Somaiya Vidyavihars K J Somaiya College Of Arts And Commerce vs The Asst. Commissioner Of Labour And Appellate Authority, N Ward, Mumbai

11-WP-4244-25 (1).DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4244 OF 2025
1) Somaiya Vidyavihar KJ Somaiya College of
Arts and Commerce Vidyavihar, Mumbai
2) Prof. (Dr.) Kishan H.Pawar
Principal, K J Somaiya
College of Arts & Commerce,
Vidyavihar, Mumbai ...Petitioners
Versus
1) The Asst. Commissioner of Labour &
Appellate Authority underthe Maternity
Benefit Act, 1961,"N"Ward, Mumbai
Kamgar Bhavan, 4th floor,
C-20, E Block, Opp. Reserve Bank, BKC,
Bandra (E), Mumbai-400051.
(2)The Inspector,
(under the Maternity Benefit
Act, 1961 "N"Ward, Mumbai,
Kamgar Bhavan, 4t floor, C-20,) E Block,
Opp. Reserve Bank,
BKC, Bandra (E), Mumbai-400051.
(3) Dr. Paankhi Agrawal
604, lover Dosti Acres Antop
Hill, Wadala ( east),
Mumbai 400037 ...Respondents
_______
Mr. Lancy D’souza a/w. Ms. Deepika Agarwal i/b. Mr. V.M.Parkar, for Petitioners.
Ms. Sheetal Malvankar, AGP for Respondent-State.
Ms. Sudha Bharadwaj, for Respondent No.3.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE , JJ.
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RESERVED ON : 1 JULY 2026
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PRONOUNCED ON: 13 JULY 2026
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JUDGMENT (Per: AARTI SATHE , J)
1. Rule. Rule made returnable forthwith by the consent of the parties.
Heard finally.
2. This petition under Article 226 of the Constitution of India has been
filed praying for the following substantive reliefs:
(a) This Hon'ble Court be pleased to issue writ of certiorari or writ in the nature of
certiorari, order or direction under Article 226 of the Constitution of India and after
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going through legality and proprietary of the Orders dated 7 July 2025 passed by the
Respondent No.1 (Exhibit-A) and the orders dated 13" January 2025 passed by the
Respondent No 2 (Exhibit-G) and be pleased to quash and set aside the impugned
Order dated 7 July 2025 (Exhibit-A) and Impugned Order dated 13.01.2025 passed by
Respondent No.2 (Exhibit-G);
(b) Pending the hearing and final disposal of the present Writ Petition, this Hon'ble
Court be pleased to stay effect, implementation and operation of the impugned
decision dated 13th January 2025 and the Orders dated 7th July 2025;
(c)Ad-interim reliefs in terms of prayer clauses (b) above;
(d)For any other reliefs that this Hon'ble Court may deem fit and proper in the facts
and circumstances of the case may be granted;
3. The issue in the present petition is regarding the entitlement of maternity
benefits to Respondent No. 3 under the Maternity Benefit Act, 1961 (hereinafter
referred to as “the Act”) and the consequences of applying the provisions of the said
Act, post the completion of ad-hoc contractual tenure by Respondent No. 3 in the
Petitioner-College.
4. The facts lie in a narrow compass and can be briefly stated as follows:
i. The Petitioner-College is an aided college receiving Government aid for paying
the salaries of the approved staff of the college. The Petitioner-College is governed
by the statutes of the University of Mumbai and the Government Resolutions
(GR’s) issued by Government of Maharashtra from time to time.
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ii. On 27 January 2023, Respondent No. 3 was appointed as an Assistant
Professor on an ad-hoc basis for teaching the subject Sociology for a fixed period on
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two occasions. Her first appointment was from 27 January 2023 to 30 April
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2023 which was made vide letter dated 27 January 2023. Her second
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appointment was from the period 13 June 2023 till 30 April 2024. It is the
Petitioner-College’s contention that the Respondent No. 3 accepted the ad-hoc
contractual appointments for the aforesaid limited periods. The Respondent No. 3,
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therefore, ceased to be an employee of the Petitioner-College on and from 30
April 2024.
iii. Respondent No.3 before the tenure of her contractual employment
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would expire by efflux of time, applied for maternity leave by her letter dated 27
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March 2024, seeking leave with effect from 14 June 2024 and stating therein that
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her expected date of delivery was 18 July 2024. According to the Petitioner-
College, although the application for maternity leave was made during the
subsistence of the ad-hoc contractual appointment, the maternity leave itself was
sought to commence nearly one and a half months after the expiry of Respondent
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No.3's ad-hoc contractual tenure, which admittedly came to an end on 30 April
2024. It is, therefore, the Petitioner-College's contention that Respondent No.3
could not claim maternity benefits after the cessation of her ad-hoc contractual
appointment.
iv. The Petitioner-College further contended that the protection contemplated
under Section 12 of the Act is not attracted in the facts of the present case, as
Respondent No.3 was neither dismissed nor discharged from service during her
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pregnancy or during the period of absence on account of maternity. According to
the Petitioner-College, her ad-hoc contractual appointment merely came to an end
by efflux of time and was not terminated by way of dismissal or discharge so as to
attract the statutory protection under the Act.
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v. After the expiry of her ad-hoc contractual tenure on 30 April 2024,
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Respondent No.3 visited the Petitioner-College on 12 June 2024, being the first
day of the academic year 2024–2025, to inquire whether she would be considered
for a fresh appointment for the ensuing academic year. She was informed that a
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decision regarding her appointment would be communicated to her on 14 June
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2024. Thereafter, on 14 June 2024, Respondent No.3 was informed that the
process of making fresh appointments would be undertaken after considering the
applications received from all eligible candidates.
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vi. Respondent No.3 was further informed on 14 June 2024 that her request
for maternity benefits could be considered only in the event she was appointed
afresh for the academic year 2024–2025, and not in respect of the period following
the expiry of her earlier ad-hoc contractual appointment.
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vii. On 30 June 2024, Respondent No.3 addressed an e-mail to the Petitioner-
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College informing that she had delivered a baby at Bhatia Hospital on 28 June
2024 and once again requested that maternity benefits be extended to her.
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Thereafter, by an e-mail dated 3 July 2024, the Senior Clerk of the Petitioner-
College informed Respondent No.3 that she had been shortlisted for an interview
for a fresh appointment for the academic year 2024–2025. In response,
Respondent No.3 informed the Petitioner-College that she had recently delivered a
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child and was undergoing post-partum recovery and accordingly requested that she
be permitted to attend the interview through an online mode.
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viii. On 11 July 2024, Respondent No.3 appeared for the interview
through the online mode, which was video recorded. However, as she was still on
post-partum recovery, she expressed her inability to join duties immediately. The
Petitioner-College, therefore, informed Respondent No.3 that her candidature for a
fresh appointment for the academic year 2024–2025 could not be considered, as
she was not in a position to assume duties immediately, given the urgency of
addressing the students’ interests.
ix. Thereafter, without informing the Petitioner-College, Respondent No.3
filed a complaint before Respondent No.2, the Inspector appointed under the Act.
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The complaint, filed on 14 October 2024, alleged that the Petitioner-College had
unlawfully terminated her services and had wrongfully denied her the maternity
benefits to which she claimed to be entitled under the Act.
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x. By an order dated 13 January 2025, Respondent No.2 -Inspector allowed
the complaint and directed the Petitioner-College to comply with the following
directions:
(a) To pay Respondent No.3, within fifteen days from the date of the order, a
sum of Rs.2,43,500/- towards maternity benefits, comprising salary for twenty-
six weeks together with the maternity bonus; and
(b) Not to terminate the services of Respondent No.3 during the maternity
period.
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5. Being aggrieved by the aforesaid decision passed by Respondent No.2,
the Petitioner-College preferred an appeal before the Competent Authority under
sub-section (3) of Section 17 of the Act.
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6. Respondent No.1 by an order dated 7 July 2025 dismissed the appeal
of the Petitioner-College on the ground that the Respondent No.3 was entitled to
the maternity benefits in terms of the relevant provisions of the Act, and further
directed the Petitioner-College to pay Respondent No.3, full maternity benefits of
Rs.2,40,000/- with medical bonus of Rs.3,500/- and also to execute the order
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dated 13 January 2025 passed by Respondent No.2 within a period of 3 weeks
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from the date of order i.e. 7 July 2025. It is in the backdrop of the aforesaid facts
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that, the Petitioner-College being aggrieved by the order dated 7 July 2025 passed
by Respondent No.1, has preferred the present Petition.
7. Mr. Lancy D’souza along with Ms. Deepika Agarwal instructed by Mr.
V.M.Parkar, learned counsel appeared on behalf of the Petitioners. Ms. Sheetal
Malvankar, learned AGP appeared for the Respondent-State. Ms. Sudha
Bharadwaj, learned counsel appeared on behalf of Respondent No.3.
8. Learned counsel Mr. Lancy D’souza, on behalf of the Petitioners
submitted that the impugned order granting maternity benefits to the Respondent
No.3 was bad in law inasmuch as the provisions of the Act did not apply to the
Petitioner-College as it is an educational institution which does not fall within the
definition of ‘establishment’ as per Section 3(e) of the Act. Further, the provisions
of The Maharashtra Shops and Establishment Act, 2017 as amended, are also not
applicable to the Petitioner-College since, educational institutions are exempted
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under Section 3(9) of The Maharashtra Shops and Establishment Act, 2017. It was
also his primary submission that the Respondent No.3’s services have come to an
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end on 30 April 2024 and the maternity leave which the Respondent No.3 had
applied for was post the aforesaid tenure. He further submitted that the
Respondent No.3’s appointment was purely on ad-hoc contractual basis for a fixed
period and hence there does not exist an employer-employee relationship between
the Petitioner-College and Respondent No.3. He therefore submitted that even
otherwise as per the Act, the Respondent No.3 could have given notice to the
Petitioner-College under Section 6 of the Act in Form-I only 8 weeks prior to
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expected date of delivery which was 18 July 2024. He submitted that, however, in
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the facts of the present case the Respondent No.3 had given notice on 27 March
2024, for a maternity leave which was post her ad-hoc contractual tenure. On the
basis of the aforesaid, learned counsel on behalf of the Petitioner-College submitted
that the maternity leave could not be given to the Respondent No.3.
9. Per contra , Ms. Bhardwaj, learned counsel appearing on behalf of
Respondent No.3, opposed the admission of the present petition and submitted
that the same deserves to be dismissed. She contended that Respondent No.3 was
fully entitled to apply for maternity leave as she was admittedly in the employment
of the Petitioner-College during the relevant period. It was her primary submission
that the provisions of the Maharashtra Shops and Establishments Act, 2017 were
applicable to the Petitioner-College and, consequently, the provisions of the
Maternity Benefit Act, 1961 also governed the service conditions of Respondent
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No.3. She therefore submitted that, on this ground alone, Respondent No.3 was
entitled to maternity benefits.
10. Learned counsel on behalf of Respondent No.3 further submitted that
Respondent No.3 was appointed as an Assistant Professor on an ad-hoc contractual
basis and had rendered continuous service for successive terms of 10 and a half
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months, initially from 27 January 2023 to 30 April 2023 and, after an artificial
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break from 1 May 2023 to 12 June 2023, was reappointed and continued in
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service thereafter till 30 April 2024. Placing reliance upon Section 5(2) of the
Act, she submitted that every woman who has worked in an establishment for not
less than 80 days during the twelve months immediately preceding the date of her
expected delivery is entitled to maternity benefits. According to the aforesaid
provision, Respondent No.3 had completed the prescribed qualifying period and
was, therefore, entitled to maternity leave under the Act.
11. She further submitted that Respondent No.3 had, well in advance,
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addressed an application dated 27 March 2024 to the Petitioner-College seeking
maternity leave. Along with the application, she had furnished the requisite
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medical documents indicating that her expected date of delivery was 18 July 2024
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and had requested that maternity leave be sanctioned with effect from 14 June
2024. It was, therefore, contended that the Petitioner-College was not justified in
denying maternity benefits on the ground that the period of maternity leave
extended beyond the tenure of her ad-hoc contractual appointment or after the
cessation of her employment. Learned counsel lastly submitted that Respondent
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No.3's pregnancy had been medically confirmed on 11 October 2023, at a time
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when she was admittedly in the employment of the Petitioner-College.
12. She also sought to place reliance on the decision of the Supreme Court
rendered in Dr. Kavita Yadav Vs. The Secretary, Ministry of Health and Family
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Welfare Department & Ors. , to contend that the full maternity benefits are not
only restricted during the employment but also exceed the duration of contract.
13. She also sought to place reliance on the case of Manisha Priyadarshini
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Vs. Aurobindo College-Evening & Ors. to buttress her argument that maternity
benefits had to be given in the facts of the present case.
14. We have heard the learned counsel appearing on behalf of the parties
and have perused the papers and proceedings with their assistance.
15. At the outset, we are conscious of the fact that the present matter concerns
the right of a woman employee to claim maternity leave, a benefit which has been
statutorily recognised to safeguard the dignity of motherhood and the health and
welfare of both the mother and the child. The importance of such a benefit cannot
be understated. At the same time, the entitlement to maternity leave must
necessarily be examined within the framework of the provisions of the Act, and
also the terms and conditions governing the employment of the woman seeking
such benefit.
16. In the facts of the present case, we find considerable substance in the
submissions advanced by learned counsel on behalf of the Petitioner-College. The
maternity leave claimed by Respondent No.3 was sought to be availed after the
1 Civil Appeal No. 5010/2023
2 LPA/595/2019
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expiry of her ad-hoc contractual tenure. It is an admitted position that Respondent
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No.3’s ad-hoc contractual appointment came to an end on 30 April 2024 and was
not renewed thereafter. Once that is the admitted factual position, we fail to
comprehend in what capacity Respondent No.3 could claim maternity benefits
from the Petitioner-College when she admittedly ceased to be its contract employee
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with effect from 30 April 2024.
17. Section 5(2) of the Act provides that a woman shall be entitled to maternity
benefit if she has actually worked in the establishment of the employer from whom
she claims such benefit for a period of not less than eighty days during the twelve
months immediately preceding the date of her expected delivery. While
Respondent No.3 may have fulfilled the qualifying requirement of having worked
for the prescribed period, the maternity benefit contemplated under the Act is one
arising out of and during the subsistence of the employer-employee relationship. In
the present case, it is an admitted position that Respondent No.3 delivered the
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child on 28 June 2024, a date which fell after the expiry of her ad-hoc contractual
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appointment on 30 April 2024. In these circumstances, the benefit of any leave,
even the maternity leave could not be claimed from the Petitioner-College after the
cessation of her ad-hoc contractual tenure. There was even otherwise no employer-
employee relationship between the Petitioner-College and Respondent No.3.
18. We also find that the facts of the present case do not attract the provisions of
Section 12 of the Act. Respondent No.3 was not dismissed or discharged from
service during the period of her pregnancy so as to confer upon her the protection
contemplated under the said provision. Her appointment simply came to an end by
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efflux of time on 30 April 2024, in terms of the conditions governing her ad-hoc
contractual appointment, and there is no material on record to indicate that the ad-
hoc contractual tenure was either curtailed or prematurely terminated on account
of her pregnancy. For ease of reference the provisions of Section 12 of the Act are
reproduced below:
“12. Dismissal during absence of pregnancy.— (1) When a woman absents herself
from work in accordance with the provisions of this Act, it shall be unlawful for her
employer to discharge or dismiss her during or on account of such absence or to give
notice of discharge or dismissal on such a day that the notice will expire during such
absence, or to vary to her disadvantage any of the conditions of her service.
(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if
the woman but for such discharge or dismissal would have been entitled to
maternity benefit or medical bonus referred to in section 8, shall not have the effect
of depriving her of the maternity benefit or medical bonus: Provided that where the
dismissal is for any prescribed gross misconduct, the employer may, by order in
writing communicated to the woman, deprive her of the maternity benefit or
medical bonus or both.
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[(b) Any woman deprived of maternity benefit or medical bonus, or both, or
discharged or dismissed during or on account of her absence from work in
accordance with the provisions of this Act, may, within sixty days from the date on
which order of such deprivation or discharge or dismissal is communicated to her,
appeal to such authority as may be prescribed, and the decision of that authority on
such appeal, whether the woman should or should not be deprived of maternity
benefit or medical bonus, or both, or discharged or dismissed shall be final.]
(c) Nothing contained in this sub-section shall affect the provisions contained
in sub-section (1).”
19. We are also not persuaded by the submission advanced on behalf of
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Respondent No.3 that an artificial break between 1 May 2023 and 12 June 2023
be presumed and ought to be taken into consideration while determining her
entitlement to maternity benefits. This is misconceived as Respondent No.3 was
not granted any appointment after her contractual appointment came to an end on
30 April 2024. Also the issue before us is not the continuity of her service for the
purpose of satisfying the qualifying period under Section 5(2), but whether there
existed a subsisting employer-employee relationship on the date from which
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maternity leave was sought to be availed and during the period for which such
benefit was claimed. Admittedly, Respondent No.3's ad-hoc contractual
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appointment came to an end on 30 April 2024 and was never renewed thereafter.
In the absence of a subsisting contract of employment, the question of directing the
Petitioner-College to extend maternity leave or consequential benefits does not
arise.
20. The reliance placed by the learned counsel for Respondent No.3 on the
decision in Dr. Kavita Yadav (supra), in our view, is misplaced and does not
advance the case of Respondent No.3. In the said case, the appellant's contractual
appointment had been extended on two occasions for a period of one year each,
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commencing from 12 June 2015 and 12 June 2016, respectively. Her last ad-hoc
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contractual tenure was from 12 June 2016 to 11 June 2017. During the
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subsistence of the said tenure, she applied on 24 May 2017 for maternity benefits
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with effect from 1 June 2017 under Section 5 of the Act. Thus, although her ad-
hoc contractual appointment was purely temporary in nature, the application for
maternity leave was made and the leave itself commenced during the currency of
her employment. It was in those peculiar facts that the Supreme Court held that
the appellant therein could not be denied maternity benefits merely because her
contractual tenure expired during the period of maternity leave and accordingly set
aside the judgment of the High Court. The facts of the present case stand on an
entirely different footing. Admittedly, the services of Respondent No.3 came to an
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end on 30 April 2024 upon the expiry of her ad-hoc contractual appointment,
which was not thereafter renewed. The maternity leave sought by Respondent
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No.3 was to commence only after the cessation of her employment with the
Petitioner-College. In the absence of a subsisting employer-employee relationship
on the date from which maternity leave was sought to be availed, the ratio of Dr.
Kavita Yadav (supra) has no application to the facts of the present case.
21. The reliance placed on behalf of Respondent No.3 on the judgment in Dr.
Manisha Priyadarshini (supra) is also misconceived, as the factual matrix of the
present case is materially distinct from that considered by the Delhi High Court in
the aforesaid case. In Dr. Manisha Priyadarshini (supra), the Appellant/Petitioner's
(Dr. Manisha’s) ad-hoc appointment was not renewed while she was on maternity
leave, despite junior ad-hoc teachers being retained. Also, the prayers/reliefs asked
for by the Appellant/Petitioner therein were different from the prayers and reliefs
sought in the present petition. The relief sought therein was primarily as follows:
(a) this Hon'ble Court be pleased to issue a Writ of Certiorari or any other
appropriate writ, order or direction under Article 226 of the Constitution of India,
quashing the Impugned letter of termination dated 29.05.2019 issued by the
Respondent No.1College:
(b) this Hon'ble Court be pleased to issue a Writ of Mandamus or any other
appropriate writ, order or direction under Article 226 of the Constitution of India,
directing the Respondent No.1 College to reinstate the Petitioner to the post of
Assistant Professor on Ad Hoc basis from 20.03.2019.
(c) Costs of the Petition be provided for.
22. The Court found that the non-renewal was directly linked to the
Appellant/Petitioner's availing of maternity leave and held that such action
amounted to arbitrary and discriminatory treatment. The decision was thus
rendered in the context of an employer's refusal to continue the engagement of an
employee on account of her pregnancy and maternity. The present case, however,
stands on an entirely different footing. The Respondent No.3’s ad-hoc contractual
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appointment came to an end automatically by efflux of time on 30.04.2024,
strictly in accordance with the terms of her ad-hoc contractual appointment. The
Petitioner-College neither terminated her services prematurely nor declined to
renew her engagement on account of her pregnancy or maternity. The cessation of
service was the natural consequence of the expiry of a fixed-term ad-hoc
contractual appointment and not the result of any punitive or discriminatory action
on the part of the Petitioner-College. In these circumstances, the Respondent
No.3's case cannot be equated with that of Dr. Manisha Priyadarshini,(supra)
where the employment relationship continued and the employer's refusal to renew
the appointment was found to be attributable to the employee's availing maternity
leave. In the present case, the ad-hoc contractual relationship had already come to
an end by operation of the contract itself before the commencement of the period
for which the Respondent No.3 claimed the maternity leave.
23. In view of the aforesaid discussion and the reasons as set out above we are of
the view that the present petition deserves to succeed. We therefore pass the
following order which will meet the interest of justice:
ORDER
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i) Order dated 7 July 2025 passed by the Respondent No.1-The
Asst. Commissioner of Labour & Appellate Authority under the
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Maternity Benefit Act, 1961,"N" Ward, Mumbai and order dated 13
January 2025 passed by Respondent No.2 - The Inspector, (under the
Maternity Benefit) Act, 1961 "N" Ward, Mumbai, are hereby quashed
and set aside. Consequently, the Respondent No.3 is not entitled for
the maternity leave and the maternity benefits as claimed by her.
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ii) The Petition is allowed and Rule is made absolute in the aforesaid
terms. No costs.
( AARTI SATHE , J.) (G. S. KULKARNI, J.)
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