IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.12.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.3603 OF 2007 (O.A.NO.7700 OF 2001) L.Kannaki ... Petitioner Versus 1.The Secretary to Government Animal Husbandry and Fisheries Department Chennai – 600 009. 2.The Director Veterinary Services Chennai – 600 006. 3.The Deputy Director Exotic Cattle Breeding Farm Eachankottai Post, Orathanadu Taluk, Thanjavur District. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.7700 of 2001 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records of the 2nd respondent made in ROC No.123545/RR1/97-1 dated 23.08.2000 and quash the same and consequently direct the respondents to regularise the petitioner's service and appoint her as Animal Husbandry Assistant on par with her juniors and grant all attendant service benefits. (Prayer amended as per order dated 20.12.2011 in M.P.No.1 of 2011 in W.P.No.3603 of 2007) For Petitioner : Mr.Thirumavalavan for Ms.M.Kalyani For Respondents: Mr.RM.Mutthukumar Government Advocate O R D E R The petitioner was appointed as Casual Labourer, on daily wage basis, in the third respondent Cattle Breeding Farm, on https://hcservices.ecourts.gov.in/hcservices/ 30.05.1988. According to the petitioner, the Additional Director, Exotic Cattle Breeding Farm, Eachankottai sent proposals to the Director of Animal Husbandry, Chennai, in the year 1993, for regularisation of Casual Labourers, who have rendered five years of service. The petitioner ranks at serial number 25 in the women list of Casual Labourers. The Director of Animal Husbandry, Chennai forwarded the same to the Government, on 06.02.1995, recommending regularisation of the services of Casual Labourers. 2.Before the Government passed orders on the proposals of the Director of Animal Husbandry, Chennai, the Casual Labourers, numbering 465, approached the Tamil Nadu Administrative Tribunal, by filing Original Applications in O.A.Nos.893, 894, 1455, 2423 and 3851 of 1993 seeking regularisation of their services. The Tribunal passed an order dated 26.10.1994 in the said Original Applications directing the Government to regularise the services of the Casual Labourers, in the Animal Husbandry Department. Some among the 465 are the persons, who joined in service subsequent to the petitioner. 3.Based on the aforesaid order dated 26.10.1994 of the Tribunal, the Government passed an order in G.O.Ms.No.116, Animal Husbandry and Fisheries Department, dated 07.05.1997 regularising the services of 826 Casual Labourers, as Animal Husbandry Assistants, in the scale of pay of Rs.775-1030. The aforesaid 826 Casual Labourers includes 465 Casual Labourers, covered by the order dated 26.10.1994 of the Tribunal. 4.In the meantime, the petitioner became pregnant and she was not able to attend duties from 05.05.1996 and hence, she requested the third respondent to permit her to go on maternity leave. However, the third respondent refused to grant maternity leave on the ground that the petitioner, being a Casual Labourer, is not entitled for maternity leave. After delivery of a male child on 30.09.1996, she approached the third respondent seeking employment. But the third respondent refused to provide employment. Hence, she made representations dated 06.01.1997, 17.12.1997, 01.05.1998 and 31.03.1999 seeking reinstatement and regularisation of her services. 5.Since no order was passed on the representations of the petitioner, the petitioner filed Original Application in O.A.No.6784 of 1999 before the Tamil Nadu Administrative Tribunal and the Tribunal passed an order dated 18.11.1999 directing the respondents to consider and pass orders on the petitioner's representation dated 31.03.1999. 6.Pursuant to the order dated 18.11.1999 of the Tribunal, the second respondent passed an order dated 23.08.2000, rejecting the claim of the petitioner for reinstatement. https://hcservices.ecourts.gov.in/hcservices/ 7.Challenging the said order dated 23.08.2000, the petitioner filed Original Application in O.A.No.7700 of 2001 before the Tribunal and sought for a direction to the respondents to reappoint her as Casual Labourer in the third respondent Cattle Breeding Farm. 8.The respondents filed reply affidavit refuting the allegations made by the petitioner. In the reply affidavit, it is stated that the petitioner stayed away from work in May 1996 itself, without any information in writing and she did not turn up for work from 05.05.1996. It is also stated that all Casual Labourers, working in the third respondent Cattle Breeding Farm were brought into regular establishment as Animal Husbandry Assistants. It is also admitted that the petitioner made representations dated 06.01.1997, 17.12.1997 and 01.05.1998, but however, there was no personal representations made by the petitioner. 9.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.3603 of 2007. 10.The petitioner filed an application in M.P.No.1 of 2011 in W.P.No.3603 of 2007 for amendment of prayer. As per the amended prayer, the petitioner has sought to quash the order dated 23.08.2000 of the second respondent and for a consequential direction to the respondents to regularise her services and appoint her as Animal Husbandry Assistant, on par with her juniors. 11.Heard both sides. 12.The learned counsel for the petitioner submits that the petitioner has averred in ground (C) of the affidavit filed in support of the writ petition that she sought for maternity leave and the same was declined and she has also made a representation dated 06.01.1997. The said averment is not denied in the reply affidavit filed by the respondents. In the representations, the petitioner stated about her non-attending duty due to her pregnancy from 05.05.1996 and that when she reported to duty, she was denied employment. But the respondents did not choose to reply to the representations made by the petitioner. It is submitted that as per Section 5(2) of the Maternity Benefit Act, 1961 (shortly "the Act"), a woman employee, who has rendered service more than 80 days, is entitled to maternity leave. Hence, denying maternity leave from 05.05.1996 and denying employment is against the provisions of the Act. It is further submitted that Section 12 of the Act protects employment from arbitrary dismissal made by the employer during pregnancy. https://hcservices.ecourts.gov.in/hcservices/ 13.In support of his submission, the learned counsel for the petitioner heavily relies on a judgment of the Honourable Supreme Court in MUNICIPAL CORPORATION OF DELHI VS. FEMALE WORKERS (MUSTER ROLL) AND ANOTHER [2000 (3) SCC 224]. 14.The learned counsel for the petitioner further submits that even as per the reply affidavit filed by the respondents, all the Casual Labourers employed along with the petitioner, were brought into regular establishment and that therefore, the petitioner should also be regularised in service. 15.The learned counsel for the petitioner also relies on the Government Orders in G.O.Ms.Nos.19 and 117, Animal Husbandry, Dairying and Fisheries Department, dated 21.02.2007 and 28.08.2008 respectively. According to the learned counsel, 68 Casual Labourers were regularised in service, in G.O.Ms.No.19 and the reason for regulaising those 68 Casual Labourers was that the persons, joined after 07.08.1991 as Casual Labourers, were regularised in service, in view of the orders passed by the Tribunal and therefore, the persons, who joined prior to 07.08.1991, were also to be regularised, particularly when they obtained orders from the Tribunal. It is submitted that the petitioner is also entitled to the similar benefit, as given to those 68 persons. In G.O.Ms.No.117, Casual Labourers, numbering 163 were regularised as Animal Husbandry Assistants and that is why, it is stated in the reply affidavit that all the Casual Labourers were brought into regular establishment. 16.On the other hand, the learned Government Advocate sought to sustain the impugned order, based on the reply affidavit filed by the respondents. It is submitted that the petitioner, being a Casual Labourer, is not entitled to the benefits under the Act. Thus, the learned Government Advocate sought for dismissal of the writ petition. 17.I have considered the submissions made on either side and perused the materials available on record. 18.The petitioner joined as Casual Labourer on 30.05.1988 and worked up to 04.05.1996 and the same is not in dispute. According to the petitioner, after 05.05.1996, she was not able to attend duties, due to her pregnancy. The petitioner has stated in ground (C) of the affidavit filed in support of the writ petition that her application for maternity leave was returned stating that she is not eligible for maternity leave. When she approached the third respondent, after delivery of a male child, she was not given employment. In this regard, ground (C) of the affidavit filed in support of this writ petition is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "C) The applicant submits that she has put in 8 years of service as Casual Labourer. She has applied for Maternity Leave for 3 months from 6.5.96. The 3rd respondent returned the maternity leave application on 13.5.96 as she is not eligible for Maternity leave. After the delivery of male child she has approached the third respondent for re-appointment as Casual Labourer on several time in person and written representation submitted on 6.1.97. The 3rd respondent orally refused to re-appoint the applicant as the break in service is more than 3 months without any humanitarian consideration. The Supreme Court also held that the Casual Labourer working in Municipality are eligible for maternity leave. Applying the principle laid down in the above Supreme Court judgment the denial of the re-appointment after Maternity period is arbitrary and illegal and against the Art.14, 15(3) (Part III) and Art.38, 39, 42 and 43 (Part IV) of the Constitution of India." 19.As rightly contended by the learned counsel for the petitioner, the aforesaid averment of the petitioner is not controverted in the reply affidavit filed by the respondents. There is no whisper about the aforesaid averment made by the petitioner. The petitioner has stated that she made representations dated 06.01.1997, 17.12.1997 and 01.05.1998 requesting reinstatement and the same is also admitted in para 6 of the reply affidavit. But the reasons best known to them, the respondents have not replied to the representations. Hence, the petitioner made another representation dated 31.03.1999 and thereafter, approached the Tribunal by filing Original Application in O.A.No.6784 of 1999. The Tribunal disposed the said Original Application on 18.11.1999 directing the respondents to pass orders on the petitioner's representation dated 31.03.1999, pursuant to which, the second respondent, rejected the claim of the petitioner for reinstatement, as Casual Labourer, by the order dated 23.08.2000. The contents of the order dated 23.08.2000, which is impugned in the writ petition, is extracted hereunder: "In the reference first cited, the Hon'ble Tribunal has passed the following directions dt.18.11.99 in O.A.No.6784/99:- "The respondent is directed to dispose of the representations of the applicant is stated to be dated 1.4.99 and 31.3.99 respectively within a period of 5 months from today. However, the applicants are directed to forward a copy of the order passed to-day in O.A.Nos.6783/99 and https://hcservices.ecourts.gov.in/hcservices/ O.A.No.6784/99 to the respondent within a period of ten days from today." 2.You are informed that as per report of the Deputy Director of Animal Husbandry, Exotic Cattle Breeding Farm, Eachenkottai, you have joined duty as Casual Labourer on 30.5.88. During May' 1996 you have turned up for duty only one day. Thereafter, you have not turned up for duty and you have stayed away from duty on your own accord. Moreover, as per G.O.Ms.No. 3834, Public (Services) Department dt.28.12.1971, no person could be engaged as Casual Labourer without consultation of the Employment Exchange after a break of 90 days and the applicant has absented herself during 1996 on her own accord. 3.In the light of the above circumstances, your case could not be considered for regularisation of services." 20.In para 2 of the impugned order, it is stated that the petitioner did not turn up for duty after working for a day in May 1996 and that she stayed away from duty, on her own accord. It is further stated that no person could be engaged as Casual Labourer, without consultation of the Employment Exchange, after a break of 90 days. 21.The reason for denying reinstatement is that the break was more than 90 days. The break in service was due to pregnancy. The petitioner also enclosed a birth certificate, which shows that she gave birth to a male child on 30.09.1996. 22.As rightly contended by the learned counsel for the petitioner, the third respondent Cattle Breeding Farm is covered by the Act. Section 3(o) of the Act defines the word "woman" as follows: "3.(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment." 23.Section 5(2) of the Act states that women employees, who have rendered more than 80 days of service, in the 12 months immediately preceding the date of her expected delivery, are entitled to maternity benefit under the Act. As per Section 5(3) of the Act, the petitioner is entitled to twelve weeks leave with wages. 24.In these circumstances, I am not in agreement with the submissions made by the learned Government Advocate that the https://hcservices.ecourts.gov.in/hcservices/ petitioner, being a Casual Labourer, is not entitled to maternity leave. 25.As rightly contended by the learned counsel for the petitioner, the matter is squarely covered by a decision of the Honourable Supreme Court in MUNICIPAL CORPORATION OF DELHI VS. FEMALE WORKERS (MUSTER ROLL) AND ANOTHER [2000 (3) SCC 224]. In para 27 of the said judgment, it has been held that the Maternity Benefit Act, 1961, also covers the Casual Labourers. In this regard, para 27 of the said judgment is extracted hereunder: "27. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily-wage basis." Furthermore, in the said judgment, the Honourable Supreme Court has held that as per Article 11 of the "Convention on the Elimination of all Forms of Discrimination against Women" by the United Nations, women employees shall be provided maternity benefit. In this regard, paras 37 and 38 of the said judgment are extracted hereunder: "37.Delhi is the capital of India. No other city or corporation would be more conscious than the city of Delhi that India is a signatory to various international covenants and treaties. The Universal Declaration of Human Rights, adopted by the United Nations on 10-12-1948, set in motion the universal thinking that human rights are supreme and ought to be preserved at all costs. This was followed by a series of conventions. On 18-12-1979, the United Nations adopted the “Convention on the Elimination of all Forms of Discrimination against Women”. Article 11 of this Convention provides as under: https://hcservices.ecourts.gov.in/hcservices/ “Article 11 1. States/parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to work as an inalienable right of all human beings; (b) the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States/parties shall take appropriate measures: (a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in https://hcservices.ecourts.gov.in/hcservices/ dismissals on the basis of marital status; (b) to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) to provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.” (emphasis supplied) 38.These principles which are contained in Article 11, reproduced above, have to be read into the contract of service between the Municipal Corporation of Delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961................." 26.Since I have come to the conclusion that the petitioner was unjustly denied maternity leave and employment, when she reported to duty, after delivery of a child, the action of the respondents are totally illegal and violative of Articles 14 and 21 of the Constitution of India. Even the respondents have admitted in their reply affidavit that all the Casual Labourers were regularised in service. Furthermore, it is stated in G.O.Ms.No.19 that since the Casual Labourers appointed after 07.08.1991 were regularised in service, pursuant to the orders of the Tribunal, 59 others also https://hcservices.ecourts.gov.in/hcservices/ approached the Tribunal seeking regularisation on the ground that they were appointed prior to 07.08.1991. The said G.O.Ms.No.19 sought to regularise those 59 Casual Labourers and also 9 others, who did not approach the Court. A reading of G.O.Ms.No.19 makes it clear that the persons, joined after 07.08.1991 as Casual Labourers, were regularised in service. Therefore, the petitioner is justified in seeking regularisation, as all others were regularised. 27.In the result, the impugned order dated 23.08.2000 of the second respondent is set aside and the respondents are directed to reinstate the petitioner in service and regularise her services from the date on which 68 Casual Labourers, as mentioned in G.O.Ms.No.19, were regularised and pay monetary benefits, from the date of such regularisation, within a period of eight weeks from the date of receipt of a copy of this order. 28.The writ petition is disposed of with the above observations and directions. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To 1.The Secretary to Government Animal Husbandry and Fisheries Department Chennai – 600 009. 2.The Director Veterinary Services,Chennai – 600 006. 3.The Deputy Director Exotic Cattle Breeding Farm Eachankottai Post, Orathanadu Taluk, Thanjavur District. 1 cc To The Government Pleader, SR.77831 W.P.NO.3603 OF 2007 (O.A.NO.7700 OF 2001) NG(CO) SRA(23/12/2011) https://hcservices.ecourts.gov.in/hcservices/