Work from home after exhausting maternity leave can be allowed only if nature of work allows: Karnataka High Court

The Karnataka High Court recently held that work from home benefit after exhausting maternity leave, can be granted to a woman employee only if the nature of the work assigned to such employee makes it possible to do her official job from home [Prachi Sen v. Ministry of Defence and Ors].Justice R Devdas stated the same while denying relief of childcare leave to a woman employee at the Semiconductor Technology and Applied Research Centre (STARC), a unit under the Defence Research and Development Organisation (DRDO)."Though reference is made to Section 5(5) of the (Maternity Benefits Act), Act, 1961, it is evident from the said provision that maternity benefits such as work from home after availing the maternity benefit could be given only in case where the nature of work assigned to the women is such that it is possible for her to work from home... The employees working with the fourth respondent-organisation are involved in research work which is both sensitive as well as complicated. Sensitive, in the nature of the work done, in the sense that the research is for the benefit of the Government of India which uses the facility in the defense fields and the research work will not be divulged to the public. This itself would prove that the nature of the work assigned to the petitioner cannot be carried on from home," the Court said. The Court, however, noted that that creche facilities would be made available for her in the adjacent premises, and that the respondent-organisation should consider her representation for regularisation with sympathy. .In the present case, the petitioner had been working in the said position as a Senior Executive Engineer at the said centre for eight years.In August 2020, she delivered a baby girl and availed of maternity leave until February. Thereafter, she used personal leave until April 2021. She contended that during the second wave of the COVID-19 pandemic, she along with other employees were given the benefit to work from home.She approached the Court seeking sanction for childcare leave, regularisation of her salary and release of her withheld salary..The respondent-organisation contended that when the petitioner did not join duty after her sanctioned leave was exhausted, a communication was sent to her stating that she was staying away from work without leave, which would be treated as an unauthorised absence.She would not be entitled to a salary for that period and was informed that disciplinary action would be initiated.The petitioner responded by pointing out the benefits required to be provided under the Maternity Benefits Act, and two official memoranda issued by the Ministry of Personnel of the Government of India, which provides for grant of childcare leave to women employees with children below the age of 18. The petitioner then approached the Central Administrative Tribunal in Bengaluru seeking similar relief. STARC sent her another communication noting that her application had been withdrawn, and called upon her to join her duties immediately and regularise the absence from May 2021. .It was argued before the Court on behalf of the petitioner that the Maternity Benefits Act is applicable to her, as an employee of STARC, a fully-funded organisation controlled by the Government of India. Leave benefits that are available to the Defence Research and Development Organisation (DRDO), are also made applicable to employees of STARC. Section 5(5) (right to payment of maternity benefit- where nature of work is such that she may work from home) should have been made available to her.It was contended that notifications have been issued by the Central government directing all public sector undertakings to ensure that as far as possible provisions should be made for lactating mothers to work from home, in view of the COVID-19 pandemic. .The petitioner argued that in terms of the directions of the Government of India, it is the duty of the respondent-organisation to provide for child care leave and to permit the petitioner to work from home, until it is declared by the Central or State government that there is no need for employees to work from home. .On the other hand, the respondent argued that the benefits under the Maternity Benefits Act had already been provided to the petitioner. In respect of childcare leave, STARC had considered the request of female employees, to provide crèche and daycare facilities as per the Maternity Benefits Act. However, it was decided that it was not advisable due to sensitive processes at the workplace involving usage of chemicals and toxic gas. .The DRDO submitted that no requests had been made for a crèche facility within the premises, however, an arrangement has been made at the adjacent ITI complex, which can be made available for the petitioner's child. Moreover, the respondent organisation cannot be equated to the Government of India. The facilities made to Central government employees, whether it be providing maternity leave, childcare leave, and other facilities cannot be automatically adopted to STARC, the respondent argued. .It was contended that the Department of Personnel and Training, (DoPT), Government of India, has clarified that the orders issued by them are not automatically applicable to employees of Central public sector undertakings/ autonomous bodies, banks, etc, and it is for the PSUs to decide the applicability of rules or instructions issued for Central government employees to theirs. Consequently, the DRDO decided not to implement childcare leave for its employees at its units and foundries involved in production and implementation, since it would affect production schedules and timelines. .The High Court, while considering the matter, noted that Section 5(5) of the Maternity Benefits Act, which provides for work from home, can be given only in cases where the nature of the work assigned to women is such that it is possible for her to work at home. In this case, the respondent-organisation had concluded that their premises are sensitive and there is risk involved due to usage of chemicals and toxic gases. The employees working at STARC are involved in research work that is sensitive as well as complicated. The research is for the benefit of the Government of India that uses the facility in the defence fields and the research cannot be divulged to the public. This itself proved that the nature of work assigned to the petitioner cannot be carried from home, the Court noted. Even during the lockdown period, top officials had been functioning from the premises of the respondent-organisation, the single-judge noted. .The Court observed that it was clear that there is no specific provision of law or rules that mandate the respondent-organisation to grant childcare leave facility available to Central Government employees to employees of STARC. .It was noted that the respondent-organisation had warned the petitioner about unauthorised absence and the consequences of willful disobedience.The Court accordingly observed that it could not lose sight of the fact that during the period of delivery and post delivery there were two serious waves of the COVID-19 pandemic, and a third wave after that. Therefore, if the petitioner was unable to join her duties, the respondent-organisation is required to have a sympathetic view to her, and the petitioner has pleaded that she is ready and willing to join duties, if childcare facilities are provided for her new born. .Upon a submission by the respondent-organisation that another woman employee also availed of maternity leave similar to the petitioner but joined duty after that, the Court observed that in such cases parity cannot be drawn, as the difficulties of a mother are different in each case. .The Court concluded that the relief of child care leave for the petitioner cannot be granted, however, she was at liberty to make fresh representations regarding the unauthorised absence and seek regularisation. After she joins duty, the respondent-organisation must consider her representations sympathetically, it was ruled. .Advocate Beena PK represented the petitioner, and Central Government Counsel Jayakara Shetty represented the respondents. .[Read Order]