Orissa High Court
Unknown vs Smt. Anindita Mishra on 24 June, 2025
Author: M.S. Sahoo
Bench: M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A.NO.1074 OF 2023
An appeal arising out WPC(OAC) No.1680 of 2017 disposed of on
30.08.2022
--------------
State of Odisha & Another ...... Appellants
-Versus-
Smt. Anindita Mishra ..... Respondent
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellants : Shri Subha Bikash Panda,
Addl. Government Advocate
For Respondent : None
_______________________________________________________
CORAM:
HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
24.06.2025
PER DIXIT KRISHNA SHRIPAD,J.
Challenge in this intra-Court appeal is to a learned
Single Judge‟s order dated 30.08.2022, whereby
respondent-employee‟s WPC(OAC) No. 1680 of 2017 having
been favoured a direction has been issued to extend the
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benefit of maternity leave to her under the extant State
Policy, as promulgated through Rules/Regulations/Orders.
2. Learned Addl. Government Advocate appearing for
the appellant-State vehemently argues that the right to
maternity benefit does not avail under State Policy, unless
the claim falls strictly within the four-corners of such Policy.
He submits that if the impugned decision was not a
speaking order, the right course for the writ court was to set
the same at naught and remand the matter for
consideration afresh. He also submits that since the
respondent-employee is governed by the terms of contract,
she is not entitled to maternity benefit. According to him, all
these aspects having not been properly adjudged by the
learned Single Judge, the impugned order needs to be
invalidated.
3. Having heard learned Addl. Government Advocate
appearing for the appellant-State & its functionary and
having perused the appeal papers, we decline indulgence in
the matter broadly agreeing with the reasoning of the
learned Single Judge. A short description of the concept of
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maternity benefit needs to be stated: This concept is
discussed in Article 10(2) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and Article
11(2)(b) of the International Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW).
Under the provisions of CEDAW, maternity leave with pay or
comparable social benefits are to be assured by the party-
States inter alia through their Policies & Programes. The
Convention highlights the social significance of „maternity‟
and the role of both parents in the family structure and in
the upbringing of children. It is said that God could not be
everywhere and therefore he created mothers. The idea of
maternity leave is structured on “zero separation” between
lactating mother and breast feeding baby. The Child
Psychiatrists and Obstetricians are of the considered
opinion that physical companionship of mother and the
baby is mutually advantageous and it promotes bonding
between the two, which is essential for their wellbeing. A
lactating mother has a fundamental right to breastfeed her
baby during its formative years. Similarly, baby has a
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fundamental right to be breastfed and brought about in a
reasonably good condition. These two important rights form
an amalgam from which the State obligation to provide
maternity benefits, such as paid leave to the employees
within the permissible resources would arise. The
Government Memorandum, relevant part of which we have
reproduced infra is one of the State measures to secure this
amalgam and therefore it being a socio-welfare instrument
has to be construed liberally to advance its objectives/
purposes. This approach is lacking in the order that was
challenged before the learned Single Judge, which he has
rightly voided.
3.1. Ours is a constitutionally ordained Welfare State.
The Government, be it Provincial or Federal, has to conduct
itself as a model employer vide Bhupendra Nath Hazarika
v. State of Assam,1. It is not in dispute that the
respondent is not a regular employee of the appellants-
herein. However, she has been rendering service in the
class of „young professionals‟ after being chosen in a
1
AIR 2013 SC 234
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normative selection process. Her name having been
sponsored by the G.A. Department, she came to be posted to
the Health & Family Welfare Department with effect from
20.05.2014. This is on contract basis, which was initially for
a period of one year and subsequently has been renewed
time & again.
3.2. Respondent having delivered a female child, applied
to the 2nd appellant herein on 17.08.2016 for the grant of
maternity leave for the period between 17.08.2016 and
12.02.2017. She has produced medical certificate in
support of the same. This could not have been rejected by
the 2nd appellant vide endorsement dated 07.06.2017, that
too without assigning any reason. It hardly needs to be
stated that giving reasons for the decisions is imperative in
good governance. Apex Court in Mohinder Singh Gill v.
Chief Election Commissioner, New Delhi,2 has observed
that a non-speaking order cannot be justified on the supply
of reasons from outside. It should stand or fall on its
intrinsic merits. An employee cannot be told that the
2
AIR 1978 SC 851
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reasons are stacked in the Godown of the Government and
he/she can search for the same all in wilderness. Therefore,
learned Single Judge is right in quashing the said
endorsement.
3.3. The second contention that the learned Single
Judge after quashing the subject endorsement ought to
have remanded the matter to the 2nd respondent for
consideration afresh, does not impress us. No rule or ruling
is cited before us in support of said contention. We are
mindful of cases which may warrant remand for fresh
consideration regard being had to complexity of issues
involved and the need for their resolution at the hands of
some expert body. That is not the case here. The only
question that arose before the learned Single Judge was,
whether maternity benefit can be granted to a contract
employee under the extant Policy of the State. That issue
essentially partakes the character of a question of law and
that can be answered by turning the pages of legal
literature. It is not the case of the appellants herein that
there is no policy governing the grant of maternity benefit.
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Added, there is a Parliamentary enactment, i.e., the
Maternity Benefit Act, 1961. It hardly needs to be stated
that ordinarily the power of the writ court is co-extensive
with the powers of authority whose proceedings are put in
judicial review. Of course, there are exceptions to this rule
and argued case of the appellants does not attract any of
them.
3.4. The apex court in Dr. Kabita Yadav v. Secretary,
Ministry of Health & Family Welfare Department,3 has
observed that even a contractual employee is entitled to
maternity benefit. This case arose under the 1961 Act is
true. However, whether a Policy is enacted or just
promulgated in the exercise of Executive Powers, is
irrelevant in matters of the kind for classification of persons
as regular employees & contract employees, so far as the
claim for maternity benefit is concerned. Several High
Courts in the country have taken this view. List is as
under:
(i) Rajasthan High Court in Geeta Sharma v. UOI,
2001 SCC OnLine Raj 488.
3
(2024) 1 SCC 421
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(ii) Himachal Pradesh High Court in State of H.P. v.
Sudesh Kumari, 2014 SCC OnLine HP 4844.
(iii) Calcutta High Court in Neeta Kumari v. UOI,
2024 SCC OnLine Cal 1881.
(iv) Madras High Court in Writ Appeal No.1692 of
2022, between Tamilnadu State Transport
Corporation v. B. Rajeswari decided on
12.01.2023.
(v) Karnataka High Court in W.P. No.10677/2020
(S-Res) between Smt. B.S. Rajeswari and State of
Karnataka, decided on 04.02.2021.
(vi) Delhi High Court in Dr. Babasaheb Ambedkar
Hospital v. Dr. Krati Mehrotra, 2022 LiveLaw
Delhi 201.
3.5. In the light of the decision in Kabita Yadav supra,
the 2nd appellant should have humanely considered claim of
the respondent for the grant of maternity benefit as would
avail under the memorandum dated 31.03.2012 issued by
the Finance Department of the Government. A relevant part
of the said memorandum reads as under:
“After careful consideration Government have been
pleased to decide that in respect of all female
employees engaged in Government establishment on
contract basis with consolidated remuneration the
existing ceiling of 90days of absence from duty on
maternity ground is enhanced to 180 days subject to
condition that the tenure of maternity leave will be
within the contractual period in maximum.”
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The contention that the memorandum applies only to the
civil servants cannot be countenanced, inasmuch as,
women employees for the purpose of availing such benefit
do constitute one homogenous class and their artificial
bifurcation founded on status of appointment falls foul of
Article 14 of the Constitution, as already discussed above.
3.6. In the good olden days in our social set up the place
of women traditionally was her home. Now, we are living in
different times. Because of various reasons, including
poverty & illiteracy, women come out of their home and gain
entry to the employment, public, private, contractual or
otherwise, as a source of livelihood. State cannot provide
public employment to everyone. It could have been ideal, if it
could provide. Naturally, the employment in private sector
looms large. Denying maternity benefit on the basis of
nature of employment is abhorrent to the notions of
humanity and womanhood. Our Smrutikaaraas chanted
“yatr naaryaastu pujyante ramante tatr devatah”, literally
meaning that Gods rejoice where women are honoured.
Such ideal things should animate the purposive
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interpretation of State Policy concerning the welfare of
women.
3.7. It was next contended by learned Additional
Government Advocate that the conditions of service between
the Government and the contract employees like the
respondent herein are regulated by the terms of contract
and therefore unless Government Policy is made a part of
such contract, the maternity benefit cannot be claimed.
Every employment, be it private or public, begins with
contract and attains the status in due course. A Welfare
State cannot be heard to say that a Policy of the kind has to
be kept away regardless of its socio-welfare object to serve
all classes of persons employed in the State, whatever be the
nature of such engagement. When benefits of the Policy of
this nature are extended, it is not that Court is rewriting the
contract of employment. We are aware that we cannot. This
does not mean that Court cannot read the State Policy into
the terms of engagement, in the absence of a contra
indication in the contract itself. Obviously, there is no such
contra intent in the contract.
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3.8. Lastly, there is one finer aspect which merits
deliberation: India is a signatory to several International
Conventions and one of them is CEDAW (Convention on the
Elimination of All Forms of Discrimination Against Women).
The State Policy conferring the benefit of maternity facilities
is one that broadly promulgates inter alia the objectives of
this Convention. It hardly needs to be stated jurists like J.G.
Starke an acclaimed author of Public International Law is of
the opinion that Conventions of the kind are the customary
source of Rules of International Law, which the party-States
are expected to honour even in their domestic affairs, there
being nothing contrary in the Domestic Law. This view gains
support from the decisions in Kesavananda Bharati v.
State of Kerala,4 and Jolly George Varghese v. The Bank
of Cochin,5. The subject Government memorandum has
absolutely nothing that runs counter to the paragraphs of
CEDAW. A justiciable right thus is created in the contract
employees to knock at the doors of the writ court. Justice
4
AIR 1973 SC 1461
5
AIR 1980 SC 470
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Oliver Wendell Holmes in DAVIS v. MILLS,6 has observed as
under:
“Constitutions are intended to preserve practical
and substantial rights, not to maintain theories…”
Learned Single Judge has rightly granted relief to the poor
employee and that viewed from any angle the same cannot
be faltered.
In the above circumstances, this appeal being
devoid of merits is liable to be and accordingly rejected in
limine. The impugned order of the learned Single Judge to
be implemented and report of compliance shall be filed with
the Registrar Judicial of this Court within eight weeks.
Registry to send a copy of this judgment to the
respondent by speed post.
………………………………
Dixit Krishna Shripad,
Judge
………………………………
M.S.Sahoo,
Judge
Signature Not Verified
Orissa High Court, Cuttack,
Digitally Signed
The 24th June, 2025/GDS
Signed by: GAYADHAR SAMAL
Designation: JOINT REGISTRAR-CUM-PRINCIPAL
SECRETARY
Reason: Authentication
Location: ohc, cuttack 6
Date: 26-Jun-2025 15:15:20
194 US 451 (1904)
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