With
this, the Court granted relief to an Inter College lecturer whose application
for maternity leave had been rejected by placing reliance on Rule 153(1) of
the Financial Handbook by contending that the same contains a restriction
that the second maternity leave cannot be granted where there is a difference
of less than two years between the end of the first maternity leave and grant
of second maternity leave.
The
case in brief
Essentially,
her maternity leave application had been rejected on the ground that she had
previously availed maternity leave which ended on May 18, 2018, which was a
period less than 2 years, and hence, she was not entitled to the maternity
leave as per Rule 153(1) of the Financial Handbook.
Before
the Court, she argued that she had applied for maternity leave for a period of
174 days from November 26, 2017, to May 18, 2018, which was duly sanctioned and
the petitioner gave birth to a baby boy on January 29, 2018, but unfortunately,
the newborn child passed away due to cardiorespiratory just a day after his
birth.
The
petitioner again conceived for the second time and applied for maternity leave
for a period of 24 weeks from November 18, 2018 to May 16, 2019, which had been
rejected by means of the impugned order.
It
was argued by her counsel that Rule 153(1) of the Financial Handbook runs
contrary to the mandatory provisions of the 1961 Act, which doesn't stipulate
any mandatory lapse of time between the first and second child so as to become
eligible for the grant of maternity benefit.
In
view of this, considering the provisions of Section 27 of the 1961 Act, the
Counsel contended, that Rule 153(1) of the Financial Handbook Vol. II to IX
would have to be read down and it is the provisions of the 1961 Act that would
prevail.
On
the other hand, the Counsel for the state argued that the impugned order is in
conformity with the provisions of Rule 153(1) of the Financial Handbook Volume
II to IV where a restriction has been placed for grant of maternity benefits
prior to 2 years having lapsed from the date of expiry of the last maternity
leave granted under the Rule.
Court's
observations
At
the outset, the bench of Justice Alok Mathur observed that a perusal of
the provisions of the 1961 Act indicate that a woman would be entitled to give
notice in writing for grant of maternity benefit, and on receipt of the notice,
the employer shall permit such a woman to absent herself from the
establishment during the period for which she receives the maternity benefit.
"The 1961 Act does not
contain any such stipulation of the time difference between the grant of
maternity benefit for the first and second child as stipulated in Rule 153 (1)
of the Financial Handbook," the Court observed as it stressed that the
1961 Act does not contain any such stipulation.
Accordingly,
the Court held that the respondents patently erred in placing reliance on Rule
153(1) of the Financial Handbook in rejecting the application of the petitioner
for grant of maternity leave.
"The Maternity Benefit Act
1961 has been enacted by the Parliament on a subject which finds mention in
entry 24 of list III, and it was totally within its competence to make such an
enactment. Even if the state legislature were to make such a law, overriding
the provisions contained in the Maternity Benefit Act then the said act would
be reserved for accent of the President and would be enforceable only after
obtaining such an accent as provided in article 254(2) of the Constitution of
India," the Court remarked.
Consequently,
the Court held that once the provisions of the Maternity Benefit Act, 1961 has
been adopted by the State of U.P. then the said Act of 1961 would apply with
full force irrespective of the provisions contained in the Financial Handbook
which is merely an executive instruction and would, in any case, be subsidiary
to the legislation made by the Parliament.
"The provision of Financial
Handbook are preConstitutional executive instructions and would be subsidiary
to the Act of Parliament and in case of any inconsistency, the statutoy
enactment framed by the Parliament would prevail and hence the provisions of
Maternity Benefits Act, 1961 would prevail over the provisions of Financial
Handbook and, therefore, provision of Rule 153 (1) of the Financial Handbook
Volume I to IV are read down with regard to admissibility of
leave to a woman with regard to second pregnancy which would be governed by
Maternity Benefits Act, 1961 and not Rule 153 (1) of the Financila Handbook
Volume II to IV," the Court held as it the writ petition is allowed
and the respondents were directed to grant maternity benefit to the petitioner
in terms of the Maternity Benefit Act 1961.
Case
title - Satakshi Mishra v. State Of U.P.
Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others [WRIT - A No. -
5114 of 2022]
Case
Citation: 2022 LiveLaw (AB) 410
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