In a petition filed before the Madhya Pradesh High Court under Article 227 of the Constitution to challenge an order dated 16-06-2023 by the Principal, Government Tilak PG College, Katni, whereby the petitioner, a guest faculty engaged on a contractual basis, was granted maternity leave for 6 months, a Single Judge Bench of Justice Vishal Dhagat held that the 80 working days bar would not be applicable to State government establishments and set aside the impugned order while directing paid maternity leave of 26 weeks to be granted to the petitioner.

It was mentioned in the impugned order that the petitioner was granted maternity leave by an order dated 02-05-2023, effective from 05-04-2023, for 6 months, and that she was to be paid an honorarium. Thereafter, the amended order was passed as per the State Government’s Circular dated 25-02-2022 and Section 5 of the Maternity Benefit Act, 1961, as per which, during the maternity leave, no honorarium was to be paid to the petitioner.

The petitioner submitted that she had made a representation seeking action against the authorities under Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but no steps had been taken.

The Court stated that a guest faculty member cannot be considered a government employee, which is why the Madhya Pradesh Civil Services Leave Rules would not be applicable to the petitioner. It was stated that the Maternity Benefit Act, 1961, would apply to the petitioner as Section 2(1) of the Maternity Benefit Act covered any establishment belonging to the government or where ten or more persons were employed.

As per the 2017 amendment, the Court stated that the benefit of payment of wages for 26 weeks is to be granted to a woman, which can be split into 8 weeks before the expected date of delivery and 18 weeks post-delivery. A woman having more than two surviving children is to be given a benefit of 12 weeks.

It was noted that the petitioner had been denied the benefit of paid maternity leave as she had not been employed with the employer for more than 80 days in a year. Referring to Articles 38, 39, and 39A of the Constitution, it was said that the spirit of the Indian Constitution and the directive principles cannot be overlooked by a Constitutional Court. The Court held that the bar under Section 5(2) of working 80 days in 12 months to avail the benefit of maternity leave would not be applicable to establishments of the State government, as a State is required to take welfare measures for its citizens.

Thus, the impugned order was set aside, and the petitioner was directed to be granted the benefit of maternity leave as per Section 5(1) of the Maternity Benefit Act. While disposing of the petition, the Court held that the petitioner would be entitled to 26 weeks of paid leave and would be entitled to the benefit of wages. However, it was held that the rest of the leave period was to be treated as leave without pay.

Appearances:

For Petitioner – Mr. Hitendra Kumar Golhani, Ms. Kajal Vishwakarma

For Respondents – Mr. Kamal Singh Baghel