that the first thing to be seen is if the Maternity Act applies to the establishment where the employee, seeking maternity leave, is employed. Establishment is defined under Section 3(e) of the Maternity Act as follows: “3. Definitions - In this Act, unless the context otherwise requires: (e) “establishment” means: (i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; (iv-a) a shop or establishment; or (v) an establishment to which the provisions of this Act have been declared under sub-section (1) of Section 2 to be applicable.” 19. The petitioner is employed with the Bank, which is essentially a Cooperative Society, registered under the Cooperative Societies Act, 1912. The establishment is a Bank. It does not fall within sub-clauses (i), (ii), (iii), (iv) and (iv-a) of clause (e) of Section 3 of the Maternity Act. It could fall under clause (v), if the Bank were declared an establishment by the State Government by notification in the Official Gazette under the proviso to sub-Section (1) of Section 2 of the Maternity Act. Section 2 of the Maternity Act reads: “2. Application of Act: (1) It applies, in the first instance: (a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances. (b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed or were employed, on any day of the preceding twelve months : Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. (2) Save as otherwise provided in Sections 5-A and 5-B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948, apply for the time being. (2) Save as otherwise provided in Sections 5-A and 5-B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948, apply for the time being. Note: Made applicable to Beedi and Cigar Workers by Section 37 of Act 32 of 1966.” 20. There is no case of the petitioner that there is a notification under Section 2(1) of the Maternity Act, declaring the Bank to be an establishment read with Section 3(e) (v) of the Act last mentioned. In Smt. Anupam Yadav, the remarks in paragraph No. 24 of the report, which say that the State of U.P., in exercise of powers granted under Section 28, has already issued Government Orders dated 8.12.2008 and 24.3.2009, adopting the provisions of the Maternity Act, again with utmost respect to his Lordship, appear to be contrary to the provisions of Section 2(1) read with Section 3(e) (v) of the Act last mentioned. Section 28 does not provide for application of the Act to an establishment, not otherwise within the purview of the Maternity Act within the meaning of Section 3(e). Section 28 of the Maternity Act reads: “28. Power to make rules: (1) The appropriate Government may, subject to the condition of previous publication and by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for: (a) the preparation and maintenance of registers, records and muster-rolls. (b) the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act. (c) the method of payment of maternity benefit and other benefits under this Act in so far as provision has not been made therefor in this Act. (d) the form of notices under Section 6. (e) the nature of the proof required under the provisions of this Act. (f) the duration of nursing breaks referred to in Section 11. (g) acts which may constitute gross misconduct for purposes of Section 12. (h) the authority to which an appeal under clause (b) of sub-section (2) of Section 12 shall lie; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof. (g) acts which may constitute gross misconduct for purposes of Section 12. (h) the authority to which an appeal under clause (b) of sub-section (2) of Section 12 shall lie; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof. (i) the authority to which an appeal shall lie against the decision of the Inspector under Section 17; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof. (j) the form and manner in which complaints may be made to Inspectors under sub-section (1) of Section 17 and the procedure to be followed by them when making inquiries or causing inquiries to be made under sub-section (5) of that section. (k) any other matter which is to be, or may be prescribed. (3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” 21. The appropriate Government, referred to under Section 28 of the Maternity Act, is defined under Section 3(a) thus: “3(a) appropriate Government” means, in relation to an establishment being a mine or an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, the Central Government and in relation to any other establishment, the State Government.” 22. It is true that in relation to the Bank, the appropriate Government would be the State Government, but the power to make rules under Section 28 would come into play if a notification under Section 2(1) read with Section 3(e) (v) of the Maternity Act is published by the State Government in the manner provided in the proviso to Section 2(1). It requires the approval of the Central Government, after giving them notice of not less than two months of the State Government's intention of applying the Maternity Act to any other establishment or class of establishments etc. as envisaged under Section 3(e) of the said Act. 23. In the opinion of this Court, therefore, by issue of Government Orders under Section 28 of the Maternity Act, the provisions of the said Act cannot be adopted. The only way the Act can apply to an establishment is in the manner provided under Section 2(1), unless the establishment is already one, to which the Maternity Act applies, as defined in Section 3(e) (i), (ii), (iii), (iv) and (iv-a). I regret, therefore, that I cannot see eye to eye with his Lordship on the point under reference in Smt. Anupam Yadav. I must also say that there is an earlier decision rendered by Hon'ble Mr. Justice Alok Mathur in Smt. Satakshi Mishra v. State of U.P. and others, 2022 (10) ADJ 333 (LB), which is remarkably similar in its reasoning to the one rendered in Smt. Anupam Yadav, a later decision. The only difference and one of material consequence is that in Smt. Satakshi Mishra (supra), the Court did not consider the decision in Renu Chaudhary, which was referred to and noticed in Smt. Anupam Yadav, but the reasoning in Smt. Satakshi Mishra and Smt. Anupam Yadav is identical, and as already said, I am in respectful disagreement with the same. 24. There is a still older decision in Anshu Rani v. State of U.P. and others, 2019 (4) ADJ 809 , which proceeds almost on the same lines as done later in Smt. Satakshi Mishra. I must say that all other decisions are later than Renu Chaudhary, but when I decided Renu Chaudhary, the decision in Anshu Rani (supra) was not brought to my notice. Now, that it has been, I have expressed my views, unfortunately not in agreement with any of the decisions referred so far. The only decision, which reaches the same conclusion as the one in Renu Chaudhary brought to my notice is Vandana Mishra. Now, Vandana Mishra is a Bench decision, which briefly considers the issue in the following words: “The maternity leave of the petitioner/non-appellant was denied for the reason that birth of first child was on 15.9.2018 and birth of second child was on 2.7.2020. Now, Vandana Mishra is a Bench decision, which briefly considers the issue in the following words: “The maternity leave of the petitioner/non-appellant was denied for the reason that birth of first child was on 15.9.2018 and birth of second child was on 2.7.2020. The birth of second child was within two years and otherwise if the period is determined from the date of the expiry of maternity leave on first occasion, it is much less than two years. The Proviso to Rule 153 of the Fundamental Rules does not permit maternity leave within two years from the date of the expiry of first maternity leave. Learned Single Judge has made interpretation of the said Rule which virtually nullifies the Proviso, though not permissible. It is not a case where a challenge to the Proviso to Rule 153 of Fundamental Rules was made in reference to the provisions of Maternity Benefit Act, 1961. Without a challenge to the Proviso to Rule 153 of the Fundamental Rules, benefit of maternity leave could not have been given, it is so prohibited. The learned Single Judge has given interpretation holding that there is no logic to deny maternity leave when it is meant for better care of mother and baby, though it has also been observed that for better health of mother and baby, a gap of two years may be logical. The argument aforesaid could not have been accepted in absence of the challenge to the validity of the Proviso to Rule 153 of the Fundamental Rules and otherwise interpretation taken by the learned Single Judge changes the tenure of the Proviso not permissible unless it is so changed.” 25. Not to doubt the wisdom of the Division Bench, but for the same conclusion that I have reached, a very different reason has been assigned. And, the reason is that unless there is a challenge to the proviso to Rule 153 of the Financial Handbook, the proviso could not be virtually nullified by interpretation of the provisions of the Maternity Act. This issue need not be examined further in the present matter, particularly, bearing in mind the course that this Court proposes to adopt to resolve the conflict of opinion that has arisen. This issue need not be examined further in the present matter, particularly, bearing in mind the course that this Court proposes to adopt to resolve the conflict of opinion that has arisen. It would not be proper for me, sitting singly, to pass orders deciding the case based on opinion that apparently conflicts with that in Anshu Rani, Smt. Satakshi Mishra, Smt. Anupam Yadav, Smt. Richa Shukla and Sulekha Yadav, all of which have opined differently on the issues involved from my own opinion expressed here and earlier in Renu Chaudhary. 26. It would, in the circumstances, be appropriate to refer the matter to his Lordship the Hon'ble the Chief Justice for consideration by a larger Bench. Accordingly, the following questions are referred for consideration by a Larger Bench: (A) Whether the Maternity Benefit Act, 1961 can apply to an establishment not being one enumerated under sub-clauses (i),(ii), (iii), (iv) and (iv-a) of clause (e) of Section 3 of the said Act in the absence of a notification by the State Government, in relation to those establishment, published in the Official Gazette under sub-Section (1) of Section 2? (B) Whether a Central Statute, enacted with reference to an Entry in List III of the Seventh Schedule to the Constitution, would render void a State law or executive instruction, occupying the same field, though the Central Act on its own terms does not apply? (C) Whether Anshu Rani, Smt. Satakshi Mishra, Smt. Anupam Yadav, Smt. Richa Shukla and Sulekha Yadav lay down the correct law regarding the overriding effect of the Maternity Benefit Act, 1961, vis-a-vis the provisions of Rule 153(1) of the Financial Handbook or the law laid down in this regard in Renu Chaudhary states the correct position of the law? 27. Let these papers be laid before his Lordship the Hon'ble the Chief Justice by the Registry at the earliest for the constitution of a Larger Bench to consider the aforesaid questions.