C.W.P. No. 7855 of 2007 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 7855 of 2007 Date of Decision: Aug. 29,2011 Smt. Lalita .................................................. Petitioner Versus State of Punjab and others ....................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Mukund Gupta, Advocate for the petitioner. Mr. Praveen Chander Goel, Addl. A.G. Punjab. ... RITU BAHRI, J. Petitioner has sought a writ of Mandamus directing the respondents for quashing the show cause notice dated 23.12.2004, the enquiry report dated 1.12.2004 (Annexure P11 colly), order dated 3.2.2005 (Annexure P-13) whereby the petitioner has been removed from service and quashing the order dated 27.2.2007 (Anexure P-16) whereby the appeal of the petitioner has been dismissed. Petitioner was appointed as a Telephone Operator C.W.P. No. 7855 of 2007 [ 2 ] for 89 days on daily wages as per rates specified by Deputy Commissioner, Patiala (Annexure P-1). Her services were extended from time to time in the following manner:- “Date of order Period of extension granted 14.08.1996 From 06.06.1996 to 03.09.1996 01.04.1997 From 04.09.1996 to 01.12.1996 From 04.12.1996 to 02.03.1997; and From 05.03.1997 to 31.03.1997” After the year 1997, the services of the petitioner were extended on yearly basis on contingency rates fixed by the Deputy Commissioner, Patiala. These extensions continued for the years 1998-99, 1999-2000, 2000-2001 and 2001-2002. There has been no break in the service of the petitioner with effect from 7.3.1996. The petitioner-Smt. Lalita along with one Shri Mandeep Singh filed C.W.P. No. 7096 of 2002 seeking regularization of their services. The writ petition was admitted on 7.5.2002 (Annexure P-4) and status-quo regarding their services was ordered to be maintained. Petitioner applied for medical leave from 22.5.2003 to 21.6.2003. This leave was sanctioned vide letter dated 17.6.2003 by the Superintendent Grade-I on 'without pay' basis. Petitioner had sought this leave on account of the fact that she was pregnant. She sent another application for leave with effect from 21.6.2003 to 15.9.2003 through Shri Mandeep Singh. Thereafter, petitioner was C.W.P. No. 7855 of 2007 [ 3 ] admitted in PGI on 15.9.2003. Thereafter, petitioner applied for maternity leave from 16.9.2003 for a period of 6 months i.e. upto 16.3.2004 (Annexure P-5). After discharge from PGI on 25.9.2003 the new born child was given complete blood transfusion at PGI. The baby remained indoor patient for 10 days in PGI. After 6 months, petitioner joined back her duties on 17.3.2004. After 5.4.2004 she was not allowed to attend office. On 16.3.2004 she was issued a show cause notice on the ground that she had been absent from duty since 22.6.2003. She was granted 7 days time to file her reply. Petitioner filed her reply dated 6.4.2004 (Annexure P8). A charge-sheet was issued to the petitioner on 4.6.2004 under Rule 8 of Punjab Civil Services (Punishment and Appeal) Rules 1970 for imposition of major penalty (Annexure P9). Denying the allegations and circumstances under which she was not able to attend office petitioner filed her reply. An inquiry officer was appointed who gave his report on 1.12.2004 holding the petitioner guilty of the charge. Thereafter, petitioner received a show cause notice dated 23.12.2004 (Annexure P-11) along with the inquiry report dated 1.12.2004 to show cause as to why petitioner be not removed from service. Petitioner gave her reply to the show cause notice dated 31.12.2004 (Annexure P-12). Vide order dated 3.2.2005 (Annexure P-13) the petitioner was removed from service. The petitioner filed an appeal before C.W.P. No. 7855 of 2007 [ 4 ] respondent No.1 on 9.3.2005 (Annexure P-14). Vide order dated 27.2.2007 (Annexure P-16) respondent No.1 rejected the appeal. Petitioner has challenged all these orders by way of filing this writ petition. Vide order dated 30.11.2007 this Court had allowed the writ petition on the ground that the appellate order dated 7.2.2007 was set aside on the ground that it appeared to have been passed in a usual manner by the subordinate staff member engaged in the office of the appellate authority. The costs of `25,000/- was imposed at the time of disposal of the writ petition. The State of Punjab preferred a SLP and the matter has been remanded back for a fresh decision in accordance with law. During the pendency of this writ petition, vide order dated 6.4.2010 the Department decided to reconsider the matter and take appropriate decision in the matter. The petitioner's case was considered by the Department. Advise was sought from the Government/Personnel Department. In view of the D.O. Letter dated 23.2.2007 the Excise & Taxation Commissioner vide orders dated 22.9.2010 reconsidered the case of the petitioner-Smt.Lalita and rejected her case for fresh appointment on 29.9.2010. Annexure-I is attached with the affidavit of Surinder Riar, Additional Excise and Taxation Commissioner (Admn.) Punjab. While passing the order dated 29.9.2010 petitioner's case has not been considered for re-appointment on the C.W.P. No. 7855 of 2007 [ 5 ] following grounds:- 1)In view of State of Karnataka and others v. Uma Devi no appointments on ad-hoc basis, daily wage or work charge basis to be made. 2)If any appointments are to be made in spite of the Government policy instructions they should be viewed seriously and officers be held personally responsible for the same. Since the petitioner's services have been terminated after following due procedure of inquiry, her case for fresh appointment has been rejected. However, in future if any appointment has to be made for 89 days, ad-hoc/daily wage, the petitioner will be considered on priority. Mr. Mukund Gupta, counsel for the petitioner, has placed reliance on a Supreme Court judgment in Municipal Corporation of Delhi v. Female Workers (Muster Roll) & Another 2000 (2) SCT 258 to contend that a daily wage woman is entitled to the benefits of maternity leave, pay and allowances. The maternity benefits are in consonance with the directive principles of State policy set out in Articles 39 and 42 of the Constitution of India. This view has been followed by the Jammu & Kashmir High Court in Simi Dutta v. State 2001 (4) SCT 726, Division Bench of this Court in Raj Bala v. State of Haryana 2002 (4) SCT 172, Anjana Kumari v. District & Sessions Judge, Jalandhar 2003 (4) RSJ C.W.P. No. 7855 of 2007 [ 6 ] 158 and Mrs. Anima Goel v. Haryana State Agricultural Marketing Board 2007 (1) SCT 738. Mr. Mukund Gupta has referred to the instructions of Punjab Government where maternity leave has been extended to the ad-hoc employees/daily wage, permanent and temporary employees. Vide Punjab Government circular dated 17.8.1990 it has been clarified that a female government employee is entitled to maternity leave. Counsel for the State Mr. Praveen Chander Goel has not disputed that the law is settled as regards to grant of maternity leave to a temporary employee or a daily wager is concerned. Heard counsel for the parties. The first medical leave was sanctioned to the petitioner from 22.5.2003 to 21.6.2003. Thereafter, the petitioner did not come back for duty. Thereafter, an inquiry was conducted and she has been dismissed from service on account of absence from duty. Petitioner was a daily wager and was not entitled to any earned leave as provided under the Civil Service Rules Vol.I Part-I. She was allowed leave 'without pay'. It is not disputed by the State counsel that the petitioner has been working on daily wages continuously since March 7,1996. It has been denied by the State that after June 21,2003 petitioner had made any application for grant of medical leave. She remained absent for 9 months C.W.P. No. 7855 of 2007 [ 7 ] and that is why a show cause notice dated 16.3.2004 was served and a charge-sheet on 4.6.2004 for imposition of a major penalty was issued. The entire proceedings initiated against the petitioner goes to show that she has been charged for being absent from duty. She was a daily wager. In her reply, the petitioner has specifically stated that she was on medical leave with effect from 22.5.2003 to 21.6.2003. She was referred to PGI for further treatment. After delivering a baby she was discharged from PGI on 19.9.2003. Thereafter, she was under treatment from PGI. She had sent her leave applications through Shri Mandeep Singh, Photostat Operator, for the period from 21.6.2003 to 15.9.2003. Thereafter, she sent another leave extension application with effect from 16.9.2003 to 16.3.2004 i.e. for leave treating it to be 'extraordinary leave'. She joined back her duty on 17.3.2004. In the inquiry report, statement of Mandeep Singh, Photostat Operator, was recorded who stated that husband of petitioner had given him an application which he submitted to Shri Kishore Chand, Nazir. In his cross-examination he stated that he was not aware whether her leave applications were kept in a proper register or not. For all purposes, the daily wage employees interacted with the office of Nazir on day to day basis. Smt. Sunanda Rani stated that she has not received any C.W.P. No. 7855 of 2007 [ 8 ] application from the petitioner. Similar statement was made by Shri Kishore Chand, Nazir. While dismissing the petitioner, the Department has come to the conclusion that her applications after June 2003 were not received and petitioner was guilty of absence from duty. However, without giving a finding on the main issue i.e. whether the petitioner being a daily wager was entitled to maternity leave or not and if she was entitled to maternity leave what period would be attributed for absence in the service has not been recorded. While dismissing her services, it is being observed that petitioner was taking unnecessary advantage of her position to get her services regularized at par with other daily wage employees who have been working with her. She has been dismissed from service by holding that she remained willfully absent. She has been held guilty of willful absence as per the inquiry report dated 1.12.2004. This report has been accepted. The Excise & Taxation Commissioner has dismissed her from service on 3.2.2005 (Annexure P-13). The appellate authority vide order dated 7.2.2007 has rejected the appeal on the ground that being a daily wager the misconduct of absence can either be excused or the services can be dispensed with. From the facts of the above case, it is not in dispute that the petitioner had delivered a baby and was in the process of seeking a maternity leave. She was sanctioned one month C.W.P. No. 7855 of 2007 [ 9 ] leave and thereafter her applications were not found in the office where she was working. While extending the benefit of maternity leave to daily wage woman, the Supreme Court in Municipal Corporation of Delhi's case (supra) in paragraph 29 has held as under:- “29. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother i the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified C.W.P. No. 7855 of 2007 [ 10 ] manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period.” In this case, the Supreme Court has given a direction to the Municipal Corporation of Delhi to issue necessary notification under the Maternity Benefit Act, 1961 to extend the same to all the employees of the Corporation. The benefits of Maternity Benefit Act, 1961 have been given to contractual employees by a Division Bench judgment of this Court in Raj Bala's case (supra). A temporary employee or a probationer for 2 years was held entitled to maternity leave under Rule 8.137-A of the Punjab Civil Services Rules by a Division Bench of this Court in Anjana Kumari's case (supra). In paragraph 5 the Division Bench has interprated Rule 8.137-A of the Punjab Civil Services Rules. In Mrs. Anima Goel's case (supra) a daily wage employee working in the Marketing Board was held entitled to maternity leave benefit. As per the settled law of Supreme Court the petitioner who has been working on a daily wage basis as Telephone Operator from 1996 till date of her termination i.e. 2002 without break was entitled for all intents and purposes to the grant of maternity leave as per Rule 8.137- A of the Punjab Civil Services Rules Vol-I. As per this Rule she was entitled to maternity leave not exceeding 180 days C.W.P. No. 7855 of 2007 [ 11 ] without the necessary production of a Medical Certificate. Extension of leave beyond 180 days was permissible by the grant of 'leave of the kind due'. The petitioner had been working for almost 6 years when she made her first application for leave for one month from 22.5.2003 to 21.6.2003 which was duly sanctioned. Thereafter, she had sent her applications through Shri Mandeep Singh which she has admitted during inquiry. But these applications have not been traced in the official record. In the inquiry report dated 1.12.2004 it has been found that the petitioner had concocted the story of giving the applications on the pretext of getting regularization she was persuing her case. She was held guilty of absence from duty. This finding of the inquiry is uncalled for as the Department has not disputed the fact that she has given birth to a child. The only dispute is that she made applications for maternity leave and the same were misplaced and she being a daily wager was held guilty of absence from duty. Her case for grant of maternity leave has not been considered at all. The order of dismissal is liable to be quashed on this ground. Another fact to be noticed is that petitioner had filed C.W.P. No. 7096 of 2002 along with Mandeep Singh for regularization of their services. The services of Mandeep Singh who was appointed along with the petitioner have been regularized with effect from 7.5.2002. The petitioner was in the family way and C.W.P. No. 7855 of 2007 [ 12 ] given birth to a child. Instead of considering her case for maternity leave under Rule 8.137-A of the Punjab Civil Services Rules she has been dismissed from service on the ground of absence. As per Rule 8.137-A of the Punjab Civil Services Rules she was entitled to 180 days leave and thereafter an extension was also permissible as held by the Supreme Court and by various judgments of this Court. The Department has not considered the petitioner's case in the correct perspective. In any case, if after giving her the benefit of maternity leave, the petitioner was found absent, that period could not be 9 months. It would be much less and for that period, dismissal from service would be a very disproportionate punishment. The show cause notice dated 23.12.2004, the enquiry report dated 1.12.2004 (Annexure P11 colly), order dated 3.2.2005 (Annexure P-13) whereby the petitioner has been removed from service and the order dated 27.2.2007 (Anexure P-16) whereby the appeal of the petitioner has been dismissed are set aside. She is directed to be reinstated in service with all consequential benefits. Writ petition is allowed. 29.8.2011 ( RITU BAHRI ) Rupi JUDGE