Rakhi Bisht vs Union Of India And Anr
- Court
- Delhi High Court
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment pronounced on: 31.08.2026
# CNR No.DLHC010727702024
W.P.(C) 14785/2024
+
RAKHI BISHT .....Petitioner
Through: Ms. Parul Singh, Advocate along with
Mr. Kunal Kher, Ms. Harshita Jain,
Advocates.
Mr. Sanjeev Mahajan, Advocate
(Amicus Curiae) and Ms. Simran
Rao, Advocate.
versus
UNION OF INDIA AND ANR. .....Respondents
Through: Mr. Ashish Dixit, CGSC along with
Mr. Umar Hashmi, Mr. Gautam
Yadav and Ms. Iqra Sheikh,
Advocates.
Ms. Mumtaz Bhalla and Ms. Prapti
Allagh, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
1. The present petition has been filed by the petitioner praying as under–
“i) Allow the present petition;
ii) Issue a writ in the nature of Mandamus/ Certiorari or any other writ
directing the Respondent No.1 to frame clear and strict guidelines to
regulate the transactions pertaining to the pregnancy discrimination in the
private companies;
iii) Issue a writ in the nature of Mandamus/ Certiorari or any other writ
directing the Respondent No.1 and 2 to make sure that the Petitioner is
reinstated to the position where her male counterparts have been promoted
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By:ABHISHEK THAKUR
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as Senior Manager;
iv) Issue a Writ in the nature of Mandamus/ Certiorari or any other writ
directing the Respondent No.2 to compensate the Petitioner for mental and
emotional harassment amounting to Rs. 50,00,000/- (Rupees Fifty Lakhs
Only);
v) Pass an appropriate order or direction to Respondent No.1 for
initiating strict action against Respondent No.2 for violating the laws laid
down in Maternity Benefit Act;
vi) Pass an appropriate order or direction appointing a committee of
experts to examine the grounds raised by the Petitioner in her
representation submitted to the Respondent No.2.
vii) Pass appropriate guidelines to be followed by all the private
companies including Respondent no.2 to discourage discrimination against
women going for maternity leaves;
viii) Issue a Writ in the nature of Mandamus/ Certiorari or any other writ
directing Respondent No.2 to not jeopardize the career of Petitioner by
giving false facts or willful bad feedback to her new employer, in case she
seeks employment opportunity outside in duration of the court case;
ix) Pass order(s) as this Hon’ble Court may deem fit and proper in the
present case.
2. At the outset, it is necessary to note that, apart from the broader reliefs
sought in the present writ petition, the petitioner has also prayed for
reinstatement to a position equivalent to that occupied by her male
counterparts who were subsequently promoted to the post of Senior
Manager [prayer (iii)] and for appointment of committee of experts to
examine the grounds raised by the petitioner in her representation submitted
to the respondent no. 2 [prayer (vi)]. However, it has been brought to the
notice of this Court that, subsequent to the institution of the present writ
petition, the petitioner voluntarily resigned from the services of Respondent
No. 2 and is presently employed with Snap Inc., a multinational company, as
an Accounting Manager. In view of the subsequent developments, the said
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reliefs sought have become infructuous.
3. The copy of the petitioner’s resignation email dated 21.10.2024 is
reproduced as under –
4. The background of the matter is that the petitioner, a Chartered
Accountant with approximately fourteen years of professional experience,
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pursuant to an
was appointed by respondent no. 2 as Manager, Accounting
appointment letter dated 08.04.2022, requiring her to join on 06.06.2022.
The petitioner was offered a salary of ₹ 2,60,000/- per month. The
appointment letter dated 08.04.2022 is reproduced as under –
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5. It is submitted by the petitioner that she continued to perform her
duties in that capacity until May 2023, when she informed the management
of her pregnancy. According to the petitioner, shortly after disclosing her
pregnancy, the respondent no. 2 altered her professional responsibilities and,
in September 2023, transferred her to a different team. It is submitted that
although dissatisfied with the change, the petitioner accepted the
reassignment in good faith, believing the respondent no. 2’s assurances that
she would be restored to her original role upon her return from maternity
leave.
6. Thereafter the petitioner proceeded on maternity leave in December
2023 and resumed work in July 2024. Upon her return, she was informed
that no position was available for her in her original team. Instead, she was
assigned to the Treasury Department, a role which, according to the
petitioner, bore no resemblance to the managerial accounting position for
which she had been hired. The petitioner contends that the duties assigned in
the Treasury Department were traditionally performed by a Staff
Accountant, a position approximately three levels below her designation,
and were clerical in nature, thereby undermining her qualifications,
experience, and professional standing. It is submitted that despite expressing
her objections to this reassignment, she was allegedly assured that the
arrangement was temporary and that she would soon be reinstated to a
General Accounting role.
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7. It is submitted that the petitioner repeatedly followed up over the
ensuing months but to no avail. She asserts that the demotion in
responsibilities caused significant professional and personal distress, as it
adversely affected her career progression.
8. The petitioner has also raised grievances concerning the respondent
no2’s failure to provide statutory childcare support. Upon inquiry regarding
the availability of a creche facility through an email dated 20.09.2024, she
was informed on 27.09.2024 that the creche facility was not available at the
moment. The petitioner has contended that this omission further aggravated
the difficulties faced by her upon returning from maternity leave.
9. The petitioner has submitted that the reassignment materially altered
her status within the organization. Prior to proceeding on maternity leave,
she had five employees reporting to her and occupied a managerial position.
Upon resuming work, however, she was left without any reporting staff,
excluded from managerial meetings for a considerable period. She has
further alleged that colleagues made derogatory remarks regarding her
reduced role.
10. According to the petitioner, despite repeated assurances of
reinstatement, respondent no. 2 failed to take any concrete steps to restore
her to her former position.
11. It is submitted that after making several unsuccessful attempts to
secure redress internally, the petitioner formally recorded her objections
through an email dated 23.08.2024. Email dated 23.08.2024 is reproduced as
under –
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12. Despite her representations, no corrective action was taken.
Consequently, she served a legal notice dated 10.09.2024 upon respondent
no. 2. The respondent replied to the legal notice on 27.09.2024. However,
the grievances of the petitioner are stated to have remained unresolved.
13. It is contended that the petitioner remained with the organization only
because of repeated assurances that her concerns would be addressed.
Meanwhile, her male counterparts allegedly received promotions to the role
of ‘Senior Manager’, while she continued to be denied restoration to her
original post.
14. On these facts, the petitioner alleges that the actions of respondent no.
2 amount to maternity and pregnancy-based discrimination, post-maternity
demotion, denial of equal professional opportunities, and violation of
statutory protections available to women employees. She further contends
that the impugned actions infringe her fundamental rights under Articles 14,
15, 16, and 21 of the Constitution of India, which guarantee equality, non-
discrimination, equal opportunity in employment, dignity, and reproductive
autonomy.
15. The petitioner has placed reliance on Bilju A.T. v. Union of India ,
2013 SCC OnLine Del 2152 and Sharmila Yadav v. Union of India and
Ors. , W.P. (C) No. 4651 of 2017.
16. Per contra , respondent no. 2 has opposed the petition and
controverted the assertions advanced by the petitioner. In support of its case,
respondent no. 2 has, inter alia , made the following submissions:
i. Respondent no. 2 submits that the present writ petition is not
maintainable as the dispute arises from a private employer–
employee relationship and pertains to alleged service conditions
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governed by a contract of personal service. It is submitted that
contracts of personal service are not specifically enforceable under
Article 226 of the Constitution, and any grievance arising
therefrom must be pursued before the appropriate civil forum by
way of a suit for damages.
ii. It is further submitted that an efficacious statutory remedy is
available under the framework of the Code on Social Security,
2020, which provides comprehensive mechanisms for
enforcement of maternity-related rights and redressal of
grievances.
iii. Reliance is placed on Joshi Technologies International Inc. v.
Union of India , (2015) 7 SCC 728, Army Welfare Education
Society v. Sunil Kumar Sharma , (2024) 16 SCC 598, and St.
, 2022
Mary’s Education Society v. Rajendra Prasad Bhargava
SCC OnLine SC 1091, while submitting that disputes arising from
private contracts of service and service conditions are matters of
private law and ordinarily fall outside the scope of writ
jurisdiction.
iv. It is further submitted that the petition has been filed inter alia
seeking a direction to respondent no. 1 to frame clear and strict
guidelines to regulate the transactions pertaining to pregnancy
discrimination in private companies. It is contended that the Court
in exercise of its jurisdiction under Article 226, cannot issue a writ
of mandamus directing the legislature to enact or amend a law in a
particular manner and such power exclusively lies with the
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Supreme Court in exercise of its jurisdiction under Article 32 read
with Article 141 of the Constitution.
v. Reliance in this regard is placed on the following observations of
the Court in Union of India v. K. Pushpavanam , (2023) 20 SCC
736 -
“ 13. The law regarding power of the writ court to issue a mandate to
the legislature to legislate is well settled. No constitutional court can
issue a writ of mandamus to a legislature to enact a law on a
particular subject in a particular manner. The Court may, at the
highest, record its opinion or recommendation on the necessity of
either amending the existing law or coming out with a new law. The
law has been laid down in this behalf in several decisions including a
decision Court Employees' Welfare Assn. v. Union of India (Supreme
Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187:
1989 SCC (L&S) 569] and State of J&K v. A.R. Zakki /State of J&K v.
A.R. Zakki, 1992 Supp (1) SCC 548 : 1992 SCC (L&S) 427] The only
exception is where the Court finds that unless a rule-making power is
exercised, the legislation cannot be effectively implemented .”
vi. The next contention of the respondent no. 2 is that the present writ
petition raises seriously disputed questions of fact which cannot
be adjudicated in proceedings under Article 226 of the
Constitution. It is submitted that the petitioner has alleged that the
temporary reallocation to the treasury department, scoped to her
level, amounted to a prenatal demotion, whereas the respondent
no. 2 has put material on record that since the petitioner’s position
was filled in by another employee that was promoted, she rejoined
discharging the role as Manager Accounting but temporarily
assigned to investment accounting and currency revaluation,
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which was a part of the Accounting function discharged under the
Treasury vertical, scoped to her level.
vii. It is submitted that without prejudice to the fact that the temporary
reassignment in Treasury was carried out at the same managerial
role in the Finance Department at M3 Level, without disturbing
the designation of the petitioner, and as such, the allegations made
in the petition are opportunist. The petitioner has not placed any
material on record to evince that her designation was changed in
any manner, barring a bald allegation that the work assigned to
her was not within the functions of the accounting department. It
is submitted that not only did the petitioner’s designation, level
and compensation remained unchanged, she was also given an
increment. It is emphasised that in her own communications and
email signature, her designation continued to reflect the same
position, thereby clearly evidencing that no demotion ever took
place. Reliance has been placed on Subhas Jain v. Rajeshwari
Shivam reported , (2021) 20 SCC 454 and Pooja Kushawah v.
Preetam Kushawah (First Appeal No. 393/2005)
viii. Respondent No. 2 further submits that grant of compensation in
writ jurisdiction is an exceptional public law remedy, confined to
cases involving violation of fundamental rights of life and
personal liberty, particularly Article 21, by the State or its
instrumentalities only.
ix. It is submitted that such compensation can only be payable by the
State for violation of fundamental rights only. In the present case,
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the allegations are against a private party, and as such, no
compensation for the alleged violation of Maternity Benefit Act,
1961 can be quantified and paid without proof of such violation.
x. The Respondent no. 2 contends that there was no prenatal
discrimination, demotion, or violation of the provisions of the
Maternity Benefit Act, 1961 or any other applicable law. It
submits that the Petitioner was extended all statutory maternity
benefits, including maternity benefit, medical bonus, flexible
work-from-home arrangements during pregnancy and after
maternity leave, an additional laptop for her convenience, and
permission to avail maternity leave beyond the statutory period
without adverse consequences.
xi. The Respondent no. 2 argues that the Petitioner was never
dismissed, discharged, demoted, or subjected to any reduction in
pay, designation, seniority, or employment benefits. According to
the Respondent, Section 12 of the Maternity Benefit Act protects
women only against dismissal, discharge, or adverse alteration of
service conditions connected with termination and does not
regulate an employer’s internal allocation of work or business
decisions relating to assignments. Reliance is placed on B.
Premanand & Ors. v. Mohan Koikal & Ors ., 2011 (4) SCC 266,
to contend that courts cannot expand the scope of a statute beyond
its plain language.
xii. It is further submitted that during the petitioner’s maternity leave,
the respondent no.2 underwent a global corporate acquisition,
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resulting in organizational restructuring and postponement of
plans to create an expanded role for the Petitioner. Consequently,
upon her return, she continued in the same designation of
Manager–Accounting and was temporarily assigned to the
Treasury Division to perform investment accounting and currency
revaluation functions, which the respondent no.2 claims were
commensurate with her experience and at the same managerial
level (M3). The respondent no.2 asserts that this assignment was
discussed with and accepted by the petitioner.
xiii. The respondent no.2 emphasizes that the petitioner received a
10% annual increment during the relevant period, her salary and
seniority remained unchanged, and she continued to hold the same
designation throughout her employment, as reflected in her own
correspondence and resignation email.
xiv. The respondent no.2 further submits that the petitioner’s legal
notice initially sought compensation of ₹ 1.5 lakh for alleged
harassment, whereas the writ petition subsequently claimed ₹50
lakh, which, according to the respondent no.2, demonstrates an
attempt at unjust enrichment rather than redress of any genuine
legal grievance. It also argues that the petitioner has failed to
produce any documentary evidence establishing demotion,
discrimination, or violation of her legal or constitutional rights,
and that the dispute is essentially a contractual employment matter
sought to be given a constitutional colour.
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xv. The respondent no.2 disputes the findings of the Amicus Curiae,
contending that the report overlooks the realities of organizational
restructuring and employee rotation in multinational corporations,
where cross-functional assignments are common for leadership
development. It further submits that the opinion of an amicus is
merely advisory, relying upon Sarla Sharma v. State of
Rajasthan , 2001 SCC OnLine Raj 161.
xvi. It is further submitted that although the Maternity Protection
Convention does not apply to employments generated in India,
however, since the same lays down international framework, it
may be noteworthy that Article 8 of the said Convention makes it
manifest that a woman is entitled to return to the “same position
or an equivalent position” at the end of maternity leave, and not
necessarily to the identical scope of work as was being performed
prior to her maternity break.
xvii. Thus the respondent no. 2 contends that no violation of the
Maternity Benefit Act or any fundamental right has been
established, that the issues involve disputed questions of fact not
amenable to writ jurisdiction, and that decisions regarding
allocation of work and organizational deployment fall within the
legitimate managerial prerogative of the employer.
17. Submissions of the Union of India are as under -
i. It is submitted that the present writ petition raises not an issue
of absence of maternity protection under law, but of inadequate
implementation of the constitutional and statutory safeguards
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available to women in private employment. This Court has been
urged to exercise its jurisdiction under Article 226 to direct the
Union of India, appropriate Governments, and statutory
authorities to operationalise the protections contained in
Chapter VI of the Code on Social Security, 2020 by framing
effective implementation mechanisms, rules, and schemes.
ii. It is submitted that while the Code already provides for
maternity benefits, nursing breaks, creche facilities, protection
against dismissal during maternity leave, and a complaint
mechanism, it lacks a comprehensive and uniform
implementation framework addressing pregnancy-related
accommodations, role protection, return-to-work parity,
lactation support, timely grievance redressal, inspection
standards, and safeguards against subtle workplace retaliation.
iii. Relying upon Dwarka Nath v. Income-Tax Officer, Special
Circle, Dhanbad , AIR 1966 SC 81, it is submitted that the wide
jurisdiction under Article 226 empowers High Courts to mould
appropriate relief to ensure effective enforcement of statutory
rights. Similar reliance is placed on Comptroller and Auditor
General of India v. K.S. Jagannathan , (1986) 2 SCC 679
.
iv. Reliance has also been placed on
Frank Anthony Public
School Employees’ Association v. Union of India , (1986) 4
SCC 707 and Hamsaanandini Nanduri v. Union of India ,
W.P.(C) No. 960 of 2021.
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v. It is highlighted that the Code itself contains sufficient enabling
provisions for executive action. Sections 149, 150, and 154
empower the Central and State Governments to issue
implementation directions, frame schemes, and make rules
necessary to give effect to the Code. It is therefore submitted
that Parliament has already conferred adequate statutory
authority for developing a specialised maternity-compliance
framework, and the Court may direct the executive to exercise
these existing powers.
vi. Further, the Union of India has suggested a set of interim
guidelines pending the formulation of a comprehensive
statutory implementation framework.
18. Submissions of Mr. Sanjeev Mahajan, learned amicus are as under –
i. The learned amicus curiae, has placed emphasis on the
inconsistencies and admissions on the part of respondent no. 2. It
is submitted that the reply dated 27.09.2024 sent by Respondent
No. 2 to the legal notice issued by the Petitioner discloses material
inconsistencies and admissions on the part of Respondent No. 2.
ii. It is emphasised that, in the said reply, Respondent No. 2 stated
that “upon your client’s return in July 2024, there were drastic
changes within our organization” and further that “your client has
been temporarily assigned to the Treasury Department, as her
previous role was given to an employee who had been promoted.”
It is submitted that this admission clearly indicates that the
petitioner’s displacement from her original role was not on account
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of any bona fide restructuring alone, but was directly consequent
to the filling of her position by another employee during her
maternity leave, thereby resulting in loss of role and career
progression.
iii. Further emphasis has been placed on paragraph 11 of the reply. It
is submitted that Respondent No. 2 itself stated that “she was
assigned to the Treasury Department as a temporary measure” and
that “the Treasury role was scoped to her managerial level.”
However, in paragraph 14 of the counter-affidavit, Respondent No.
2 has averred that the posting in the Treasury Department was an
important role within the Finance Department. It is contended that
these statements are inherently contradictory.
iv. It is further pointed out that, in paragraph 10 of the counter-
affidavit, it is stated that “the Petitioner’s role was assigned to
another employee as Respondent No. 2 could not have left a team
of four people (previously managed by the Petitioner) without a
manager during the Petitioner’s absence on account of her
maternity leave for an elongated period of six months.”
v. It is highlighted that Respondent No. 2 has also reproduced an
internal communication stating, “let’s see if we can assign her
some activities to keep her engaged when she starts and also have
her as backup in case someone leaves”.
vi. It is submitted that these statements amount to a clear admission
that the Petitioner was replaced during her maternity leave, not on
account of any bona fide restructuring, but for reasons of
administrative convenience, by promoting another employee into
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her role.
vii. It is further highlighted that the contradiction in the statements of
the respondent no.2 becomes evident upon comparing paragraphs
49 and 58 of the counter-affidavit. In paragraph 49, it is stated that
the Petitioner was “moved from managing a team of 1–2 persons
to supervising four team members,” thereby suggesting an
enhancement of responsibilities. However, in paragraph 58, the
Respondent states that “the Petitioner’s earlier role was filled by
another employee as Respondent No. 2 could not leave a team of
four people (previously managed by the Petitioner) without a
manager during the Petitioner’s absence”.
viii. It is submitted that these statements are mutually inconsistent and
materially undermine Respondent No. 2’s case.
ix. Further, relying on a chat exchanged between Respondent No. 2
and the Petitioner on 02.07.2024. It is submitted that a plain
reading of the said communications reveals that the Treasury role
was portrayed in a significantly elevated manner, contrary to its
actual nature. The role is described as involving “investment
accounting and currency revaluation,” thereby projecting it as a
specialised and significant function.
x. It is further submitted that the present case raises substantial issues
concerning constitutional guarantees of equality, dignity, non-
discrimination, and protection of women in the workplace.
Reliance is placed upon Articles 14, 15, 21 and 42 of the
Constitution of India. Reliance has been placed on K. Umadevi v.
Government of Tamil Nadu & Ors . (2025) 8 SCC 263.
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xi. With regard to the statutory framework, reliance is placed upon
the provisions of the Maternity Benefit Act, 1961. Particular
emphasis is placed on Section 12 of the Maternity Benefit Act,
1961, which prohibits employers from varying the conditions of
service of a woman employee to her disadvantage during
maternity. The is contended that the prohibition extends beyond
termination of service and includes any adverse alteration of
employment conditions, including demotion, reduction of
responsibilities, loss of status, or reassignment to an inferior role.
xii. While relying on the other provisions of the Act including Section
12, 21 and 27 it is submitted that no employer can rely upon
contractual arrangements or organizational policies to dilute the
protections guaranteed under the statute.
xiii. Reliance is also placed upon the Maternity Benefit (Amendment)
Act, 2017, which introduced Section 11A mandating the provision
of creche facilities in establishments employing fifty or more
employees.
xiv. It is stated that the substantive protections under the Maternity
Benefit Act have since been incorporated into the Code on Social
Security, 2020. Section 68(1) of the Code substantially mirrors
Section 12 of the 1961 Act by prohibiting disadvantageous
variation of service conditions during maternity. The Code also
retains provisions relating to creche facilities and prescribes
penalties for non-compliance, including imprisonment and
monetary fines. It is contended that although the present dispute
arose during the operation of the Maternity Benefit Act, 1961, the
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subsequent enactment of the Code reinforces the legislative policy
that maternity must never become a basis for adverse employment
consequences.
xv. It is further submitted that a legislative gap nevertheless remains.
The existing statutes do not expressly address situations where an
employee’s salary remains unchanged but her role, responsibilities,
status, managerial authority, or opportunities for advancement are
substantially diminished upon her return from maternity leave.
xvi. The learned Amicus relies extensively on international legal
standards. Reference is made to Article 11(2)(b) of Convention on
the Elimination of All Forms of Discrimination Against Women
(CEDAW), ratified by India in 1993. Reliance is also placed upon
the ILO Maternity Protection Convention, 2000
.
xvii. Judicial support for the incorporation of these international
standards is drawn from the decisions of the Supreme Court in
Apparel Export Promotion Council v. A.K. Chopra , (1999) 1
SCC 759 and Municipal Corporation of Delhi v. Female
. It is submitted that these decisions
Workers , (2000) 3 SCC 224
recognized the relevance of international conventions in
interpreting constitutional rights.
xviii. It is submitted that the alleged post-maternity demotion,
deprivation of role continuity, exclusion from managerial
functions, and denial of career advancement in the present case are
inconsistent not only with domestic law but also with India’s
international commitments relating to gender equality and
maternity protection.
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xix. Reliance is also placed upon the Family and Medical Leave Act,
1993 of the United States, which guarantees an employee’s right to
be restored to the same or an equivalent position with equivalent
pay, benefits, and conditions of employment upon return from
maternity leave.
xx. Reference is likewise made to the Fair Work Act, 2009 and the
Sex Discrimination Act, 1984 of Australia, which require
employers to consult employees regarding decisions affecting their
position during parental leave and prohibit adverse action on
grounds of pregnancy, sex, or family responsibilities.
xxi. It is submitted that the right to return to the same or an equivalent
position, preservation of seniority and accrued benefits, and
protection against maternity-based discrimination form the core of
modern maternity jurisprudence worldwide.
xxii. It is contended that empirical studies and international research
consistently demonstrate that maternity-related disadvantage
remains a significant structural barrier to women’s equal
participation and advancement in employment. It is emphasised
that according to studies conducted by the Equality and Human
Rights Commission (EHRC), a substantial number of women
experience adverse employment consequences following
pregnancy and maternity, including dismissal, forced redundancy,
hostile treatment, or circumstances that effectively compel them to
resign. Such data, according to the learned amicus reveals that
maternity discrimination continues to operate as a widespread and
persistent workplace phenomenon.
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xxiii. The learned Amicus further contends that a significant regulatory
vacuum exists within the Indian legal framework concerning the
post-maternity reintegration of women employees. While the law
provides protections relating to maternity leave and prohibits overt
discrimination, there are no comprehensive statutory guidelines
ensuring continuity of role, preservation of professional
responsibilities, protection of career progression, or dignified
reintegration into the workplace after maternity leave.
xxiv. It is submitted that unless adequate safeguards are developed, the
protections available under maternity legislation risk becoming
merely formal rights without meaningful practical effect.
xxv. While objecting to the contention of the respondent no. 2 regarding
alternative remedy, it is submitted that it is well settled that the
rule of alternative remedy is a rule of discretion and not an
absolute bar to the exercise of writ jurisdiction. Reliance is placed
upon the decisions of the Supreme Court in Leelavathi N. v. State
of Karnataka , 2025 SCC OnLine SC 2253, Radha Krishan
Industries v. State of Himachal Pradesh , (2021) 6 SCC 771 and
, (1998) 8
Whirlpool Corporation v. Registrar of Trade Marks
SCC 1. It is therefore contended that the present petition is
maintainable under Article 226 as it raises issues of constitutional
significance extending beyond the confines of a statutory
employment dispute.
xxvi. It is further submitted that Section 12 of the Maternity Benefit Act,
1961, and its corresponding provision under Section 68(1) of the
Code on Social Security, 2020, warrant a purposive and liberal
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interpretation. Being beneficial social welfare legislation, these
provisions must be construed in a manner that advances the object
of protecting women employees rather than restricting the scope of
protection. Accordingly, it is submitted that the expression
prohibiting employers from varying the conditions of service of a
woman employee to her disadvantage should be interpreted
broadly so as to include demotion, diminution of responsibilities,
and impairment of career progression arising from maternity.
xxvii. It is submitted that judicial intervention in the present case is
necessary not merely to remedy the injustice allegedly suffered by
the petitioner, but also to address a broader structural imbalance
affecting women in the workforce.
xxviii. In this regard, reliance is placed upon Vishaka v. State of
Rajasthan , (1997) 6 SCC 241 as subsequently affirmed in Medha
, (2013) 1 SCC 297.
Kotwal Lele v. Union of India
xxix. Accordingly, learned Amicus urges this Court, pending legislative
action, to formulate guidelines governing post-maternity
reintegration of women employees.
ANALYSIS AND CONCLUSION
19. The petitioner has approached this Court under Article 226 of the
Constitution of India, seeking, inter alia, protection of her statutory and
constitutional rights relating to pregnancy and maternity leave, as well as the
issuance of appropriate directions to safeguard women employees against
maternity-based discrimination.
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Maintainability
20. At the threshold, it is necessary to deal with the respondent no. 2’s
objection as regards the maintainability of the present petition. The objection
is two-fold. First, it is contended that the respondent no. 2 is a private
commercial enterprise, discharges no public function, and that the petitioner,
in substance, seeks to enforce a contract of personal service, which is not
specifically enforceable. Second, it is contended that the Code on Social
Security, 2020 furnishes an efficacious alternative remedy.
21. It is no doubt true that the respondent no. 2 is a private commercial
entity. It is not “State” within the meaning of Article 12 of the Constitution
of India.
22. There can be no quarrel with the proposition that the ordinary
incidents of the employment relationship between the petitioner and the
respondent no. 2 are governed by contract and lie outside the domain of
public law. In St. Mary’s Education Society v. Rajendra Prasad Bhargava ,
(2023) 4 SCC 498, the Supreme Court has held that, while a private body
may perform functions touching upon public life, actions or decisions taken
solely within the confines of an ordinary contract of service cannot be
recognised as amenable to challenge under Article 226 of the Constitution of
India. The same principle has been reiterated in Army Welfare Education
Society v. Sunil Kumar Sharma & Ors. , (2024) 16 SCC 598.
23. It may be noted that what is excluded from writ jurisdiction is action
taken solely within the confines of an ordinary contract of service having no
statutory force or backing. In the present case, the petitioner does not seek to
enforce any term of her employment contract; rather, she seeks to enforce
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Section 12 of the Maternity Benefit Act, 1961, which imposes an obligation
upon every employer to whom the Act applies and which remains unaffected
by the terms of the employment contract between the parties. Section 27 of
the Maternity Benefit Act, 1961 provides that the provisions of the 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 the Act. Thus, it is
evident that the obligation which the petitioner seeks to enforce is statutory
in nature and operates in supersession of the terms of the contract of
employment.
24. A statute which declares certain conduct unlawful and overrides the
terms of a contract of service cannot be bypassed on the ground that the
matter falls within the sphere of private employment. The Maternity Benefit
Act, 1961, imposes positive obligations of a public character upon an
employer in furtherance of a legislative policy directed towards the
protection of women in the workforce. A writ petition will undoubtedly lie
in respect of an obligation of such a nature.
25. The Supreme Court in Federal Bank Ltd. v. Sagar Thomas , (2003)
10 SCC 733, has observed as under –
“18. From the decisions referred to above, the position that emerges is
that a writ petition under Article 226 of the Constitution of India may be
maintainable against (i) the State (Government); (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the State; (v) a
company which is financed and owned by the State; (vi) a private body
run substantially on State funding; (vii) a private body discharging
public duty or positive obligation of public nature; and (viii) a person or
a body under liability to discharge any function under any statute, to
compel it to perform such a statutory function
.”
26. The decisions relied upon by the respondent no. 2 are inapplicable,
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inasmuch as what is asserted by the petitioner is a statutory right that
subsists independently of her employment contract. A writ petition is
maintainable for the enforcement of statutory obligations, inter alia , those
contained in Section 12 of the Maternity Benefit Act, 1961. Such statutory
obligations subsist notwithstanding that the concerned employer does not
fall within the category of “State” as defined in Article 12 of the
Constitution of India. Accordingly, the present writ petition is held to be
maintainable.
1
27. It may also be noted that the Supreme Court
has held that, where the
actions of private entities substantially impair constitutionally protected
rights, the jurisdiction of constitutional courts cannot be excluded merely
because the dispute originates within a private relationship.
28. Equally untenable is the objection that the writ petition is barred on
account of the availability of an alternative statutory remedy under the Code
on Social Security, 2020. It is well settled that the rule of alternative remedy
is a rule of prudence and self-imposed restraint; it is neither a rule of
jurisdiction nor an absolute bar to the exercise of writ jurisdiction. In
Radha
Krishan Industries v. State of Himachal Pradesh , (2021) 6 SCC 771, after
considering the earlier decisions in Whirlpool Corporation v. Registrar of
Marks (1998) 8 SCC 1 and other precedents, the Supreme Court
Trade
reiterated that the existence of an alternate remedy does not preclude the
exercise of jurisdiction under Article 226 in appropriate case. The relevant
observations of the Court is reproduced as under -
“27.3. Exceptions to the rule of alternate remedy arise where : (a) the
writ petition has been filed for the enforcement of a fundamental right
1
Kaushal Kishor v. State of U.P., (2023) 4 SCC 1
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protected by Part III of the Constitution; (b) there has been a violation
of the principles of natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a legislation is
challenged.”
29. The same principle has recently been reaffirmed in Leelavathi N. v.
, 2025 SCC OnLine SC 2253, wherein the Supreme
State of Karnataka
Court has observed as under –
“37. Nevertheless, a writ petition under Article 226 may still be
maintainable notwithstanding the existence of such an alternative
remedy in exceptional circumstances, including the enforcement of
fundamental rights guaranteed under Part III of the Constitution;
instances of ultra vires or illegal exercise of power by a statutory
authority; violation of the principles of natural justice; or where
the vires of the parent legislation itself is under challenge……”
30. The present case, in the considered view of this Court, falls squarely
within the recognised exceptions to the rule of alternate remedy. The
petitioner does not merely seek enforcement of a statutory entitlement to
maternity leave or payment of maternity benefits. Her grievance pertains to
alleged post-maternity demotion, loss of managerial authority, deprivation
of professional responsibilities, denial of career progression, and
discriminatory treatment arising from pregnancy and motherhood. These
allegations directly implicate the guarantees of equality under Articles 14
and 15, the right to dignity and livelihood under Article 21, and the
constitutional commitment to maternity protection reflected in Article.
31. It is also common ground in the present case that the rules and
schemes contemplated by Sections 150 and 154 of the Code on Social
Security, 2020, have not yet been framed. Learned counsel for the Union of
India has candidly acknowledged that the implementation framework is
deficient in precisely those respects with which the present petition is
concerned. As such, there is no occasion to relegate the petitioner to a
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mechanism that is presently absent and yet to be framed.
32. Importantly, the issues involved in the present petition concern the
broader question of whether the constitutional promise of equality and
dignity for working women survives after childbirth and whether maternity
can become a basis for professional disadvantage in the workplace. Such
questions undoubtedly possess a significant constitutional character and
warrant examination under Article 226 of the Constitution.
Constitutional And Statutory Framework Governing Maternity
Protection
33. Article 14 of the Constitution of India guarantees that “the State shall
not deny to any person equality before the law or the equal protection of the
laws within the territory of India.” In the sphere of employment, this
constitutional mandate requires that employees be treated fairly and that no
individual is subjected to adverse treatment without a reasonable and lawful
basis.
34. Article 15(1) of the Constitution further provides that “the State shall
not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.” The prohibition against discrimination
on the ground of sex encompass discrimination arising from pregnancy and
maternity.
35. Article 21 of the Constitution of India provides that “no person shall
be deprived of his life or personal liberty except according to procedure
Over the years, the scope of Article 21 has been
established by law.”
interpreted by the Supreme Court to encompass the right to live with dignity,
the right to livelihood, reproductive autonomy, and the right to motherhood.
36. The significance of maternity protection as a constitutional
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entitlement has been unequivocally affirmed by the Supreme Court in K.
Umadevi v. State of T.N. , (2025) 8 SCC 263. The relevant observations of
the Supreme Court are reproduced hereunder:–
51. Such international developments had its impact on Indian law.
In Suchita Srivastava v. State (UT of Chandigarh) [Suchita
Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 : (2009) 3 SCC
(Civ) 570] , a three-Judge Bench of this Court in the context of the
Medical Termination of Pregnancy Act, 1971 acknowledged the right of
a woman to make reproductive choices and held that such a right is a
facet of Article 21 of the Constitution
. This Court held thus: (SCC p. 15,
para 22)
“22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the Constitution
of India. It is important to recognise that reproductive
choices can be exercised to procreate as well as to abstain
from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity should
be respected. This means that there should be no restriction
whatsoever on the exercise of reproductive choices such as
a woman's right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods.
Furthermore, women are also free to choose birth control
methods such as undergoing sterilisation procedures. Taken
to their logical conclusion, reproductive rights include a
woman's entitlement to carry a pregnancy to its full term, to
give birth and to subsequently raise children.”
52. This Court in Devika Biswas v. Union of India [Devika
Biswas v. Union of India, (2016) 10 SCC 726] observed that the need to
respect and protect reproductive rights and reproductive health of a
person has been recognised. Reproductive right is an aspect of personal
liberty under Article 21 of the Constitution
. This decision was rendered
in the backdrop of the sterilisation campaign carried out by the State.
53. In Devika Biswas [Devika Biswas v. Union of India, (2016) 10 SCC
726] , this Court observed as under: (SCC pp. 753-54, paras 106 &
109-111)
“106. The manner in which sterilisation procedures have
reportedly been carried out endanger two important
components of the right to life under Article 21 of the
Constitution—the right to health and the reproductive rights
of a person.
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*
109. That the right to health is an integral part of the right
to life does not need any repetition.
110. Over time, there has been recognition of the need to
respect and protect the reproductive rights and reproductive
health of a person. Reproductive health has been defined as
“the capability to reproduce and the freedom to make
informed, free and responsible decisions. It also includes
access to a range of reproductive health information, goods,
facilities and services to enable individuals to make
informed, free and responsible decisions about their
reproductive behaviour”. [ WHO, Sexual Health, Human
Rights and the Law (2015) cited from Committee on
Economic, Social and Cultural Rights, General Comment
No. 22 (2016) on the Right to Sexual and Reproductive
Health (Article 12 of the International Covenant on
Economic, Social and Cultural Rights), 2-5-2016,
E/C.12/GC/22 at para 6 <https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G16/089/32/PDF/G1608932.p
df?OpenElement>.] The Committee on Economic, Social
and Cultural Rights in General Comment No. 22 on the
Right to Sexual and Reproductive Health under Article 12 of
the International Covenant on Economic, Social and
Cultural Rights [ India ratified this Convention on 10-4-
1979.] observed that “The right to sexual and reproductive
health is an integral part of the right of everyone to the
highest attainable physical and mental health.” [ General
Comment No. 22 (2016) on the Right to Sexual and
Reproductive Health (Article 12 of the International
Covenant on Economic, Social and Cultural Rights),
E/C.12/GC/22 <https://documents-
ddsny.un.org/doc/UNDOC/GEN/G16/089/32/PDF/G160893
2.pdf?OpenElement>.]
111. This Court recognised reproductive rights as an aspect
of personal liberty under Article 21 of the Constitution
in Suchita Srivastava v. State (UT of Chandigarh) [Suchita
Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 :
(2009) 3 SCC (Civ) 570] The freedom to exercise these
reproductive rights would include the right to make a choice
regarding sterilisation on the basis of informed consent and
free from any form of coercion.”
54. Elaborating on the contours of reproductive rights, this Court
in X1 v. State (NCT of Delhi) [X1 v. State (NCT of Delhi), (2023) 9 SCC
433] observed that the ambit of reproductive rights is not restricted to
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the right of women to have or not to have children. It also includes the
constellation of freedoms and entitlements that enable a woman to
decide freely on all matters relating to her sexual and reproductive
health
.
55. This Court in X1 case [X1 v. State (NCT of Delhi), (2023) 9 SCC
433] observed that although human dignity inheres in every individual,
it is susceptible to violation by external conditions and treatment
imposed by the State. The right of every woman to make reproductive
choices without undue interference from the State is central to the idea
of human dignity. Deprivation of access to reproductive healthcare or
emotional and physical well-being also injures the dignity of women.
This Court referred to Article 51 of the Constitution which urges the
State to foster respect for international law and treaty obligations.
56. The relevant extract of the said decision reads thus: (X1
case [X1 v. State (NCT of Delhi), (2023) 9 SCC 433] , SCC pp. 486-87,
para 101)
“101. The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also
includes the constellation of freedoms and entitlements that
enable a woman to decide freely on all matters relating to
her sexual and reproductive health. Reproductive rights
include the right to access education and information about
contraception and sexual health, the right to decide whether
and what type of contraceptives to use, the right to choose
whether and when to have children, the right to choose the
number of children, the right to access safe and legal
abortions, and the right to reproductive healthcare. Women
must also have the autonomy to make decisions concerning
these rights, free from coercion or violence.”
57. In a recent decision, the Delhi High Court in Delhi Police v. Ravina
Yadav [Delhi Police v. Ravina Yadav, 2024 SCC OnLine Del 4987]
explained the purpose of maternity benefit. It is to ensure that a working
lady may overcome the state of motherhood honourably, peaceably and
undeterred by the fear of being victimised for forced absence from work
during pre- and post-natal periods. Women now constituting a sizable
portion of the workforce in our country, must be treated with honour
and dignity at places where they work to earn their livelihood
.
58. The High Court in Raveena Yadav case [Delhi Police v. Ravina
Yadav, 2024 SCC OnLine Del 4987] went on to explain the impact of
pregnancy on the physiological and psychological state of a woman
employee undergoing pregnancy. It is not just motherhood but also
childhood that require special attention. Health issues of both mother as
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well as that of the child are to be kept in consideration while providing
maternity leave. Concept of maternity leave is a matter of not just fair
play and social justice but is also a constitutional guarantee to the
women employees of this country towards fulfilment whereof the State
is bound to act
37. In Hamsaanandini Nanduri vs Union Of India , 2026 SCC OnLine
.
SC 402, recently the Supreme Court has observed as under –
20. Women, as primary caregivers of children, play a crucial role in the
early development of children, more particularly, in the formative years
of the child when a mother provides stability, care, and consistent
nurturing. During this period, mothers undertake extensive physical,
emotional, and psychological responsibilities. It often requires them to
prioritize childcare over professional commitments. In such
circumstances, institutional support becomes necessary to enable them
to discharge responsibilities effectively without fear of financial
insecurity, professional disadvantage, or the loss of livelihood
.
21. The protection of maternity leave is a basic human right, as it
recognizes conditions that are necessary for the full development of
human personality and realization of equality. It embodies an essential
component required to promote equality at workplace and safeguards
maternal and child health. In other words, it dignifies motherhood.
xxx
23. The concept of maternity benefit acknowledges the ability of a
woman to exercise her reproductive choices without fear of losing her
employment, more particularly, the economic security. Thus, it ensures
that motherhood does not become a factor for exclusion at workplace.
24. In the aforesaid context, the right of maternity protection recognizes
the biological as well as caregiving realities associated with
motherhood, and seeks to correct structural inequalities that women
face in employment. It represents the State's commitment to uphold
human dignity, equal treatment at work, and broader ideals of social
justice.
25. Thus, legislating for maternity benefit and childcare, in the form of
payment during periods of recovery and care, crèche facilities at the
workplace, and parental leave for tending to young children, constitutes
institutional support aimed at enabling women to seek and retain
employment, participate meaningfully in public life, and progressively
attain substantive equality.
xxx
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47. In Dev Shree Bandhe v. C.G. State Power Holding Co. Ltd.,
reported in 2017 SCC OnLineChh 1763 , the petitioner, employed on
probation, sought maternity leave which was declined by the
respondent. The Court recognized the right to motherhood and the right
of every child to full development as part of Article 21. Similarly, the
Rajasthan High Court in Chanda Keswani v. State of Rajasthan,
reported in 2023 SCC OnLine Raj 3274 , held that the right to life
includes the right to motherhood and the right of every child to full
developmen
t. Thus, it was held that denial of maternity leave cannot be
on the ground that the woman seeking it has given birth biologically, or
has begotten a child through surrogacy or adoption.
xxx
50. Motherhood does not end with the birth of a child. This was
observed, or rather emphasized by the Chhattisgarh High Court in Lata
Goyal v. Union of India, reported in 2025 SCC OnLineChh 5572 ,
wherein the petitioner, an employee of IIM, sought directions that
adoption leave and child care leave as per the CCS (Leave) Rules be
made applicable to her. The views expressed by the Court merit
commendation.
It observed that a woman's right to practice a profession is a
constitutional entitlement flowing from Articles 14, 15, and 21 of
the Constitution respectively . It emphasized that State cannot remain
oblivious to the needs and concerns of women in workforce
. The Court
categorically held that discrimination on the ground of the mode of
bringing a child is impermissible, for the object of such leave is to
dignify motherhood and ensure the healthy growth and development of
the child. It refrained from distinguishing between a biological,
adoptive or surrogate mother. The relevant observations read thus:—
“12. Adoptive mothers, like all mothers, are capable of
experiencing deep love and affection for their children,
regardless of whether they are biological or adopted. The
love and affection they offer can be just as strong and
profound as that of a birth mother. Adoptive mothers, like
birth mothers, can form strong bonds of love and
attachment with their children. These bonds can be crucial
for a child's emotional and psychological well-being.
13. The participation of women in the work force is not a
matter of privilege, but a constitutional entitlement
protected by Articles 14, 15 and 21 of the Constitution;
besides Article 19(1)(g). The “State” as a model employer
cannot be oblivious to the special concerns which arise in
the case of women who are part of the work force. The
provision of child care leave to women sub-serves the
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significant constitutional object of ensuring that women
are not deprived of their due participation as members of
the work force . Otherwise, in the absence of a provision for
the grant of Child Care Leave, a mother may well be
constrained to leave the work force. This consideration
applies a fortiori in the case of a mother who has a child
with special needs.
Such a case is exemplified in the case of
the petitioner herself.
xxx
15. There ought not to be any discrimination of a woman as
far as the maternity benefits are concerned only on the
ground that she has obtained the baby through adoption.
The object of the leave is to protect the dignity of
motherhood by providing for full and healthy maintenance
to the child. Child care/child adoption leave is intended to
achieve the object of ensuring social justice to women.
Childhood both require special attention.
16. Not only are the health issues of the child considered
while providing leave, but the leave is provided for creating
a bond of affection between the two. Motherhood never ends
on the birth of the child and a commissioning/adoption
mother cannot be refused paid maternity leave. A woman
cannot be discriminated, as far as maternity benefits are
concerned, only on the ground that she has obtained the
baby through surrogacy/adoption. A newly born child
cannot be left at the mercy of others as it needs rearing and
that is the most crucial period during which the child
requires care and attention of mother. The tremendous
amount of learning that takes place in the first year of the
baby's life, the baby learns a lot too. A bond of affection has
also to be developed.
17. There is no distinction between the natural, biological,
surrogate or commissioning/adoption mothers and all of
them have fundamental right to life and motherhood,
contained under Article 21 of the Constitution of India and
children born from the process of surrogacy/adoption have
the right to life, care, protection, love, affection and
development through their mother, then certainly such
mothers have right to get maternity leave for above
purpose.”
xxx
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111. In X2 v. State (NCT of Delhi), (2023) 9 SCC 433, wherein one of
us, J. B. Pardiwala, J., was a part of the Bench, observed that the
bouquet of reproductive rights encompasses at the very least the right of
women to have or not have children. The Court emphasized that
reproductive autonomy forms an integral part of personal liberty and
decisional autonomy under Article 21 of the Constitution
. The relevant
observations read thus:—
“101.
The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also
includes the constellation of freedoms and entitlements that
enable a woman to decide freely on all matters relating to
her sexual and reproductive health. Reproductive rights
include the right to access education and information about
contraception and sexual health, the right to decide whether
and what type of contraceptives to use, the right to choose
whether and when to have children
, the right to choose the
number of children, the right to access safe and legal
abortions, and the right to reproductive healthcare. Women
must also have the autonomy to make decisions concerning
these rights, free from coercion or violence.
102.
Zakiya Luna has, in a 2020 publication, argued that
reproduction is both biological and political. [Zakiya Luna,
Reproductive Rights as Human Rights : Women of Color
and Fight for Reproductive Justice (NYU Press,
2020).] According to Luna, it is biological since physical
bodies reproduce, and it is political since the decision on
whether to reproduce or not is not solely a private matter.
This decision is intimately linked to wider political, social,
and economic structures.
A woman's role and status in
family, and society generally, is often tied to childbearing
and ensuring the continuation of successive generations.
xxx
117. Recently, in K. Umadevi (supra), Ujjal Bhuyan, J., succinctly
highlighted the constitutional support to social security benefits through
the Directive Principles of State Policy. The relevant observations read
thus:—
“30. Article 42 of the Constitution of India which is one of
the directive principles of State policy mandates that the
State shall make provisions for securing just and humane
conditions of work and for maternity relief. Article 42 is as
follows:
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“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.”
31. Another directive principle is contained in Article 51 of
the Constitution of India. Amongst others, it says through
Article 51(c) that the State shall endeavour to foster respect
for international law and treaty obligations in the dealings
of organised people with one another.
”
38. In Sarita Choudhary v. High Court of M.P ., (2025) 9 SCC 297, the
Supreme has made the following observations –
“105. The freedom from discrimination or equal protection of the laws
during pregnancy and maternity of a woman are precious rights for
women workforce…..”
39. Article 42 of the Constitution of India, which forms part of the
Directive Principles of State Policy, mandates that “the State shall make
provision for securing just and humane conditions of work and for maternity
Although the Directive Principles are not enforceable by themselves,
relief.”
they constitute fundamental principles in the governance of the country and
serve as important guides in interpreting constitutional guarantees.
40. The significance of Article 42 in the context of maternity protection
was emphatically recognized by the Supreme Court in
Municipal
, (2000) 3 SCC
Corporation of Delhi v. Female Workers (Muster Roll)
224,wherein the Court observed that –
“11. It is in the background of the provisions contained in Article 39,
specially in Articles 42 and 43, that the claim of the respondents for
maternity benefit and the action of the petitioner in denying that benefit
to its women employees has to be scrutinised so as to determine whether
the denial of maternity benefit by the petitioner is justified in law or not.
12. Since Article 42 specifically speaks of 'Just and humane conditions
of work" and "maternity relief', the validity of an executive or
administrative action in denying maternity benefit has to be examined
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on the anvil of Article 42 which, though not enforceable at law, is
nevertheless available for determining the legal efficacy of the action
complained of
.”
41. The observations of the Supreme Court make it abundantly clear that
maternity relief is not merely a matter of statutory entitlement but a
constitutional objective rooted in the broader ideals of social justice, dignity,
and humane conditions of employment. Article 42 thus reflects a clear
constitutional commitment that motherhood must be protected,
accommodated, and supported in the workplace, rather than becoming a
source of disadvantage or exclusion.
42. Maternity Benefit Act, 1961
, a beneficial piece of social welfare
legislation seeks to regulate the employment of women before and after
childbirth and to ensure that motherhood does not result in loss of
employment, economic insecurity, or professional disadvantage.
43. The central protection relevant to the present controversy is contained
in
Section 12 of the Maternity Benefit Act, 1961
, which provides that -
“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).”
44. Section 21 of the Maternity Benefit Act, 1961
, prescribes penal
consequences for contravention of the Act. The same is reproduced as
under–
[
21. Penalty for contravention of Act by employer
.—(1) If any employer
fails to pay any amount of maternity benefit to a woman entitled under
this Act or discharges or dismisses such woman during or on account of
her absence from work in accordance with the provisions of this Act, he
shall be punishable with imprisonment which shall not be less than
three months but which may extend to one year and with fine which
shall not be less than two thousand rupees but which may extend to five
thousand rupees:
Provided that the court may, for sufficient reasons to be recorded in
writing, impose a sentence of imprisonment for a lesser term or fine
only in lieu of imprisonment.
(2) If any employer contravenes the provisions of this Act or the rules
made thereunder, he shall, if no other penalty is elsewhere provided by
or under this Act for such contravention, be punishable with
imprisonment which may extend to one year, or with fine which may
extend to five thousand rupees, or with both:
Provided that where the contravention is of any provision regarding
maternity benefit or regarding payment of any other amount and such
maternity benefit or amount has not already been recovered, the court
shall, in addition recover such maternity benefit or amount as if it were
a fine and pay the same to the person entitled thereto.]
45. Section 27 of the Act grants overriding effect to its provisions.
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Section 27 expressly stipulates that -
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
matters 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.
46. The Maternity Benefit (Amendment) Act, 2017, further introduced
, mandating the establishment of creche facilities in every
Section 11-A
establishment employing fifty or more employees. Section 11-A is
reproduced as under –
“[
11-A. Créche facility
.—(1) Every establishment having fifty or more
employees shall have the facility of créche within such distance as may
be prescribed, either separately or along with common facilities:
Provided that the employer shall allow four visits a day to the creche by
the woman, which shall also include the interval for rest allowed to her.
(2) Every establishment shall intimate in writing and electronically to
every woman at the time of her initial appointment regarding every
benefit available under the Act.]”
47. Subsequently, the provisions of the Maternity Benefit Act, 1961 were
incorporated into the Code on Social Security, 2020
, which consolidates
various labour welfare enactments.
48. In particular,
Section 68(1) of the Code on Social Security, 2020 is
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substantially identical to Section 12 of the Maternity Benefit Act, 1961. The
same is reproduced as under -
“68. Dismissal for absence during pregnancy
.—(1) When a woman
absents herself from work in accordance with the provisions of this
Chapter, 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 :
Provided that 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 under this
Chapter, shall not have the effect of depriving her of the maternity
benefit or medical bonus:
Provided further that where the dismissal is for any gross misconduct as
may be prescribed by the Central Government, the employer may, by
order in writing, communicated to the woman, deprive her of the
maternity benefit or medical bonus, or both.
2
49. Likewise, Section 67 of the Code preserves the requirement of creche
facilities for establishments employing the prescribed number of employees.
,
The Code also contains penal provisions under Sections 133 and 134
thereby reaffirming the seriousness with which the legislature views
violations of maternity protections.
2
67. Creche facility .—(1) Every establishment to which this Chapter applies, in which fifty
employees or such number of employees as may be prescribed by the Central Government, are employed
shall have the facility of crèche within such distance as may be prescribed by the Central Government,
either separately or along with common facilities:
Provided that the employer shall allow four visits a day to the crèche by the woman, which shall also
include the intervals of rest allowed to her:
Provided further that an establishment may avail common crèche facility of the Central Government,
State Government, municipality or private entity or provided by non-Governmental organisation or by any
other organisation or group of establishments who may pool their resources for setting up of common
crèche in the manner as they may agree for such purpose.
(2) Every establishment to which this Chapter applies shall intimate in writing and electronically to
every woman at the time of her initial appointment in such establishment regarding every benefit available
under this Chapter.
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50. In the present case, it has been pointed that the cause of action arose
at a time when the Maternity Benefit Act, 1961 governed the field, and
therefore the rights and obligations of the parties must primarily be
determined under the said enactment. Nevertheless, the subsequent
incorporation of these protections into the Social Security Code, 2020 is of
considerable relevance, as it reaffirms and reinforces the legislative
commitment to safeguarding women against discrimination arising from
pregnancy and maternity.
51. Now for the question as to whether the protections envisaged under
the maternity laws extend beyond the mere grant of maternity leave and
continuity of employment, so as to protect a woman employee from being
assigned, upon her return from maternity leave, a role that is substantially
inferior in status, responsibilities, authority, or prospects of career
advancement than the position she previously occupied, it is first important
to consider the breadth of the expression “vary to her disadvantage any of
the conditions of her service” in
section 12 of the Maternity Benefit Act,
1961. The legislative prohibition is not confined merely to termination of
employment. The statute consciously employs language of far wider import,
thereby extending protection against any adverse alteration of service
conditions suffered by a woman on account of pregnancy or maternity leave.
The legislative intent is clear, a woman employee cannot be placed in a
worse position because she exercised her statutory right to maternity leave.
52. A purposive and beneficial interpretation of Section 12 necessarily
extends its protection to all forms of adverse employment action that operate
to the detriment of a woman employee on account of pregnancy or maternity
leave. Such actions would include, demotion, reduction in managerial or
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supervisory authority, reassignment to a substantially inferior role, denial of
promotional opportunities, withdrawal of significant responsibilities, or any
other measure that results in a material deterioration of her service
conditions or professional standing. The underlying legislative premise is
that pregnancy and childbirth must not become a source of professional
disadvantage, and that a woman’s status, responsibilities, authority, and
career progression must remain insulated from prejudice arising solely on
account of motherhood.
53. It is true that the Act does not expressly address situations where an
employer formally preserves an employee’s designation and remuneration
while simultaneously divesting her of the substantive attributes of her office,
such as managerial authority, supervisory responsibilities, professional
standing, decision-making powers, or meaningful opportunities for career
advancement.
54. In other words, the statute does not specifically contemplate
circumstances where a woman employee continues in service on the same
pay and designation but is, upon her return from maternity leave, effectively
relegated to a substantially inferior role. Such practices may ostensibly
preserve the outward incidents of employment while, in substance, inflicting
a significant diminution in status, authority, responsibilities, and future
career prospects.
55. This Court is of the considered opinion that an interpretation which
permits an employer to achieve such an outcome would substantially defeat
the object and purpose of the legislation. The law cannot be construed in a
manner that allows its substantive guarantees to be circumvented through
formal or cosmetic compliance.
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56. The object of the Maternity Benefit Act is not merely to ensure
continuity of wages during the period of maternity. The legislation is a
social welfare measure intended to protect the dignity of motherhood,
preserve the economic security of women, and ensure that pregnancy does
not become a source of professional disadvantage. The statutory protection
would be rendered illusory if employers were permitted to superficially
maintain an employee’s salary and designation while effectively stripping
her of the substantive attributes of her position.
57. To accept such a construction would enable an employer to achieve
indirectly what the statute prohibits directly. An employer could ostensibly
comply with the law by retaining the employee in service, while at the same
time relegating her to a diminished role devoid of meaningful
responsibilities, authority, or prospects of advancement. Such an
interpretation would reduce the protections under Section 12 to a mere
formality and frustrate the legislative objective underlying the enactment.
58. As noted hereinabove, Articles 14, 15, 21 and 42 of the Constitution
collectively guarantee equality, non-discrimination, dignity and reproductive
autonomy.
59. Where a woman employee is placed at a disadvantage, deprived of
professional growth, denied promotion, stripped of responsibilities, or
otherwise subjected to adverse employment consequences solely on account
of pregnancy or maternity leave, the resulting action is not merely contrary
to the spirit of the Maternity Benefit Act but is also manifestly arbitrary and
offensive to the guarantee of equality under Article 14.
60. Similarly, adverse treatment arising from pregnancy or childbirth
constitutes discrimination on the ground of sex and falls within the
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prohibition contained in Article 15(1). Motherhood cannot be permitted to
become a basis for unequal treatment or professional disadvantage in the
workplace.
61. Further, the constitutional protection afforded by Article 21
recognizes that the decision to bear and raise a child forms an integral part
of a woman’s dignity, bodily autonomy, and personal liberty. Any
employment practice that penalizes a woman for exercising her maternity
rights or effectively compels her to choose between motherhood and
professional advancement strikes at the core of the constitutional guarantee
under Article 21.
62. Thus, a harmonious reading of Articles 14, 15, 21 and 42 leaves little
room for doubt that pregnancy and maternity cannot be treated as grounds
for professional disadvantage, demotion, loss of status, or denial of career
progression. Such actions undermine not only the statutory protections
available to women employees but also the constitutional commitment to
equality, dignity, social justice, and humane conditions of work.
Recognition of Maternity Protection in the International Law
Framework
63. The above conclusion is consistent with the international conventions
and standards to which India is a party and which have consistently
recognised maternity protection as an indispensable facet of gender equality,
dignity, and the right to work. The principles embodied in these instruments
are of considerable significance, particularly in interpreting constitutional
guarantees and labour welfare legislation concerning women employees.
64. India is a signatory to the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), adopted on 18.12.1979 and
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ratified by India in 1993. Article 11(2)(b) of CEDAW provides that –
“2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, States
Parties shall take appropriate measures:……
….(b) To introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances;”
65. The above provision highlights that the exercise of maternity rights
must not result in any loss of former employment, seniority or social
allowances.
66. A similar guarantee is embodied in the International Labour
Organization, Maternity Protection Convention, 2000
, which reflects the
prevailing international consensus on maternity-related employment
protections. Article 8 thereof provides:
“1. It shall be unlawful for an employer to terminate the employment of
a woman during her pregnancy or absence on leave referred to in
Articles 4 or 5 or during a period following her return to work to be
prescribed by national laws or regulations, except on grounds unrelated
to the pregnancy or birth of the child and its consequences or nursing.
The burden of proving that the reasons for dismissal are unrelated to
pregnancy or childbirth and its consequences or nursing shall rest on
the employer.
2. A woman is guaranteed the right to return to the same position or an
equivalent position paid at the same rate at the end of her maternity
leave.”
67. Further, Article 9(1) mandates that:
“Each Member shall adopt appropriate measures to ensure that
maternity does not constitute a source of discrimination in employment,
including - notwithstanding Article 2, paragraph 1 - access to
employment.”
68. These provisions establish that maternity leave must not adversely
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affect a woman’s employment status, career trajectory, professional
standing, or opportunities for advancement. Continuity of employment,
equality of opportunity, and preservation of dignity are recognised as
essential components of maternity protection.
69. The relevance of these international instruments within the Indian
constitutional framework cannot be overstated. Article 51(c) of the
Constitution of India provides that:
“The State shall endeavour to foster respect for intonational law and
treaty obligations in the dealings of organised peoples with one
another.”
70. In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC
759, the Supreme Court emphatically recognised the importance of
international conventions in the interpretation of domestic law and has
observed as under –
“26 ………..The message of international instruments such as the
Convention on the Elimination of All Forms of Discrimination Against
Women, 1979 (“CEDAW”) and the Beijing Declaration which directs
all State parties to take appropriate measures to prevent discrimination
of all forms against women besides taking steps to protect the honour
and dignity of women is loud and clear. The International Covenant on
Economic, Social and Cultural Rights contains several provisions
particularly important for women. Article 7 recognises her right to fair
conditions of work and reflects that women shall not be subjected to
sexual harassment at the place of work which may vitiate the working
environment. These international instruments cast an obligation on the
Indian State to gender-sensitise its laws and the courts are under an
obligation to see that the message of the international instruments is not
allowed to be drowned. This Court has in numerous cases emphasised
that while discussing constitutional requirements, court and counsel
must never forget the core principle embodied in the international
conventions and instruments and as far as possible, give effect to the
principles contained in those international instruments. The courts are
under an obligation to give due regard to international conventions and
norms for construing domestic laws, more so, when there is no
inconsistency between them and there is a void in domestic law.
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27. In cases involving violation of human rights, the courts must forever
remain alive to the international instruments and conventions and apply
the same to a given case when there is no inconsistency between the
international norms and the domestic law occupying the field. In the
instant case, the High Court appears to have totally ignored the intent
and content of the international conventions and norms while dealing
with the case.”
71. In Municipal Corporation of Delhi v. Female Workers (Muster
, (2000) 3 SCC 224, the Supreme Court has observed as under -
Roll)
“37. Delhi is the capital of India. No other city or corporation would be
more conscious than the city of Delhi that India is a signatory to
various international covenants and treaties. The Universal Declaration
of Human Rights, adopted by the United Nations on 10-12-1948, set in
motion the universal thinking that human rights are supreme and ought
to be preserved at all costs. This was followed by a series of
conventions.
On 18-12-1979, the United Nations adopted the
“Convention on the Elimination of all Forms of Discrimination against
Women”. Article 11 of this Convention provides as unde
r:
“Article 11
1. States/parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to
ensure, on a basis of equality of men and women, the same rights, in
particular:
(a) the right to work as an inalienable right of all human beings;
(b) the right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment;
(c) the right to free choice of profession and employment, the right to
promotion, job security and all benefits and conditions of service and
the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(d) the right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
(e) the right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to
work, as well as the right to paid leave;
(f) the right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
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2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work,
States/parties shall take appropriate measures:
(a) to prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
(b) to introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances;
(c) to encourage the provision of the necessary supporting social
services to enable parents to combine family obligations with work
responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child-
care facilities;
(d) to provide special protection to women during pregnancy in types of
work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall
be reviewed periodically in the light of scientific and technological
knowledge and shall be revised, repealed or extended as necessary.”
38. These principles which are contained in Article 11, reproduced
above, have to be read into the contract of service between the
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 sub-section (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.”
72. In K. Umadevi v. State of T.N . , (2025) 8 SCC 263, the Court has
observed as under –
“42. The Convention on the Elimination of All Forms of Discrimination
Against Women (C EDAW ) was held in 1979 under the aegis of the United
Nations. As a matter of fact, C EDAW was adopted by the United Nations
General Assembly on 18-12-1979. This Convention was the culmination
of more than 30 years of work by the United Nations Commission on the
Status of Women, established in the year 1946, monitoring the situation
of women around the world and to promote women's rights. Thrust
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of C EDAW is maximum participation of women on equal terms with men
in all fields of life to ensure full and complete development of a
country. C EDAW is the most comprehensive international convention
focused on eliminating discrimination against women. India
EDAW
ratified C in 1993.
EDAW
43. Article 11(1) of C emphasises that appropriate measures
should be taken by all nations to eliminate discrimination against
women in the field of employment. Article 11(2) says that in order to
prevent discrimination against women on the grounds of marriage or
maternity and to ensure their effective right to work, the States shall
take appropriate measures. As per sub-clause (b), signatory States are
under an obligation to introduce maternity leave with pay or with
comparable social benefits without loss of former employment, seniority
or social allowances.
EDAW
44. Article 12(1) of C obligates the States to take all appropriate
measures to eliminate discrimination against women in the field of
healthcare including access to healthcare services, particularly those
related to family planning. On the other hand, Article 12(2) says that
notwithstanding the provisions of Article 12(1), signatory States shall
ensure to women appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free services where
necessary, as well as adequate nutrition during pregnancy and
lactation.
45. Article 16(1)(e) of C EDAW affirms the right of a woman to decide
freely and responsibly on the number and spacing of children and to
have access to the information, education and means to do so. Article
16(1)(e) reads thus:
“ 16. (1) States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality of
men and women:
*
(e) The same rights to decide freely and responsibly on the number and
spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;”
EDAW
46. In its 20th Session held in 1999, C adopted several
recommendations. General Recommendation 24 pertains to women and
health. Such recommendation emphasised on the need to ensure access
to adequate healthcare facilities particularly in respect of family
planning, protection of women's health and safety in working
conditions, including safeguarding of the reproductive function, special
protection from harmful types of work during pregnancy and with the
provision for paid maternity leave. It was also emphasised that women
should have the same rights as men to decide freely and responsibly on
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the number and spacing of their children.
47. A Maternity Protection Convention was held on 30-5-2000 at
Geneva under the aegis of the International Labour Organization.
General Conference of the International Labour Organization adopted
the proposals of the said Convention on 15-6-2000. International
labour standards have long recognised maternity protection as essential
for promoting workplace equality and safeguarding maternal and child
health. This Convention applies to all employed women including those
in atypical forms of dependent work.
48. Article 4 of this Convention deals with maternity leave. As per
clause (1), a woman to whom the said Convention applied shall be
entitled to a period of maternity leave of not less than 14 weeks. As per
clause (4), maternity leave shall include a period of 6 weeks'
compulsory leave after childbirth for the protection of the health of the
mother and that of the child. Clause (5) clarifies that the prenatal
portion of maternity leave shall be extended by any period elapsing
between the presumed date of childbirth and the actual date of
childbirth, without reduction in any compulsory portion of post-natal
leave.
49. Under Article 8(1) of the Convention, it shall be unlawful for an
employer to terminate the employment of a woman during her
pregnancy. As per clause (2), a woman is guaranteed the right to return
to the same position or an equivalent position paid at the same rate at
the end of her maternity leave.
50. Thus, as can be seen from the above, through various international
conventions, the world community has recognised the broad spectrum
of reproductive rights which includes maternity benefits. Maternity
leave is integral to maternity benefits. Reproductive rights are now
recognised as part of several intersecting domains of international
human rights law viz. the right to health, right to privacy, right to
equality and non-discrimination and the right to dignity.
51. Such international developments had its impact on Indian law.
In Suchita Srivastava v. State (UT of Chandigarh) [Suchita
Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 : (2009) 3 SCC
(Civ) 570] , a three-Judge Bench of this Court in the context of the
Medical Termination of Pregnancy Act, 1971 acknowledged the right of
a woman to make reproductive choices and held that such a right is a
facet of Article 21 of the Constitution. This Court held thus: (SCC p. 15,
para 22)
“22. There is no doubt that a woman's right to make reproductive
choices is also a dimension of “personal liberty” as understood under
Article 21 of the Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as well as to abstain
from procreating. The crucial consideration is that a woman's right to
privacy, dignity and bodily integrity should be respected. This means
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that there should be no restriction whatsoever on the exercise of
reproductive choices such as a woman's right to refuse participation in
sexual activity or alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose birth control
methods such as undergoing sterilisation procedures. Taken to their
logical conclusion, reproductive rights include a woman's entitlement to
carry a pregnancy to its full term, to give birth and to subsequently
raise children.”
73. Further in Neetu Bala v. Union of India and others , 2016 SCC
OnLine P&H 602, the Court has made the following observation -
“67. Based on the aforesaid discussion, there can be no conclusion
other than to hold that the action of the respondents in denying
appointment to the petitioner merely on account of her pregnancy is
arbitrary and illegal. It is violative of Articles 14 and 16 of the
Constitution. It is against the express provisions of the International
Conventions referred to above
. It is against the weight of the judicial
precedents from major jurisdictions across the globe interpreting laws
prohibiting gender discrimination. Most of all by forcing a choice
between bearing a child and employment, it interferes both, with her
reproductive rights and her right to employment. Such an action can
have no place in modern India.”
74. The cumulative effect of these international instruments and judicial
pronouncements is that maternity protection extends beyond the mere grant
of leave or payment of benefits. It encompasses the preservation of
employment status, continuity of service, maintenance of professional
standing, protection of seniority, and equal opportunities for advancement
upon return to work.
75. Viewed in this backdrop, any act of post-maternity demotion,
deprivation of substantive responsibilities, denial of role continuity,
exclusion from professional opportunities, or stagnation of career
progression would run contrary not only to the spirit of domestic maternity
legislation but also to the internationally recognised standards to which India
has consciously aligned itself. Such actions undermine the dignity of
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motherhood, perpetuate gender-based disadvantage in employment, and are
fundamentally inconsistent with the principles embodied in CEDAW, the
ILO Maternity Protection Convention, and the constitutional guarantees of
equality, dignity, and non-discrimination.
76. Accordingly, this Court is of the view that the question of post-
maternity reinstatement cannot be examined in a narrow contractual sense. It
must be assessed in light of the broader constitutional and international law
framework, both of which unequivocally recognise that motherhood cannot
become a ground for loss of status, diminution of responsibilities, denial of
career progression, or any other form of employment disadvantage.
Common Law Jurisdictions
77. It is also considered apposite to draw guidance from the jurisprudence
of other common law jurisdictions, which have progressively recognised
that maternity protection extends beyond the mere grant of leave and
encompasses the right of a woman employee to return to meaningful
employment without suffering any diminution in status, responsibilities, or
career prospects.
78. In the United States, Section 2614 of the Family and Medical Leave
Act, 1993 (FMLA) as codified in chapter 29 of the United States Code,
provides as under –
“2614. Employment and benefits protection
(a) Restoration to position
(1) In general
Except as provided in subsection (b), any eligible employees who takes
leave under section 2612 of this title for the intended purpose of the leave
shall bee entitled, on return from such leave-
(A) to be restored by the employer to the position of employment held by the
employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment.
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(2) Loss of benefits
The taking of leave under section 2612 of this title shall not result in the
loss of any employment benefit accrued prior to the date on which the
leave commenced.
(3) Limitations
Nothing in this section shall be construed to entitle any restored
employee to-
(A) the accrual of any seniority or employment benefits during any period of
leave; or
(B) any right, benefit or position of employment order than any right, benefit
or position to which the employee would have been entitled had the
employee not taken the leave.”
79. Similarly in Australia, the Fair Work Act, 2009
provides for the
following safeguard:-
“83 Consultation with employee on unpaid parental leave
If:
(a) an employee is taking a period of unpaid parental leave,
other than flexible unpaid parental leave; and
(b) the employee’s employer makes a decision that will have a
significant effect on the status, pay or location of the employee’s
pre-parental leave position:
The employer must take all reasonable steps to give the employee
information about, and an opportunity to discuss, the effect of the
decision on that position.
84 Return to work guarantee
On ending period of unpaid parental leave, an employee is entitled
to return to:
(a) the employee’s pre-parental position; or
(b) if that position no longer exits- an available position for
which the employee is qualified and suited nearest in status
and pay to the pre-parental leave position.”
xxx
“ Division 5- Other protections.
351 Discrimination
(1) An employer must not take adverse action against a person who is
an employee, or prospective employee, of the employer because of the
person’s race, colour, sex, sexual orientation, breastfeeding, gender
identity, intersex status, age, physical or mental disability, marital status,
family or carer’s responsibilities, subjection to family and domestic
violence, pregnancy, religion, political opinion, national extraction or
social origin.
Note: This subsection is a civil remedy provision
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(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the
place where action is taken; or
(b) taken because of inherent requirements of the particular position
concerned; or
(c) if the action is taken against a staff member of an institution
conducted in accordance with the doctrines, tenets, beliefs or
teachings of a particular religion or creed-taken;
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents
of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Determination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act 1992(NT);”
80. Further, under the Sex Discrimination Act, 1984 (Australia)
., Section
14 provides as under:-
“PART II- Prohibition of discrimination etc.
Division 1-Discrimination of work
14 Discrimination in employment or in superannuation
(1) It is unlawful for an employer to discriminate against a person on the
ground of the person’s sex, sexual orientation, gender identity, intersex status,
marital or relationship status, pregnancy or potential pregnancy, breastfeeding
or family responsibilities:
(a) in the arrangements made for the purpose of determining who should be
offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the
ground of the employee’s sex, sexual orientation, gender identity, intersex
status, marital or relationship status, pregnancy or potential pregnancy,
breastfeeding or family responsibilities;
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(a) in the terms and conditions of employment that the employer affords the
employee;
(b) by denying the employee access, or limiting the employee’s access, to
opportunities for promotion, transfer or training, or to any other benefits
associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to
discriminate the against another person, on the ground of the other person’s
sex, in connection with employment to perform domestic duties on the premises
on which the first-mentioned person resides.
(4) Where a person exercises a discretion in relation to the payment of a
superannuation benefit to or in respect of a member of a superannuation fund,
it is unlawful for the person to discriminate, in the exercise of the discretion,
against the member or another person on the ground, in either case, of the sex,
sexual orientation or marital or relationship status of the member or that other
person.
(5) Subsection (4) does not apply if section 41B applies to that member in
respect of that fund.
(6) In this section:
Member, in relation to a superannuation fund, includes a person who has
been a member of the fund at any time.”
81. In United Kingdom, Regulation 18 of the Maternity and Parental
Leave etc. Regulations 1999 provides as under –
“18. —(1) An employee who returns to work after a period of ordinary
maternity leave, or a period of parental leave of four weeks or less,
which was—
(a)an isolated period of leave, or
[ (b)the last of two or more consecutive periods of statutory leave which
did not include—
(i)any period of parental leave of more than four weeks; or
(ii)any period of statutory leave which when added to any other period of
statutory leave (excluding parental leave) taken in relation to the same
child means that the total amount of statutory leave taken in relation to
that child totals more than 26 weeks, ]
is entitled to return to the job in which she was employed before her
absence.
(2) An employee who returns to work after—
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(a)a period of additional maternity leave, or a period of parental leave of
more than four weeks, whether or not preceded by another period of
statutory leave, or
(b)a period of ordinary maternity leave, or a period of parental leave of
four weeks or less, not falling within the description in paragraph (1)(a)
or (b) above,
is entitled to return from leave to the job in which she was employed
before her absence or, if it is not reasonably practicable for the employer
to permit her to return to that job, to another job which is both suitable
for her and appropriate for her to do in the circumstances.
(3) The reference in paragraphs (1) and (2) to the job in which an
employee was employed before her absence is a reference to the job in
which she was employed—
(a)if her return is from an isolated period of statutory leave, immediately
before that period began;
(b)if her return is from consecutive periods of statutory leave,
immediately before the first such period.
(4) This regulation does not apply where regulation 10 applies.
]”
82. These jurisdictions reveal a strikingly consistent legal principle.
Across common law systems, maternity is not viewed merely as a basis for
entitlement to leave; rather, it is accompanied by a corresponding right to
return to employment without any loss of status, responsibilities, authority,
seniority, or career progression.
83. The comparative jurisprudence is particularly instructive in the Indian
context, where the constitutional guarantees of equality, dignity, and non-
discrimination, coupled with the protective framework of the Maternity
Benefit Act, 1961, or the Code on Social Security, 2020 seek to ensure that
motherhood does not become a source of professional disadvantage.
Although the Indian statutory framework does not expressly codify a right to
reinstatement to the same or an equivalent position upon return from
maternity leave, the legal position emerging from the rulings of the Supreme
Court is substantially to the same effect.
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Effective Implementation of Statutory provisions; Maternity cannot be
allowed to become a source of ignominy at the workplace
84. The Maternity Benefit Act, 1961, as well as the corresponding
provisions of the Code on Social Security, 2020, embody a legislative
commitment to protect women employees against discrimination arising
from pregnancy and maternity. The prohibition contained in Section 12
against varying “to her disadvantage any of the conditions of her service” is
not confined to safeguarding continuity of employment or wages; it also
encompasses the right of a woman employee to resume her employment
without suffering any substantive disadvantage in her professional status,
responsibilities, authority, or prospects of career advancement solely by
reason of pregnancy or the availing of maternity leave.
85. Woman returning from maternity leave is entitled to be restored to the
same position, or at the very least to an equivalent position carrying
substantially similar status, responsibilities, authority, promotional avenues,
and prospects of career progression.
86. Where a statutory framework is enacted to advance constitutional
guarantees, courts are duty-bound to interpret such legislation in a manner
that effectuates, rather than defeats, those guarantees. Under no
circumstance, can maternity be allowed to become a source of ignominy at
the work place.
87. This Court has already noted that the protections flowing from
Articles 14, 15, 21 and 42 of the Constitution, when read together with the
object and purpose of the Maternity Benefit Act, 1961 (as well as the
corresponding provisions of the Code on Social Security, 2020) and the
expansive language employed in Section 12 of the Maternity Benefit Act,
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necessarily contemplate protection against substantive post-maternity
disadvantage. The right of a woman employee not to suffer professional
detriment on account of pregnancy or maternity leave is thus traceable not
merely to statute but also to constitutional guarantees of equality, dignity,
non-discrimination, and reproductive autonomy.
88. The international conventions discussed hereinabove further reinforce
this position by recognising the right of a woman to return to the same or an
equivalent position after maternity leave and by prohibiting employment
discrimination arising from motherhood.
89. These constitutional, statutory, and international obligations
collectively underscore that maternity protection is not exhausted by the
grant of leave and payment of benefits. Equally important is the meaningful
reintegration of a woman employee into the workplace upon her return, in a
manner that preserves her professional standing and ensures that
motherhood does not become a source of occupational disadvantage.
90. While the substantive rights of women employees are well recognised
under the existing constitutional and statutory framework, their effective
enforcement necessarily depends upon the existence of regulatory
mechanisms.
91. It is in this context that this Court finds that neither the Maternity
Benefit Act, 1961 nor the Code on Social Security, 2020 expressly
prescribes a comprehensive framework governing the post-maternity
reintegration of women employees into the workplace. The absence of such
a framework has the potential to undermine the effective implementation of
the constitutional and statutory protections already in existence.
92. At this juncture this Court appreciates the stand taken by learned
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Standing Counsel appearing for the Union of India who has fairly
acknowledged the importance of ensuring the effective implementation of
maternity protections and placed before this Court certain suggestions which
may serve as guiding principles for strengthening the existing legal
framework. The suggested guidelines are reproduced hereunder:-
“E. SUGGESTED INTERIM GUIDELINES FOR CONSIDERATION OF
THIS HON'BLE COURT
17. Without prejudice to the final adjudication of the rights of the parties in the
present writ petition, it is respectfully submitted that this Hon'ble Court may
consider issuing the following interim directions, to operate until a model
protocol / rules / executive instructions are framed by the appropriate
Governments:
I. Declaration of principle:
18. It is declared that pregnancy, childbirth, lactation, post-partum recovery,
miscarriage, medical termination of pregnancy, and related medical conditions
are protected conditions linked to Articles 14, 15 and 21 of the Constitution. Any
adverse treatment in recruitment, confirmation, allocation of work, reporting
structure, appraisal, promotion, transfer, compensation, attendance expectations,
training, leadership exposure, discipline, termination, reference-checking, or
return-to-work placement on account of such protected conditions shall amount to
prohibited discrimination on the ground of sex unless justified strictly in
accordance with law.
II. Applicability:
19. The interim directions may be made applicable, at the very least, to all private
establishments to which Chapter VI of the Code on Social Security, 2020 applies
and which are situated within the territorial jurisdiction of this Hon'ble Court;
and further, Respondent No. 1 may be directed to circulate the same as a model
protocol to all States and Union Territories and to all establishments for which
the Central Government is the appropriate Government under Section 3(3) of the
Code.
III. Protected period:
20. For the purposes of these directions, the protected period may be treated as
commencing from disclosure of pregnancy to the employer and continuing until
six months after the employee's return to active duty following maternity leave or,
where she does not avail leave, until six months after childbirth. This protected
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period may be extended by the competent authority in cases of medical
complication, premature birth, location-related need, or infant health concern.
IV. Individualized assessment:
21. Within seven days of written disclosure of pregnancy, childbirth-related
medical restriction, or breastfeeding-related need, the employer shall conduct an
individualized written assessment in consultation with the employee. The
assessment shall consider the nature of duties, work hours, travel, commuting
burden, standing or physical exertion, ergonomics, sanitation, exposure to
chemicals or stressors, availability of seating and rest, lactation needs, childcare
constraints, and any medical
V. Accommodation hierarchy:
22. Where the assessment indicates risk, hardship or disadvantage to the
employee or child, the employer shall proceed in the following order: first,
adjustment of duties, hours, targets, reporting modes, location, travel
requirement, seating, breaks, remote or hybrid work, meeting timings, and similar
workplace conditions; second, assignment to suitable alternative work on
equivalent pay, grade, status, location and career prospects; and third, if neither
of the above is feasible, grant of such protected leave or paid status as may be just
and appropriate under law or under order of the competent authority.
VI. No forced leave:
23. No employer shall compel a pregnant or post-partum employee to proceed on
leave, resign. reduce rank, or accept an inferior role where a reasonable
accommodation or equivalent alternative arrangement can be provided without
disproportionate hardship.
VII. Written decision-making:
24. Any decision affecting the employee’s role, place of work, reporting structure,
hours, targets. grade-linked responsibilities, appraisal cycle, or return placement
during the protected period shall be communicated by a reasoned written order,
with a copy to the employee, setting out the basis of the decision and the
alternatives considered
VIII. Return to the same or equivalent role:
25. Upon resumption after maternity leave, the employee shall ordinarily be
restored to the same post, grade, compensation, reporting level, location, team-
status, and promotional stream that she held immediately before commencement
of maternity leave. If, for bona fide and demonstrable organizational reasons, the
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exact position no longer exists the employer shall offer a suitable available
position nearest in pay, grade, status. role-content and future career prospects,
and shall record reasons in writing.
26. The right of a woman employee to return to the same work, or where that is
genuinely not possible, to a suitable equivalent position on no less favourable
terms, has already been expressly recognised in several mature labour-law
jurisdictions. Comparative legislation thus shows that maternity protection is not
treated as complete merely upon grant of leave; rather, modern statutory systems
protect the employee across the entire are of maternity by securing continuity of
role, status, service conditions and protection against workplace detriment upon
return. The following provisions are instructive.
xxx
30. Accordingly, comparative law demonstrates a clear and consistent pattern.
The right to return to the same work, or where that is genuinely not possible, to a
suitable equivalent position on no less favourable terms, is not alien to modern
labour jurisprudence. On the contrary, it is treated as a central incident of
maternity and parental leave protection.
These provisions therefore furnish a principled comparative basis for suggesting
that the implementation framework under the Code on Social Security, 2020
should similarly secure role-restoration, continuity of service conditions and
protection against detriment in the period of return to work.
IX. Prior consultation before change during leave:
31. If the employer proposes any significant change to the employee's
responsibilities, pay, grade, reporting chain, team assignment or work location
during maternity leave, the employer shall give prior written notice and a
meaningful opportunity of consultation to the employee even while she remains on
leave, before such change is given effect.
X. No disadvantage in service conditions:
32. During the protected period, the employer shall not vary to the employee's
disadvantage any condition of service on account of pregnancy, maternity,
childbirth-related absence, lactation, accommodation request, or childcare
responsibilities reasonably connected therewith.
XI. Appraisal, increment and promotion protection:
33. Maternity leave, pregnancy-related accommodation, medical restriction,
nursing breaks temporary flexibility shall not by themselves be treated as negative
factors in appraisal, increment, bonus, confirmation, transfer preference,
leadership assignment, promotion consideration, training exposure, high-
potential categorization, or succession planning. Where a promotion or
assessment process falls during maternity leave, the employee shall be given an
equivalent deferred or alternate opportunity
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XII. 12. Presumption in case of adverse action:
34. Where a material adverse employment action is taken after disclosure of
pregnancy. during maternity leave, or within the protected period after return, the
employer shall bear the burden of placing contemporaneous written material to
show that such action was wholly unrelated to pregnancy, maternity, lactation,
accommodation or childbirth-related absence.
XII. Lactation support:
35. Every employer to whom these directions apply shall provide reasonable
lactation support in addition to the statutory nursing breaks, including a clean
and private space other than a toilet, reasonable access to water, seating, and
such limited storage or supportive facilities as may reasonably be arranged
having regard to the size and nature of the establishment.
XIV. Creche disclosure and functionality:
36. Every establishment required to provide crèche facilities shall publish and
communicate to all women employees. in writing and electronically, the nature of
the crèche arrangement, location, timings, eligibility, contact person, process for
access, and whether the facility is in-house, shared, common, outsourced or tied
up with any government or private entity. Where a common or external crèche
facility is relied upon, the employer shall ensure that the arrangement is actually
functional and reasonably accessible.
XV. Pregnancy and maternity support officer:
37. Every establishment having fifty or more employees shall designate a senior
officer or committee as Pregnancy, Maternity and Return-to-Work Support
Officer / Committee for receiving accommodation requests, coordinating risk
assessments, ensuring return placement, and maintaining a confidential record of
decisions taken under these directions.
XVI. Internal timeline:
38. An accommodation request or return-to-work grievance shall be decided by
the employer within seven working days by a reasoned written communication.
Matters involving immediate health concern, lactation need, unsafe work
condition or threatened downgrade shall be addressed within forty-eight hours.
XVII. No retaliation:
39. No employee shall intimidate, isolate, penalize, threaten, transfer,
downgrade, place on a performance warning, reduce variable pay, alter role
visibility, withhold recommendation, or otherwise retaliate against any employee
for availing maternity benefit, seeking accommodation, using nursing breaks,
accessing crèche facilities, filing a complaint, or assisting another employee in a
similar mater.
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XVI. Training and sensitisation:
40. Every establishment having fifty or more employees shall conduct annual
sensitisation for HR personnel and line managers on pregnancy discrimination,
maternity rights, workplace accommodation, lactation support, anti-retaliation
and retarn-to-work parity.
A copy of the policy and escalation mechanism shall be displayed conspicuously
and circulated electronically
XIX. Maintenance of records:
41. Employers shall maintain contemporaneous records of accommodation
requests, written assessments, decisions taken, return-to-work placements, crèche
arrangements and complaints received, while preserving confidentiality. Such
records may be called for by the competent authority for inspection or inquiry.
XX. External complaint mechanism:
42. The appropriate Government shall designate a notified officer under the
existing Code machinery for receiving and dealing with complaints relating to
denial of maternity benefit, wrongful variation of service conditions, pregnancy-
based discrimination, non-restoration to post, denial of nursing breaks, non-
functional crèche arrangements, retaliation, or analogous complaints arising
within the protected period.
XXI. Government portal and nodal mechanism:
43. Respondent No.1 may be directed, in coordination with the State Governments
and Labour Departments, to create or notify within a fixed period a simple online
and offline complaint pathway under the Code for maternity-related grievances in
private employment, together with contact details of the competent officers and a
standard complaint format.
F. SUGGESTED DIRECTIONS SPECIFICALLY ADDRESSED TO
RESPONDENT NO.1
44. That, pending the framing of detailed rules / protocol / executive instructions,
the interim guidelines set out in Section E above shall operate as binding
directions within the territorial jurisdiction of this Hon'ble Court in respect of all
private establishments to which Chapter VI of the Code on Social Security, 2020
applies, and shall also be treated as a model protocol to be circulated by
Respondent No.1 to all States and Union Territories.
45. That Respondent No.1 shall, within such time as this Hon'ble Court deems fit,
place on record the mechanism under the Code for receiving and adjudicating
maternity-related complaints, including designation of competent authorities,
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contact details, timelines and appellate forum.
46. Respondent No.1 may be directed to frame, within a time-bound period and in
consultation with the States, Labour Commissioners, women's rights experts,
occupational health experts and employer bodies, a Model Pregnancy, Maternity,
Lactation and Return-to-Work Equality Protocol for adoption, circulation and
implementation under the Code on Social Security, 2020.
47. That the concerned authorities shall ensure that the Inspector-cum-
Facilitator designated officer is in a position to grant urgent interim protection in
appropriate cases so that the rights conferred by Chapter VI are not defeated by
fair accompli.
93. The learned Standing Counsel has also drawn the attention of this
Court to the following Sections of the Code on Social Security, 2020.
“ 149. Power of Central Government to give directions to State
Government and Social Security Organisations.—The Central
Government may give directions to—
(i) any State Government or a State Board constituted under Section 12
to execute in that State, of any of the provisions of this Code; or
(ii) any of the Social Security Organisations in respect of the matters
relating to the implementation of the provisions of this Code.”
“150. Power to frame schemes.—The appropriate Government may,
subject to the condition of previous publication, frame schemes not
inconsistent with this Code, for the purposes of giving effect to the
provisions thereof
.”
“154. Power of appropriate Government to make rules.—(1)
The
appropriate Government may, by notification, and subject to the
condition of previous publication, make rules not inconsistent with this
Code for the purpose of giving effect to the provisions thereof
.
(2) In particular and without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following matters,
namely:—
(a) the amount in connection with premium for Group Insurance
Scheme of the beneficiaries under clause (c), the educational schemes
for the benefit of children of the beneficiaries under clause (d) and the
medical expenses for treatment of major ailments of a beneficiary or,
such dependant under clause (e) of sub-section (6) of Section 7;
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(b) manner and time within which second appeal may be filed to the
Employees' Insurance Court by the Insured Person or the Corporation
under clause (b) of sub-section (7) of Section 37;
(c) the manner of commencement of proceedings before the Employees'
Insurance Court, fees and procedure thereof under sub-section (1) of
Section 51;
(d) bank or other financial institution in which the gratuity shall be
invested for the benefit of minor under the third proviso to sub-section
(1) of Section 53;
(e) the time, form and manner of nomination by an employee under sub-
section (1), the time to make fresh nomination under sub-section (4), the
form and manner of modification of a nomination under sub-section (5)
and the form for fresh nomination under sub-section (6) of Section 55;
(f) time within which and the form in which a written application shall
be made under sub-section (1) and the form of application to the
competent authority under clause (b) of sub-section (5) of Section 56;
(g) the manner of registration of an establishment by the employer
under sub-section (3) and the manner of composition of the Board of
Trustees of the approved gratuity fund and the manner in which the
competent authority may recover the amount of the gratuity payable to
an employee from the insurer under sub-section (4) of Section 57;
(h) the qualifications and experience of the officer appointed as the
competent authority under sub-section (1) of Section 58;
(i) authority to whom an appeal may be preferred under sub-section (3)
of Section 72;
(j) class of employers and the form of notice-book under sub-section (4)
of Section 82;
(k) the manner of recording the memorandum in a register by the
competent authority under sub-section (1) of Section 89;
(l) such other experience and qualifications for appointment as a
competent authority under sub-section (1) of Section 91;
(m) time-limit to pay the amount of cess under Section 101;
(n) fees for appeal under sub-section (2) of Section 105;
(o) conditions to acquire, hold, sell or otherwise transfer any movable
or immovable property under sub-section (1), conditions to invest
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moneys, re-invest or realise investments under sub-section (2) terms to
raise loans and take measures for discharging such loans under sub-
section (3) and terms to constitute for the benefit of officers and staff or
any class of them, provident or other benefit funds under sub-section (4)
of Section 120;
(p) conditions and manner of writing off irrecoverable dues under
Section 121;
(q) other powers of Inspector-cum-Facilitator under clause (e) of sub-
section (6) of Section 122;
(r) form and manner for maintenance of records and registers and other
particulars and details under clause (a), manner and form for display of
notices at the work places of the employees under clause (b) and the
manner and period of filing returns to the officers or authority under
clause (d) of Section 123;
(s) the form and manner of application for compounding of an offence
under sub-section (4) of Section 138;
(t) the manner and form for reporting vacancies and form for filing the
return by the employer, to the concerned career centre under sub-
section (2) of Section 139;
(u) the time within which the Central Board or the Corporation, as the
case may be, shall forward its view to the appropriate Government
under sub-section (1), conditions which the exempted establishment or
the class of establishment or an employee or class of employees, as the
case may be, shall comply with after such exemption under sub-section
(2) and conditions for management of the trust under sub-section (5) of
Section 143;
(v) manner of determining the misuse of any benefit by an establishment
or by any other person under Section 148; and
(w) any other matter which is required to be, or may be, prescribed by
the appropriate Government under the provisions of this Code.”
94. Sections 150 and 154 of the Code on Social Security, 2020 confer
upon the appropriate Government the power to frame rules and schemes for
carrying out the provisions of the Code and for giving effect to its
underlying objectives. The existence of such rule-making power indicates a
legislative recognition that the effective enforcement of social welfare rights
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may require supplementary regulatory measures. However, despite the
enactment of the Code, no specific framework appears to have been
formulated governing post-maternity reintegration, continuity of role,
protection against post-maternity demotion, or preservation of career
progression upon return to work.
95. It is hoped and expected that appropriate rules shall be framed which
are consistent with the constitutional guarantees embodied in Articles 14,
15, 21, and 42 of the Constitution, as well as the statutory protections
contained in the maternity laws.
96. Given the statutory framework, it is held that every woman employee
returning from maternity leave shall ordinarily be entitled to reinstatement in
the same position held by her immediately prior to proceeding on maternity
leave. Where such reinstatement is genuinely impracticable, she shall be
placed in an equivalent position carrying substantially the same pay, status,
seniority, responsibilities, managerial authority, decision-making functions,
promotional opportunities, and prospects of career advancement. Any
reassignment resulting in a material changes in responsibilities, authority,
status, or professional growth solely on account of pregnancy or maternity
leave shall be presumed to be discriminatory unless justified by compelling
and bona fide reasons unrelated to maternity.
97. Further, if the employer proposes any significant change to the
employee’s responsibilities, pay, grade, reporting chain, team assignment or
work location during maternity leave, the employer shall give prior
intimation to the employee, together with the rationale for the proposed
change, before such change is given effect.
98. The foregoing operates for the benefit of the woman employee. It is a
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shield available to her, not a fetter upon her own choices. The same would
not detract from the fact that a woman resuming duty after child birth may,
for reasons of recovery, nursing or care giving, herself prefer altered hours, a
different place or pattern of work; or duties differently configured. The
statute contemplates arrangements responsive to her own preference/s as is
3
evident from Section 5(5) of the Maternity Benefit Act, 1961 and Section
4
60 (5)
of the Code on Social Security, 2020. Nothing in this judgment is to
be construed as precluding such request/accommodation, or disable an
employer from granting it. It is further made clear that any such
accommodation shall not be treated as consent to any diminution in the
applicable conditions of service, nor be held against her in appraisal or
promotion. Further, the same shall subsist only as long as she desires it;
upon circumstances which occasioned it having ceased, she shall be entitled
to seek substantive restoration of her previous (or equivalent) position.
99. The above is also consistent with internationally recognised labour
standards, including those reflected in the International Labour
Organisation’s Maternity Protection Convention, 2000, which recognises the
right of a woman, upon the conclusion of maternity leave, to return to the
same position or an equivalent position remunerated at the same rate. Such
standards may serve as guiding principles for ensuring fair, dignified, and
non-discriminatory reintegration of women employees into the workplace
following maternity leave, and for giving meaningful effect to the
3
In case where the nature of work assigned to a woman is of such nature that she may work from home, the
employer may allow her to do so after availing of the maternity benefit for such period and on such
conditions as the employer and the woman may mutually agree.
4
In case the work assigned to a woman is of such nature that she may work from home, the employer may
allow her to do so after availing of the maternity benefit for such period and on such conditions as the
employer and the woman may mutually agree.
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constitutional promise that motherhood shall not become a ground for
professional disadvantage.
Application of the above Principles to the facts of the present case
100. The petitioner proceeded on maternity leave in December 2023, while
holding the office of Manager-Accounting, in which capacity she supervised
a team. At some point, during her absence, another employee was conferred
with the responsibilities that she had previously been discharging. The
respondent no.2 does not dispute this. Paragraph-4 of its reply dated
27.09.2024 to the legal notice states that “ the subsequent return to work
after your Client’s maternity leave was managed in line with our Client’s
business needs at the time. Upon your Client’s return in July 2024, there
were drastic changes within our Client’s organization and all expansion
projects (which could have given more options to our Client to reassign a
role to your Client) have been temporarily put on hold on account of larger
economic and business considerations of our Client. Your Client has been
temporarily assigned to the Treasury department. This was undertaken as
her previous role was given to an employee who had been promoted within
the organization who cannot arbitrarily be removed from the role. Our
Client categorically denies the allegation that this reassignment was a
demotion or that it was three levels below her previous role. The Treasury
department’s responsibilities require a capable individual, and our Client
entrusted your Client with the said role. The nature of work assigned was in
line with her capabilities and experience .”
101. Paragraph-10 of the counter-affidavit of the respondent no.2 is to the
same effect, the same reads as under:-
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102. It is also evident from the narration of facts, as projected by the
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respondent no.2 itself, that until the very end of the petitioner’s leave, there
was no clarity as to where, and in what role, she would be posted.
Paragraph-10 of the counter-affidavit, as noticed hereinabove, avers that the
respondent no.2 “took several efforts to identify a suitable role
commensurate with the Petitioner’s qualifications, experience and seniority
within the Finance function”. The counter-affidavit further discloses that, on
28.06.2024, just a couple of days before the petitioner was due to resume
duty, the Director of the respondent no.2 wrote to a Member of the Global
Accounting and Finance Operation Teams as under:
103. Another message was sent on same day to another Member of the
Global Accounting and Finance Operation Teams as under:-
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104. On 02.07.2024, the following exchange took place between the
petitioner and the Director/ representative of the respondent no.2 –
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105. Upon consideration of the sequence of events as they unfolded, and
taking the respondent no.2’s own version at face value, the following aspects
stand out:-
i. The position previously held by the petitioner prior to the
commencement of her maternity leave was entrusted to another
employee.
ii. This was not done merely as a temporary or stop-gap arrangement;
rather, the petitioner’s return to her previous post was foreclosed in
her absence.
iii. During the petitioner’s maternity leave, no consideration whatever
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appears to have been given as to what she would do upon her return;
the question was taken up on 28.06.2024, just prior to the petitioner
resuming duties.
iv. The manner in which the matter was then taken up was to enquire of
colleagues whether they could assign her “something”, or “anything
that you might want to assign to her”. This was clearly an enquiry
directed not towards identifying a position commensurate with the
role that she was earlier entrusted with, but towards locating works of
any description that somebody might be willing to give her.
v. The precise object of the exercise, as set out in the above reproduced
exchanges was to “keep her engaged when she starts” and “to have
her as a backup in case someone leaves”.
vi. What was communicated to the petitioner on 02.07.2024 was two
items of work, “investment accounting and currency revaluation” and
not a position carrying any defined scope, reporting line, or
complement of staff.
vii. The petitioner was not consulted at any stage, neither before her
previous position was filled, nor while alternatives were considered.
viii. At no stage was any reason or written communication furnished to
her, recording what had become of her previous position, what was
proposed in its place and upon what basis the changes were
effectuated.
ix. Importantly, the petitioner’s grievance first raised verbally, then by E-
Mail dated 23.08.2024 and then by legal notice dated 10.09.2024 was
met with no process of examination of any kind and with no reasoned
answer.
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It is also apparent from a perusal of the record that, at the relevant time, the
respondent no. 2 was in contravention of Section 11-A of the Maternity
Benefit Act, 1961. The provision requires every establishment having fifty
or more employees to provide the facility of a creche and, under sub-section
(2), requires every establishment to intimate to every woman, at the time of
her initial appointment, the benefits available to her under the Act. The
petitioner enquired about the availability of such a facility on 20.09.2024, to
which respondent no. 2 replied on 27.09.2024. The pleaded case of
respondent no. 2, at paragraph 100 of its counter-affidavit, is that the facility
existed but the said facility was not functional on the given days, and that
the petitioner was working from home all through July, August and
September 2024.
106. From a perusal of paragraph 100 of the counter-affidavit filed by
respondent no. 2, it is evident that respondent no. 2 was remiss in
discharging its obligation to provide a creche facility. A facility which is not
functional the days on which a woman employee to use the same, does not
satisfy the statutory obligation.
107. Quite apart from the above factual aspects, which are apparent from
respondent no. 2’s own version, there are also several inconsistencies in the
stand taken by respondent no. 2 in response to the allegations made in the
petition. The said discrepancies are as under:-
i. In Paragraph 11 of its reply dated 27.09.2024, the respondent no. 2
states that “the Treasury role was scoped to her managerial level,
and additional responsibilities were added to match her experience”.
In the very next paragraph of the same reply, it is asserted that the
Treasury role “is a very important role and function” for the needs
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of the organisation. If the role was inherently commensurate with
her standing, the occasion to scope it to her level, and to add
responsibilities in order to match her experience, would not have
arisen.
ii. Paragraph 49 of the counter-affidavit asserts that the petitioner
“moved from managing a team of 1-2 persons to supervising 4 team
members”. The suggestion is that the responsibilities of the
petitioner were enlarged. However, paragraph 10 and, again,
paragraph 58 of the counter-affidavit state that her earlier position
had to be filled because “a team of 4 people (previously managed by
the petitioner)” could not be left without a manager. Two mutually
irreconcilable accounts are thus given of the size of the team that
she supervised before proceeding on leave.
iii. Paragraph 10 largely attributes the filling of her position to the
impossibility of leaving her team without a manager. On the other
hand, paragraph 58 attributes it to “operational exigencies as well as
the respondent no. 2’s annual promotion cycle”. There is
considerable ambiguity in the position taken by the respondent no.2.
iv. Paragraphs 10 and 48 of the counter-affidavit aver that the
respondent no. 2 “had plans to expand the roles and responsibilities
of the petitioner on her return to work” and “was considering an
enhanced role”, which were shelved following the acquisition by
IBM. That averment is irreconcilable with the correspondence dated
28.06.2024, in which the Director of respondent no. 2 is found
asking two colleagues in two different verticals whether they might
have “something” or “anything” to assign to her.
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v. Paragraph-10 of the counter-affidavit asserts that the respondent
no.2 took several efforts to identify a suitable role commensurate
with the petitioner’s “qualifications, experience and seniority”. The
only contemporaneous record of any such effort is the
correspondence dated 28.06.2024, which reveals a contrary picture.
108. The significance of the above contradictions is that the respondent no.
2 has not, at any stage, neither contemporaneously in its communications
with the petitioner, nor in its reply to her legal notice, nor in its pleadings
before this Court, been able to furnish a single, consistent, and coherent
account of what was done to her position and why. Secondly, and more
importantly, these were precisely the matters on which the petitioner sought
clarification from her employer at the relevant time, but in respect of which
she received none.
109. In these proceedings, this Court is not going into the question of
whether the role ultimately offered to the petitioner in the Treasury
Department was at par with the role that she had previously performed. This
Court is refraining from doing so inasmuch as such an enquiry would
inherently involve an evidentiary exercise for which the present proceedings
may not be apposite.
110. However, the admitted facts of the case, as apparent from the stand
taken by the respondent no. 2 itself, are demonstrative of the unfair
treatment meted out to the petitioner. The position that emerges is that the
post was filled during her maternity leave, without any information or
intimation to her, and in a manner that foreclosed her return to it. There was
no application of mind as to the duties that would be assigned to her upon
her return; the question was taken up only few days before she was due to
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resume her duties and was addressed by enquiring of colleagues in two
different departments whether they had “something” or “anything that might
be assigned to her”. The petitioner was consulted at no stage, and no reason
or communication was ever furnished to her. When she complained, no
process of any kind was brought to bear upon her complaint.
111. As already observed, the protection conferred by Section 12
inherently subsumes the requirement that a woman who returns to work
from maternity leave be treated with dignity. The conduct of the respondent
no. 2 cannot be reconciled with this obligation. As noticed hereinabove, the
Supreme Court has observed that maternity protection dignifies motherhood
and ensures that motherhood does not become a factor for exclusion at the
workplace. The treatment accorded to the petitioner in the present case,
however, ran in a different direction. The petitioner was virtually treated as
“spare capacity”, to be placed wherever a colleague could be persuaded to
take her. As regards the reliefs that may be granted to the petitioner in the
present case, the observations of the Supreme Court in Dwarkanath v.
5
Income Tax Officer .
, 1965 SCC OnLine SC 61, are instructive. In terms
thereof, the jurisdiction under Article 226 extends to redressing injustice
5
4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for
consideration. Article 226 of the Constitution reads:
“…every High Court shall have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within
those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose.”
This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High
Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in
describing the nature of the power, the purpose for which and the person or authority against whom it can
be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of
those writs also is widened by the use of the expression “nature”, for the said expression does not equate
the writs that can be issued in India with those in England, but only draws an analogy from them. That
apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the
High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country........
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wherever it is found and to moulding relief to meet the peculiar
circumstances of a case.
As observed in K. Umadevi v. Government of Tamil Nadu & Ors. , (2025) 8
SCC 263, and Hamsaanandini Nanduri v. Union of India , 2026 SCC
OnLine SC 402, maternity protection is ultimately referable to the dignity,
reproductive autonomy, and equality guaranteed by Articles 14, 15, and 21
of the Constitution of India. It is noticed that, although Section 21 of the
Maternity Benefit Act, 1961 prescribes penal consequences for its
contravention, its evident object is to punish and deter. The provision does
not purport to measure the loss sustained by the woman or the reparation
that is required to be made.
112. Importantly, the infraction on the part of the respondent no. 2 and the
corresponding prejudice caused to the petitioner are of a kind for which no
penalty is expressly prescribed under the statutory provisions. This aspect
has been fairly conceded by Mr. Ashish K. Dixit, learned CGSC appearing
for the respondent no. 1. As such, given that a wrong has been committed in
the present case, an appropriate remedy must necessarily be provided to the
petitioner.
113. The assessment of compensation for a wrong of the kind suffered by
the petitioner is not an exercise in arithmetic. The injury occasioned
comprises the indignity to which the petitioner was subjected, the loss of
professional standing, the anxiety caused by having to seek rehabilitation or
an explanation from her employer (the respondent no. 2), which was never
forthcoming, the diminution of her professional standing among colleagues,
and the eventual relinquishment of her employment. These injuries do not
admit of precise pecuniary measurement. At the same time, this Court is not
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precluded from awarding suitable monetary compensation. In Consumer
Education & Research Centre v. Union of India , (1995) 3 SCC 42, the
Supreme Court has observed as under –
“29..................It is, therefore, settled law that in public law claim for
compensation is a remedy available under Article 32 or Article 226 for
the enforcement and protection of fundamental and human rights. The
defence of sovereign immunity is inapplicable and alien to the concept of
guarantee of fundamental rights. There is no question of defence being
available for constitutional remedy. It is a practical and inexpensive
mode of redress available for the contravention made by the State, its
servants, its instrumentalities, a company or a person in the purported
exercise of their powers and enforcement of the rights claimed either
under the statutes or licence issued under the statute or for the
enforcement of any right or duty under the Constitution or the law
.”
114. In Nilabati Behera v. State of Orissa , (1993) 2 SCC 746, the
Supreme Court has made the following observations –
“34. The public law proceedings serve a different purpose than the
private law proceedings. The relief of monetary compensation, as
exemplary damages, in proceedings under Article 32 by this Court or
under Article 226 by the High Courts, for established infringement of the
indefeasible right guaranteed under Article 21 of the Constitution is a
remedy available in public law and is based on the strict liability for
contravention of the guaranteed basic and indefeasible rights of the
citizen. The purpose of public law is not only to civilize public power but
also to assure the citizen that they live under a legal system which aims
to protect their interests and preserve their rights. Therefore, when the
court moulds the relief by granting “compensation” in proceedings
under Article 32 or 226 of the Constitution seeking enforcement or
protection of fundamental rights, it does so under the public law by way
of penalising the wrongdoer and fixing the liability for the public wrong
on the State which has failed in its public duty to protect the fundamental
rights of the citizen. The payment of compensation in such cases is not to
be understood, as it is generally understood in a civil action for damages
under the private law but in the broader sense of providing relief by an
order of making ‘monetary amends’ under the public law for the wrong
done due to breach of public duty, of not protecting the fundamental
rights of the citizen. The compensation is in the nature of ‘exemplary
damages’ awarded against the wrongdoer for the breach of its public law
duty and is independent of the rights available to the aggrieved party to
claim compensation under the private law in an action based on tort,
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through a suit instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law
.
35. This Court and the High Courts, being the protectors of the civil
liberties of the citizen, have not only the power and jurisdiction but also
an obligation to grant relief in exercise of its jurisdiction under Articles
32 and 226 of the Constitution to the victim or the heir of the victim
whose fundamental rights under Article 21 of the Constitution of India
are established to have been flagrantly infringed by calling upon the
State to repair the damage done by its officers to the fundamental rights
of the citizen, notwithstanding the right of the citizen to the remedy by
way of a civil suit or criminal proceedings. The State, of course has the
right to be indemnified by and take such action as may be available to it
against the wrongdoer in accordance with law — through appropriate
proceedings. Of course, relief in exercise of the power under Article 32
or 226 would be granted only once it is established that there has been
an infringement of the fundamental rights of the citizen and no other
form of appropriate redressal by the court in the facts and circumstances
of the case, is possible. The decisions of this Court in the line of cases
starting with Rudul Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC
(Cri) 798 : (1983) 3 SCR 508] granted monetary relief to the victims for
deprivation of their fundamental rights in proceedings through petitions
filed under Article 32 or 226 of the Constitution of India, notwithstanding
the rights available under the civil law to the aggrieved party where the
courts found that grant of such relief was warranted. It is a sound policy
to punish the wrongdoer and it is in that spirit that the courts have
moulded the relief by granting compensation to the victims in exercise of
their writ jurisdiction. In doing so the courts take into account not only
the interest of the applicant and the respondent but also the interests of
the public as a whole with a view to ensure that public bodies or officials
do not act unlawfully and do perform their public duties properly
particularly where the fundamental right of a citizen under Article 21 is
concerned. Law is in the process of development and the process
necessitates developing separate public law procedures as also public
law principles. It may be necessary to identify the situations to which
separate proceedings and principles apply and the courts have to act
firmly but with certain amount of circumspection and self-restraint, lest
proceedings under Article 32 or 226 are misused as a disguised
substitute for civil action in private law. Some of those situations have
been identified by this Court in the cases referred to by Brother Verma,
J.”
115. Given that the petitioner is a Chartered Accountant with
approximately 14 years of professional standing and was drawing a salary of
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Rs. 2.6 lakhs per month, this Court considers it appropriate to direct the
respondent no. 2 to pay compensation amounting to Rs. 10,00,000/-, which
is approximately equal to four months salary. The petitioner would also be
entitled to costs amounting to Rs. 1,50,000/-, having regard to the duration
of the proceedings and the circumstances in which she was constrained to
approach this Court to vindicate a statutory protection.
CONCLUSION
116. For the aforesaid reasons this Court declares and directs as follows:-
i. The prohibition contained in Section 12(1) of the Maternity Benefit
Act, 1961, and Section 68(1) of the Code on Social Security, 2020,
against varying, to a woman’s disadvantage, any conditions of service
during her statutorily protected absence is not confined to measures
amounting to, or directly associated with, termination of employment
nor is it exhausted by merely maintaining her salary and designation.
The expression “conditions of service” extends to the substantive
incidents of employment, including the nature and content of the
duties entrusted to her, her grade and functional status, reporting
hierarchy, supervisory responsibilities, and her entitlement to be
considered for appraisal and promotion. Retention of the same
designation and remuneration is, therefore, necessary but not by itself
sufficient if changes are brought about in respect of the aforesaid
attributes, to her detriment.
ii. A woman returning from maternity leave is ordinarily entitled to be
restored to the post held by her immediately prior to proceeding on
such leave. Where, for bona fide and demonstrable organisational
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reasons, the post is no longer available, she is entitled to be placed in
a position as nearly equivalent to it as possible in terms of pay, grade,
status, role, responsibilities, managerial authority, and prospects for
advancement.
iii. Where, for bona fide reasons, the post previously held by a woman
(who returns from maternity leave) is no longer available, the
employer shall, before her resumption of duty, duly intimate the
reasons for the non-availability of the post and the particulars of the
alternative or equivalent position proposed to be offered to her
including its grade, remuneration, reporting relationship and duties
attached thereto. If any objection thereto is raised by the concerned
woman employee, the same shall be duly considered by the employer
and the outcome of such consideration shall be conveyed to her by
way of a reasoned communication.
iv. Nothing in the above declaration/s shall preclude a woman from
herself seeking appropriate adjustment in her duties, hours, place or
pattern of work or an alternate role, having regard to her post
maternity circumstances and every such request shall be duly
considered. Any such request and the consequential arrangement,
shall not be treated as consent to any diminution in her condition of
service or waiver of protection conferred by Section 12 of the
Maternity Benefit Act, 1961 and Section 68 of the Code on Social
Security, 2020, nor shall be held against her in her appraisal or in the
consideration of her case for increment or promotion. Further, upon
cessation of circumstances, which occasioned such an arrangement,
she shall be entitled to seek restoration of her previous or equivalent
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W.P.(C) 14785/2024 Page 86 of 88
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:01.09.2026
16:29:12
position.
v. The respondent no. 2 shall pay to the petitioner a sum of Rs.
10,00,000/- by way of compensation (for reasons set out
hereinabove), together with costs amounting to Rs. 1,50,000/-, within
a period of eight weeks from today, failing which the said amounts
shall carry interest at the rate of 9% per annum from the date of this
judgment until realisation.
vi. The respondent no. 1 shall, in exercise of the powers conferred by
Sections 149, 150 and 154 of the Code on Social Security, 2020, and
after such consultation with the State Governments, Labour
Commissioners, employers’ organisations and expert bodies as it
considers appropriate, frame rules or schemes, or issue directions,
providing for the effective implementation of Chapter VI of the Code
in relation to pregnancy-related accommodation, protection of role
and status upon return from maternity leave, lactation support, creche
disclosure and functionality, timelines for disposal of grievances,
protection against retaliation, and the designation of authorities
competent to receive and determine complaints, including the grant of
urgent interim protection. In doing so, the respondent no. 1 shall have
regard to the suggestions made by Mr. Ashish K. Dixit, learned
CGSC, as noticed in the foregoing portion of this judgment. The
aforesaid exercise shall be completed within a period of six months
from today.
117. This Court records its appreciation for the assistance rendered by Mr.
Sanjeev Mahajan, learned Amicus Curiae, and Mr. Ashish K. Dixit, learned
CGSC, for their lucid submissions and for placing constructive proposals
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W.P.(C) 14785/2024 Page 87 of 88
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:01.09.2026
16:29:12
before this Court.
118. The petition is disposed of in the above terms.
SACHIN DATTA, J
AUGUST 31, 2026 / uk / sv
Signature Not Verified
W.P.(C) 14785/2024 Page 88 of 88
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:01.09.2026
16:29:12