An employee on fixed term contract is entitled to the
full 26 weeks’ maternity leave with salary and the medical bonus, as
applicable, even if her term of employment comes to an end during the maternity
leave period.
The Supreme Court of India in Dr. Kavita Yadav Vs The
Secretary, Ministry of Health and Family Welfare Department and Others ( 2023
LLR 1299) has said that any attempt to enforce the contract duration term
during the maternity leave period would be constitute “discharge” and attract
section 12(2(a) of the Maternity Benefits Act.
In the instant case, Dr Kavita Yadav was employed in
the respondent organisation under a fixed term contract. The term was till 11th
June 2017. She applied for maternity leave from 1st June 2017. Since
the term of employment was to come to an end on 11th June, the
employer approved 11 days maternity leave as against 26 weeks leave as per the
Maternity Benefits Act, 1961. She was unsuccessful before the Central
Administrative Tribunal as well as the High Court. Both of them relied on the “contract
of employment” and said that the employer- employee relationship had come to an
end automatically on 11th June 2017, the day prefixed as per the
contract of employment.
The Apex Court observed that a woman employee who has
worked for 80 days in the 12 months immediately preceding the expected date of
delivery is entitled to maternity leave. This was not disputed by the employer
because the employer had approved her 11 days leave, ie, from 1st
June 2017 till the employee employer relationship existed. But the Court did
not accept the contention that maternity benefit beyond the contract of employment
could not be given. The kernel of the observation by the Supreme Court are the second
and third provisios to section 5(3) of the Maternity Benefits Act, 1961, as
under:
“The maximum period for which
any woman shall be entitled to maternity benefit shall be twenty six weeks
of which not more than eight weeks shall precede the date of her expected
delivery.
Provided
that the maximum period entitled to maternity benefit by a woman having two or
more than two surviving children shall be twelve weeks of which not more than
six weeks shall precede the date of her expected delivery:
Provided
further that where a woman dies during this period, the maternity benefit shall
be payable only for the days up to and including the day of her death:
Provided
also that where a
woman, having been delivered of a child, dies during her delivery or during the
period immediately following the date of her delivery for which she is entitled
for the maternity benefit, leaving behind in either case the child, the
employer shall be liable for the maternity benefit for that entire period but
if the child also dies during the said period, then, for the days up to and
including the date of the death of the Child”
The above provisio makes it very clear that the benefit extends beyond cessation
of employment for whatever reasons. The Court also cited Municipal Corporation
of Delhi Vs Female Workers (Muster Roll) & Anr ( (2000 3) SCC 224) in which
the same principle of notional extension was applied to the daily rated casual
workers.
The Apex Court also ruled that not extending the maternity leave and or
paying the medical bonus, as applicable, would mean that the employee has been
dismissed from service which is against section 12(2)(a) of the Act.
