DSLSA Panel Counsel Not An 'Employee' But A 'Professional', Not Entitled To Maternity Benefits: Delhi High Court

The Delhi High Court on Tuesday held that the appointment of candidates with Delhi State Legal Services Authority (DSLSA) as a panel lawyer is only professional and not as an employee, and they are not entitled to benefits under the Maternity Benefit Act, 1961.

A division bench comprising Justice V Kameswar Rao and Justice Saurabh Banerjee set aside a single-judge order granting maternity benefits to a pregnant woman, who was engaged in contractual employment with Delhi State Legal Services Authority as a panel lawyer.

The woman had sought maternity benefits to her as applicable to regular female employees.

Setting aside the single judge order, the bench said that the appointment of the woman, as a Panel Lawyer by the legal aid body, cannot be held as an “employment for wages” for her to claim benefits under the Act of 1961.

The court noted that the eligible candidates are appointed or empanelled with DSLSA as Legal Services Advocates (LSAs) for providing legal services before the Juvenile Justice Boards for a period of three years.

“So, in that sense, the appointment is as an LSA and not as an employee,” the court said.

It added: “It is an obligation on the LSA to carry out the mandate under the Regulations prescribing the duties of a LSA. The same cannot and indeed shall not make the nature of appointment, as „employer- employee.”

The bench observed that in the case at hand, the requirement of payment of wages by an employer was not in existence and thus missing. It said that the supervision is only in the manner provided in the terms of appointment, only to see that the LSA is carrying out the task for which he or she is appointed.

“It follows that the engagement of the respondent, as any other LSA, is not regular having any fixed terms. It is thus that the leaves as available to an employee are not available to a LSA. As a necessary corollary, the engagement of LSA on day to day basis is as a professional,” the court said.

Furthermore, the bench said that once having willingly chosen to accept the terms and conditions laid down in DSLSA's notice, the woman in the case was bound to be governed by them.

“Once having done so without any coercion or force whatsoever, the respondent is estopped from asking for maternity benefits under the Act of 1961, more specifically, as they were not available to her at any point of time before,” the court said.

It added: “The respondent‟s appointment in the case in hand being professional in nature though having a public law element but not covered under the Act of 1961, she is not entitled to the benefits under the provisions of the Act of 1961.”

The bench also said that the interpretation of the words “Employment” and “Wages” in the Maternity Benefits Act as given by the single judge, if allowed to stand, would mean that an entity engaging professionals like an Advocate, shall be bound to give the maternity benefits to each of those who are engaged professionally.

Observing that the interpretation was completely misplaced in law and would have serious repercussions, the bench said:

“We are not in agreement with the parity sought to be drawn by the Learned Single Judge between Authority and the respondent, for the reason that there cannot be a comparison between an Advocate who continues to act as such and an employee who is appointed as per the Recruitment Rules of the Authority.”

Counsel for Appellant: Dr. Amit George, Mr. Arkaneil Bhaumik, Mr. Rayadurgam Bharat, Mr. Adhishwar Suri, Mr. Piyo Harold Saimon, Mr. Rishabh Dheer and Mr. Shashwat Kabi, Advs

Counsel for Respondent: Dr. Charu Wali Khanna and Mr. Hemant Kumar Yadav, Advs

Title: DELHI STATE LEGAL SERVICES AUTHORITY v. ANNWESHA DEB

Citation: 2024 LiveLaw (Del) 485

Click here to read order