Deepika Singh v. Central Administrative Tribunal

11. The case of the appellant is that the maternity leave was sought by her on the birth of her first biological child and the fact that there are two children of her spouse born from an earlier marriage would not disentitle her under Rule 43 of the Rules of

1972. Counsel for the appellant submitted that though the appellant had availed of child care leave in respect of her step children, this leave is distinct from maternity leave.

12. The contention of the respondents is that having taken the benefit of child care leave in respect of the two children born to the spouse of the appellant from his first marriage, the appellant was not entitled to maternity leave in respect of the birth of her own biological child. The appellant was, in the submission of the respondents, disentitled to maternity leave on the ground that she had two surviving children, in terms of Rule 43 of the Rules of 1972.

13. The significant issue which falls for determination in the appeal turns on the interpretation of Rule 43 of the Rules of 1972. The Central Civil Services (Leave) Rules 1972 have been framed under the proviso to Article 309 of the Constitution. Rule 43 is extracted below:

14. The marginal note to Rule 43 is titled „maternity leave‟. Sub-rule (1) stipulates that a female government servant with less than two surviving children would be granted maternity leave for a period of 180 days from the date of its commencement. Sub-rule (2) stipulates that during the period of maternity leave, the employee is entitled to leave salary equal to the pay drawn immediately before proceeding on leave. Subrule (3) stipulates that maternity leave not exceeding 45 days may also be granted to a female government servant, irrespective of the number of surviving children, during the entire service in case of a miscarriage including an abortion on production of a medical certificate. Sub-rule (4) stipulates that maternity leave is capable of being combined with leave of any other kind.

15. The provisions of Rule 43(1) must be imbued with a purposive construction. In KH Nazar v. Mathew K Jacob,[5] this Court noted that beneficial legislation must be given a liberal approach:

13. While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted.”

16. In Badshah v. Urmila Badshah Godse,[6] a two-judge Bench of this Court comprising AK Sikri and Ranjana Desai, JJ. ruled that courts must bridge the gap between law and society through the use of purposive interpretation, where applicable: “13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.

14. Of late, in this very direction, it is emphasised that the courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: “It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.” [Keynote address on “Legal Education in Social Context” delivered at National Law University, Jodhpur on October 12, 2005, available on http://web.archive.org/web/20061210031743/http:/www.nlujodhp ur.ac.in/ceireports.htm [last visited on 25-12-2013]] …

16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.” (emphasis supplied)

17. For the purpose of adopting an approach which furthers legislative policy, it would be appropriate to derive some guidance from the provisions of the Maternity Benefit Act 1961[7] though, it must be stated at the outset that the Act per se has no application to the PGIMER as an establishment. Nonetheless, the provisions of the Act of 1961 are indicative of the object and intent of Parliament in enacting a cognate legislation on the subject.

18. Section 3(c) of the Maternity Benefit Act of 1961 defines the expression „delivery‟ to mean the birth of a child. Section 5 provides for the right to payment of maternity benefit. Section 5 is extracted in its entirety below:

19. Sub-section (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub-section (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.

20. The Act of 1961 was enacted to secure women‟s right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In Municipal Corporation of Delhi v. Female Workers (Muster Roll),[8] a two-judge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India‟s international obligations under the Universal Declaration of Human Rights 1948[9] and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women10 to extend benefits under the Act of 1961 to workers engaged on a casual basis or on muster roll on daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules 1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections.

21. Under Article 15(3) of the Constitution, the State is empowered to enact beneficial provisions for advancing the interests of women. The right to reproduction and child rearing has been recognized as an important facet of a person‟s right to privacy, dignity and bodily integrity under Article 21.11 Article 42 enjoins the State to make provisions for securing just and humane conditions of work and for maternity relief.

22. In this context, regard may also be had to several international conventions of the United Nations that India has ratified. Article 25(2) of the UDHR provides that

“UDHR” “CEDAW” Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; Suchita Srivastava v. Chandigarh Administration motherhood and childhood are entitled to special care and assistance. Article 11(2)(b) of CEDAW requires states “to introduce maternity leave with pay or comparable social benefits.” The relevant provision of Article 11 of CEDAW states that: “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 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)

23. In alignment with the Constitution as well as the treaties mentioned above, Rule 43(1) of the Rules of 1972 contemplates the grant of maternity leave for a period of 180 days. Independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like. Child care leave under Rule 43-C can be availed of not only at the point when the child is born but at any subsequent period as is evident from the illustrative causes which are adverted to in the provisions, which have been extracted in the earlier part of the judgment. Both constitute distinct entitlements.

24. The facts of the present case indicate that the spouse of the appellant had a prior marriage which had ended as a result of the death of his wife after which the appellant married him. The fact that the appellant‟s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child. The fact that she was granted child care leave in respect of the two biological children born to her spouse from an earlier marriage may be a matter on which a compassionate view was taken by the authorities at the relevant time. Gendered roles assigned to women and societal expectations mean that women are always pressed upon to take a disproportionate burden of childcare work. According to a „time-use‟ survey conducted by the Organisation for Economic Co-operation and Development (OECD), women in India currently spend upto 352 minutes per day on unpaid work, 577% more than the time spent by men.12 Time spent in unpaid work includes childcare. In this context, the support of care work through benefits such as maternity leave, paternity leave, or child care leave (availed by both parents) by the state and other employers is essential. Although certain provisions of the Rules of 1972 have enabled women to enter the paid workforce, women continue to bear the primary Organisation for Economic Co-operation and Development, 'Time-Use' (OECD Stat) <https://stats.oecd.org/Index.aspx?datasetcode=TIME_USE#> accessed 22 August 2022 responsibility for childcare. The grant of child care leave to the appellant cannot be used to disentitle her to maternity leave under Rule 43 of the Rules of 1972.

25. Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective.

26. The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one‟s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.

27. The facts of the present case, too, indicate that the structure of the appellant‟s family changed when she took on a parental role with respect to her spouse‟s biological children from his previous marriage. When the appellant applied to PGIMER for maternity leave, PGIMER was faced with facts that the law may not have envisaged or adequately accounted for. When courts are confronted with such situations, they would do well to attempt to give effect to the purpose of the law in question rather than to prevent its application.

28. For the above reasons, we hold that the appellant was entitled to the grant of maternity leave. The communication of the third respondent denying her the entitlement was contrary to the provisions of Rule 43. We accordingly set aside the impugned judgment of the High Court dated 16 March 2021 and the judgment of the CAT dated 29 January 2021. The OA filed by the appellant shall in consequence stand allowed and the appellant shall be granted maternity leave under Rule 43 in terms of the present judgment. The benefits which are admissible to the appellant shall be released to her within a period of two months from the date of this order.

29. The appeal is accordingly allowed.

30. Pending applications, if any, stand disposed of. ….....…...….......……………… ........ J. [Dr Dhananjaya Y Chandrachud]..…....…........……………….… ........ J. [A S Bopanna] New Delhi; August 16, 2022 CKB