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S. SAGHIR AHMAD, J. – Female workers (muster roll), engaged by the Municipal
Corporation of Delhi (for short “the Corporation”), raised a demand for grant of maternity
leave which was made available only to regular female workers but was denied to them on the
ground that their services were not regularised and, therefore, they were not entitled to any
maternity leave. Their case was espoused by the Delhi Municipal Workers Union (for short
“the Union”) and, consequently, the following question was referred by the Secretary
(Labour), Delhi Administration to the Industrial Tribunal for adjudication:
“Whether the female workers working on muster roll should be given any maternity
benefit? If so, what directions are necessary in this regard?”
- The Union filed a statement of claim in which it was stated that the Municipal
Corporation of Delhi employs a large number of persons including female workers on muster
roll and they are made to work in that capacity for years together though they are recruited
against the work of perennial nature. It was further stated that the nature of duties and
responsibilities performed and undertaken by the muster-roll, which have been working with
the Municipal Corporation of Delhi for years together, have to work very hard in construction
projects and maintenance of roads including the work of digging trenches etc. but the
Corporation does not grant any maternity benefit to female workers who are required to work
even during the period of mature pregnancy or soon after the delivery of the child. It was
pleaded that the female workers required the same maternity benefits as were enjoyed by
regular female workers under the Maternity Benefit Act, 1961. The denial of the benefits
exhibits a negative attitude of the Corporation in respect of a humane problem. - The Corporation in their written statement, filed before the Industrial Tribunal, pleaded
that the provisions under the Maternity Benefit Act, 1961 or the Central Civil Services
(Leave) Rules were not applicable to the female workers, engaged on muster roll, as they
were all engaged only on daily wages. It was also contended that they were not entitled to any
benefit under the Employees; State Insurance Act, 1948. It was for these reasons that the
Corporation contended that the demand of the female workers (muster roll) for grant of
maternity leave was liable to be rejected. - The Tribunal, by its award dated 2-4-1996, allowed the claim of the female workers
(muster roll) and directed the Corporation to extend the benefits under the Maternity Benefit
Act, 1961 to muster-roll female workers who were in the continuous service of the
Corporation for three years or more. The Corporation challenged this judgment in a writ
petition before the Delhi High Court which was dismissed by the Single Judge on 7-1-1997.
The Letters Patent Appeal (LPA No. 64 of 1998), filed thereafter by the Corporation was
dismissed by the Division Bench on 9-3-1998 on the ground of delay. - The Industrial Tribunal, which has given an award in favour of the respondents, has
noticed that women employees have been engaged by the Corporation on muster roll, that is
to say, on daily-wage basis for doing various kinds of works in projects like construction of
buildings, digging of trenches, making of roads, etc., but have been denied the benefit of
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maternity leave. The Tribunal has found that though the women employees were on muster
roll and had been working for the Corporation for more than 10 years, they were not
regularised. The Tribunal, however, came to the conclusion that the provisions of the
Maternity Benefit Act had not been applied to the Corporation and, therefore, it felt that there
was a lacuna in the Act. It further felt that having regard to the activities of the Corporation,
which had employed more than a thousand women employees, it should have been brought
within the purview of the Act so that the maternity benefits contemplated by the Act could be
extended to the women employees of the Corporation. It felt that this lacuna could be
removed by the State Government by issuing the necessary notification under the proviso to
Section 2 of the Maternity Act. This proviso lays down as under:
“Provided that the State Government may, with the approval of the Central
Government, after giving not less than two months’ notice of its intention of so
doing, by notification in the Official Gazette, declare that all or any of the
provisions of this Act shall apply also to any other establishment or class of
establishments, industrial, commercial, agricultural or otherwise.” - It consequently issued a direction to the management of the Municipal Corporation,
Delhi to extend the benefits of the Maternity Benefit Act, 1961 to such muster-roll female
employees who were in continuous service of the management for three years or more and
who fulfilled the conditions set out in Section 5 of the Act. - We appreciate the efforts of the Industrial Tribunal in issuing the above directions so
as to provide the benefit of the Act to the muster-roll women employees of the Corporation.
This direction is fully in consonance with the reference made to the Industrial Tribunal. The
question referred for adjudication has already been reproduced in the earlier part of the
judgment. It falls in two parts as under:
(i) Whether the female workers working on muster roll should be given any maternity
benefit.
(ii) If so, what directions are necessary in this regard. - Learned counsel for the Corporation contended that since the provisions of the Act
have not been applied to the Corporation, such a direction could not have been issued by the
Tribunal. This is a narrow way of looking at the problem which essentially is human in nature
and anyone acquainted with the working of the Constitution, which aims at providing social
and economic justice to the citizens of this country, would outrightly reject the contention.
The relevance and significance of the doctrine of social justice has, times out of number, been
emphasised by this Court in several decisions. In Crown Aluminium Works v. Workmen
[AIR 1958 SC 30] this Court observed that the Constitution of India seeks to create a
democratic, welfare Stae and secure social and economic justice to the citizens. In J. K.
Cotton spg. & Wvg. Mills Co. Ltd. v. Labour Appellate Tribunal of India [AIR 1964 SC
737], Gajendragadkar, J., (as his Lordship then was), speaking for the Court, said:
“Indeed, the concept of social justice has now become such an integral part of
industrial law that it would be idle for any party to suggest that industrial
adjudication can or should ignore the claims of social justice in dealing with
industrial disputes. The concept of social justice is not narrow, or one-sided, or
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pedantic, and is not confined to industrial adjudication alone. Its sweep is
comprehensive. It is founded on the basic ideal of socio-economic disparities and
inequalities; nevertheless, in dealing with industrial matters, it does not adopt a
doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a
realistic and pragmatic approach.” - A just social order can be achieved only when inequalities are obliterated and
everyone is provided what is legally due. Women who constitute almost half of the segment
of our society have to be honoured and treated with dignity at places where they work to earn
their livelihood. Whatever be the nature of their duties, their avocation and the place where
they work, they must be provided all the facilities to which they are entitled. To become a
mother is the most natural phenomenon in the life of a woman. Whatever is needed to
facilitate the birth of child to a woman who is in service, the employer has to be considerate
and sympathetic towards her and must realise the physical difficulties which a working
woman would face in performing her duties at the workplace while carrying a baby in the
womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to
provide all these facilities to a working woman in a dignified manner so that she may
overcome the state of motherhood honourably, peaceably, undeterred by the fear of being
victimised for forced absence during the pre-or post-natal period. - Next it was contended that the benefits contemplated by the Maternity Benefit Act,
1961 can be extended only to workwomen in an “industry” and not to the muster-roll women
employees of the Municipal Corporation. This is too stale an argument to be heard. Learned
counsel also forgets that the Municipal Corporation was treated to be an “industry” and,
therefore, a reference was made to the Industrial Tribunal, which answered the reference
against the Corporation, and it is this matter which is being agitated before us. - Now, it is to be remembered that the municipal corporations or boards have already
been held to be “industry” within the meaning of “the Industrial Disputes Act”. In Budge
Budge Municipality v. P.R. Mukherjee [AIR 1953 SC 58] it was observed that the municipal
activity would fall within the expression “undertaking” and as such would be an industry. The
decision was followed in Baroda Borough Municipality v. Workmen [AIR 1957 SC 110] in
which the Court observed that those branches of work of the municipalities which could be
regarded as analogous to the carrying-on of a trade or business, would be “industry” and the
dispute between the municipalities and their employees would be treated as an “industrial
disputer”. This view was reiterated in Corpn. of the City of Nagpur v. Employees [AIR 1960
SC 675]. In this case, various departments of the Municipality were considered and certain
departments of the Municipality were considered and certain departments including the
General Administration Department and the Education Department were held to be covered
within the meaning of “industry”. - Taking into consideration the enunciation of law as settled by this Court as also the
High Courts in various decisions referred to above, the activity of the Delhi Municipal
Corporation by which construction work is undertaken or roads are laid or repaired or
trenches are dug would fall within the definition of “industry”. The workmen or, for that
matter, those employed on muster roll for carrying on these activities would, therefore, be
“workmen” and the dispute between them and the Corporation world have to be tackled as an
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industrial dispute in the light of various statutory provisions of the industrial law, one of
which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the
scenario is not different. - Delhi is the capital of India. No other city or corporation would be more conscious
than the city of Delhi that India is a signatory to various international covenants and treaties.
The Universal Declaration of Human Rights, adopted by the United Nations on 10-12-1948,
set in motion the universal thinking that human rights are supreme and ought to be preserved
at all costs. This was followed by a series of conventions. On 18-12-1979, the United Nations
adopted the “Convention on the Elimination of all Forms of Discrimination against Women”.
Article 11 of this Convention provides as under:
“Article 11 - States/parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a basis of equality of
men and women, the same rights, in particular:
(a) the right to work as an inalienable right of all human beings;
(b) the right to the same employment opportunities, including the application of
the same criteria for selection in matters of employment;
(c) the right to free choice of profession and employment, the right to
promotion, job security and all benefits and conditions of service and the right to
receive vocational training and retraining, including apprenticeships, advanced
vocational training and recurrent training;
(e) right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the evaluation of
the quality of work;
(f) the right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to work, as
well as the right to paid leave;
(g) the right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction. - In order to prevent discrimination against women on the grounds of marriage
or maternity and to ensure their effective right to work, States/parties shall take
appropriate measures:
(a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds
of pregnancy or of maternity leave and discrimination in dismissals on the basis of
marital status;
(b) to introduce maternity leave with pay or with comparable social benefits
without loss of former employment, seniority or social allowances;
(c) to encourage the provision of the necessary supporting social services to
enable parents to combine family obligations with work responsibilities and
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participation in public life, in particular through promoting the establishment and
development of a network of child-care facilities;
(d) to provide special protection to women during pregnancy in types of work
proved to be harmful to them. - Protective legislation relating to matters covered in this article shall be
reviewed periodically in the light of scientific and technological knowledge and shall
be revised repealed or extended as necessary.” (emphasis supplied) - These principles which are contained in Article 11, reproduced above, have to be read
into the contract of service between the Municipal Corporation of Delhi and the women
employees (muster roll); and so read these employees immediately become entitled to all the
benefits conceived under the Maternity Benefit Act, 1961. We conclude our discussion by
providing that the direction issued by the Industrial Tribunal shall be complied with by the
Municipal Corporation of Delhi by approaching the State Government as also the Central
Government for issuing necessary notification under the proviso to sub-section (1) of Section
2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the meantime, the
benefits under the Act shall be provided to the women (muster roll) employees of the
Corporation who have been working with them on daily wages. - For the reasons stated above, the special leave petition is dismissed.
