Maternity Benefit - No provisions under M.B. Act fixing any ceiling on the number of deliveries made by a female worker; As per Article 42 of Constitution read with provisions of M.B. Act, every female worker covered by Act is entitled to claim maternity benefits without any ceiling on number of deliveries

MADRAS HIGH COURT

Before :- Mr. K. Chandru, J.

W.P. Nos. 13500 and 13501/1998. D/d. 9.6.2008.

N. Mohammed Mohideen - Petitioner Versus Deputy Commissioner of Labour (Inspection) Chennai - Respondent

For the Petitioner :- Mrs. Uma Ramanathan, Advocate.
For the Respondent No. 1 & 2 :- Mrs. Geetha Thamaraiselven, Advocates.
For the Respondent No. 3 :- Mr. M. Muthupandian, Advocate.

JUDGMENT Mr. K. Chandru, J. - Heard the arguments of the learned counsel for the parties and perused the records.
2. The short question that arises in these two writ petitions is whether the third respondent in each of the writ petitions are entitled to get maternity benefit in respect of the maternity leave availed by them for delivering their third child.
3. Special care and assistance for motherhood is one of the basic human rights contained in the Universal Declaration of Human Rights. Provisions for maternity protection is one of the programmes which is being furthered by the ILO on a worldwide basis. In pursuance of this objection the ILO has adopted two Conventions No. 3 and 103 and a recommendation No. 95 concerning Maternity Protection. Of these, Convention No. 3 was adopted in the very first of its constitutions. India subscribes to the principles contained in these instruments though it might not have ratified the conventions. It is one of the directive principles of State policy contained in the Constitution of India that the State should make provision for maternity relief.
4. Article 42 of the Constitution reads as follows :

"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."

5. The Supreme Court vide its judgment in B. Shah v. Presiding Officer, Labour Court, Coimbatore and others [1977 (4) SCC 384] dealt with the interpretation of the maternity benefit available to the daily wage workers and set the tone for interpreting the provisions of the Maternity Benefit Act, 1961 [for short, 'M.B. Act']. The following passage found in paragraph 18 of the said judgment may be usefully extracted below:

18: ".... It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the 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 has to be adopted by the Court."

6. The third respondents in each of the writ petitions were rolling beedis in the petitioner establishment. While the third respondent in W.P. No. 13500 of 1998 (Tmt. Badhrakali), gave birth to a child on 27.8.1996, the third respondent in W.P. No. 13501 of 1998 (Tmt. Santhammal) gave birth to her third child on 16.12.1996. They were not granted the maternity benefit on the specious plea that they were not eligible for the same since it was their third child and that it was not in accordance with the policy of the Government propagating only a two child norm. They have also taken an undertaking from the women beedi rollers that they will not claim maternity benefit if they have the third child. In practice, if they fail to adhere to that undertaking, they were given only half the quantum of beedi leaves thereby seriously depriving their right to earn full wages. Such a blatant denial of maternity relief was done by the petitioners even though their establishment is covered by Beedi and Cigar Workers (Conditions of Employment) Act, 1966 [for short, 'Beedi and Cigar Act']. Section 37 of the Beedi and Cigar Act applied the provisions of the M.B. Act, 1961 to all the women workers in the Beedi Industry.
7. The third respondents approached the second respondent, who is the notified authority under Section 6(6) of the M.B. Act for recovering unpaid maternity benefit. Section 6(6) of the M.B. Act reads as follows:

"(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case, an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order."

8. The second respondent, being the notified Inspector under the Act, on receipt of the complaints, issued notice to the petitioner and computed a sum of Rs. 2880/- payable to Tmt. Badhrakali and Rs. 2071/- payable to Tmt. Santhammal by her orders dated 31.3.1997 and 16.5.2007 respectively. Though the petitioners were entitled to file an appeal within thirty days to the appellate authority in terms of Section 17(3) of the M.B. Act, no such appeal was filed within the time frame. The petitioners filed appeals to the first respondent with a delay of 205 days (in W.P. No. 13500 of 1998) and 164 days (in W.P. No.13501 of 1998) before the first respondent. The appellate authority, after notice to the third respondent, held that there was no power for the appellate authority to condone the delay if the appeals are filed beyond thirty days and in that view of the matter, dismissed both the appeals by two separate orders dated 12.5.1998. It is these two orders, which are impugned in these two writ petitions.
9. At the time of admission, this Court granted interim injunction from executing the order, on 02.9.1998 and subsequently, it was made on 29.8.2003.
10. Mrs. Uma Ramanathan, learned counsel for the petitioners submitted that the impugned orders are erroneous and the petitioners filed the appeals with delay only because they were not sure of as to who was the appellate authority. They were moving from one office to another and finally, found that the first respondent was the appellate authority. Therefore, the delay was neither wilful nor wanton and the order of the appellate authority should be set aside and the matter shall be remitted for disposal on merits. She also submitted that under Section 17(3) of the M.B. Act, the appellate authority has inherent power to condone the delay and there is no prohibition for doing so.
11. Mr. M. Muthupandian, learned counsel for the third respondent in both the writ petitions, submitted that Section 17(3) of the M.B. Act specifies time for filing appeal and in the absence of any special provision, the authority has no power to condone the delay. He also submitted that even if it is remitted back, the appellate authority cannot accept the objections raised by the petitioners. He also submitted that the M.B. Act does not provide any restriction on the benefit to be received by a woman worker if she delivers more than two times. He also submitted that the policy of the Government in having a two-child norm, cannot be read in to the Act and whatever applies to a Government servant need not be made applicable to the Beedi workers, who are governed by the provisions of M.B. Act. To show the difference between Government servants and other workers, he also submitted that in respect of Government servants, no Maternity Leave will be given if the marriage is not preceded delivery but whereas in the case of workers governed by the M.B. Act, even an unmarried female worker is entitled for the maternity benefit if she delivers a child.
12. No useful purpose will be served in remanding the matter to the first respondent even if the petitioner has to succeed in assailing the present impugned orders. It will be an useless formality because the petitioners have no credible defence in denying the maternity relief to the third respondent in each of the writ petitions. The allegation made by the third respondents before the appellate authority that undertakings have been taken from female workers that they will not claim any maternity benefit beyond two deliveries, is a serious allegation and if proved, the petitioners are liable for prosecution under the provisions of the M.B. Act, 1961 read with Beedi and Cigar Act 1966.
13. In this context, regarding the power of this Court to mould the relief, it is necessary to refer to the judgment of the Supreme Court in Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni [(2003) 7 SCC 219] and the relevant passage found paragraph 4 of the said judgment may be usefully extracted below:

"4 .... Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama (1934 (294) US 600, at p. 607) illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (1940 FCR 84 = AIR 1941 FC 5) falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the court, even in appeal, can take note of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor & General Traders (AIR 1975 SC 1409) read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (see V.P.R.V. Chockalingam Chetty v. Seethai Ache [AIR 1927 PC 252])"

14. There is no provision under the M.B. Act fixing any ceiling on the number of deliveries made by a female worker. So long as Article 42 of the Constitution read with the provisions of the M.B. Act is available, every female worker covered by the Act is entitled to claim maternity benefits without any ceiling on the number of deliveries made by them. That will be the correct interpretation which will be in tune with the judgment of the Supreme Court rendered in B. Shah's case (cited supra).
15. In view of the same, the writ petitions filed by the petitioners are misconceived and liable to be dismissed. Accordingly, the writ petitions are dismissed. No costs. The petitioners are hereby directed to comply with the orders of the second respondent within a period of four weeks from the date of receipt of a copy of this order.

Petitions dismissed.
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