LAHORE: The Lahore High Court has ruled that availing of maternity leave is the fundamental right of a woman employee and its denial amounted to compelling her to carry out forced labour.
In a landmark judgment, Justice Muzamil Akhtar Shabir set aside an order issued by Punjab workers welfare funds(PWWF) under which Sobia Nazir, a senior IT teacher, was declined maternity leave and directed the department to allow her maternity leave and pay her salaries for the said period.
The judge laid down strict principles and held that all departments, corporations, institutions, divisions, companies, public sector companies are under obligation to protect and provide maternity leave/pay to female workers/employees whether provided in their rules or regulations or otherwise.
Under the principles, every female worker, employee whether temporary or contract, adhoc, daily wages, contingent paid, domestic worker or permanent is entitled for maternity leave benefits with pay and job protection.
No one is allowed to terminate the female employee/worker due to her pregnancy or deprive her of her paid leave rights, any such order under the law, is considered to be illegal and such employee, worker is entitled for compensation in addition to their substantive financial rights.
The judge further said no notice of termination from a job or employment would be given by the employer during maternity leave to a female worker/employee nor notice period will be considered valid during pregnancy, the judge ruled.
The maternity benefits could not be stopped in any manner nor any female employee or a woman worker could be deprived of her right to livelihood and if any female employee has been terminated from her services/job, it amounts to violation of Article 9 of the Constitution, hence the maternity benefits including the maternity leave as a facet of guarantee of equality and non-discrimination could not be denied, the judgment read.
The judge maintains,” obviously the law does not compel any person to perform an act which is beyond his/her capacity and the same principle is also recognized by Islam.
The judge held that the availing of maternity leave is a fundamental right of the petitioner despite the fact that the same is not provided in terms and conditions of her service contract, and the Punjab Leave Rules of 1981 have not been made applicable to her.
The judge cited different provisions of the Constitution relating to protection of women and mentioned that article 35 of the Constitution provides that the State shall protect the marriage, the family, the mother and the child. The Article 25 of the Constitution provides that all citizens are equal before law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex and nothing in the said Article shall prevent the State from making any special provision for the protection of women and children. The Article 37 of the Constitution relating to Promotion of social justice and eradication of social evils Article 9 of the Constitution provides for right to life and Article 14 of the Constitution relates to dignity of man.
“ The refusal of maternity leave to a female may be tantamount to infringing her rights provided under the provisions relating to fundamental rights and principles of policy, which also provide for the corresponding duties of the State to protect the women and children, ” the court observed.
The judge said the Quranic injunctions referred in Sureh Baqarah verse 232, 233 provides a complete mechanism of protection to a lactating mother, whereby, no harm could be given to such mother and even the father of a child has been directed to provide due care and maintenance. The concept of provision of maintenance has also been referred to in Sureh Talaq verse 65 and such obligations if not fulfilled are considered to be a sin and violation of Almighty Hukam, the judge pointed out.
Any penalization of women employees, where unable to attend the work due to compelling family responsibilities of child care is to be eliminated. It is very important to understand that pregnancy is not a medical condition, which arose unexpectedly and the same requires the preferential and humane treatment to be given to a female employee, who is going through the said life cycle.
The judge questioned whether a woman can be forced to perform her duty, which due to advance position of her pregnancy she may not be in a position to perform, whereas the same may also include travelling to her place of posting in her condition for the strict observance of the time schedule of her duty. The question arises that would it not be a kind of forced labour taken from her in her physical and mental state, when Article 11 of the Constitution prohibits forced labour.
The petitioner-teacher was appointed on September 05, 2017 on Internship/Retainership basis as Senior (IT) Teacher by the Punjab Workers Welfare Board and is currently posted at District Nankana Sahib. The service of the petitioner was extended by the Workers Welfare Board on account of her satisfactory performance. On becoming pregnant, the petitioner applied to the department for grant of maternity leave from March 15 with full pay for 90-days by mentioning that her expected date of delivery is April 09,2022. The department rejected her application on the ground that according to the terms and conditions of internship/retainership Policy of the Directorate of Education she is not entitled to be granted 90-days leave with pay. The petitioner has assailed the impugned order in the LHC.
