Maternity Leave Period to be Counted As Bond Period: Madras HC relief to MS Surgery Doctor
Madras High Court
Madurai: Granting relief to a doctor who took maternity leave while undergoing her mandatory bond service requirements, the Madras High Court recently observed that the maternity period shall be counted as part of the bond service.
The High Court bench comprising Justices G.R. Swaminathan and K. Rajasekar also observed that maternity leave is integral to maternity benefor and forms a facet of Article 21, and whether the appellant doctor was only in the service of the Tamil Nadu Government without being a regular employee was irrelevant in this regard.
"Maternity leave is integral to maternity benefit and forms a facet of Article 21. The appellant no doubt is not a government employee. She is only obliged to render bond service to the Government of Tamil Nadu for a period of two years. But a regular State government employee is entitled to avail maternity leave for twelve months as per the amended Service Rules. We are of the view that the appellant is also entitled to the very same treatment applicable to any government employee. The fact that the appellant was only in the service of the government without being a regular employee is irrelevant. When the fundamental right of the appellant is involved, she is entitled to the protective umbrella of not only Article 21 but also Article 14," held the HC bench.
The case concerned the doctor who obtained her MBBS degree in 2014 and was later allotted a seat in MS General Surgery course in the Thanjavur Medical College in the academic year 2016-2017. The prospectus for admission to PG degree courses in Tamil Nadu GMCs 2016-2019 session prescribed a bond of Rs 40 lakhs with an undertaking that the doctor would serve the Government of Tamil Nadu for a period not less than two years. Additionally, the candidate was required to submit her original educational certificates to the concerned Medical College. In terms of the prospectus conditions, the appellant had signed the bond and also submitted her original certificates.
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After obtaining her P.G Degree, the appellant doctor was appointed as Assistant Surgeon at Thittakudi Government Hospital via the order dated 20.08.2019. Accordingly, the appellant reported for duty and served in the said hospital for twelve months. Following her pregnancy, she went on maternity leave. Since she had served he government only for twelve months and not for twenty-four months of bond service, the authorities declined to return her original certificates.
Challenging this, the doctor filed a plea seeking a direction to the medical college to return her educational certificates. However, the Single judge dismissed he plea on 28.11.2022, noting that even though the petitioner had to work in the Government services for two years, she did not complete the same and she was on maternity leave at that time. The Single bench of the HC had noted that the petitioner had only completed 12 months of service in the Thittagudi Medical College, and 12 more months of service was remaining to be completed as per the undertaking.
Consequently, the doctor challenged the HC Single bench order before the Division bench. While considering the matter, the HC Division bench observed, "One of us (G.R.S, J.) has taken the view that the power of lien can be exercised only over marketable commodities. An educational certificate is not a marketable commodity and hence cannot be retained or withheld for whatever reason. However, the case on hand can be decided on another ground."
The Government authorities argued that the appellant had served the government for twelve months and during the remaining period of bond service, the appellant was on maternity leave.
At this outset, the HC bench observed, "The question as to whether the period of maternity leave can be construed as bond service is no longer res integra. It has been authoritatively settled by the Hon'ble Supreme Court in Kavita Yadav v. State (NCT of Delhi) (2024) 1 SCC 421, the Hon'ble Supreme Court referred to the relevant provisions of the Maternity Benefit Act, 1961. Section 5 of the said Act holds that every woman shall be entitled to the payment of maternity benefit. Section 12 forbids the employer from dismissing or discharging an employee when she absents herself from work in accordance with the provisions of the Act. Section 27 of the Act states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or agreement or contract of service."
The Court also referred to Supreme Court order in the case of K.Uma Devi vs. Government of Tamil Nadu, where the Apex Court held that the concept of maternity leave was a matter of not just fair play and social justice but also a constitutional guarantee to the women employees of the country towards fulfillment where the State was bound to act.
In the case of Devika Biswas v. UOI, the Court had held that reproductive right was an aspect of personal liberty under Article 21 of the Constitution. Similarly, in the case of Suchitha Srivastava vs. Chandigarh Administration, a thre judges bench of the Supreme Court held that the right of a woman to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution. In X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, the Supreme Court held that the ambit of reproductive rights was not restricted to the right of women to have or not have children and that it also included the constellation of freedoms and entitlements that enabled a woman to decide freely on all matters relating to her sexual and reproductive health.
Referring to these judgments, the Division bench of the Madras HC noted that as per the conditions set out in the prospectus, the appellant has to serve the Government of Tamil Nadu in one of their hospitals for a period of two years.
"This condition has to give way to the rights conferred on the women under the provisions of the Maternity Benefit Act, 1961. This is all the more so because the Hon'ble Supreme Court had declared that any woman has a fundamental right to the benefits arising out of her situation of maternity," noted the HC bench.
The Court also held that maternity leave was integral to maternity benefit and whether the appellant was only in the service of the government without being a regular employee was irrelevant.
Accordingly, holding that the maternity leave period for twelve months also had to be counted as part of the bond period, the HC bench observed, "John Milton in “Paradise Lost” sang “They also serve who only stand and wait”. The second half of the bond service turned out to be maternity period for the appellant. Applying the legal fiction laid down in Kavita Yadav, the appellant must be taken to have served the Government of Tamil Nadu even during her maternity period. In other words, the maternity period of twelve months has to be counted as part of the bond period."
"In this view of the matter, the order passed in the writ petition is set aside. This writ appeal stands allowed. The respondents are directed to return the petitioner's original certificates within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed," it further noted.
To view the HC order, click on the link below:
https://medicaldialogues.in/pdf_upload/madras-hc-maternity-leave-counted-as-bond-period-292956.pdf
