Dehradun: Uttarakhand High Court has struck down a state government rule denying leave to women employees for the birth of their third child as “unconstitutional” and said it was against the “letter and spirit” of the Constitution that calls for “just and humane conditions of work and maternity relief”.
The court said the second provision of Fundamental Rule 153 of the Uttar Pradesh fundamental rules, as adopted by Uttarakhand, goes against a central act as well as the Article 42 of the Constitution.
“This proviso is contrary to Section 27 of the Maternity Benefit Act, 1961. Section 27 of the Act, 1961 does not prohibit, in any manner, to grant of maternity leave to a female government servant, who has already two children at the time of submission of an application for maternity leave, after giving birth to a third child,” the single bench of Justice Rajiv Sharma ruled.
Justice Sharma gave the directions while hearing a writ petition of Urmila Masih, who had applied for a maternity leave for almost six months in 2015. The court issued the orders on July 30 but its copy was made available on Thursday.
The court directed the state government to provide leave to Masih, who belongs to Haldwani in Nainital district and works as a nurse at a government hospital, within six weeks.
Justice Sharma said the legal issue raised in the petition was exclusively decided by the Punjab and Haryana High Court in 2011 in its judgment in the case of Ruksana vs State of Haryana & others in a similar case.
He said the Punjab and Haryana High Court held that the act does not restrict the benefit of maternity leave beyond the birth of two children, adding that “such a restriction imposed under the rules is contrary to Section 27 of the Act and cannot sustain in the eyes of law”.
“With the HC’s landmark decision, she will now get the salary for the leave she had availed in 2015 when maternity leave was denied to her. And all women who were being denied the maternity leave for their third child will now get leave benefit,” Masih’s lawyer Sanpreet Singh Ajmani said.
The Maternity Benefit Act, 1961, protects the employment of women during the time of her maternity and entitles her full paid absence from work to take care of her child. It is applicable to all private and government establishments, employing 10 or more people.
An amendment to the maternity benefit act was passed in the Rajya Sabha in August 2016 and in the Lok Sabha in March 2017, and received an assent from President of India in March 2017, with its provisions coming into effect from April 1, 2017.
The amendment increased the duration of paid maternity leave available for women employees from the 12 weeks to 26 weeks and in case of women, who are expecting their third child, the duration of paid maternity leave was fixed at 12 weeks.