Distinction Between Maternity Leave And Childcare Leave Being Separate Entitlements
In 2017 Parliament in New Delhi increased the extent of paid maternity leave from 12 weeks to 26 weeks. This needs to be appreciated not only from the angle of the physical and mental health of the mother and child alone but it should be seen through economic lens and from the broader perspective of growth of the nation. It is trite that human health is fundamentally a national asset. The social welfare legislations like Maternity Benefit Act, 1961 are implemented in order to ensure well-being of the females at the workplace (with negligible cost to be borne by employers) and thus it has the possibility of attracting female candidates and potential talent pool gets automatically doubled. By facilitating a woman to take ample care during the birth and raising of the child, the system ensures a physically and mentally strong generation for future too. ‘Maternity benefit’ essentially gives right of payment to every woman and imposes an obligation on every employer to ensure payment (as per the definition given under Maternity Benefit Act, 1961) “at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day.” The average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
Other than Maternity Benefit Act, 1961, the Central Civil Services (Leave) Rules, 1972 (CCSL Rules) have been framed to apply to Government servants appointed to the civil services and posts in connection with the affairs of the Union. The provisions for Maternity Leave and Childcare Leave are provided under Rule 43 and 43-C of the CCSL Rules. As provided under Rule 43 of the CCSL Rules, “A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of 180 days from the date of its commencement.” Rule 43-C of the CCSL Rules provide for Child Care Leave and states that “A woman Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e., 730 days during the entire service for taking care of upto two children whether for rearing or to look after any of their needs like examination, sickness, etc.”
Where it is important that such legislations are framed and implemented by the Government, it is equally essential that the provisions of the legislations made by the Government are purposively interpreted by the judiciary. One such example found in the judgment delivered by the Apex Court in Municipal Corporation of Delhi v Female Workers (Muster Roll) [2000 (3) SCC 224], wherein it was held that the obligations laid down under Articles 14, 15, 39, 42 and 43 of the Constitution of India mandated that the benefits provided under the Maternity Benefit Act, 1961 be made applicable to the women engaged in casual/daily basis.
In a recent case before the Hon’ble Supreme Court of India – Deepika Singh v Central Administrative Tribunal and Others [Civil Appeal No. 5308 of 2022], the issue arose when the woman concerned had previously availed benefit under Rule 43-C of the CCSL Rules i.e. she was granted ‘childcare leave’ for taking care of the two children of his husband born out of his previous marriage. She had now applied for the benefit of maternity leave after conceiving her biological child. As per the Respondents (Post Graduate Institute of Medical Education and Research) where she was working, by availing childcare leave for her two children from her husband’s first marriage, she had accepted the fact that she has two ‘surviving children’ (as per Rule 43 of the CCSL Rules) and therefore, she was not entitled to avail maternity leave for the birth of her first biological child. On the other hand, the contention on behalf of the woman was that availing childcare leave on account of the two children from her spouse’s first marriage is distinct from availing paid maternity leave in connection with her first biological child.
The Hon’ble Supreme Court of India, while interpreting Rules 43 and 43-C of the CCSL Rules held that the expression ‘less than two surviving children‘ as provided under Rule 43 of CCSL Rules shall mean less than two surviving ‘biological children’ of that woman in order to not be allowed further maternity leave or to be provided with further maternity leave in a restricted manner. Therefore, a woman shall be eligible for maternity benefit related to the birth of her first biological child and the right shall not get diluted by the fact that she is a mother to her husband’s two biological children from his previous marriage and that she has already availed childcare leave as provided under Rule 43-C of the CCSL Rules in relation to the husband’s two biological children.
The judgment has once again upheld the rule of purposive interpretation that should be adopted while giving effect to the provisions of social welfare legislations. The Court also referred to the objective behind the Maternity Benefit Act, 1961 and that is to secure a woman’s participation in workplace by ensuring that her right to attain maternity status is balanced against her right to work. As per the Court, this balance is achieved by providing the woman with maternity benefit which enables her to proceed on her maternity leave for delivery and taking care of her child post-delivery.
The Court while applying the principle laid down in Municipal Corporation of Delhi observed that the rules prescribed under the CCSL Rules must also similarly achieve one of the constitutional goals of securing woman’s right of reproduction and at the same time ensures humane conditions of work and maternity relief. The Court also discussed India’s international treaty obligations and reiterated that social welfare legislations in the country need to be purposively interpreted to safeguard the rights provided thereunder and secure that the gap between the society and law is bridged by appropriate application of their provisions. The Supreme Court clarified and the law that maternity leave and childcare leave are distinct entitlements provided for a woman under the CCSL Rules and the grant of the childcare leave does not disentitle the woman from availing maternity benefit which is a separate right provided for in the CCSL Rules.
