Courts Clear the Way in Deserving Cases for The Third Child Granting 3 Times Maternity Leave
Karma Management Global Consulting Solutions Pvt. Ltd. one of the top 5 labour law consulting firms in the country, has recently hit upon yet another significant milestone in the journey of tying up SUNDEEP PURI ASSOCIATES AND ADVOCATE, where both these Firms Have Formally joined hands together to collaborate and create a bigger alliance by upscaling its business on pan India basis and Internationally to give greater reach of its services together, to its hundreds of clients all over.
Sundeep Puri & Associates (SD Puri & Co.) with 55+ years of existence and helmed by Adv. Sundeep Puri & Adv. Ravi Paranjpe is one of the largest retainer firms in India specializing in “Employment Laws” advising the Corporate Sector. The Firm boasts of some clients being associated for the last 55+ years and the majority since the last 30-40 years. They have extensive experience in counseling Foreign MNCs & Indian MNC Clients having multi-locational Factories &/or offices Pan-India on a daily basis on a wide range of “Employment & Labour” issues, keeping in view the cultural diversity of the workforce such as Acquisitions, Mergers, Consolidations, Reductions in the workforce, Maintaining union-free environment by not undermining the principles of collective bargaining & also preserving operational flexibility in unionized settings, providing tailor-made models for conflict-free, productivity conducive Industrial Environment, as also in respect to Applicability of the various labour laws. They believe in Solution oriented Practical Advice backed by Law.
On the other hand, Karma Management Global Consulting Solutions Pvt. Ltd. since 2004 is backed by 25 years of prior experience since 1979, operating on an India basis and Internationally in the Americas and EMEA, helmed by Pratik Vaidya, is a leading giant in payroll management, compliance and governance, human resource services, professional Employment staffing, and onboarding, recruitment and talent acquisition, advisory and consultations thereby offering a plethora of services with quick turn-around solutions including in-house flagship AI/ML based tech solutions so as to help organizations of different types and stature to perform better in Human Resource ensuring Risk Management, Compliance and Governance across Environmental, Social and Corporate laws and grow bigger.
So in this regard, besides the business profile of Karma relating to labour laws, it will now focus whole time also on legal and para-legal issues and matters with the collaboration of Sundeep Puri & Associates who are already into legal matters such as disputes, litigation, and court cases.
THERE ARE VARIOUS CITATIONS WHERE THE JUDGEMENTS HAVE BEEN UPHELD IN THE CASE OF THE THIRD CHILD, LET US ANALYSE ………!
HC directs granting one-year maternity leave to government servants for a third child
Terming the two children born out of the first wedlock cannot be treated as ‘surviving’ wards, as they are living with the estranged first husband, the Madras High Court on Friday directed the Tamil Nadu government to grant one-year maternity leave to a woman employee for her third child from the second marriage. Justice V Parthiban gave the ruling while allowing a writ petition from K Umadevi, who sought to quash an order dated August 28, 2021, of the Chief Educational Officer in Dharmapuri district and direct the authorities concerned to sanction maternity leave from October 11, 2021, to October 10, 2022, with full pay and all attendant benefits.
Umadevi got married to one A Suresh in 2006 and two children were born to them but the pair divorced in 2017. However, she married M Raj Kumar the next year. She later applied for a grant of maternity leave but by an order dated August 28, 2021, the CEO in Dharmapuri rejected her plea on the ground that a woman government servant is eligible for maternity leave only for the two surviving children. There is no provision for the grant of maternity leave for the third child on account of her remarriage.
Granting the prayer, Justice Parthiban pointed out a GO issued on June 20, 2018, which extended the benefit of the second delivery, even if a woman government servant had given birth to twins earlier
The government, therefore, recognized such extreme cases and the circumstances and this is one of the peculiar cases wherein as a fallout of divorce from the first marriage, the petitioner had to part with the custody of her two children born from the first wedlock. Therefore, in the entirety of the facts and circumstances of the case, it cannot be, today, said that the petitioner is having two surviving children at all.”
“In these circumstances, a purposive and meaningful reading of the provisions and its implementation is a constitutional obligation cast upon the authorities, considering the peculiar and singular facts and the circumstances of the case. The Court, therefore, holds that the petitioner is deemed to have not having two surviving children, inviting disqualification for claiming the maternity benefit”, the judge said.
When it was brought to the knowledge of the judge that the State government had issued another order on August 2021 enhancing the maternity leave from 9 months (270 days) to 12 months (365 days), he recorded his appreciation.
The State government has studied the sensitivity towards motherhood and its deep understanding of the importance of wholesome rearing and fostering of newborn children. Maximizing the maternity benefit under the said GO is a reflection of the sublime concern of the government towards the well-being of its women employees. The enhanced benefit under the said GO is protected in terms of Sec. 27(2) of the Maternity Benefit Act, 1961, even though the Central Act is lagging behind on this aspect, the judge said.
“For all these reasons, this Court finds that the rejection of the petitioner’s claim for grant of maternity benefits cannot be countenanced in law and therefore, the impugned proceedings passed by the CEO is hereby set aside,” the judge said and directed the government to sanction maternity leave to the petitioner for the period claimed as admissible in terms of the August 2021 GO, within two weeks.
JYOTI SUHAG PETITIONER VERSUS STATE OF HARYANA AND OTHERS
COURT: PUNJAB & HARYANA HIGH COURT – DATE: MAY 15, 2015
The petitioner again gave birth to a third daughter on 25/1/2015. she moved an application for earned leave which was granted on 30/1/2015. During the period of earned leave, the petitioner came to know that she was entitled to maternity leave for the third child also. Accordingly, she applied for a grant of maternity leave but the same was declined on the ground that the petitioner is not entitled to maternity leave for the third child as per CSR. Vol. 1 rule 8.127(1) Note (4). The said letter of declining maternity leave is the subject matter of challenge in the present petition.
The Judge’s opinion was that Note 4 to Rule 8.127(1) of the Punjab Civil Services Rules Volume I Part I is not in consonance with the provisions of the Act and this cannot be given effect to and the petitioner cannot be deprived of the maternity benefit for the birth of a third child.
In view of the facts and law position as discussed above, the present petition deserves to be allowed. The impugned letter dated 20/2/2015 (Annexure P 7) is quashed and the respondents are directed to grant the benefit of maternity leave to the petitioner in view of the ratio of Division Bench Judgement of this Court in Ruksana’s case (supra) followed by Pooja’s case (supra)
BABITA VERSUS THE STATE OF HARYANA AND OTHERS
PUNJAB AND HARYANA HIGH COURT – JULY 16, 2018
Petitioner Babita who was working in the post of computer Programming Assistant Operation on a contract basis made an application seeking maternity leave for her third child which was duly accepted vide order dated 11/12/2017 issued by respondent No. 2 and the maternity leave was sanctioned to the petitioner with effect from 9/10/2017 to 6/4/2018. But in the impugned letter dated 9/1/2018 and 12/2/2018, the maternity leaves already granted to the petitioner were canceled on the basis of a letter dated 4/8/2014.
On notice, a reply has been filed by the learned state council stating therein that the benefit of maternity leaves with pay to the birth of children beyond the second child is extended to the regular employees and not the contractual women employees and thus the instructions dated 20/5/2016 and 30/8/2017 is not applicable in the case of the petitioner who is working on contract basis. The benefit of leave to contractual employees is governed by the instructions dated 4/8/2014. As per these instructions, the benefit of maternity leave to contractual employees is available for up to 2 children and not beyond 2 children.
Learned counsel for the petitioner has referred to CWP No. 18664 – 2016 titled Lalit versus the State of Haryana, decided on 15/11/2016 whereby this court was dealing with a case of a petitioner who was working on a regular basis, who was denied the benefit of maternity leave on account of the birth of a third child. A cost of Rs. 50,000 was imposed upon the State in view of the Division Bench Judgement of this court in a case of Ruksana versus State of Haryana 2011 (5) SLR 325. In this case, the Division Bench held that the benefit of maternity leave on account of the birth of a third child cannot be denied to a couple either one of whom or both are in Government service.
In view of the discussions made, the present writ petition is allowed and letters dated 4/8/2014, 9/1/2018, and 12/2/2018 are set aside, and the respondent – Department is directed to treat the period of the petitioner with effect from 9/10/2017 to 6/4/2018 as a period on maternity leave and give all consequential benefits as per the rules and provisions of the maternity act, 1961. A cost of Rs. 20,000/- is also imposed upon the State which is also to be paid to the petitioner.
Govt staffer can get 3rd maternity if she re-marries: HC
BHOPAL: The Madhya Pradesh high court said in a recent order that a government employee is entitled to maternity leave for a third time if she divorces her first husband, remarries, and conceives.
In normal circumstances, leave is allowed only twice. School Teacher Priyanka Tiwari moved the HC, seeking an order to the school education department to grant her maternity leave for the third child conceived after she married following her divorce. She has two children from her earlier marriage and according to civil service rules, women employees are entitled to maternity leave only twice.
Tiwari’s petition said that if a woman employee remarries the following divorce, she should be entitled to maternity leave more than twice.
In view of the urgency of the situation, the Court asked the School Education Department to grant her maternity leave for the third time.
LET US SEE WHAT THE CASE OF A. DEEPALAKSHMI IS ALL ABOUT, IS IT SIMILAR TO THE EXAMPLES MENTIONED ABOVE?
Court directs Madurai Corporation authorities to provide 12-month leave to a worker
Bringing relief to a woman worker, who is pregnant with her third child, the Madurai Bench of the Madras High Court has directed Madurai Corporation to sanction maternity leave for her for 12 months.
The court was hearing a petition filed by A. Deepalakshmi, a worker in Madurai Corporation. Her first child was a special child. She gave birth to her second child in 2015. She and her husband decided to have another child. She conceived in 2021.
The woman sought maternity leave and was permitted to go on leave. However, Corporation authorities later rejected her leave application stating that she already had two living children and as per a G.O. she was not entitled to maternity leave again.
Justice S. Srimathy observed that the main provision of the fundamental rules stated that maternity leave would not be admissible to a married woman with more than three children. However, the G.O. stated that maternity leave should be granted to a woman government servant with less than two surviving children.
The main section of the rules would have an overriding effect. The petitioner was entitled to maternity leave for the third child too, the judge said.
The woman was entitled to maternity leave unless the relevant Act restricted or banned having a third child. Since there was no such ban, the petitioner was entitled to medical leave, the judge said.
Maternity Leave in India: The Law and Benefits
The Maternity Benefit (Amendment) Act 2017, which was passed by the Rajya Sabha in the year August 2016, has now also been approved by the Lok Sabha in the same year, in March 2017.
Some important changes under the new law:
- The paid maternity leave in India is increased from 12 weeks to 26 weeks for working women.
- This law is eligible for only those who work in an organization with a minimum of 10 employees.
- The prenatal leave is also increased from 6 to 8 weeks.
- A woman who is already a mother of 2 children is eligible for 12 weeks of maternity leave from the 3rd child.
- If a woman adopts a child under the age of 3 months, then she is eligible for a leave of 12 weeks.
A commissioning mother is also eligible for a leave period of 12 weeks starting from the day when the child is handed over. Now you must be wondering what is this “Commissioning Mother” term. A commissioning mother is a “biological” mother who uses her egg to make an embryo which is implanted in another woman, and the mother who gives birth to this child is known as the Surrogate Mother.
Let us take a look at what the labour codes on maternity say…………
Maternity Benefit under the Code on Social Security, 2020
Section 60 of the Code vests the right to payment of maternity benefits in every woman who has actually worked for a minimum period of 80 days in the twelve months immediately preceding the date of her expected delivery. Such eligible female employees are entitled to maternity benefits of 26 weeks of which not more than 8 weeks shall precede the expected date of her delivery.
The above provision is an identical reproduction of Section 5 under the Maternity Benefit Act, 1961 as modified by the Maternity Benefit (Amendment) Act, 2017. Therefore, the Code does not provide for any extended quantum of maternity benefit or leave, as the case may be.
Missed Opportunities
The Code on Social Security, 2020 needs to bring in more flexibility on maternity leave such as giving women the preference to avail of maternity leave between 18 to 26 weeks.
This would allow women who want to return to work prior to the expiration of their maternity leave an additional option, while still ensuring that a minimum of 18 weeks is provided.
Such employees could have been given the option to avail of the remaining leave/benefit as an incentive in addition to their salary.
Alternatively, the scheme under the Code could have mandated 26 weeks of leave while allowing women to encash maternity leave that they have not availed.
For example, if a woman employee availed of only 20 weeks of maternity leave and wanted to return to work, she would be allowed to do so and would receive the additional 6 weeks of leave as an incentive in addition to her salary.
Also, any one-time activities under any of the establishment’s various programs could be extended to them during their leave which may include becoming familiar with new processes, attending conferences, participating in upskilling programs that require minimal effort and a very short period of time, etc.
Such changes would contribute to a more flexible regulatory environment and would have had a greater beneficial impact on women employees as well as their return to work after maternity leave would be more joyful than ever.
Conclusion
Maternity Leave in India is reformed considering the current scenario where women are a dominantly integral part of every working environment. Pregnancy is a phase in life; many families expect it to happen to them soon. Many families plan on pregnancy and childbirth. However, happy and exciting the pregnancy is, for working women, the concerns still prevail in our society.
India has already transitioned to a nuclear family approach; it is challenging to run short of elderly help at home. Moreover, couples have shifted from their hometowns to corporate jobs across different locations. The concern with starting a family and transitioning the pregnancy process is a phase often puts the couples on the horn of a dilemma. However, working couples, as well as expectant mothers, should be aware of the laws on Maternity Leave so that they are not confronted with any of the challenges later on.
Maternal care for a child during the period of its initial growth is essential for the child’s development and growth. Women’s role as a mother should not be in conflict with their professional aspirations and growth. The amendment will help protect the employment of women during the time of maternity and entitles them to paid absence from work to take good care of their child.
It will be interesting if such guidelines/procedures on our existing laws are imparted to the general public and also the establishments can take it upon themselves to bring awareness among their employees so that ample clarity can be sought in time, in a way that businesses can implement do not feel the pain of absenteeism thereby avoiding a vacuum in the execution of duties.
Karma Global has been at the forefront of rendering yeomen services to its hundreds of clients and often makes it a point to sound them on the various acts especially the maternity benefit act and the maternity benefit amendment act as well as the clauses contained in the new labour codes.
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