Denial Of Maternity Leave Amounts To Infringement Of Fundamental Human Right & Violation Of Articles 29 And 39D: HP HC

While acknowledging the value of motherhood in the light of Article 21 of the Constitution, “Convention on the Elimination of all Forms of Discrimination against Women” (CEDAW), and “ILO: Maternity Protection Convention 2000” to which India is a signatory, in its recent judgment, the Himachal Pradesh High Court dismissed a petition challenging the ‘deemed’ maternity leave benefit which was granted to the Respondent.

The Division Bench of Justice Tarlok Singh Chauhan and Justice Virender Singh observed that "The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India."

Further, the Bench held “The object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance to the woman and her child, maternity leave is intended to achieve the social justice to women, motherhood and childhood, both require special attention.”

Senior Additional Attorney General I. N. Mehta appeared for the Petitioner, whereas none appeared for the Respondent.

Facts in brief: The Respondent is a daily wage worker who was denied the consequential benefit of conferment of work-charge status on completion of eight years of service as in the year 1996, she failed to fulfil the minimum requirement to work for 240 days in a year. However, H.P. Administrative Tribunal granted her the benefit of deemed maternity leave, thus fulfilling the minimum requirement and consequential benefit. This order has been challenged in the present petition by the State.

After perusing the submission, the High Court examined various conventions and treaties, along with Article 25(2) in the Universal Declaration of Human Rights, 1948 which states that motherhood and childhood are entitled to special care and assistance, and all children, whether born in or out of wedlock, shall enjoy the same social protection.

“Every female employee and male employee whether appointed on a regular basis, contractual basis, ad hoc basis, tenure/temporary basis have a fundamental right to the reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) to promote motherhood and child care under Article 21 Constitution of India read with Article 42 of the Constitution of India”, added the Court.

Finding that the Respondent in the instant case was a daily wage woman employee at the time of advance pregnancy, the Bench explained that she could not have been compelled to undertake hard labour, as it would have been detrimental to not only her health and safety but also to the child health, safety, and growth.

The Bench went on to highlight that maternity leave could not have been denied being a fundamental human right of the Respondent, and therefore, the action of the Petitioner is violative of Articles 29 and 39D of the Constitution of India.

Accordingly, the Bench dismissed the petition, while concluding that a female employee irrespective of the capacity in which she is working, is entitled to maternity leave at par with her female counterparts, who otherwise are regular employees.

Cause Title: State of H.P. and Ors. v. Sita Devi

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