Asia Pacific Institute of Management v. Office of the Joint Labour Commissioner and Another

order dated

27.11.2008 dismissing the writ petition filed by the Appellant is set aside."

¶20Thus, a conjoint reading of all these provisions leaves no manner of doubt whatsoever that Respondent No.2, who was pregnant on the date she was served with the relieving letter, could not have been terminated and discontinuation of her services was illegal, unlawful as well contrary to provisions of this Act. The relieving letter has no allegation against Respondent No.2. It is not even the Petitioner's case that there was any misconduct on her part. The motivation behind serving of the relieving letter is thus obviously to deprive her of the maternity benefits, which is contrary to law.

¶21The stand of the Petitioner in this case, especially relating to the receipt of notice, is also completely unreasonable. A perusal of the relieving letter dated 17th October, 2018, shows that the allegations made in the writ petition against Respondent No.2, stating that the complaint of Respondent No.2 was false and self-created and that the Petitioner had served her notice of termination without knowledge of the fact that Respondent No.2 was pregnant, are untenable.

¶22The impugned order, which records that Respondent No.2 gave birth

on 19th December, 2018, leaves no manner of doubt in the mind of this Court that at the advanced stage of pregnancy of seven months, the Petitioner was fully aware of the factum of Respondent No.2's pregnancy. The email written by Respondent No.2 is merely for purposes of record only. The Petitioner ought to be deemed to have had notice of the pregnancy especially because she was regularly working and rendering her services at the educational establishment. Thus, the plea, that at the time when the notice was served, she was not pregnant, is nothing but a specious plea and is not liable to be entertained. In fact, it is clear from the dates which emerge from the record, that the relieving letter of Respondent No.2 was almost simultaneous with the time when the Petitioner came to know that Respondent No.2 is likely to invoke the provisions of the Act and claim benefits under the Act.

¶23Moreover, in the present writ petition, there has been clever concealment of the fact that an email was sent by Respondent No.2 to the Petitioner on 17th October, 2018. The order of the Labour Commissioner clearly records the following facts: "xxx

It is further stated that in the seven month of her pregnancy she had intimated to the management verbally as well as via e-mail dated

17.10.2018 for the maternity leave, but management served three months notice period with effect from 18.10.2018 that her services are no longer required by the institute and she will be relieved from service on 17.01.2019. Further she submitted on 06.11.2018, leaves for 08 & 09/11/2018, (Diwali, GH on 07.11.2018 & weekend holidays on 10-11/11/2018 & on 12/11/2018 apprised via e-mail about proceedings

on 26 weeks maternity from 12/11/2018. She has further stated that, fulfilled all the given academic responsibilities and that still any need arises will be available on the address as per official record and the cell number provided. Thereafter, she was contracted the cell number by the academic department to take class on 27/11/2018, which she complied but on 27/12/2018 management sent her a salary slip for the month of November, 2018 with only eight days as paid days and no salary for the month of December, 2018 & January, 2019. She further prays that (1) she should be given maternity leaves as per Maternity Benefit Act, 1961 as amended. (2) She should be given three months pay as she has been dismissed from service by the management because of maternity leave by termination of contract, which is unlawful during pregnancy. (3) Legal action under section of Maternity Benefit Act, 1961 against the management of Asia Pacific Institute of Management, New Delhi.

On receipt of complaint/claim under Maternity benefit Act, notices were sent to the respondent/management for appearance in this office on the given date. The management representative appeared on some date and submitted written reply stating that (1) The present complaint filed by the complainant is not maintainable in the eyes of law as complainant has not come before this Hon'ble authority with clean hands and concealed the materials facts and hence the present complaint is liable to be dismissed with cost. (2) The present complaint is not maintainable as the same is frivolous, concocted and manipulated therefore the instant complaint is liable to be dismissed. (3) That the defendant/management has served the three

month notice w.e.f. 18/10/2018 to the complainant as per the terms of letter of appointment dated 19/12/2011 as per the contents of the notice, service of the complainant Dr. Nidhi Maheshwari are no longer required by the defendant institute and she will be relieved from service of the institute on 17/01/2019. It is further mention that prior to the issuance of notice dated 17/10/2018 by the institute to me complainant, complainant never intimated to the institute regarding pregnancy of the complainant, but after receiving the notice complainant made a false, frivolous and concocted to the institute by way of e-mail 12/11/2018 and complainant sought maternity leave for a period of 26 weeks commencing from 12/11/2018 without any medical document/support thereof and therefore was not substantiated.

Representative of complainant has filed rejoinder on the reply of the management stating that the present complaint is fully maintainable under Maternity Benefit (Amendment) Act, 2017. It has further denied that the complainant had never intimated management about her pregnancy before notice dated 17/10/2018 but the true and correct is that the complainant had working with the management from last seven years with dedication and put all her hard work for the rise of business of management, even then when on 17/10/2018 she intimated vide mail as well as aware and told fact about her pregnancy before the management and requested that complainant gynecologist has indicated that she may require to go on maternity leave during the eight month and that she may need to go for maternity leave during the first week of November, 2018 onwards but

the management instead of granting her the entitled rights rather terminated her and also handed over this letter to her on 22/10/2018. Xxx As per the documents/affidavit submitted by the claimant last fixed wages for the claimant was Rs.1,35,163/-. Therefore the claimant is entitled to receive Rs.8,10,978/- (1,35,163/- x 6 month) as Maternity Benefit and Rs.3500/- as medical bonus, total amounting Rs.8,14,478/- (Rupees Eight Lakh Fourteen Thousand Four Hundred Seventy Eight). The respondent is directed to make payment of Rs.8,14,478/- (Rupees Eight Lakh Fourteen Thousand Four Hundred Seventy Eight) to the claimant within 30 days of passing of the order, failing which a recovery shall be made under the Punjab and Land Revenue Act through collector under section 17(5) of Maternity Benefit Act, 1961 as arrear of land revenue through collector.

For termination of employment, claimant/applicant may file a separate dispute before competent authority for adjudication of this issue."

¶24The Act is a beneficial legislation for the purpose of safeguarding the rights of pregnant women. The provisions of the Act have to be given effect to, in letter and spirit. Technical issues would not come in the way of the Court or the authority concerned, in recognizing the said benefits. An organisation is expected to be empathetic to the cause of a pregnant woman rather than making bald allegations against her, especially when the Petitioner came to know that Respondent No.2 was at an advanced stage of pregnancy. The impugned order also shows clearly that in fact, after she has proceeded on maternity leave, she had been asked to take classes online,

which she did take on 27th November, 2018.

¶25Therefore, in view of the circumstances in the present petition and the provisions of the Act, the Petitioner ought not to have pursued its objections and raise such baseless pleas against Respondent No.2.

¶26Mr. Ojha, ld. counsel for the Petitioner, submits that the Petitioner is a private education institute and does not intend to cause any harm to Respondent No.2.

¶27Be that as it may, this Court is clearly of the opinion that the present petition is not maintainable and no interference is warranted against the impugned order. However, since the awarded amount is yet to be paid since 2018 and three years have passed in pursuing this matter, in addition to the awarded amount, litigation expenses of Rs.50,000/- are directed to be paid to Respondent No.2. The entire awarded amount along with the litigation expenses shall be paid on or before 30th December, 2021. If the amount is not paid by 30th December, 2021, interest @ 9% per annum shall be liable to be paid with effect from 13th August, 2020, i.e., the date of the award.

¶28The present petition, along with all pending applications, is dismissed.

PRATHIBA M. SINGH JUDGE DECEMBER 7, 2021/dk/MS (corrected & released on 10th December, 2021)

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 7th December, 2021 + W.P.(C) 13923/2021 & CM APPL. 43967/2021 ASIA PACIFIC INSTITUTE OF MANAGEMENT ..... Petitioner Through: Mr. Sudhir Kumar Ojha, Advocate. versus OFFICE OF THE JOINT LABOUR COMMISSIONER AND ANOTHER ..... Respondent Through: Mr. Satyakam, ASC for R-1. (M:9868219633) Mr. Pushkar Karni Sinha, Advocate for R-2. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh (Oral) 1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. 2. The present petition challenges the impugned order dated 13th August, 2020 passed by the Inspecting Officer/Inspector, Office of the Joint Labour Commissioner (District South) Labour Department, Govt. of NCT Delhi/Respondent No.1 (hereinafter "Labour Commissioner") under the Maternity Benefit Act, 1961 (hereinafter "Act"). 3. Respondent No.2/Dr. Nidhi Maheshwari (hereinafter "Respondent No.2") had joined the Petitioner – Asia Pacific Institute of Management (hereinafter "Petitioner") as an Assistant Professor in 2011 and she was promoted to Associate Professor in 2015. On 17th October, 2018, the Petitioner discontinued the services of Respondent No.2 leading to her filing a complaint before the Labour Commissioner under the Act. 4. The case of the Petitioner is that it was not aware that Respondent No.2 was pregnant and an intimation was given to the Petitioner only after the relieving letter bearing Ref: HR/FAC/2018 was served on her on 17th October, 2018. Thus, it is submitted that the awarding of maternity benefit for six months under the Act is untenable. Mr. Ojha, ld. counsel for the Petitioner submits that at the time when the relieving letter was served upon Respondent No.2, the Petitioner had no knowledge that Respondent No.2 was seven months' pregnant. 5. On the other hand, Mr. Sinha, ld. counsel appearing for Respondent No.2, submits that an email was sent to the Petitioner on 17th October, 2018, prior to the time the relieving letter was received by her. Vide the said email, Respondent No.2 informed the Petitioner of being at an advanced stage of pregnancy, and apprised the Petitioner that she would be required to go on maternity leave from the first week of November, 2018, on advice of her gynaecologist. He further submits that the copies of the emails were placed before the Labour Commissioner. 6. Mr. Satyakam, ld. ASC appearing for the Labour Commissioner, has placed on record the copy of the email, which he received from the Labour Commissioner's office, which according to him, completely falsifies the Petitioner's case. He submits that an email was sent on 17th October, 2018 by Respondent No.2 to the Petitioner and it is only thereafter, that the relieving letter was served. He further takes the Court through various provisions of the Act to argue that as per Section 6(6) of the Act, even if it is presumed that the notice of claim for maternity leave was not given, Respondent No.2 cannot be deprived of the benefits under the Act. 7. Heard. A perusal of the records and facts which have been placed on record, shows that Respondent No.2 was seven months' pregnant on 17th October, 2018 when the relieving letter is stated to have been served upon her. The content of the relieving letter would be very relevant and is set out herein below: " Ref: HR/FAC/2018 October 17, 2018 Dr. Nidhi Maheshwari C-2/702, Belvedere Tower Charmwood Village Eros Garden Suraj Kund, Faridabad. Dr. Nidhi Maheshwari, As your services are no longer required by the Institute, you are hereby served a three months notice period w.e.f. 18th October, 2018. You will be relieved from the service of the Institute on 17th January, 2019. " 8. A perusal of the relieving letter shows that there are no reasons assigned whatsoever for terminating her services in this manner, as no misconduct has been alleged in the said letter. The email of the Respondent no.2 which has been placed on r