This article is written by Shivam Sharma studying at SLS Pune and pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution.
This article has been published by Sneha Mahawar.
Table of Contents
Contractual employees refer to such employees who are hired for a specific job or gig. They are not deemed to be permanent staff or even an addition to the permanent and regular workforce. Maternity benefits are such benefits that are provided to female employees to protect their rights during pregnancy and post-childbirth. These benefits are governed by the Maternity Benefits Act, 1961.
Ideally, the act should inculcate women employed on a contractual basis. This scope of the Act becomes clear when viewed in the context of the clarifications as released by the Ministry of Labour and Employment post the implementation of the Maternity Benefit (Amendment) Act, 2017.
The problem stems from the fact that Section 2 of the Maternity Benefits Act, which provides the applicability of the Act, does not explicitly state “employment on a contractual basis”. This implies that the majority of the beneficiaries under this Act cannot avail themselves of the maternity benefits. Yet, there have been judicial attempts to expand the scope of the Act. This article is an attempt to showcase some of these attempts.
Applicability of the Act
The applicability aspect of this Act is divided into two: based on the nature and size of the establishment and based on its applicability to a woman claiming the benefits. The following establishments are bound by the provisions of this Act:
- Establishments that put on acrobatic and other shows;
- Shops and establishments
- Any business with ten or more employees who have been with the company for at least a year;
- Any other establishment as notified by the Central or State Government.
The Act will not be applicable to factories where other laws providing maternity benefits apply (such as the Employee State Insurance Act, 1948). As per Section 5(2) of the Act, any woman employee who has been employed for a continuous period of eighty days or more in the twelve months immediately preceding her date of delivery shall be entitled to the benefits under the Act.
Limitations of the Maternity Benefits Act
The Indian legislation introduced the Maternity (Amendment) Bill, 2017, which increased the maternity benefits for working women from 12 weeks to 26 weeks. This period of 26 weeks is the third highest in the world. Though the efforts of the Government are much applauded and commendable, a mere 1% of all working women get to avail of these benefits. The law is limited in its implications and application as it is applicable to organizations and establishments with 10 employees or more. Such organizations account for a very miniscule proportion of the total number of working women in India.
An estimated 84% of female employees work in organizations and establishments with fewer than 10 employees. Thus, they do not qualify for the benefits under the Act. On top of this, the Act does not specifically and explicitly state that the Act will be applicable to employees who are employed on a contractual basis.
The following is a list of some of the important judicial precedents from the Hon’ble Supreme Court and various Hon’ble High Courts:
Rakhi P.V. and Ors. v. the State of Kerala (Kerala High Court)
In this case, the petitioner was a contract-based employee in the Higher Education Department of the Government of Kerala. During the period of her employment, the petitioner applied for maternity leave. She was granted the same for a period of 135 days and was required to report back to duty at the expiry of the said period.
As per the Kerala Service Rules and the provisions of the Maternity Benefits Act, 1961, every woman employee who is working in any establishment shall be entitled to a leave of 180 days.
Is the petitioner (and other female employees under a similar contract) entitled to a leave of 180 days or a mere 135 days?
The Hon’ble High Court ruled that the female employees working in government establishments on the basis of the agreement shall be entitled to a leave of six (6) months. Thus, the 135 days of leave provided to them was not sufficient or acceptable. The court held that contentions of the respondent as to the 135 days of leave were not justified. The court set aside the order of the state government that denied leave and instead directed the state government to grant the women employees twenty-six weeks of maternity leave.
It was asserted in this judgment that all female employees, irrespective of the fact that they are employed on a contractual basis or not, shall be entitled to the benefits under the Maternity Benefits Act. The court also emphasized that such benefits will be available regardless of the length of the employment contract. In its order, the court granted a leave of 180 days. Going against this creed would amount to an act of discrimination based on gender.
Rasitha C.H. v. State of Kerala and Ors (Kerala High Court)
In this case, the petitioner in the given case was an Assistant Professor at Calicut University and had held that position for a period of 10 years on a contractual basis. She had recently renewed her contract for a term of one year. During this revised period, she applied for maternity leave. The petitioner was denied such leave on the grounds that the terms of the agreement with the university were silent on such benefits.
Is the mere absence of contractual obligations regarding maternity benefits provisions sufficient to deny such benefits to such an employee?
According to the court, maternity benefits were neither mere statutory benefits nor benefits arising out of contractual obligations. Maternity leave was an essential part of a woman’s dignity. Basing this judgment on the ratio of Mini v. Life Insurance Corporation of India and the judgment of Rakhi P.V. and Ors. v. State of Kerala & Ors. In both these cases, it has been held that no woman can be compelled to choose between her natural right to motherhood and employment.
Further, the Court set aside the contention of the respondents in the writ petition that since the petitioner was a contractual employee, she could only claim a maximum of 15 days of casual leave during a period of one year.
The Court highly and rightly stressed the judgment in Rakhi’s case and held that women employees who are based on a contractual basis cannot be denied their right to maternity leave. Thus, the court ordered the university to grant all such benefits irrespective of what was or was not stated in the terms of the agreement.
B.S. Rajeshwari v. State of Karnataka and Ors. (Karnataka High Court)
In this case, the petitioner, B.S. Rajeshwari was employed on the basis of a contract with the Directorate of Municipal Administration in Bengaluru. During the month of June 2019, she was on maternity leave. During this period, she was asked to return to work with immediate effect. In August of 2019, her employer terminated her contract and her employment.
Was it valid for the municipal authorities to terminate the contract of a female employee as she was on maternity leave and could not return to work during that period?
The Hon’ble Court held that the law of land applied equally to all, and in the present case, it meant that it applied to the contractual employees. There was no segregation under the Maternity Benefits Act of the country to classify female employees as government servants, temporary servants, or contract-based employees. The employer does not have the authority to make such separations on its own behalf.
At the hearing, Justice M. Nagaprasanna ordered that the petitioner be reinstated back to her work within a period of 2 weeks and be awarded 50% of her wages between the period of her termination and actual reinstatement. Additionally, the court levied exemplary damage of INR 25,000 for the gross injustice suffered by the woman employee.
The Court criticized the employers for making the petitioner suffer such an ordeal and noted in its judgment, “men who man such offices become insensitive to the issue of the kind that is alleged in the petition, and it would become “power in the wrong hands.”
The court concluded that the Maternity Benefits Act does not venture forth, divide, and assign rights based on how a worker has been classified. As permanent employees or based on an agreement, all female employees are entitled to the benefits of maternity leave and other attached benefits.
Dr. Mandeep Kaur v. Union of India (Himachal Pradesh High Court)
In this case, the given case, the petitioner was working as a medical officer on a contractual basis at the establishment maintained by the respondents. During the tenure of her contract, she availed herself of the maternity benefits. The respondents denied her such a benefit based on the fact that her terms of agreement contained no such provision to allow her to avail of the maternity benefit.
Is the petitioner entitled to maternity benefits even when her employment contract is silent about the same?
Section 2 of the Maternity Act, 1961, provides the cases where this Act is applicable. Another important provision is Article 21of the Constitution of India. The article provides that no person can be denied his or her life and personal liberty except in accordance with the procedure of the law.
The Hon’ble Court in its judgment has highlighted the fact that irrespective of the fact that an employment agreement is missing the provisions addressing maternity benefits, the petitioner is still entitled to maternity benefits under the act. The act of the employer not only stood in infringement of the statutory provisions of the Act but also in infringement of Article 21 of the Constitution of India. The court relied on the judgments of Municipal Corporation of Delhi v. Female Workers & Anr., Rasitha C.H. v. the State of Kerala, and Rakhi v. the State of Kerala.
The Court was right to conclude that the denial of maternity benefits to female employees under contracts is tantamount to a denial of rights under Article 21 of the Constitution. A woman is entitled to her dignity and to be treated with equality at her workplace. It is thus the duty of the employer to facilitate the facilities for maintaining the same. Judgments such as this one help in expanding the scope of the Maternity Benefits Act.
Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr. (Supreme Court)
In this case, the present case, the unionized female workers who were on a muster roll (i.e., not the regular roll) demanded maternity benefits just like the regular workers. These female employees were deemed temporary employees of the organization. The same was denied to them on the grounds that their services were not regularized.
Are female employees on a muster roll entitled to maternity benefits just like regular employees?
The Hon’ble Supreme Court held that the provisions of the Maternity Act are in consensus with the Directive Principles of State Policy, Articles 39 and 42 of the Constitution. No pregnant woman employee should be forced to work during the advanced stages of her pregnancy because it is harmful to her health and the health of the infant. The women on muster roll performed the same nature and quantum of duties that were being performed by women on regular rolls. The female employees were performing hard labor, working on construction projects, and maintaining roads. Thus, the court concluded and ordered that all such employees are entitled to a maternity leave of 6 weeks before and after the delivery.
The Court concluded that the Maternity Benefits Act does not venture forth, divide, and assign rights based on how a worker has been classified. As permanent employees or based on an agreement, all female employees are entitled to the benefits of maternity leave and other attached benefits.
Post the judgment of the Kerala High Court in the case of Rakhi P.V. and Ors. v. State of Kerala, the Kerala government came out with a notification. The notification dated January 4, 2021, extended the benefit of maternity leave to the female employees who are employed on a contractual basis. These benefits will be available irrespective of the tenure of the contract. The benefits themselves were available under the Kerala Service Rules.
Prior to the notification, all such female employees could only receive maternity benefits if they qualified for them under their contracts, and such contracts had to be for a period of one year or more. All such leaves shall commence three weeks prior to the expected date of delivery as certified by a medical officer. The order aims to set the correct tone moving forward.
There is a pressing need to recognize and reconcile women’s participation in the workforce along with their male counterparts. The provision of maternity leaves and benefits is an integral step towards the realization of this goal. When a pregnant woman is made to work, the efficiency of the work is bound to suffer. More importantly, maternity laws are in place to protect the fundamental rights to the life of female employees. Denial of these rights is a violation of the right to life of the fetus as well as the mother.
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