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Maternity Benefits Act Not Applicable to Government Servants: Uttarakhand HC

Maternity Benefits Act Not Applicable to Government Servants: Uttarakhand HC

New Delhi: In 2015, a state government employee in Uttarakhand applied for six months’ maternity leave. The state government said no. Urmila Masih, a nurse in a government hospital, then challenged that decision in court.

A two-judge bench of the high court has now held that women who are government employees will not be entitled to maternity leave for their third pregnancy. In their order, they have said that India’s Maternity Benefit Act 1961 is not applicable to government employees other than those employed in government factories, mines or plantations.

According to the state government’s rules on maternity leave, a “female government servant” who has two or more living children will not be given maternity leave. In case one of her two children has a major disease or disability, though, the woman government servant can apply for maternity leave.

Masih was challenging this discrimination.

Last year, a single judge in the same high court had actually struck down this rule which denied maternity leave to government employees for the third pregnancy. The judge had called the rule ‘unconstitutional’. The order had said that the Maternity Benefit Act 1961 does not actually prohibit leave for the third child.

Also read: How the Centre Can Ensure Women Receive Maternity Benefits

Writing at that time in the Hindustan Times, lawyer Gautam Bhatia welcomed the judgement and said that maternity leave is not “charity” for women. Bhatia said that last year’s judgement acknowledged the important link between gender and labour, and saw an “important reality that our courts have often been hesitant to confront: the gendered nature of the workplace, and of the broader society.”

He said policies which penalise women in the workplace ensure that the workplace is not a neutral space and actively works to the disadvantage of women and the advantage of men. Thus the “ideal worker” is seen as male, who doesn’t get pregnant and does not ask for leave.

Bhatia said that the 2018 judgement which upheld maternity leave for the third child recognised “that restricting maternity leave is not a question of charity, or pity, or kindness, but a question of justice.”

The single judge also noted that the same issue was already settled in the Punjab and Haryana high court in 2011, where the court had also said that maternity leave can’t be restricted for the third child.

The single judge in 2018 had then said that Urmila Masih should get her salary for the leave she had availed in 2015.

This order was appealed by the state government and a two-judge bench has now overruled last year’s order.

In 2017, the government amended the Maternity Benefit Act and increased the amount of paid maternity leave available to women employees. It went from 12 weeks to 26 weeks. For the third child, women are entitled to 12 weeks.

But this too is only applicable to women in the organised sector. Only about 10% of working women are estimated to be working in the organised sector.

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