It is really in the fitness of things that while ruling fully, firmly and finally in favour of the right of woman to become a mother as a fundamental/human right of women, we see that the Himachal Pradesh High Court has in a most learned, laudable, landmark, latest and logical judgment titled The Secretary, Managing Committee of Loreto Convent Tara Hall School vs Sharu Gupta and Others in CWP No. 4122 of 2020 and cited in Neutral Citation No.: 2023:HHC:14597 that was pronounced as recently as on December 28, 2023 has minced just no words to hold clearly that the right to become a mother is a fundamental/human right of a woman and the provisions of Maternity Benefits Act must be strictly enforced wherever applicable.

The Court observed thus in a writ petition that was filed against the order passed by the Labour Commissioner-cum-Chief Inspector of Factories-cum-Appellate Authority under the Maternity Benefit Act, 1961. In the ultimate analysis, we thus see finally that the Himachal Pradesh High Court dismissed the petition and refused to interfere in the impugned orders passed by the concerned authorities.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Vivek Singh Thakur sets the ball rolling by first and foremost putting forth in para 1 that:
Petitioners have approached this Court, invoking provisions of Article 226 of Constitution of India, for setting aside the order dated 14th September, 2020 (Annexure P-6) passed by the Labour Commissioner-cum-Chief Inspector of Factories-cumAppellate Authority, under Maternity Benefit Act 1961, in appeal No. L-L&E (MB) Appeal-2019 titled Secretary Managing Committee of Loreto Convent Tara Hall School and another vs. Sharu Gupta and another, whereby order dated 16.10.2019 (Annexure P-3) passed by Labour Inspector Circle-1 Shimla (Authorized Inspector under Maternity Benefits Act), in case No. L1/SML/C-1/Maternity Benefit Act, 1961 (Sharu Gupta)/19 titled Sharu Gupta vs. the Secretary Managing Committee of Loreto Convent School, has been affirmed with modification by granting additional payment of three months salary to the respondent/claimant as per provisions contained in Section 17(2)(a)(b) of the Act, over and above the relief granted by the Authorized Inspector directing the petitioner to pay Rs.2,45,592/- as maternity benefit and salary for the month of September 2019 to the complainant and also to take joining of Sharu Gupta (complainant) on the same post as Assistant Teacher which she was holding before her proceeding on maternity leave.

Needless to say, the Bench states in para 2 that:
I have heard learned counsel for parties and have also perused the original record summoned from the petitioners as well as of Authorities.

To put things in perspective, the Bench envisages in para 3 that:
Admitted facts in present case are that respondent was appointed in Petitioner No.2-School, managed by Petitioner No.1, as Assistant Teacher on contract basis from 1.4.2016 to 31.07.2017. Subsequently, she was appointed on probation w.e.f. 1.7.2017 till 30.06.2018. Probation of respondent No.1 was extended from 1.7.2018 to 30.06.2019.

As it turned out, the Bench discloses in para 4 that:
Petitioner remained on medical/earned/without pay leave twice w.e.f. 20th September 2018 to 30th September, 2018 and from 12th November 2018 to 24th November 2018. On 21st December, 2018, services of respondent No.1 were terminated vide letter dated 20th December, 2018 w.e.f. 21st December 2018 by paying one month’s salary in lieu of notice and termination letter was served upon respondent No.1 on 21st December, 2018.

Do note, the Bench notes in para 13 that:
As per the record of petitioners, appointment letter of complainant (on probation) dated 1st July, 2017 was accepted and received by complainant on 28th July, 2017. Whereas extension of appointment on probation in the year 2018 was ordered on 20th July, 2018 wherein it was stated that her appointment shall be subject to written acceptance of terms and conditions mentioned therein and areas of improvement attached to the said letter.

There are acceptance signatures of complainant on this extension order. Though there is a document available on record containing 13 observations with respect to petitioners and 6 areas of improvement need to be adhered by complainant but there is nothing on record that this communication was the same which was referred in extension of appointment of probation. It does not indicate any signatures of receiving by complainant.

Termination letter dated 20th December 2018 speaks that services of complainant were no longer required by school and as per condition of her appointment dated 1st July, 2017 she was informed about that her services will not be required by school on and from 21.12.2018. There is nothing on record to indicate that after appointment on probation or extension of appointment on probation, complainant was ever informed about her failure to meet the requirement of petitioners/employer as claimed to have been communicated to her along with extension letter dated 20th July, 2018. Rather it has come on record that she was continued uptill the end of session i.e. December 2018.

During intervening period, she was permitted to avail leave on account of complicity in the initial stage of pregnancy and when she informed about her plan to proceed on maternity leave after winter vacation, then, to avoid extension of maternity benefits to her, her services were terminated under the garb of conditions contained in her appointment order.

As we see, the Bench then points out succinctly in para 14 that:
Petitioners are relying upon the provisions of Section 6(1) of the Act and Service Rules, which provide that before proceeding on maternity leave, a written information by beneficiary is necessary. There is no dispute with respect to aforesaid provisions. However this provision is to be read with other provisions of the Act including Section 6(2) which provides that pregnant employee can remain absent from the work on pregnancy but not being a date earlier than six weeks from the date of her expected delivery.

In present case, expected date of delivery was 26.04.2019 and, therefore, six weeks earlier to expected delivery were to start after first week of March, 2019 and prior to that, there were winter vacation and thus, there was no occasion for complainant to give any written information in December 2018 for grant of maternity leave w.e.f. March, 2019. The complainant intended to submit application and thereafter she verbally informed about it but before submission of application, complainant was terminated.

Simply put, the Bench mentions in para 15 that:
It is also apt to record here that it is normal phenomena in service that an employee apprises his employer or Boss before filing an application for availing any kind of leave by informing about his/her plan to proceed on leave as an etiquette and courtesy and, therefore, there is nothing unnatural on the part of complainant to inform the employer verbally about her plan to proceed on maternity leave before filing written application.

It cannot be lost sight of that the Bench then notes in para 16 that:
Conduct of petitioners is not above board as there is a complete denial on the part of petitioners about knowledge of pregnancy of complainant despite the fact that in the months of September and November 2018 complainant was granted leave by petitioners on account of initial stage of pregnancy as advised by doctor.

It is worth noting that the Bench notes in para 23 that:
Motherhood is an important and essential duty to be performed by a woman for existence of the human race on this earth. To conceive, to give birth and take care of a child is not only the fundamental right of the woman but also a pious role to be performed by her for existence of Society. Keeping in view arduous nature of this duty, she must be provided facilities to which she is entitled.

While citing the most relevant case law, the Bench hastens to add in para 24 stating that:
It has been observed by the Supreme Court in Municipal Corporation of Delhi vs. Female Workers (Muster Roll) reported in (2000) 3 SCC 224, that to become a mother is a most natural phenomena in the life of a woman and for it, the beneficial piece of legislation i.e. Maternity Benefit Act, 1961 has been enacted with object to provide security to the working woman with respect to her service as well as extension of benefits. Working woman, on account of biological duty assigned to her by the nature, has to inevitably face the physical difficulties for performing her duty for conceiving, carrying a baby in the womb and rearing up the child after birth. Maternity Benefit Act has been enacted to provide all facilities to the working woman in dignified manner so that she may overcome the state of motherhood honourably, peacefully and undeterred by the fear of being victimized for forced absence during pre or post-natal period.

Most significantly and most remarkably, the Bench mandates in para 25 holding that:
Article 42 of the Constitution of India categorically directs that State shall make provision for securing just and humane conditions of work and for maternity relief. India is signatory to various international covenants and treaties including The Universal Declaration of Human Rights, adopted by the United Nations on 10th December, 1948 declaring that human right are supreme and ought to be preserved at all costs. In my opinion, the right to become a mother is also one of the most important human right and this right must be protected at all costs and therefore, provisions of Maternity Benefit Act must be enforced strictly wherever applicable.

Most forthrightly, the Bench directs in para 26 that:
Relationship of an employer and an employee requires mutual trust between them, particularly in an education institution, where congenial atmosphere for teaching and learning is required. Therefore, in case petitioners do not intend to accept joining of the respondent, as directed by the Authorities below, then they shall, in addition to the maternity benefits already granted by the Authorities below, shall pay compensation to the respondent amounting to Rs.15.00 lakhs (fifteen lakhs) in lieu of her reinstatement because any intent to thwart the grant of maternity benefits should be dealt with seriously in order to ensure implementation of the Act in letter and spirit.

Finally and as a corollary, the Bench then concludes by holding in para 27 that, In view of aforesaid discussion, I do not find any illegality, irregularity, judiciary impropriety to interfere in impugned orders passed by Authorities under the Maternity Benefits Act by invoking discretionary jurisdiction under Article 226 of Constitution of India. Accordingly, petition is dismissed including all pending miscellaneous application(s), if any, in aforesaid terms.

In sum, we thus see that the Himachal Pradesh High Court has made it indubitably clear that right to become a mother is fundamental/human right of women. It was also made clear that the Maternity Benefit Act provisions must be strictly enforced. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh