Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 5 July, 2023
+ W.P.(C) 10521/2019
SHACHI GAHOI ..... Petitioner
Through: Mr. Shashank Singh, Mr. Varun
Singh, Mr. Akash Alex and Mr. Santosh
Kumar Shukla, Advocates.
versus
INDIAN AGRICULTURAL STATISTICS RESEARCH
INSTITUTE AND ORS. ..... Respondents
Through: Mr. Subhash Kumar Mishra,
Advocate.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
1. By this writ petition, Petitioner seeks a writ of certiorari
quashing the impugned order dated 25.07.2019 whereby services of
the Petitioner, while working on temporary basis as Research
Associate with the Respondents/Indian Agricultural Statistics
Research Institute (hereinafter referred to as ‘ICAR-IASRI’) were
terminated.
2. Narrative of facts captured in the writ petition is that Petitioner
having a Ph.D. degree in Bioinformatics was appointed as Research
Associate in ICAR-IASRI in a project called ‘Consortium Research
Platform on Genomics’ for the period ending 31.03.2017. The
appointment was on a contractual basis for the said period or
termination of the project, whichever was earlier. Appointment letter
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dated 29.10.2016 was issued to the Petitioner which stipulated the
terms and conditions of service including nature of admissible leaves
which included casual leave, restricted holidays as per Government of
India/ICAR Rules as applicable from time to time, maternity leave and
compensatory leave in lieu of duty performed on holidays.
3. Clause 8 of the appointment letter permitted the Respondents to
terminate the Research Associateship, with or without notice, at any
time, if the Research Associate was found to be negligent in his or her
work or in case of unbecoming conduct. Petitioner avers that she was
sincerely and diligently performing her duties which is evident from
communications of the Respondents between January, 2019 to June,
2019 and for two and a half years that she worked with the
Respondents, she shouldered several important responsibilities and
published five research papers in reputed International journals. On
account of her good performance in the project, she was granted third
extension from 01.04.2019 to 31.03.2020.
4. According to the Petitioner, the problem started when she
applied for leave on 13.06.2019 on account of back ache and
weakness by an email addressed to Project Co-in-charge. Since
Petitioner was not recovering, she repeated her request by email dated
15.06.2019. On 19.06.2019, Petitioner informed the concerned
officers through an email communication that medical tests confirmed
her pregnancy and on account of bed rest advised by the doctor, she
would need leave for two weeks. Petitioner kept the Respondents
updated on her medical condition and the tests she was undergoing
and finally vide email dated 15.07.2019 she expressed her willingness
to join back. On joining back on 22.07.2019, Petitioner submitted all
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her medical reports to the Project in-charge Dr. Anil Rai/Respondent
No. 2 indicating her visits, case history and doctor’s prescription at Sir
Ganga Ram Hospital.
5. Respondents terminated the services of the Petitioner by the
impugned order dated 25.07.2019 on three grounds viz. absence
without information, not performing duties consistently and
obstruction in the work of the institution. On 29.07.2019, Petitioner
made a representation to the Director apprising him of her medical
condition and the fact that she had kept the institution informed of the
same. Request was made to review her case of termination as the same
was during the period of pregnancy. However, the termination order
was not recalled and the representation was rejected by a letter dated
26.08.2019. The pending salary bills for the months of June and July,
2019 were also not cleared, compelling the Petitioner to approach this
Court.
6. Learned counsel for the Petitioner submitted that Petitioner is a
meritorious student with Ph.D. degree in Bioinformatics and had
th
secured 16 All India Rank in DBT-BINC Examination and had also
qualified the GATE Exam. Additionally, she has published 15
research papers in National and International journals. On account of
her sincere and diligent working, Petitioner was granted four
extensions in the contract and from time to time her work was
appreciated by the concerned officers and thus there was no justifiable
reason for terminating her services, particularly, when the project was
ongoing.
7. It was contended that termination letter refers to three grounds
for termination, each of which are factually and legally flawed.
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Petitioner had duly intimated her inability to attend office for some
time on 19.06.2019, on account of her pregnancy as she was unwell
since 13.06.2019 and sought leave for two weeks. Emails to this effect
were duly received by the Project Co-in-charge/Respondent No. 3
herein. By email dated 04.07.2019, Petitioner expressed her
willingness to join followed by emails dated 15.07.2019 and
20.07.2019, informing that she would be joining soon and, in fact,
joined on 22.07.2019 and furnished all the medical certificates/
prescriptions with the case history. Therefore, it cannot be stated that
Petitioner was “absent without informing”, as alleged by the
Respondents. Insofar as the leaves referred to in the counter affidavit
are concerned, the period of leaves shown includes 46½ days with 8
casual leaves, 10 sick leaves and 2 restricted holidays. Petitioner’s
contract was renewed from 01.04.2019 to 31.03.2020 and in this
fourth extension, Petitioner only took the entitled leaves, which is 2
days sick leave from 29.05.2019 to 30.05.2019 and the remaining 39
days included 8 days sick leave and 31 days leave without pay
between 13.06.2019 to 21.07.2019, which was within the period
aforementioned, when she was sick on account of pregnancy.
Additionally, this period included 6 Sundays, 1 second Saturday and 1
restricted holiday on 04.07.2019. Therefore, not only were the
Respondents aware of the leaves taken by the Petitioner and the
reasons thereof but each of the leave was her entitled and due leave in
accordance with the contract of employment, which provided for
various kinds of leaves including casual, maternity and compensatory,
etc. Even assuming that the contract did not provide for leaves,
Petitioner was entitled to maternity leave under the Maternity Benefits
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Act, 1961 (hereinafter referred to as ‘1961 Act’) and by virtue of
Section 27 thereof, the provisions of this Act shall have an overriding
effect on the contract of service. [Ref.: Municipal Corporation of
Delhi v. Female Workers (Muster Roll) and Another, (2000) 3 SCC
224].
8. The other two grounds of termination i.e. not performing the
duties consistently and obstructing in the work of the institution have
been created as an excuse to terminate the Petitioner as none of the
allegations can be established by the Respondents and have been taken
for the first time in the impugned termination order. Petitioner has
placed on record a detailed chart showing all the responsibilities she
carried out diligently and the termination order was not preceded by
any show-cause notice.
9. The impugned action of termination is contrary to Section 12 of
the 1961 Act which provides that when a woman absents herself from
work in accordance with provisions of the said 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/dismissal on
such a day that notice expires during such absence or to vary to her
disadvantage any of the conditions of her service. In the present case,
Petitioner had duly informed the Respondents of her pregnancy on
19.06.2019 and sought two weeks leave followed by some more leave
on doctor’s advise and despite this the termination order was issued on
25.07.2019. Therefore, the impugned order cannot be sustained being
in the teeth of provisions of Section 12 of the 1961 Act as held by this
Court in Asia Pacific Institute of Management v. Office of the Joint
Labour Commissioner and Another, 2021 SCC OnLine Del 5243.
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10. It was further contended that the stand taken by the
Respondents that Petitioner never applied for maternity leave is
wholly incorrect. This stand is premised on an understanding that
Petitioner was required to categorically mention ‘maternity leave’
and/or give specific dates from when she wanted the leave. This
position adopted by the Respondents overlooks the fact that Petitioner
had clearly stated in the email dated 19.06.2019 that after the medical
tests in the hospital doctors had confirmed that she was pregnant and
on account of the back pain and weakness owing to pregnancy, she
was unable to sit continuously for more than few minutes and was
advised bed rest. There can, therefore, be no doubt that the leave
sought was on account of pregnancy even though Petitioner may not
have specifically used the words “maternity leave”. Even assuming
that Petitioner had not put the Respondents to notice, she would be
entitled to maternity benefits by virtue of Section 6(6) of the 1961 Act.
11. Per contra, it was contended on behalf of the Respondents that
Petitioner was appointed on a contract basis and under Clause 8 of the
appointment letter, she could be terminated with or without notice at
any time, if found negligent in work or if she was guilty of an
unbecoming conduct. No doubt, Petitioner’s contract was extended
four times but Petitioner was negligent towards her work and
duties assigned to her as detailed in the counter affidavit. Petitioner
was also rude towards her colleagues and superiors and her
conduct was quarrelsome. Petitioner had been warned for her
behaviour and conduct by a memo dated 20.04.2019. Even when the
Petitioner joined back on 22.07.2019, after long absence, she failed to
carry out the assigned task of submitting a complete report on the
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project work done by her and to hand over collected data, lab
notebooks, etc.
12. It was further submitted that during her last extension,
Petitioner was on leave/absent from her duties for 44 days between
25.05.2019 to 21.07.2019. For all these reasons cumulatively, it was
decided to terminate her services in accordance with Clause 8 of
appointment letter. The case of the Petitioner that she was terminated
on account of her pregnancy is completely wrong as she had never
applied for maternity leave. In fact, the pregnancy had no relation with
the termination which was on account of the three reasons mentioned
in the termination order.
13. Reliance by the Petitioner on Section 12 of the 1961 Act is
misplaced since she did not apply for maternity leave on account of
pregnancy. Even if Section 12 is applicable, proviso to Section
12(2)(a) provides that maternity benefits or medical bonus or both can
be withheld if the dismissal is for gross misconduct. In order to avail
the benefit of Section 12, it would be important for the Petitioner to
satisfy that she had complied with the provision of Section 6 of the
1961 Act by giving notice in writing in the Form prescribed stating
that the maternity benefit or any other amount due under the 1961 Act
be paid to her. In this case, Petitioner never applied for maternity
leave and no notice was given as required under Section 6 and hence
invocation of both Sections 12 and 17 is misplaced. Reliance by the
Petitioner on the judgment in Municipal Corporation of Delhi
(supra) is misplaced as in the said case the Supreme Court was
deciding the question whether provisions of the 1961 Act are
applicable to women engaged on casual/muster roll/daily wage basis
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apart from regular appointees. Reliance on the judgment in Asia
Pacific (supra) is equally misplaced as in the said case the employee
had applied for maternity leave and was yet dismissed during her
pregnancy, which is not the case here.
14. I have heard the learned counsels for the parties and examined
their contentions.
15. Before embarking on the journey to decide the issues that arise
in the present writ petition, a little background to the 1961 Act needs a
reference. Part IV of the Constitution of India contains the Directive
Principles of State Policy. Article 39 reads as follows:-
“ 39. Certain principles of policy to be followed by the State. -The
State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an
adequate means to livelihood;
xxxx xxxx xxxx xxxx
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not
forced by economic necessity to enter avocations unsuited to their
age or strength.”
16. Article 42 provides 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.”
17. Be it mentioned that the United Nations recognized rights of
women and children and genesis of these rights is in Article 1 of
Universal Declaration of Human Rights i.e. “All human beings are
born free and have equal dignity and rights”. Right to seek benefits
relating and pertaining to maternity emanates from Article 42 of the
Constitution of India. In Mohini Jain (Miss) v. State of Karnataka,
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(1992) 3 SCC 666, Supreme Court held that Directive Principles
which are fundamentals in the governance of the country cannot be
isolated from Fundamental Rights guaranteed under Part III. Both are
supplementary to each other and State is under a Constitutional
mandate to create conditions in which Fundamental Rights guaranteed
to individuals could be enjoyed by all.
18. 1961 Act clearly emerges from the aforesaid ethos and is
founded on the concept of maternity and child care. Significantly,
Section 27 of the 1961 Act embodies that the provisions of the Act
shall have effect notwithstanding anything inconsistent therewith
contained in any law or terms of any award, agreement or contract of
service. Section 27 reads as follows:-
“ 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 benefits 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.”
19. Therefore, benefits and/or safeguards provided under the 1961
Act have a mandate of law and are required to be followed
irrespective of the terms of contract between the employer and the
employee, save and except, where contractual terms are more
favourable to the women employees. Interpreting Section 27, the
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Supreme Court in Municipal Corporation of Delhi (supra), held that
benefits of the provisions of the 1961 Act would be available to
women engaged on casual/muster roll/daily wage basis apart from
regular employees as also that the right to get maternity leave
including other benefits available under the 1961 Act must be read
into service contracts of the Municipal Corporation. I would profitably
extract a few passages from the judgment as under:-
“Section 27 deals with the effect of laws and agreements inconsistent
with this Act. Sub-section (1) provides that 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. Sub-section (2) of this section, however,
provides that it will be open to a woman to enter into an agreement
with her employer for granting her rights or privileges in respect
o/any matter which are more favourable to her than those she would
be entitled to under this Act.
24. The provisions of the Act which have been set out above would
indicate that they are wholly in consonance with the Directive
Principles of State Policy, as set out in Article 39 and in other
Articles, specially Article 42. A woman employee, at the time of
advanced pregnancy cannot be compelled to undertake hard labour
as it would be detrimental to her health and also to the health of the
foetus. It is for this reason that it is provided in the Act that she
would be entitled to maternity leave for certain periods prior to and
after delivery. We have scanned the different provisions of the Act,
but we do not find anything contained in the Act which entitles only
regular women employees to the benefit of maternity leave and not to
those who are engaged on casual basis of on muster roll on daily
wage basis.
xxx xxx xxx
33. A just social order can be achieved only when inequalities are
obliterated and everyone is provided what is legally due. Women
who constitute almost half of the segment of our society have to be
honoured and treated with dignity at places where they work to earn
their livelihood. Whatever be the nature of their duties, their
avocation and the place where they work, they must be provided all
the facilities to which they are entitled. To become a mother is the
most natural phenomenon in the life of a woman. Whatever is needed
to facilitate the birth of child to a woman who is in service, the
employer has to be considerate and sympathetic towards her and
must realise the physical difficulties which a working woman would
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face in performing her duties at the workplace while carrying a baby
in the womb or while rearing up the child after birth. The Maternity
Benefit Act, 1961 aims to provide all these facilities to a working
woman in a dignified manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the fear of being
victimised for forced absence during the pre-or post-natal period.
xxx xxx xxx
These principles which are contained in Article 11, reproduced
above, have to be read into the contract of service between
Municipal Corporation of Delhi and the women employees (muster
roll); and so read these employees immediately become entitled to
all the benefits conceived under the Maternity Benefit Act, 1961. We
conclude our discussion by providing that the direction issued by the
Industrial Tribunal shall be complied with by the Municipal
Corporation of Delhi by approaching the State Government as also
the Central Government for issuing necessary Notification under the
Proviso to Subsection (1) of Section 2 of the Maternity Benefit Act,
1961, if it has not already been issued. In the meantime, the benefits
under the Act shall be provided to the women (muster roll)
employees of the Corporation who have been working with them on
daily wages.”
20. Therefore, beyond a doubt, the provisions of the 1961 Act
would apply to the Petitioner irrespective of the nature of her
employment being contractual. The first contention of the
Respondents that needs to be considered and which, to my mind, is the
main pedestal of their argument is that no notice was given by the
Petitioner under Section 6 of the 1961 Act seeking maternity leave and
even in the email dated 19.06.2019 sent by the Petitioner, there is no
reference to maternity leave or the dates from which she wanted to
proceed on leave and thus the 1961 Act is inapplicable ousting her
right to invoke Section 12 thereof.
21. Sections 6 and 12 of the 1961 Act, in my view, operate in two
different fields. While Section 6 of the said Act by its plain reading
postulates that any woman employed in an establishment and entitled
to maternity benefit under the provisions of the 1961 Act may give
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notice in writing in such Form as may be prescribed, to her employer
stating the maternity benefit and any other amount to which she may
be entitled as also that she will not work in any establishment during
the period for which she receives maternity benefit. Sub-section (2) of
Section 6 of the said Act further provides that in case of a woman who
is pregnant, such notice shall state the date from which she will be
absent from work, not being a date earlier than six weeks from the
date of her expected delivery. Sub-section (3) is by way of a proviso
which permits the notice to be given as soon as possible after the
delivery. Pertinently, sub-section (6) carves out an exception and
stipulates that failure to give notice shall not disentitle a woman to
maternity benefit if she is otherwise entitled. Section 12, on the other
hand, underscores an obligation of an employer and mandates that
when a woman absents herself from work in accordance with the
provisions of the 1961 Act, the employer shall not discharge or
dismiss her during or on account of such absence and any such action,
if taken, would be unlawful. Conjoint reading of Sections 6 and 12
shows that the former requires giving of a notice by the employee for
seeking maternity benefits while the latter proscribes dismissal/
discharge of a woman employee during or on account of such absence,
which, needless to state, is an absence from work in accordance with
provisions of the 1961 Act.
22. Insofar as the argument of failure to give notice under Section 6
is concerned, the issue is no longer res integra and has been decided
by this Court in Asia Pacific (supra), relevant paras of which are as
follows:-
“14. The Petitioner's claim however, is that it was not informed of
Respondent No. 2's pregnancy and therefore the termination would
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not be unlawful. Coming to the issue of notice of claim for maternity
benefits, the same is dealt with under Section 6(6) of the Act which
reads:
“6. Notice of claim for maternity benefit and payment
thereof.—
(1) Any woman employed in an establishment and entitled to
maternity benefit under the provisions of this Act may give
notice in writing in such form as may be prescribed, to her
employer, stating that her maternity benefit and any other
amount to which she may be entitled under this Act may be paid
to her or to such person as she may nominate in the notice and
that she will not work in any establishment during the period for
which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall
state the date from which she will be absent from work, not
being a date earlier than six weeks from the date of her expected
delivery.
(3) Any woman who has not given the notice when she was
pregnant may give such notice as soon as possible after the
delivery.
(4) On receipt of the notice, the employer shall permit such
woman to absent herself from the establishment during the
period for which she receives the maternity benefit.
(5) The amount of maternity benefit for the period preceding the
date of her expected delivery shall be paid in advance by the
employer to the woman on production of such proof as may be
prescribed that the woman is pregnant, and the amount due for
the subsequent period shall be paid by the employer to the
woman within forty-eight hours of production of such proof as
may be prescribed that the woman has been delivered of a child.
(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.”
15. Thus, under Section 6, it is clear that the failure to give notice
would not disentitle the woman from such benefits. The question as
to whether the notice to be given under Section 6 (6) of the Act is
mandatory, was considered in Sunita Baliyan v. Director Social
Welfare Department GNCTD, (2007) 99 DRJ 551. In the said case,
the Ld. Single Judge held that immediate notice to the employer, of
pregnancy of an employee is not required, however, notice would be
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required to be served within a reasonable period and in any event as
soon as possible after delivery. The relevant observations of the
Court are as under:
“6. Counsel for the petitioner also submitted that the provisions
of the aforesaid Act do not make it mandatory for the petitioner
to give a notice to her employer and hence her services could
not be terminated by the respondent management. The aforesaid
plea is found to be untenable for the reason that while the said
provision does not mandate a woman to immediately intimate
the employer of her pregnancy, for claiming benefit of the Act, it
certainly calls upon her to give a notice in writing during her
pregnancy as soon as possible after delivery. The obvious
intendment of the provision is to ensure that while a woman
working in an establishment gets the maternity benefit, at the
same time, inconvenience is not caused to the establishment
where she is engaged and adequate alternate arrangements can
be made by the management to ensure that the work does not
suffer in her absence. In the present case, as per the records, the
petitioner failed to take any steps in this regard. Further, as
observed in the impugned award, it is not a case of termination
of the petitioner, as the respondent management has not taken
any steps against her in terms of Rule 4.21 of the General
Guidelines governing the respondent management.”
16. Going by the test laid down in this decision, as also a reading of
the provision it is clear that in the facts of the present case, the email
dated 17th October, 2021 was just two months before the delivery of
Respondent No. 2's child and in any event, this Court is unable to
believe the stand of the Petitioner that the relieving letter or
termination, was without knowledge of the pregnancy. The said
letter was served upon Respondent No. 2 who was in her seventh
month of pregnancy, which is an advanced stage. It is unfathomable
as to how when she was working with the Petitioner which is an
academic establishment, the Petitioner can claim to be completely
ignorant of this fact. The plea that the Petitioner was not aware of
Respondent no. 2's pregnancy and that the relieving letter was
served on her, as it had no notice of the same, is specious to say the
least.”
23. It is true that Section 6 contemplates giving of a notice, which
may be during pregnancy or as soon as possible after delivery. While
this Court is not subscribing to the view that procedures required
under a Legislation or Rules should not be adhered to as a matter of
course and ideally a woman employee must follow the procedure
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prescribed under the 1961 Act, both of giving a notice and specifically
requesting for “maternity leave”, however, it must be kept in mind that
the 1961 Act is a welfare legislation and must be so construed. A
hyper-technical approach should not be adopted in all cases while
dealing with beneficial and welfare legislations and measures, leaving
no scope for exceptional circumstances, which in fact, even Section
6(6) contemplates. Section 6 does prescribe that notice must state the
date from which the employee will be absent and requires a format in
which the notice is to be given, however, looking at the aims and
objectives of the 1961 Act, this Court is unable to agree with the
Respondents that a communication by the employee intimating that
she is unwell on account of pregnancy and seeking leave for a
specified period on that count, should be so strictly construed against
the employee so as to deprive her of the benefits that the legislation
seeks to bestow. Petitioner has placed on record an email dated
19.06.2019, the receipt of which is admitted by the Respondents, in
which it is stated that the medical tests revealed that she was pregnant
and on account of back pain and weakness she was unable to sit
continuously for more than few minutes. She also stated that doctor
had advised her to take rest for a couple of weeks and accordingly she
sought leave stating that she would join back after two weeks.
Petitioner also offered to work from home in case of any urgent
requirement. It is thus clear that Respondents had intimation/
information both of the fact that Petitioner was pregnant and that on
account of medical issues, she was seeking leave for two weeks. To
my mind, this communication cannot be construed anything but a
notice envisaged under Section 6 albeit it may not be strictly in the
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required format. It would be apposite to refer to the judgment of the
Supreme Court in Richa Mishra v. State of Chhattisgarh and Others,
(2016) 4 SCC 179, relating to the principle of ‘purposive
interpretation’ or ‘purposive construction’ which means and connotes
that the Court is required to attach that meaning to the provisions
which serve the ‘purpose’ behind the provision i.e. to ascertain what
the provision is designed to achieve and/or its aims and objectives.
Holding in favour of the Respondents that despite this communication,
there was failure to give notice under Section 6 of the 1961 Act would
be violating the avowed purpose and objective of the beneficial
legislation in question. Relevant passages from the judgment in Richa
Mishra (supra) are as under:-
“30. In order to gather the intention of the lawmaker, the principle
of “purposive interpretation” is now widely applied. This has been
explained in Shailesh Dhairyawan v. Mohan Balkrishna Lulla
[Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC
619 : (2015) 11 Scale 684] in the following words: (SCC pp. 641-42,
paras 31-33)
“31. The aforesaid two reasons given by me, in addition to the
reasons already indicated in the judgment of my learned
Brother, would clearly demonstrate that provisions of Section
15(2) of the Act require purposive interpretation so that the
aforesaid objective/purpose of such a provision is achieved
thereby. The principle of “purposive interpretation” or
“purposive construction” is based on the understanding that the
court is supposed to attach that meaning to the provisions which
serve the “purpose” behind such a provision. The basic
approach is to ascertain what is it designed to accomplish? To
put it otherwise, by interpretative process the court is supposed
to realise the goal that the legal text is designed to realise. As
Aharon Barak puts it:
‘Purposive interpretation is based on three components:
language, purpose, and discretion. Language shapes the
range of semantic possibilities within which the interpreter
acts as a linguist. Once the interpreter defines the range, he
or she chooses the legal meaning of the text from among the
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(express or implied) semantic possibilities. The semantic
component thus sets the limits of interpretation by restricting
the interpreter to a legal meaning that the text can bear in its
(public or private) language.’ [ Aharon Barak, Purposive
Interpretation in Law (Princeton University Press, 2005).]
32. Of the aforesaid three components, namely, language,
purpose and discretion “of the Court”, insofar as purposive
component is concerned, this is the ratio juris, the purpose at
the core of the text. This purpose is the values, goals, interests,
policies and aims that the text is designed to actualise. It is the
function that the text is designed to fulfil.
33. We may also emphasise that the statutory interpretation of a
provision is never static but is always dynamic. Though literal
rule of interpretation, till some time ago, was treated as the
“golden rule”, it is now the doctrine of purposive interpretation
which is predominant, particularly in those cases where literal
interpretation may not serve the purpose or may lead to
absurdity. If it brings about an end which is at variance with the
purpose of statute, that cannot be countenanced. Not only legal
process thinkers such as Hart and Sacks rejected intentionalism
as a grand strategy for statutory interpretation, and in its place
they offered purposivism, this principle is now widely applied by
the courts not only in this country but in many other legal
systems as well.” (emphasis in original)
xxxx xxxx xxxx xxxx
33. What should be the approach in interpreting such laws is
explained in Badshah v. Urmila Badshah Godse [Badshah v. Urmila
Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] in the
following words: (SCC pp. 196-99, paras 13.3-22)
“13.3. Thirdly, in such cases, purposive interpretation needs to
be given to the provisions of Section 125 of the Code of
Criminal Procedure. While dealing with the application of a
destitute wife or hapless children or parents under this
provision, the Court is dealing with the marginalised sections of
the society. The purpose is to achieve “social justice” which is
the constitutional vision, enshrined in the Preamble of the
Constitution of India. Preamble to the Constitution of India
clearly signals that we have chosen the democratic path under
the rule of law to achieve the goal of securing for all its citizens,
justice, liberty, equality and fraternity. It specifically highlights
achieving their social justice. Therefore, it becomes the bounden
duty of the courts to advance the cause of the social justice.
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While giving interpretation to a particular provision, the court
is supposed to bridge the gap between the law and society.
14. Of late, in this very direction, it is emphasised that the courts
have to adopt different approaches in “social justice
adjudication”, which is also known as “social context
adjudication” as mere “adversarial approach” may not be very
appropriate. There are number of social justice legislations
giving special protection and benefits to vulnerable groups in
the society. Prof. Madhava Menon describes it eloquently:
‘It is, therefore, respectfully submitted that “social context
judging” is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme
Court in myriad situations presented before courts where
unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice. Apart
from the social-economic inequalities accentuating the
disabilities of the poor in an unequal fight, the adversarial
process itself operates to the disadvantage of the weaker
party. In such a situation, the Judge has to be not only
sensitive to the inequalities of parties involved but also
positively inclined to the weaker party if the imbalance were
not to result in miscarriage of justice. This result is achieved
by what we call social context judging or social justice
adjudication.’ [ Keynote address on “Legal Education in
Social Context” delivered at National Law University,
Jodhpur on 12-10-2005, available on
http://web.archive.org/web/20061210031743/http://www.nluj
odhpur.ac.in/ceireports.htm [last visited on 25-12-2013]]
15. The provision of maintenance would definitely fall in this
category which aims at empowering the destitute and achieving
social justice or equality and dignity of the individual. While
dealing with cases under this provision, drift in the approach
from ‘adversarial’ litigation to social context adjudication is the
need of the hour.
16. The law regulates relationships between people. It
prescribes patterns of behaviour. It reflects the values of society.
The role of the court is to understand the purpose of law in
society and to help the law achieve its purpose. But the law of a
society is a living organism. It is based on a given factual and
social reality that is constantly changing. Sometimes change in
law precedes societal change and is even intended to stimulate
it. In most cases, however, a change in law is the result of a
change in social reality. Indeed, when social reality changes,
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the law must change too. Just as change in social reality is the
law of life, responsiveness to change in social reality is the life
of the law. It can be said that the history of law is the history of
adapting the law to society's changing needs. In both
constitutional and statutory interpretation, the court is supposed
to exercise discretion in determining the proper relationship
between the subjective and objective purpose of the law.
17. Cardozo acknowledges in his classic [ Benjamin N.
Cardozo: The Nature of Judicial Process.] :
‘… no system of jus scriptum has been able to escape the
need of it’,
and he elaborates:
‘It is true that codes and statutes do not render the Judge
superfluous, nor his work perfunctory and mechanical. There
are gaps to be filled. … There are hardships and wrongs to
be mitigated if not avoided. Interpretation is often spoken of
as if it were nothing but the search and the discovery of a
meaning which, however, obscure and latent, had
nonetheless a real and ascertainable pre-existence in the
legislator's mind. The process is, indeed, that at times, but it
is often something more. The ascertainment of intention may
be the least of a Judge's troubles in ascribing meaning to a
statute. … Says Gray in his lectures [ John Chipman Gray:
The Nature and Sources of the Law.] : “The fact is that the
difficulties of so-called interpretation arise when the
legislature has had no meaning at all; when the question
which is raised on the statute never occurred to it; when what
the Judges have to do is, not to determine that the legislature
did mean on a point which was present to its mind, but to
guess what is would have intended on a point not present to
its mind, if the point had been present.”’
18. The court as the interpreter of law is supposed to supply
omissions, correct uncertainties, and harmonise results with
justice through a method of free decision — libre recherché
scientifique i.e. “free scientific research”. We are of the opinion
that there is a non-rebuttable presumption that the legislature
while making a provision like Section 125 of the Code of
Criminal Procedure, to fulfil its constitutional duty in good
faith, had always intended to give relief to the woman becoming
‘wife’ under such circumstances. This approach is particularly
needed while deciding the issues relating to gender justice. We
already have examples of exemplary efforts in this regard.
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Journey from Shah Bano [Mohd. Ahmed Khan v. Shah Bano
Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245] to Shabana
Bano [Shabana Bano v. Imran Khan, (2010) 1 SCC 666 : (2010)
1 SCC (Civ) 216 : (2010) 1 SCC (Cri) 873] , guaranteeing
maintenance rights to Muslim women is a classical example.
19. In Rameshchandra Rampratapji Daga v. Rameshwari
Rameshchandra Daga [Rameshchandra Rampratapji Daga v.
Rameshwari Rameshchandra Daga, (2005) 2 SCC 33] , the
right of another woman in a similar situation was upheld. Here
the Court had accepted that Hindu marriages have continued to
be bigamous despite the enactment of the Hindu Marriage Act in
1955. The Court had commented that though such marriages
are illegal as per the provisions of the Act, they are not
“immoral” and hence a financially dependent woman cannot be
denied maintenance on this ground.
20. Thus, while interpreting a statute the court may not only take
into consideration the purpose for which the statute was
enacted, but also the mischief it seeks to suppress. It is this
mischief rule, first propounded in Heydon case [Heydon case,
(1584) 3 Co Rep 7a : 76 ER 637] , Co Rep at p. 7b : ER p. 638
which became the historical source of purposive interpretation.
The court would also invoke the legal maxim construction ut res
magis valeat guam pereat, in such cases i.e. where alternative
constructions are possible the court must give effect to that
which will be responsible for the smooth working of the system
for which the statute has been enacted rather than one which
will put a road block in its way. If the choice is between two
interpretations, the narrower of which would fail to achieve the
manifest purpose of the legislation should be avoided. We
should avoid a construction which would reduce the legislation
to futility and should accept the bolder construction based on
the view that Parliament would legislate only for the purpose of
bringing about an effective result. If this interpretation is not
accepted, it would amount to giving a premium to the husband
for defrauding the wife. Therefore, at least for the purpose of
claiming maintenance under Section 125 of the Code of
Criminal Procedure, such a woman is to be treated as the
legally wedded wife.
21. The principles of Hindu Personal Law have developed in an
evolutionary way out of concern for all those subject to it so as
to make fair provision against destitution. The manifest purpose
is to achieve the social objectives for making bare minimum
provision to sustain the members of relatively smaller social
groups. Its foundation spring is humanistic. In its operation field
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all though, it lays down the permissible categories under its
benefaction, which are so entitled either because of the tenets
supported by clear public policy or because of the need to
subserve the social and individual morality measured for
maintenance.
22. In taking the aforesaid view, we are also encouraged by the
following observations of this Court in Capt. Ramesh Chander
Kaushal v. Veena Kaushal [Capt. Ramesh Chander Kaushal v.
Veena Kaushal, (1978) 4 SCC 70 : 1978 SCC (Cri) 508] : (SCC
p. 74, para 9)
‘9. … The brooding presence of the constitutional empathy
for the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it
is possible to be selective in picking out that interpretation
out of two alternatives which advances the cause—the cause
of the derelicts.’” (emphasis supplied)
34. When all the aforesaid Rules are seen in juxtaposition and in
conjunction with each other, intention of the rule-making authority
becomes apparent and is clearly ascertained. The intention of the
rule-making authority was, and it continues to be so, to give benefit
of age relaxation to women candidates. That, according to us,
represents the true intention. Otherwise the very purpose of such
Rules is defeated. The rule-making authority has manifest its
intention by removing the ambiguity and providing a specific
provision even in the 2005 Rules which, according to us, is by way of
abundant caution so that such kinds of disputes or situations with
which we are confronted here, are eliminated.”
24. Coming to Section 12 of 1961 Act, it is rightly contended by the
counsel for the Petitioner that where a woman absents herself from
work in accordance with the provisions of the Act, her
dismissal/discharge on account of such absence is legally untenable
and unlawful. By virtue of The Maternity Benefit (Amendment) Act,
2017, No.06 of 2017, sub-section (3) to Section 5 of the 1961 Act
underwent an amendment and post the amendment, the maximum
period for which any woman is entitled to maternity benefit is 26
weeks, of which not more than 8 weeks shall precede the date of her
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expected delivery. Applying the said provision, Petitioner was entitled
to total maternity leave of 26 weeks, pre and post delivery. Another
provision that deserves a mention at this stage is Section 10 of the
1961 Act which inter alia stipulates that a woman suffering from
illness arising out of pregnancy shall, on production of such proof as
may be prescribed, be entitled, in addition to the period of absence
allowed to her under Section 6, or as the case may be under Section 9,
to leave with wages at the rate of maternity benefit for a maximum
period of one month. Being a benevolent legislation, Section 10 has
been carefully and consciously enacted enabling a pregnant woman to
take leave in excess of the period under Section 6 on account of illness
that may arise out of pregnancy, as it is a matter of common
knowledge as well as medical jurisprudence that in a given case
pregnancy can result into various medical complications at any time
during the pregnancy.
25. As a matter of fact and as held above, Petitioner had applied for
leave on 19.06.2019 and was entitled in law to leave of one month
over and above the entitlement under Section 6 of the 1961 Act. It is
not disputed by the Respondents that Petitioner was pregnant at the
time when she applied for leave as also at the time when she joined
back on 22.07.2019 and more importantly at the time when she was
terminated on 25.07.2019. Thus, it was during the subsistence of the
contract that application for leave was made on health grounds
specifying pregnancy as a reason and even assuming that it was not
specifically in the required format, ostensibly the reason for applying
for leave was ‘pregnancy’. Leave was on account of an illness related
to pregnancy and medical documents were also submitted by the
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Petitioner on joining back, which is a fact not disputed by the
Respondents. Therefore, Petitioner has correctly invoked Section 12
of the 1961 Act and the absence was under the provisions of the Act
i.e. Section 10 and Respondents were proscribed from terminating her
services as the absence was during and/or on account of pregnancy
and the termination order is clearly unlawful.
26. It is no doubt true that the termination order does not directly
refer to termination for absence on account of pregnancy and the
reason is not far to seek. Respondents were aware and conscious of the
fact that Petitioner had communicated to them her health condition
arising out of pregnancy, which did not permit her to join back at the
initial stage and therefore any termination for absence on account of
pregnancy, particularly, when they failed to even grant her the entitled
maternity leave, would have been against the law. In these
circumstances, termination order was cleverly drafted to overcome the
rigours of Section 12 of the 1961 Act and to my mind, is a mere
camouflage and a colourable exercise of power.
27. Petitioner has also rightly pointed out that each of the three
reasons for termination are factually and legally flawed. Insofar as the
ground of ‘absence without information’ is concerned, emails placed
on record reflect that the factual scenario was otherwise. Starting from
the email dated 13.06.2019 to 20.07.2019, Petitioner had been
communicating to the Respondents about her illness and requesting
for leave and also assuring them that she would be joining as soon as
she was better. It is not the case of the Respondents that these emails
were not received by them as each of them is addressed to the Project
Co-in-charge/Respondent No. 3 herein. For the period prior thereto,
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Petitioner has stated that during her fourth extension she had taken 2
days sick leave on 29.05.2019 and 30.05.2019. It also requires a
mention that even during the period between 13.06.2019 to
20.07.2019, there were 6 Sundays, 1 second Saturday and 1 Restricted
Holiday, which the Petitioner was even otherwise entitled to as
holidays, by virtue of her contract of employment.
28. The second and third ground for termination that Petitioner was
not performing her duties consistently and obstructing the work of the
institution is not supported by any material on record. Even assuming
that in the perception of the Respondents, Petitioner was guilty of
dereliction of duty, no termination could have been effected on these
grounds, which are punitive and stigmatic, without an inquiry or to say
the least, a show-cause notice giving an opportunity to the Petitioner
to explain and defend the allegations levelled. Interestingly, in the
counter affidavit and the short note of argument, the reasons
propounded to show the alleged conduct of the Petitioner leading to
her termination are that Petitioner was negligent, insincere, rude
towards her colleagues and superiors and quarrelsome. The only
memorandum that is referred to and placed on record to justify the
termination order is a memorandum dated 20.04.2019. A reading of
the memorandum shows that Petitioner was advised to improve her
behaviour as a first warning and this was triggered by an incident
where Petitioner had allegedly entered the cabin of Respondent No.3
and argued with respect to her claim for salary arrears. Even assuming
this to be factually correct and that Petitioner was given a warning, it
is not understood what triggered the termination letter on 25.07.2019,
as admittedly there are no allegations of any kind between 20.04.2019
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and 25.07.2019 and the only logical and irresistible conclusion that
this Court is able to draw is that the termination was on account of
leave sought by the Petitioner due to the medical complications arising
out of pregnancy.
29. The last contention of the Respondents that needs to be
considered is that Proviso to Section 12(2)(a) carves out an exception
where if the dismissal is for prescribed gross misconduct, the
employer may deprive the woman employee of maternity benefit or
medical bonus or both. The contention needs to be rejected outrightly.
First and foremost, the alleged conduct of the Petitioner cannot be
classified in the category of ‘gross misconduct’. What constitutes
gross misconduct has been a subject of consideration in several
judgments and there is no straight-jacket formula to define the
expression. Some clue can be taken by the Court from Rule 8 of The
Maternity Benefit (Mines and Circus) Rules, 1963, framed by the
Central Government exercising powers conferred by Section 28 of the
1961 Act which enumerates that “acts” that would constitute ‘gross
misconduct’ for purpose of Section 12. Rule 8 is extracted hereunder
for ready reference:-
“8. Acts which constitute gross misconduct.—The following acts
shall constitute gross misconduct for purpose of section 12,
namely:—
(a) wilful destruction of employer’s goods or property;
(b) assaulting any superior or co-employee at the place of work;
(c) criminal offence involving moral turpitude resulting in conviction
in a court of law;
(d) theft, fraud, or dishonesty in connection with the employer’s
business or property; and
(e) wilful non-observance of safety measure or rules on the subject
or wilful interference with safety devices or with fire fighting
equipment.”
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30. From the enumerated gross misconducts, it is clear that the
alleged conduct of the Petitioner does not fall under any of the Clauses
(a) to (e). This was only by way of illustration, however, a further clue
can be taken from the observations of the Division Bench of this Court
in Union of India & Ors. v. Dr. V.T. Prabhakaran, 2010 SCC
OnLine Del 2478, relevant passages from which are as under:-
“31. The Supreme Court in the case (1992) 4 SCC 54, State Bank of
Punjab v. Ram Singh Ex Constable discussed and decided what
misconduct is. The relevant paras of the judgment are reproduced
below:
“In usual parlance, misconduct means transgression of some
established and defined rule of action, where no discretion is
left, except that necessity may demand and carelessness,
negligence and unskilfulness are transgressions of some
established, but indefinite, rule of action, where, some direction
is necessarily left to the actor. Misconduct is a violation of
definite law; carelessness or abuse of discretion under an
indefinite law. Misconduct is a forbidden act; carelessness, a
forbidden quality of an act, and is necessarily indefinite.
Misconduct in office may be defined as unlawful behaviour or
neglect by a public officer, by which the rights of a party have
been affected.”
“Thus it could be seen that the word “misconduct” though not
capable of precise definition, on reflection receives its
connotation from the context, the delinquency in its performance
and its effect on the discipline and nature of the duty. It may
involve moral turpitude, it must be improper or wrong
behaviour; unlawful behaviour, willful in character, forbidden
act, a transgression of established and definite rule of action or
code of conduct but not mere of judgment, carelessness or
negligence in performance of the duty; the act complained of
bears forbidden quality or character. Its ambit has to be
construed with reference to the subject matter and the context
wherein the term occurs, regard being had to the scope of the
statute and the public purpose it seeks to serve. The police
service is a disciplined service and it requires to maintain strict
discipline. Laxity in this behalf erodes discipline in the service
causing serious effect in the maintenance of law and order.”
32. Having understood what misconduct is, it becomes easy to
understand what a grave misconduct would be. It has to be the
aggravated form of misconduct.
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33. Acts of moral turpitude, acts of dishonesty, bribery and
corruption would obviously be an aggravated form of misconduct
because of not only the morally depraving nature of the act but even
the reason that they would be attracting the penal laws. There would
be no problem in understanding the gravity of such kind of offences.
But that would not mean that only such kind of indictments would be
a grave misconduct. A ready example to which everybody would
agree with as a case of grave misconduct, but within the realm of
failure to maintain devotion to duty, would be where a fireman
sleeps in the fire office and does not respond to an emergency call of
fire in a building which ultimately results in the death of 10 persons.
There is no dishonesty. There is no acceptance of bribe. There is no
corruption. There is no moral turpitude. But none would say that the
act of failure to maintain devotion to duty is not of a grave kind.
34. It would be difficult to put in a strait jacket formula as to what
kinds of acts sans moral turpitude, dishonesty, bribery and
corruption would constitute grave misconduct, but a ready
touchstone would be where the ‘integrity to the devotion to duty’ is
missing and the ‘lack of devotion’ is gross and culpable it would be
a case of grave misconduct. The issue needs a little clarification here
as to what would be meant by the expression ‘integrity to the
devotion to duty’. Every concept has a core value and a fringe value.
Similarly, every duty has a core and a fringe. Whatever is at the core
of a duty would be the integrity of the duty and whatever is at the
fringe would not be the integrity of the duty but may be integral to
the duty. It is in reference to this metaphysical concept that mottos
are chosen by organizations. For example in the fire department the
appropriate motto would be: ‘Be always alert’. It would be so for the
reason the integrity of the duty of a fire officer i.e. the core value of
his work would be to be ‘always alert’. Similarly, for a doctor the
core value of his work would be ‘duty to the extra vigilant’. Thus,
where a doctor conducts four operations one after the other and in
between does not wash his hands and change the gloves resulting in
the three subsequent patients contacting the disease of the first,
notwithstanding there being no moral turpitude involved or
corruption or bribery, the doctor would be guilty of a grave
misconduct as his act has breached the core value of his duty. The
example of the fireman given by us is self explanatory with reference
to the core value of the duty of a fireman to be ‘always alert’.
35. What we have stated in para 34 above is best understood with
reference to the example in para 33 above.
xxxx xxxx xxxx xxxx
37. As regards WP(C) No. 559/2010 we note that while passing the
order imposing the cut in pension the disciplinary authority has not
returned a finding that the misconduct proved is grave misconduct
and neither has the appellate authorities so found, no case is made
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out to interfere with the findings returned by the Tribunal. We may
simply add that the file in question for purposes of a second appeal
to be filed was with an Office Assistant and the respondent in said
writ petition was the Superintendent of the branch i.e. was not
directly dealing with the file. The respondent, at best, would be
guilty of failing to exercise proper supervision, which may be a
misconduct but would prima facie be a case not of grave
misconduct.”
31. In view of the aforesaid, reliance of the Respondents on Proviso
to Section 12(2)(a) cannot rescue them from the rigours of Section 12.
Before drawing the curtains, I may only reiterate the sentiments of the
Courts echoed in several judgments that the 1961 Act is a beneficial
legislation meant to protect the rights of pregnant women and must be
implemented fully and liberally without being caught in the web of
technicalities. Keeping the aim and object of the beneficial legislation
in mind, which is to regulate employment of women in certain
establishments, before and after child birth and to provide maternity
benefits including maternity leave, an organization should be
empathetic to a woman employee who is pregnant rather than make all
kinds of vague and bald allegations and to find means and ways to
dispense with her services.
32. For all the aforesaid reasons, the impugned order of termination
dated 25.07.2019 is quashed and set aside. Ordinarily, the Court does
not direct reinstatement where the nature of employment is contractual
or short term, however, in the present case, it is an undisputed fact that
the Petitioner was appointed for the period mentioned in the
appointment letter or till the termination of the project, whichever was
earlier. During the course of hearing, learned counsel for Respondents,
on instructions, had stated that the project has not ended and is
ongoing. In these circumstances, Respondents are directed to reinstate
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the Petitioner with 50% back wages from the date of termination till
the date of reinstatement. Petitioner shall also be entitled to all
maternity benefits in consonance with provisions of 1961 Act. This
Court is also of the view that since the Petitioner had sought maternity
leave on genuine grounds and not only was she deprived of her
statutory rights but was unlawfully terminated for which she has
undergone mental suffering as also lost of livelihood, she would be
entitled to cost of Rs.25,000/-. The entire exercise of reinstating the
Petitioner including payment of the monetary benefits shall be
completed within four weeks from today.
33. Writ petition is allowed in the aforesaid terms.
JYOTI SINGH, J
JULY 5 , 2023 / kks
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