“Right To Mother And To Become A Mother Is The Fundamental Right Under Article 21 Of The Indian Constitution” – Himachal Pradesh High Court

“Right To Mother And To Become A Mother Is The Fundamental Right Under Article 21 Of The Indian Constitution” – Himachal Pradesh High Court

“Right To Mother And To Become A Mother Is The Fundamental Right Under Article 21 Of The Indian Constitution” – Himachal Pradesh High Court


Recently, Hon’ble Himachal Pradesh High Court dismissed the appeal filed by the State authorities challenging the order passed by Hon’ble Service Tribunal whereby the respondent was granted the benefit of deemed maternity leave and thereafter consequential benefit of conferment of work charge status on completion of 8 years service.


The respondent was a daily wage worker who has taken maternity leave in the year 1996 and worked for only 156 days, which according to the State authorities much less against the prescribed compulsory days of working. She was subsequently denied benefit of her appointment on work charge basis as it was stated that she did not worked for 8 continuous year of service. However, contrary to this, Hon’ble Tribunal stated that the maternity leave period is deemed to be continuous service in accordance with Sec. 25(1)(B) of the Industrial Dispute Act, 1947 and directed the State to consider the case of the petitioner for conferment of work charge services and consequential benefits. Against this, the State has filed the present petition.


Mr. Ramakant Sharma, learned Additional Advocate General, has vehemently argued that since there is no provision in the department for granting maternity leave to the female daily wage workers in the year 1996, therefore, the learned Tribunal could not have directed the petitioners to grant said relief.


Hon’ble Division Bench comprising Hon’ble Mr. Justice Tarlok  Singh Chauhan and Hon’ble Mr. Justice Virender Singh essentially while placing reliance on Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. 2000 (3) SCC observed that “Right to life under Article 21 of the Constitution of India includes the right to mother and to become a mother is the most natural phenomena in the life of a woman. Therefore, whatever is needed to facilitate the birth of her child to a woman, who is in service, the employer has to be considerate and sympathetic towards her, must realise the physical difficulties, which a working woman faced in performing duties at the work place while carrying a baby in the womb or while rearing up the child after birth.”

Hon’ble court thereafter made several references to the International Convention and treaties ratified by India for the protection of Women and their Health.

Further, the reliance was placed on Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224 in which the Hon’ble Supreme Court held that the provisions of Maternity Benefit Act, 1961 entitled maternity leave even to women engaged on casual basis or on muster roll basis daily wage and not only those in regular employment. It is further held that the provisions of the Act in this regard are wholly in consonance with the Directive Principles of the State Policy as contained in Articles 39, 42 and 43 of the Constitution of India and in this context Hon’ble court has quoted para 6,11,27 & 33 of the said judgment.

Hon’ble court also placed reliance on its own ruling in State of H.P. Vs. Sudesh Kumari wherein it was previously held that “8. In law, there is no difference between a female regular employee and a contractual employee/ ad hoc employee because a female employee whether regular, temporary or ad hoc, is a female for all intents and purposes and she has a matrimonial home, matrimonial life, and after conception, she has to undergo the entire maternity period, same treatment, pains and other difficulties which a regular employee has to undergo. Thus, there is no occasion for making discrimination and if, less period of maternity leave is granted to a contractual employee, it will amount to discrimination, in terms of Article 14 of the Constitution of India.”

Further, Hon’ble Division Bench observed that “The object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance to the woman and her child, maternity leave is intended to achieve the social justice to women, motherhood and childhood, both require special attention.”

“The respondent in the instant case was a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child health, safety and growth. The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India”

In view of the above observations, Hon’ble court has dismissed the petition filed by the State authorities.


Case Title:-  State of H.P. & ors Vs. Sita Devi

Case no. :-   CWP No. 647 of 2020

Order date :- 12.06.2023


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