Govt. cannot deny maternity leave for birth of a third child - Petitioner entitled to maternity leave for expecting a third child as envisaged under Section 5 of the Act read with Rule 8.127 of service Rules

PUNJAB AND HARYANA HIGH COURT (D.B.)

Before :- Ranjan Gogoi and Kanwaljit Singh Ahluwalia, JJ.
Civil Writ Petition No. 4229 of 2011. D/d. 21.4.2011.

Ruksana - Petitioner
Versus
State of Haryana and Others - Respondents

For the Petitioner :- Mr. Rajesh Lamba, Advocate.
For the Respondent :- Mr. Kulvir Narwal, Additional Advocate General, Haryana.


Punjab and Haryana High Court, Chandigarh Judgments
JUDGMENT

Kanwaljit Singh Ahluwalia, J. - Petitioner, who was appointed as a Multipurpose Health Worker (Female) on 18.7.2007 in the State of Haryana, by way of present writ petition has questioned the validity of Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I so far it restricts grant of benefit of maternity leave to the birth of two living children. In this writ petition, it has been prayed that by issuing writ in the nature of certiorari Note 4 to the above said Rules be quashed being ultra vires to the Constitution of India and contrary to the mandatory dictum of law laid in the Maternity Benefit Act, 1961 (hereinafter referred to as "the Act").
Not only the vires of the Note in question appended to Rule have been assailed being contrary to the Act but it has also been urged that the Note cannot sustain in the eyes of law being contrary to right of equality, guaranteed under Articles 14 and 16 of the Constitution of India as it suffers from the vice of discrimination. Along with the above said two thrust arguments, Executive Instructions issued by the Government of Haryana which bring to an end the distinction of two living children born before or after entering into the service have also been challenged. Petitioner, who has conceived a child as a first one from the second marriage has also contended that the child to be born first from the second marriage, cannot be construed as third child to deny benefit of maternity leave. Thus, this Court should hold interpretation of the provisions of Rules by her employer as bad on the facts and law of the case.
2. Before we could formulate questions of law, which have been posed to be answered by us, it will be necessary to note brief facts of the case, various provisions of the Act and relevant Rules.
Let us have the facts of the case at the first instance.
3. The petitioner was appointed as a Multipurpose Health Worker (female) on the recommendation of the Haryana Staff Selection Commission, Panchkula vide appointment letter (Annexure P1) dated 18.7.2007. Before joining the Government service, the petitioner was married to one Farukh Ali and two children were born from the wedlock, who were earlier staying with the petitioner. According to petitioner, marriage has been dissolved on 13.1.2010 by way of decree of divorce granted by the District Judge, Family Court, Faridabad and thereafter custody of the children is with their father. The decree of divorce was made subject matter of challenge in the appeal before this Court. Vide order dated 9.2.2011 (Annexure P2), passed by this Court, the decree of divorce granted to the petitioner has attained finality. After the decree of divorce was granted by the Court of the District Judge, Family Court, Faridabad, the petitioner has solemnized marriage with one Mukim Khan on 27.4.2010. It is stated that from the second marriage, the petitioner was expecting a child in March 2011. The petitioner had applied for grant of maternity leave vide application (Annexure P5). On 16.2.2011, the respondent- State denied maternity leave to the petitioner on the ground that she was already having two living children.
4. Chapter VIII of Punjab Civil Services Rules Volume I Part-I defines "Maternity Leave" and the same reads as under :-
    "8.127(1) The competent authority under Rule 8.23 may grant maternity leave to a female Government employee for a period not exceeding three months from the date of its commencement or to the end of six weeks from the date of confinement whichever is earlier. Leave salary equal to the pay drawn immediately before proceeding on leave shall be paid during maternity leave and it shall not be debited against the leave account."
Controversy in this case revolves around Note 4 appended to this Rule and the same reads as under :-
    "Note 4 Maternity leave shall not be admissible to a female Government employee having more than two living children. In such cases leave of the kind due or extra ordinary leave will be allowed."
5. The respondents had issued Executive Instructions to clarify the above said Note and on the basis thereof maternity leave had been denied. The said Executive Instructions issued on 5.2.1993 (Annexure R2) read as under :-
    "I am directed to address you on the subject cited above and to say that a question has arisen as to whether a female Govt. employee can avail of the benefit of maternity leave when she has already two living children before joining the Govt. service. The matter has been considered by the Govt. and it is accordingly, clarified that a female Govt. employee who has already two living children before her entry into Govt. service, is not entitled to the benefit of maternity leave. In such cases, the deptts. may consider granting leave of the kind due to the female employees".
6. As per this clarification, the benefit of maternity leave is to be restricted to the two living children. In other words if these children are born before the entry of an employee into Government service, she will not be entitled to the benefit of maternity leave.
7. In the context of above said legal position, we have heard learned counsel for the parties.
8. Arguments advanced by Mr. Rajesh Lamba, Advocate, learned counsel for the petitioner, are as follows :-
    a) It is submitted that the act of the employer to deny maternity leave to an employee having more than two living children is arbitrary and cause discrimination between two sets of women i.e. one who is having two living children and another who is having more than two children. It is stated that such a classification is not permissible in law and is violative of the principles of equality, enshrined in Articles 14 and 16 of the Constitution of India.
    b) Secondly, it is contended that to give effect to the Directive Principles of State Policy especially Article 42 of the Constitution of India which expects the State to make provisions for securing just and humane condition of work and for grant of maternity leave, the Central Government has enacted the Act which is Socio Beneficial Act and the provisions of the Act shall override all the Rules framed by the Government. It is urged that the Rules framed by the respondent-Government ought to be in consonance with the Act and so far as the Rules overstep the statutory provisions of the Act, they are to be quashed being in derogation to the Central Statute.
    c) Learned counsel for the petitioner has further canvassed that the clarification dated 5.2.1993 (Annexure R2) which states that any employee who was already having two living children before joining the Government service is not entitled to maternity leave is contrary to the Note 4 of the Rules and the same cannot be termed as clarification, thus, the Government instructions run counter to the Rules and cannot sustain in the eyes of law.
    d) Lastly, it is argued that since the child conceived and expected to be born was the first child from the second marriage, denial of maternity leave to the petitioner will defeat the very purpose for which the Act was enacted. It is urged that the Act intended to empower women to take employment, to supplement income of the family and be equal partner in the marriage. Pregnancy, delivery and rearing of child should not confine women to home and therefore to strengthen the institution of marriage benefit of maternity leave was thought over. Learned counsel has submitted that failure of first marriage and solemnization of second marriage should not be looked upon while denying benefit of maternity leave on the basis of first child from the second marriage.
9. Mr. Kulvir Narwal, Additional Advocate General, Haryana, has vehemently contested the arguments advanced by learned counsel for the petitioner. Broadly, his criticism to the above said arguments can be summed up as under :-
    a) Mr. Narwal has urged that the Government in its right earnest is advocating small family norms in order to control the ever increasing population in the Country. It is stated that the Government through its various functionaries/organs, propagates two child norm as part of family planning and also gives various incentives to promote this objective. Therefore, the Government is well within its rights to restrict benefit of maternity leave to the birth of two children and by doing so if two classes of employees one having two children and another having more than two children emerge, such a classification being reasonable is in consonance with the Constitutional Scheme.
    b) It is contended by the learned State counsel that Section 28 of the Act empowers the Government to make Rules in carrying out the purposes of the Act therefore, under Clause (k) of Sub Section (2) to Section 28 of the Act, the Government can make Rules or in respect of any other matter, which is to be, or may be prescribed pertaining to maternity benefit. It is stated that under the Rule making power which vests in the Government under Section 28 of the Act, necessary provisions were incorporated in the Punjab Civil Services Rules as applicable to the State of Haryana with regard to the maternity and hospital leave.
    c) It is further stated that Instructions dated 5.2.1993 (Annexure R2) are only clarificatory in nature and the Government through Executive Instructions can always supplement the existing Rules.
    d) The Rules do not make distinction between the first and second marriage and the benefits of the maternity leave are restricted only to two living children. Therefore, learned counsel for the petitioner has not confined to the legal provisions and was unnecessarily sermonizing in didactic terms as to what ought to be achieved by the Government to give effect to its Policies.
10. The rival submissions advanced by learned counsel for the parties lead us to formulate the following four questions for consideration :-
    i) Whether the classification of women employees, one having two children and another having more than two children is just and appropriate? Whether the Government can create such a distinction ?
    ii) If the answer to the first question is in affirmative, whether Note 4 to Rule 8.127 is contrary to the provisions of the Act which do not lay down two child norm for grant of maternity benefits ?
    iii) Whether the Executive Instructions dated 5.2.1993 (Annexure R2) infringe, supersede or override the Rules framed by the Government?
    iv) Whether having two children from the previous marriage will eclipse the right of a woman to obtain maternity benefit for the first child to be born from the second marriage ?
Question No. 1
11. A Division Bench of this Court in Parkasho Devi v. Uttar Haryana Bijli Vitran Nigam Limited and Others, 2008(4) S.C.T. 84 : 2008 (4) Service Cases Today 84 observed that the Act is not applicable to the Uttar Haryana Bijli Vitran Nigam Limited and upheld Rule 8.127 and observed as under :-
    "6. After hearing the learned Counsel for the parties and going through the records of the case, we do not find any ground warranting interference by this Court in exercise of writ jurisdiction. Note 4 below Rule 8.127(1) of the Punjab Civil Services Rules (Vol. I Part I), as applicable to Haryana and adopted by the Nigam clearly lays down that maternity leave shall not be admissible to a female Government employee having more than two living children. In such cases leave of the kind due or extraordinary leave will be allowed".
    However, in Parkasho Devi's case (supra), the question of classification between a woman employee having more than two children or another woman employee having less than two children was not considered. In that case, vires of the Rules in context of the Act were also not considered. Furthermore, in Parkasho Devi's case (supra), a Division Bench of this Court had also not deliberated on the issue as to whether the classification of women employees, one having two children and another having more than two children is just and appropriate and whether the Government can create such a distinction. Classification between the women having two children or more was considered by the Hon'ble Apex Court in Javed and Others v. State of Haryana and Others, 2003(3) R.C.R.(Civil) 793 : (2003) 8 Supreme Court Cases 369. The vires of the provisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994, were questioned before the Hon'ble Apex Court. By these provisions, persons having two living children were disqualified to hold the office of the Sarpanch or a Panch of the Gram Panchayat. Such a classification was assailed being ultra vires to the Constitution of India. It was canvassed that the provision is arbitrary and hence violative of Article 14 of the Constitution of India and is also discriminatory. In Javed's case (supra), it was held that even though Article 14 of the Constitution of India forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. Relying upon Budhan Choudhary and Others v. The State of Bihar, 1955 AIR 191, it was held that to satisfy the Constitutional contest of permissibility, two conditions must be satisfied, namely (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and, (ii) that such a differentia has a rational relation to the object sought to be achieved by the Statute in question. The basis for classification may rest on conditions which may be geographical or according to objects or occupation or the like. In Javed's case (supra), the Hon'ble Apex Court noticed population scenario of the world and observed that increase in the population of the Country is one of the major hindrances in the pace of India's socio-economic progress. It marked the words of Bertand Russell, "Population explosion is more dangerous than Hydrogen Bomb" and upheld the provisions of the Haryana Panchayati Raj Act, 1994, saying State is competent to define its priority in enacting Policy or enacting legislation. Thus, classification between two sets of women employees having two children or more than two was held to be reasonable. In Javed's case (supra), the Hon'ble Apex Court relied upon Air India and Others v. Nergesh Meerza and Others, (1981) 4 Supreme Court Cases 335 and upheld the rule which would terminate the services of Air Hostesses on the third pregnancy with two existing children, and held the rule to be salutary and reasonable. It was observed as under :-
    "101. For instance, the rule could be suitably amended so as to terminate the services of an AH on third pregnancy provided two children are alive which would be both salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, as indicated above while dealing with the rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnancy where two children are already there because when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over population which, if not controlled, may lead to serious social and economic problems throughout the world".
    Therefore, in view of the law laid by the Hon'ble Apex Court, we are of the view that the State is well justified in making a distinction between the two sets of women employees, one having two living children and another having more than two living children. Such a classification being reasonable is having intelligible differentia to achieve the object of family planning.
Question No. 2.
12. Having held that the family planning is a part of National Public Policy and the State to achieve this object can grant incentives and also put restrictions upon the benefits which have to flow to the employees. Our answer to the first question is in favour of the State. Now we have to examine as to whether the mechanism to achieve this objective is in place, in other words Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I is in conflict or is in consonance with the provisions of the Act.
13. Section 5 of the Act grants right of a woman to receive payment of maternity benefits. It prescribes 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. The provisions of Section 5 of the Act says that the woman worker who expects a child is entitled to maternity benefit for a maximum period of 12 weeks which is split into two periods i.e. prenatal and postnatal. The first one i.e. prenatal or antenatal period is limited to the period of woman's actual absence extending up to six weeks immediately preceding and including the day on which her delivery occurs and second one which is postnatal compulsory period consists of six weeks immediately following the day of delivery B. Shah v. Presiding Officer, Labour Court, Coimbatore and Others, (1977) 4 Supreme Court Cases 334. The Act, as per Section 2, applies to all the establishments of the Government. In the reply filed by the State, application of the Act to the employees of the State has not been disputed. Rather it has been canvassed that under Section 28(2)(k) of the Act, the Government has powers to make Rules in respect of any other matter which is to be or may be prescribed. Section 27 of the Act specifically states that there is no fetter on the Rule making power of the organization so long as it is more beneficial to an employee than the one envisaged in the Act. However, all rules which are inconsistent with the provisions of the Act shall not eclipse the provisions of the Act. Section 27 of the Act reads as under :-
    "27. Effect of laws and agreements inconsistent with this Act:(1) 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, whether made before or after the coming into force of this Act :
    Provided that where under any such award, agreement, contract of service or otherwise, 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 this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefit in respect of other matters under this Act.
    (2) Nothing contained in this Act shall be construed to preclude a woman from entering 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."
14. The Act nowhere restricts the benefit of payment of maternity benefits to birth of two children. In other words, the provisions of the Act entitle the woman employee to maternity benefits for the birth of third child too. We are conscious that by Note 4 to Rule 8. 127 of the Punjab Civil Services Rules Volume I Part I, the State Government intended to achieve a laudable object but such an object cannot be given effect to till the establishments of the Government are amenable to the Act. Unless an amendment is carried out in the Act, the Government cannot restrict beneficial provisions of the Act to a woman employee for the birth of a third child. Such a restriction imposed under the Rules is contrary to Section 27 of the Act and cannot sustain in the eyes of law. In Vasu Dev and Others v. Union of India and Others, 2006(4) R.C.R.(Civil) 849 : 2006(2) R.C.R.(Rent) 561 : (2006) 12 Supreme Court Cases 753 wherein the validity of Section 3 of the East Punjab Urban Rent Restriction Act, 1949 was challenged, the Hon'ble Apex Court referred to a large number of decisions on subordinate legislation and held as under :-
    "118. A statute can be amended, partially repealed or wholly repealed by the legislature only. The philosophy underlying a statute or the legislative policy, with the passage of time, may be altered but therefor only the legislature has the requisite power and not the executive. The delegated legislation must be exercised, it is trite, within the parameters of essential legislative policy. The question must be considered from another angle. Delegation of essential legislative function is impermissible. It is essential for the legislature to declare its legislative policy which can be gathered from the express words used in the statute or by necessary implication, having regard to the attending circumstances. It is impermissible for the legislature to abdicate its essential legislative functions. The legislature cannot delegate its power to repeal the law or modify its essential features..."
To similar effect is the law laid in Employees' State Insurance Corporation v. HMT Limited and Another, 2008(1) S.C.T. 641 : 2008(1) R.A.J. 591 : (2008) 3 Supreme Court Cases 35 as their Lordships of the Hon'ble Apex Court held as under :-
    "24. We agree with the said view as also for the additional reason that the subordinate legislation cannot override the principal legislative provisions..."
Thus, we are of the opinion that Note 4 to Rule 8.127 of the Punjab Civil Services Rules Volume I Part I is not in consonance with the provisions of the Act and this cannot be given effect to and the petitioner cannot be deprived of the maternity benefit for the birth of a third child.
Questions No. 3 and 4
15. Since our answer to question No. 2 is conclusively answered in favour of the petitioner and the petitioner is held entitled to the maternity leave under the provisions of the Act, thus, there is no need to answer rest of the two questions posed before us as it will not be fruitful to undertake issues which have become academic only.
16. To conclude, the answer to first question is in favour of the State. Classification made on the basis of a number of children is justifiable, however, question No. 2 is answered in favour of the petitioner as the rules framed by the Government are not in conformity with the Act. Hence, till an amendment is carried in the Act, the rules framed by the State Government will not curtail the benefit which had accrued to the petitioner in view of the Act. Answers to questions No. 3 and 4 are not necessary for the present controversy, hence, are left open to be answered in future as and when need arise.
Relief

17. Since our answer to question No. 2 is in favour of the petitioner-employee, we allow the present writ petition and hold that she is entitled to the payment of salary as maternity leave benefit as envisaged under Section 5 of the Act read with Rule 8.127 of the Punjab Civil Services Rules Volume I Part I without making any reference to Note 4 appended thereunder. We propose no order as to costs.

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