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2025 DIGILAW 1002 (PAT)

Mubeena v. State of Bihar

2025-11-17

HARISH KUMAR

body2025
Harish Kumar, J.—Heard Mr. Binodanand Mishra, learned Senior Advocate for the Petitioner and Mr. Ritesh Kumar, learned Advocate for the respondent University. The State is represented through Ms. Manisha Singh, learned Advocate. 2. The petitioner invoking the extraordinary prerogative writ jurisdiction of this Court seeking a direction commanding upon the respondent University to release the salary for the maternity leave period from 10.05.2020 to 11.11.2020 as also to count the maternity leave period to teaching and working experience, besides to extend one increment which has been illegally denied since July 2020 due to absence shown during maternity leave. 3. Learned Senior Advocate for the petitioner briefly stated the facts and submitted that the petitioner was duly appointed as Assistant Professor in the Department of Sociology by the respondent University vide notification No.109/2019 dated 27.06.2019. Since the petitioner was in family way, she requested through her application dated 17.02.2020 to grant maternity leave from 15.04.2020. It was also informed to the authority concerned that she expected due date of delivery on 16.05.2020. The petitioner also enclosed all the prescriptions from Doctor to show necessity of maternity leave. Since the petitioner belongs to the State of Kerala, she could not go to her home on account of spread of COVID-19 Pandemic and consequential lock-down. In the aforesaid premise, she prayed modifying the maternity leave, with effect from 10.05.2020. She, accordingly, made an earnest request by filing application, which was finally forwarded to the Head of the Post Graduate Department of Sociology of the respondent University and further sent to the office of the Registrar. 4. The petitioner blessed with a daughter and after completion of the maternity leave, she joined the P.G. Department of Sociology of the University on 11.11.2020. The petitioner, thus, was on maternity leave from 10.05.2020 to 11.11.2020. Notwithstanding the aforesaid fact, when the petitioner was not allowed the salary for the aforenoted period, she approached before the Registrar as well as the Vice-Chancellor of the University to look into her grievance and ensure all the benefits as has been prayed for in the writ petition. Despite the aforesaid facts and the repeated representations, the copies of which have also been placed on record as Annexure-7 and 8, no decision has been taken, compelling her to approach this Court. 5. A counter affidavit has been filed on behalf of the respondent University. Despite the aforesaid facts and the repeated representations, the copies of which have also been placed on record as Annexure-7 and 8, no decision has been taken, compelling her to approach this Court. 5. A counter affidavit has been filed on behalf of the respondent University. It is categorically submitted that the petitioner was appointed as Assistant Professor in Sociology vide notification No. 109/2019 dated 24.06.2019 and pursuant thereto, the petitioner gave her joining on 14.09.2019, which was duly accepted. However, as per the provisions contained in Rule 28 of the Statute governing the service conditions of the employees of the University contained in Bihar State Universities Act, 1976, the petitioner was not found entitled to avail such leave until and unless she does not complete her service continuously for more than two years. The University also sought a direction from the Governor’s Secretariat with respect to grant of maternity leave to the newly appointed female teachers during probation period and its revised Statute, however, no reply has been received though it has been apprised that the letter has been sent to the Higher Education Department, Government of Bihar. 6. Learned Advocate for the State, referring to the decision dated 14.02.2019 rendered by a Division Bench of the Court in CWJC No. 1119 of 2018 urged that be that as it may so far as women employees of the Magadh University are concerned, they are allowed only 90 days of maternity leave, whereas the women employees of State Government are allowed 180 days of maternity leave in terms with the letter issued by the State Government vide Memo No. 2555 dated 29.03.2016. 7. Mr. Mishra, learned Senior Advocate for the petitioner replying the contention of the learned Advocates representing the University and the State submitted that the Maternity Benefit Act, 1961, specially Section 3(o), which defines woman, means a woman employed, whether directly or through any agency, for wages in any establishment. Further, Section 5 thereof prescribes the right to payment of maternity benefit that 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. Further, Section 5 thereof prescribes the right to payment of maternity benefit that 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. Further, the Hon’ble Apex Court in the case of B. Shah vs. Presiding Officer, Labour Court Coimbatore and others ( AIR 1978 SC 12 ), referring to the aforesaid provision, observed that it is clear that a woman worker, who expects a child is entitled to maternity benefits for a maximum period twelve weeks, which is split up into two period, viz., pre-natal and post-natal. It is informed to this Court that the period aforenoted has further been extended to 26 weeks in terms with an amendment which took place in the year 2017 in the Maternity Benefit Act, 1961. Referring to another decision in the case of Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and another ( AIR 2000 SC 1274 ), especially paragraph 24 thereof, it has been submitted by learned Senior Advocate for the petitioner that the Hon’ble Apex Court has emphasized that the Act does not oust the entitlement of any employee who are engaged on casual basis or on muster roll or on daily wage basis. The Hon’ble Apex Court has taken note of the different provisions of the Act and upon scanning of the same found nothing therein which entitles only a regular woman employee to the benefit of maternity leave. 8. This Court has considered the submissions advanced by the learned Advocate for the respective parties and perused the materials available on record. The Court is time and again reminded that a just social order can be achieved only when inequalities are obliterated and if one is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their evolution and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever be the nature of their duties, their evolution and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of a child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961, aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period. [vide Hindustan Antibiotics Ltd. vs. Workmen, AIR 1967 SC 948 ]. 9. In the case of Municipal Corporation of Delhi (supra), the Court has underscored that the Maternity Benefit Act, 1961 does not oust the entitlement of any employee who are engaged on casual basis or on muster roll on daily wage basis. It is specifically held after scanning different provisions of the Act, there is nothing that the benefits provided under the Act, 1961 entitles only a regular woman employee to the benefit of maternity leave. 10. Now coming to the Maternity Benefit Act, 1961, especially Section 27, which deals the effect of laws and agreements inconsistent with this Act. It is made clear that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service. Sub-section 2 thereof provides that it will be open to a woman to enter into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act. 11. In the aforereferred case of Municipal Corporation of Delhi (supra), the Apex Court found that the provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. 12. 11. In the aforereferred case of Municipal Corporation of Delhi (supra), the Apex Court found that the provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. 12. The objective of Maternity leave has also been expounded by the Apex Court in the case of B. Shah vs. Presiding Officer, Labour Court (supra) where the Hon’ble Court observed that the maternity leave legislation is intended to achieve the object of doing social justice to women workers. It enables a woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output. The insistence of the University that under the Statute governing the Service conditions of the employees of the University, the petitioner was not found entitled to avail such leave until and unless she does not complete her service continuously for more than two years would defeat the aims and object of the Maternity Benefit Act, 1961. 13. Section 23 of the Indian Contract Act, 1872 clearly states that the consideration or object of an agreement is unlawful, if it is forbidden by law, defeats the provisions of any law, is fraudulent, involves injury to another person or property, or is considered immoral or opposed to public policy. Hence any stipulations or a condition of any Statute, which deprives maternity benefit is opposed to public policy and is immoral and thus any such stipulation/condition, if permitted to continue, would defeat the provisions of the Act, 1961. 14. In the aforesaid facts, this Court finds the action of the respondent authorities in depriving the petitioner from any maternity benefit is unjustified and unsustainable. Thus, this Court directs the concerned respondents to release the salary of the petitioner for maternity leave period from 10.05.2020 to 11.11.2020 and count the aforenoted period for all the counts, including teaching and working experience as well as for increment. 15. The writ petition stands allowed. 16. All the benefits must be restored to the petitioner preferably within a period of eight weeks from the date of receipt/production of a copy of this order.