In a vital and pioneering step to promote gender equality in matters of public employment, the Kerala Government vide its order dated 4th January, 2021(“the Order”), has extended the benefit of maternity leave, available under the Kerala Service Rules (“the Rules”), to female officers employed on a contractual basis, irrespective of the tenure of the contract. Prior to this, contractually employed female officers were entitled to maternity leave only subject to the qualification that their contract was stipulate to subsist for a period of more than one year.
The Maternity Benefit Act, 1961 should ideally cover within its ambit women who are employed on a contractual basis. This has further been clarified through the Clarifications that were released by the Ministry of Labour & employment in pursuance of the Maternity Benefit (Amendment) Act, 2017. See our article on the Maternity Benefit Act (Amendment) Act, 2017, here. This position has further been crystallised by the Kerala High Court in the case of Rakhi P.V. and Orsv. State of Kerala¸ wherein it was asserted that all women employees, whether or not employed on a contractual basis, are entitled to the benefit of enhanced maternity leave without any discrimination.
Some of the key changes introduced by the Order are enumerated as given below:
- As regards the female officers who are due to conceive, the benefit of maternity leave has been extended to all women employees, working under a contract, without any regard to the term of their respective contracts. The leave here can be granted for a maximum period of 180 days.
- The benefit of maternity leave has been also been extended to cover all the contractually employed female officers who suffer miscarriage, including abortion, irrespective of the term stipulated in their contracts. Such leave can be granted for a period not exceeding six weeks.
- The benefits conferred above can only be made available to a female officer who has been in employment of the concerned employer for a minimum period of eighty days in the time immediately preceding her date of expected date of delivery or date of miscarriage, as the case maybe.
It is pertinent to note that the Order has been given retrospective effect from the date of the afore-stated judgment, that is, 27th February, 2018. However, such back-dated effect may not serve any real purpose for a portion of the intended beneficiaries, particularly those who have been denied such benefits before the actual date of notification of the Order. The Order clearly enunciates that no maternity leave will be allowed to women employees except from three weeks prior to their expected date of delivery as certified by a medical officer. This strictly rules out any possibility for the Order to help remedy the situation of previously disgruntled employees. Thus, the Order appears to be partially ineffective right from its outset.
Nevertheless, the Order has certainly set the correct tone going forward. There is an urgent need to recognise that women deserve to participate in an equal capacity in the workforce as compared to their male counterparts. Grant of maternity related benefits is intrinsically linked to the realisation of this goal.
Public authorities should lead the path for empowerment of women and this Order has emerged to be a positive development on the front of women employment.
– Archana Balasubramanian, Partner with assistance from (Intern) Ms. Simran Jalan
 2018 (2) KLT 88.