Artificial Breaks In Service Between Successive Contracts Not A Device To Deny Maternity Benefits: Kerala High Court

The Kerala High Court on Tuesday held that short artificial breaks in service between successive contracts cannot be used as a device to deny maternity rights to the employees.

Justice Raja Vijayaraghavan noted that as per the Government Order dated January 2021, the employee should have "actually" worked for a period of not less than 80 days immediately preceding her expected date of delivery or date of miscarriage to be eligible for maternity benefits and that artificial breaks are not a valid ground to deny the same.

"By employing the word 'actually', the Government wanted to include persons such as the petitioners who have been working for years together. Furthermore, I have no doubt in my mind that the artificial break-in of two days inserted between successive contracts cannot be used as a device to deny the benefits to which the petitioners, as female officers, were entitled by way of maternity benefits."

It was also noted that a similar view was taken by this Court in a judgment in 2018 wherein this Court had held that the petitioners therein were allowed renewal based on their satisfactory service, the artificial break of one day is only to be ignored.

Justice Vijayaraghavan also reinstated that women who constitute almost half of the segment of the society have to be honoured and treated with dignity at places where they work to earn their livelihood. It was further observed that whatever be the nature of their duties, their avocation and the place where they work, women must be provided with all the facilities to which they are entitled.

"To become a mother is the most natural phenomenon in the life of a woman. The employer has to be considerate and sympathetic to the cause of the female officer and no action shall be taken to lower the dignity of the women employee in the workplace. The employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects."

The Court noted that the Maternity Benefit Act aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, and undeterred by the fear of being victimized for forced absence during the pre or post-natal period. 

Three women working as IT Programmers at the Kerala University of Health Sciences on a contract basis approached the Court aggrieved by the denial of maternity benefits to them by their employer despite having met the required conditions. The 1st and 3rd petitioners have been working with KUHS for the past 9 years and the 2nd petitioner for the past 5 years.

During their term, they had all applied for maternity leave and the same was granted to them but they were eventually denied any allowance in furtherance of the same.

The State issued a Government Order extending the benefit of maternity leave on full pay in terms of Rule 100, Part I of the Kerala Service Rules up to a period of 180 days or till the expiry of the existing contract whichever is earlier to female officers appointed on contract basis, irrespective of the tenure of the contract, subject to the condition that the leave will not be admissible from a date before 3 weeks from the expected date of confinement as certified by the medical officer. This was made applicable to Rule 101 as well. 

However, as per clause (4) of the order, no officer was entitled to these benefits unless she has actually worked under the employer for a period of not less than 80y days immediately preceding her expected date of delivery or date of miscarriage. 

The petitioners submitted separate applications seeking benefits as per this Order. However, their requests were rejected on the ground that each period of the contract has to be considered a separate posting. The respondents proceeded to deny the benefits to petitioners 1 and 3 on the ground that they had not completed the stipulated 80 days of contract service prior to the date of confinement. Insofar as the 2nd petitioner is concerned, KUHS took the view that her application for maternity leave cannot be considered since her delivery took place on 19.12.2020, a day, which was a break period between her two contracts. Being aggrieved, they approached the Court.

In the counter affidavit filed by the State, it was argued that as per Rule 2 Appendix VIII of Part I of the KSR, maternity leave is admissible to provisional female recruits only when they continue beyond one year. Relying on the provisions of the Maternity Benefit Act, they argued that a woman is entitled to benefits only if she has worked for a period of not less than 80 days in the 12 months immediately preceding the date of her expected delivery. Therefore, it was submitted that the request of the petitioners was rightly rejected and no interference is warranted. 

On the other hand, Advocate Dhanya P. Asokan appearing for the petitioners asserted that the Maternity Benefit Act was enacted to regulate the employment of women for certain periods before and after childbirth and to provide for maternity benefits and certain other benefits. She added that Article 42 of the Constitution requires the State to make provisions for securing just and humane conditions of work and for maternity relief.

The counsel further submitted that it has been unequivocally held by this Court that the benefits of enhanced maternity leave to women employees are undoubtedly a piece of welfare legislation which is intended to give women equal opportunities in public employment. She urged that the State has a responsibility to ensure that a restricted meaning is not given to welfare legislation so that the rights of women employees to avail leave are not restricted one way or the other.

It was also pointed out that the petitioners had been actually working in the University for years together and merely to deny them maternity reliefs to which they are legitimately entitled, KUHS had relied on an artificial break-in of 2 days between the successive extension of contracts.

She contended that when employees are allowed renewal based on their satisfactory service, the artificial break of two days is only to be ignored and that continuous engagement of a person with an artificial break-in is a device designed by some unscrupulous employers to keep on engaging persons without regularizing them thereby denying them the benefits of regular employees.

Standing Counsel P. Sreekumar appearing for the KUHS and Government Pleader Anima argued that neither under the provisions of the KSR nor under Government order would the petitioners be entitled to maternity benefits.

The Court opined that the word "actually" has been consciously used in the impugned Government P4 order. It noted that from the appointment orders itself, it was evident that the KUHS is working with the minimum number of staff and it was when the same had adversely affected the workflow of the University that recommendations were obtained from the system manager and after reckoning the qualifications and the prior experience of the petitioners in the University that the Vice-Chancellor chose to accord sanction to appoint the petitioners as programmers.

It was also undisputed that the 1st and 3rd petitioners have been working under the 2nd respondent for the past 9 years and the 2nd petitioner for the past 5 years. Therefore, the artificial breaks in service of 2 days were to be ignored, the Judge held. 

As such, the impugned orders denying maternity benefits to the petitioners were quashed and KUHS was directed to forthwith calculate the maternity benefits to which the petitioners are entitled and to disburse the same expeditiously within two months.

Case Title: Naziya & Ors. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 216

Click Here To Read/Download The Order