Contractual employees are entitled to maternity leave, reiterates Orissa High Court

Rejecting a writ appeal of the State government, a Division Bench of Orissa High Court recently upheld a three-year-old judgment passed by a single judge Bench, which had ordered that maternity leave and associated benefits could not be denied to women employed by the State government on contractual basis.

In August 2022, the Orissa High Court had ruled in favour of a contractual employee of the Department of Health and Family Welfare, whose maternity leave application from August 17, 2016, to February 12, 2017 had been rejected by the department. The State government appealed against the decision of the single-judge Bench. Since the employee was governed by the terms of her contract, she was not entitled to maternity benefit, the State government maintained

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The Bench said that the Supreme Court and several other High Courts in the country had passed judgments saying contractual employees were entitled to maternity leave based on the Maternity Benefit Act, 1961. Rejecting the contention of the State government that only women civil servants were entitled to avail maternity leave, the Bench said “women employees, for the purpose of availing such benefit, do constitute one homogenous class, and their artificial bifurcation founded on status of appointment falls foul of Article 14 of the Constitution”.

Declining any further indulgence, the Division Bench of Justices Dixit Krishna Shripad and Mruganka Sekhar Sahoo broadly agreed with the reasoning of the single judge Bench that maternity leave with pay or comparable social benefits were to be assured by the state through policies and programmes as India is a signatory nation to the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women.

“These conventions highlight the social significance of ‘maternity’, and the role of both parents in the family structure and in the upbringing of children. It is said that God could not be everywhere and, therefore, he created mothers. The idea of maternity leave is structured on ‘zero separation’ between the lactating mother and the breast-feeding baby,” the High Court said, adding that child psychiatrists and obstetricians were of the considered opinion that the physical companionship of mother and baby is mutually advantageous, and promotes bonding between the two, which is essential for their well-being.

“A lactating mother has a fundamental right to breastfeed her baby during its formative years. Similarly, baby has a fundamental right to be breastfed and brought about in a reasonably good condition. These two important rights form an amalgam from which the State’s obligation to provide maternity benefits, such as paid leave to the employees, within the permissible resources, would arise,” the Orissa High Court said.