MUZAMIL AKHTAR SHABIR, J. Through this constitutional petition, the petitioner has called in question order dated 01.03.2022 ('Impugned Order') passed by Dy. Director, Education (Admn), Punjab Workers Welfare Fund (`PWWF'), Govt. of the Punjab, Labour and Human Resource Department, Directorate of Education, Lahore (Respondent No.4'), whereby her application for grant of maternity leave has been declined.
2. It is contended by the learned counsel for the petitioner that the impugned order is not sustainable as the petitioner was entitled to maternity leave even if the same was not mentioned in her contract, which was her fundamental right and could not be denied to her on grounds mentioned in the impugned order, which even otherwise is not sustainable under the law. On the other had the learned counsel representing the PWWF has defended the impugned order by contradicting the arguments of counsel for the petitioner.
3. The facts as narrated in the petition are that the petitioner was appointed on 05.09.2017 on Internship/Retainership basis as Senior (IT) Teacher by the Punjab Workers Welfare Board (`PWWB') and is currently serving against the post of Senior Teacher (IT) as Internee at the Worker Welfare School (Girls) Warbton, District Nankana Sahib and is performing her duties since the day of her appointment without any complaint and in a satisfactory manner. 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 Respondent No.4 for grant of maternity leave w.e.f. 15.03.2022 with full pay for 90-days by mentioning that her expected date of delivery is 09.04.2022. The Respondent No.4 rejected the application of the petitioner on 01.03.2022 on the following ground:- "2. The case of Mrs. Sobia Nazeer (internee) pertaining to grant of maternity leave has been examined and observed that according to the terms and conditions of Internship/Retainership Policy of the Directorate of Education under Reference No. ECB/II (3) 99/PBM/LAW-397 dated 12.09.2014, she is not entitled to be granted 90-days leave with pay.
3. However, the relevant term and condition inscribing leave is incorporated as under:- Only two leaves are allowed per month. Any leave over and above will be without pay. Any internee cannot avail more than seven days leave in a month, except in extreme hardship case.'"
4. The petitioner has challenged the said order through this constitutional petition by arguing that one Mrs. Saira Rani who was similarly placed person had been allowed maternity leave on 19.09.2021 whereas the petitioner has been discriminated against by disallowing the same, which was her vested and fundamental right as state was required to protect the interest of women and child. Also states that in view of urgency of the situation no other equally efficacious alternate remedy is available to her.
5. Ch. Tariq Javed, learned counsel for the respondent PWWF when confronted states that the service of the petitioner is governed under the terms and conditions of Internship/Retainership Policy, 2014, reflected in the offer of appointment which does not allow her to proceed on maternity leave by availing leave over and above the period allowed by her contract. Refers to the comments submitted on behalf of the respondents, who have defended the impugned order by mentioning that Workers Welfare Schools were facing actuate shortage of teaching/non-teaching staff due to ban imposed by the Government on recruitment, resultantly, study of the students was being suffered badly. As recruitment against regular posts could not be made due to ban through an interim arrangement some staff especially teachers in school as per need basis were appointed on Internship/Retainership basis with, condition that only two leaves are allowed per month and any leave over and above will be without pay and an Internee cannot avail more than seven days leave in a month, except in hardship case. Furthermore it was also mentioned that the Interns will not be entitled to any other benefit admissible to regular/contract employee for Punjab Workers Welfare Board. It was further mentioned that the Leave Rules of 1981 are not applicable to the Internship staff working in the Workers Welfare Schools including the petitioner. Moreover, it is stated that petitioner alongwith others has already filed writ petition no. 58975/2020 titled as Muhammad Shahid etc. versus Province of Punjab etc. for regularization of her service, wherein she is the petitioner no. 51 and the said matter is under consideration of this court. However, it has not been denied that Mrs. Saira Rani was granted maternity leave on 29.09.2021, however, it has been explained that said order was passed in compliance of order dated 17.09.2021 passed by this Court in Writ Petition No. 59814/2020 titled as Mehwish Noreen etc. versus Province of the Punjab etc.', which is also pending adjudication along with petitioner's earlier writ petition before this court, wherein the petitioners have sought regularization of their services.
6. The learned Assistant Advocate General Punjab, learned Assistant Attorney Generals for Pakistan, Ch. Riaz Hussain, Rana Nasrullah Khan Baber, Ch. Muhammad Naseer, Ch. Muhammad Shahid Iqbal, Muteen ul Haq Chaudhry, Ch. Omer Riaz, Uzma Razzak. Khan, Muhammad Arshad Manzoor, Rana Muhammad Majid, Shehryar Farhan Baig, Muhammad Farooq Khokhar and Malik Sohail Murshad Advocates who have appeared in court to 'explain the legal position have stated that although terms and conditions of petitioner's service do not provide for maternity leave yet the courts have through various orders passed in different cases granted maternity leave despite their inadmissibility in many cases and this Court in the interest of justice may pass appropriate orders in the matter.
7. The terms and conditions of appointment of the petitioner as provided in her offer of appointment letter dated 05.09.2017 are reproduced below:--- "Punjab Workers Welfare Board, Labour Department WORKERS WELFARE SCHOOL FOR GIRLS WARBURTON, DISTRICT NANKANA SAHIB NO. WWSG/Warburton/17/66 Dated: 5/9/2017 To, Sobia, Nazir, Street of Bashir Kamboh Madina Colony Warburton.
Subject: OFFER OF APPOINTMENT ON INTERNSHIP / RETAINERSHIP BASIS AS Senior (IT) Teacher Reference your application dated 5.08.2017 on the above subject and followed by the interview by the committee dated 23-08-2017. The competent authority has allowed your appointment on Internship / Retainership basis as Senior (IT) Teacher on the following terms and conditions:-
1. Your major duty will be to teach the students as per imitable assigned by the Principal.
2. You will be paid Rs. 25,000/- Lump Sum per month as honoraria.
3. The tenure of internship / retainership will be for a period of six months from the date of joining.
4. The Internship / retainership can be terminated at any time without notice and without assigning any reason.
5. You have to join duty at your own expenses.
6. If you perform your duties according to the entire satisfaction of your superiors then a certificate to this effect shall be issued in your favour.
7. Your appointment as internee will be school specific and not transferable.
8. Only two leaves are allowed per month. Any leave over and above will be without pay. Any internee cannot avail more than seven days leave in a month, except in extreme, hardship, case.
9. The interns will not be entitled to any other benefit admissible to regular/contract employees for Punjab Workers Welfare Board.
2. If you accept the offer on the terms & conditions mentioned above, you should report for duty to the undersigned at Workers Welfare School for Girls Warburton, District Nankana Sahib within fifteen (15) days of the issuance of this letter. -sd- NIGHAT SHAHEEN PRINCIPAL"
8. The aforementioned letter provides for terms and conditions of service applicable to the petitioner, which prescribes the number of days of leave that can be availed by a candidate.
However, it is noticed that the said order relates to appointment on internship/retainership basis for a period of six months only and although it cannot be ruled out that a candidate may have already been or become pregnant within the said time period, yet this short span of time offered for appointment may have been one of the reasons that the matter relating maternity leave for such a short period of time did not crop up while appointment was offered to the petitioner' as none of the parties may have visualized the same at that time due to various reasons. However, the appointment of the petitioner has been further extended and her case for regularization of her service is also pending in this court through the aforementioned constitution petition. In this scenario this court has to take into consideration the claim of the petitioner for maternity leave as it has been argued the Leave Rules of 1981 providing for 90 days maternity leave with full pay are not applicable to the petitioner's case. For clarity rule 13 of Leave Rules, 1981 issued by the Governor of Punjab in exercise of powers conferred under section 23 of the Punjab Civil Servants, Act, 1974 are reproduced below:--- "13. Maternity leave-- (1) Maternity leave may be granted on full pay, outside the leave account, to a female civil servant to the extent of ninety days in all from the date of its commencement (as specified in the application for leave) or forty-five days from the date of her confinement, whichever be earlier.
(2) Such leave may not be granted for more than three times in the entire service of a female civil servant except in the case of a female civil servant employed in a vocation department who may be granted maternity leave without this restriction.
(3) For confinements beyond the third one, the female civil servant (in a non-Vocation Department) would have to take leave from her normal leave account.
(4) The spells of maternity leave availed of prior to the coming into force of these rules shall be deemed to have been taken under these rules.
(5) Maternity leave may be granted in continuation of, or in combination with, any other kind of leave including extraordinary leave as may be due and admissible to a female civil servant.
(6) Leave salary to be paid during maternity leave shall be regulated as for other leave, in accordance with the existing instructions of the Government.
(7) The leave salary to be paid during maternity leave will, therefore, remain unaffected even if an increment accrues during such leave and the effect of such an increment will be given after the expiry of maternity leave, in the event of resumption of duty by such female civil servant."
9. The aforesaid leave rules are applicable to the employees of Government of the Punjab, however, through terms of contract the same have not been made applicable to the petitioner and similarly placed employees. Maternity leave is a leave of special kind and applicable to females only who are in the family way, hence it is to be seen whether the aforementioned rules could be made applicable to contract employees such as petitioner to whom the afore-referred rules have not been made applicable.
10. The question of maternity leave came up for consideration in various cases before different High Courts of this Country, wherein despite non-availability or inadmissibility of maternity leave, the same was not only granted but the applicants were held entitled to receive pay for the said period as well. Some cases are discussed hereinafter.
11. In the case titled Mst. Rehana Begum versus District Education Officer (W/EE), Multan and others reported as (2006 PLC (CS) 215), the Lahore High Court considering the case of the petitioner who was inducted in Education Department in BPS-1.4 on temporary basis and continued in same capacity, availed maternity leave for three months, but said period of leave was treated by authorities as without pay. Petitioner in her constitutional petition had prayed for direction to authorities to pay salary for said period of maternity leave. Service structure of category of employees in which petitioner fell had not so far been framed by. the Authority. The Court held that till such time competent Authority would frame service structure regarding petitioner's category, she was entitled to receive pay for period of maternity leave, however, Authority would be at liberty to raise any claim against-petitioner after confirmation of service structure, if it was so determined that she was not entitled to such a leave.
12. Similarly in the case titled Tahira Parveen versus District Education Officer (W.E.E.) Women Elementary Education, Multan and another reported as (2004 PLC (CS) 1061), the Lahore High Court in the case of the petitioner who was appointed as Elementary English Teacher on temporary basis, and availed maternity leave for number of months, but said period of leave was treated by the Authority as without pay. The Court observed that petitioner was in Government service since 1995 and service structure of category of employees in which petitioner fell, had not been framed by Authority. Employees who though were inducted on temporary basis but neither they were removed nor any specific order of confirmation was passed with respect to their job, should be deemed to have been regularized. The Court held that till such time competent Authority would frame Service structure regarding petitioner's category, she was entitled to receive pay for period of maternity leave. Authority however would be at liberty to raise any claim against petitioner after confirmation of service structure, if it was so determined that petitioner was not entitled to such leave.
13. In case titled as E.F.U GENERAL INSURANCE LTD versus SINDH LABOUR Court No. V and another (2007 PLC .500) the Sindh High Court considered the case of a female Junior Assistant, who was dismissed on the charges of misconduct and habitual late attendance and observed that the said employee on account of being pregnant remained absent for 15 minutes sometime with prior permission of Administration in Charge. She had applied for maternity leave as admissible under the law but the same had not been granted and the Court reached the conclusion that simple absence without any habit or deliberate intention was not misconduct under S.O.15 (3)(e) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as only willful and habitual absence from duty without leave was to be treated as misconduct and on the said basis held that order of the employer against employee could not be termed 'as justifiable and sustainable in law and equity and the Court further held that the Labour Court had rightly accepted the grievance petition of the employee and set aside the order of her dismissal from service.
14. In case titled 'ROOPA SYED versus PAKISTAN INTERNATIONAL AIRLINES CORPORATION' reported as (2009 PLC (C.S.) 928), the Sindh High Court while considering the case of the petitioner for regularization of her services on the ground that her juniors had been regularized observed that deficiency if any on the part of the petitioner seem to be that at time of consideration of her regularization along with others she was on maternity leave and on account of which her case was deferred for regularization. After she had availed maternity leave, she applied for regularization in service but she was neither heard nor was she regularized in service. She was not only condemned un-heard but had not been assigned any reason why she was not regularized since long, whereas juniors of the petitioner were actually regularized and in those circumstances the court by observing that no legal or cogent reason had been assigned for such discriminatory action, referred the case of the petitioner to the Suitability/Regularization Board of the Employer Corporation for considering her case on its own merits in accordance with law.
15. In the case titled Dr. Farhat Naz versus Chairman Selection/Promotion Board, Ayub Teaching Hospital, Abbottabad and others reported as (2017 MLD 1842), the Peshawar High Court held that Petitioner had availed maternity leave on full average pay. Petitioner should be treated on duty during said period, which could not be excluded from experience as Junior Registrar (Medicine). In view of the `above the High Court referred her case for appointment to the post of Senior Registrar (Medicine) to the relevant Selection authorities by considering the said experience for processing the same in accordance with law.
16. In case titled Dr. Aamna Saleem Khan versus National University of Sciences and Technology (MUST), Islamabad through Rector and 4 others reported as (2021 PLC (CS) 212) the Islamabad High Court considered the question whether the service of the 'petitioner could be terminated while 'she was on maternity leave and observed that all departments, corporation, institutions, divisions, companies, public Sector companies were under obligation to protect and provide maternity leave/pay to female workers/employees whether provided in their rules or regulations or otherwise.
The High Court further held that no notice of termination from a job or employment could be given by employer during maternity leave to a female worker/employee nor notice period would be considered valid during pregnancy. The relevant portions of the said judgment are reproduced below:--- "21. While considering the above concepts, there is no other view except that 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 of Islamic Republic of Pakistan, 1973, hence the maternity benefits including the maternity leave as a facet of guarantee of equality and non-discrimination could not be denied, especially when Constitution of Pakistan provides a protection in terms of Article 35, imposes an obligation upon the State to protect the marriage, the family, the mother and the child, so that all necessary steps be taken to ensure full participation of a woman in all spheres of national life being its State policy. The West Pakistan Maternity Benefit Ordinance, 1958 as well as The Mines Maternity Benefit Act, 1941 aims at achieving a just social order by providing all the facilities to women employees that they are entitled to be dealt with state of motherhood in a dignified and peaceful manner, without fearing penalties for forced absence during the pre-natal or post-natal period. The Court is of the view that principles referred in Article 11 of CEDAW on the right to non-discrimination on grounds of marital status, pregnancy, child birth, or family care obligations, should be read into the employees contract of service.
22. Similar view has been settled by Delhi High Court in Seema Gupta v. Guru Nanak Institute Management 2006 SCC Online Del 1421, whereby it was held that provisions providing for maternity benefits under the employment and service regulations should be construed in the light of Articles 15, 41 and 42 of the Constitution and the obligations under UDHR and CEDAW. It was further held that the case of the employee seeking extension of her maternity leave in line with employment regulations is not to be construed as a traditional case of enforcement of contract of service, but an exercise of her fundamental rights.
23. The order of termination passed by respondent University has been considered a forcible act imposed upon the petitioner to choose between motherhood and employment, which itself violates the fundamental rights enshrined in the Constitution of Pakistan, especially in violation of Article 35 of the Constitution, whereby, it is the State obligation to ensure the commitment to provide all circumstances conducive to a woman for exercise of her right to give birth to a child in a dignified manner, free from any threat that she could be thrown out from the job, which adversely affects her wellbeing, being a mother as well as endangering the life of a new born. Any penalization of woman 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 same requires the preferential and humanly treatment to be given to a female employee, who is going through the said life cycle.
24. 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 in Sureh Talaq verse 65 and such obligations if not fulfilled are considerable to be a sin and violation of almighty Hukam.
25. From the above referred discussion, following principles are highlighted to be followed in such type of cases. a. 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. b. Every female worker, employee whether temporary or contract, adhoc, daily wages, comment paid, domestic worker or permanent is entitled for maternity leave benefits with pay and job protection. c. No one is allowed to terminate the female employee/worker due to her pregnancy or deprive her from her paid leave rights, any such order under the law, constitutional guarantee or International Covenant is considered to be illegal and such employee, worker is entitled for compensation in addition to their substantive financial rights. d. 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.
26. In view of above reasons, instant writ petition is ALLOWED, Office Order dated 15.10.2019 and letter dated 08.10.2019 are declared illegal and same are hereby. SET-ASIDE. The petitioner shall be reinstated in her services with the respondent University w.e.f. the date of termination with all back benefits."
17. This court has also noted that in the afore-referred W.P. No. 59814 of 2020, pending against the same Department for regularization of its employees, the Department has submitted certificate dated 29.09.2021 showing that maternity leave with pay had been granted to Mrs. Saira Rani/Applicant, who was one of the petitioners in the said petition, by treating the same as extreme hardship case and on compassionate basis therefore, discrimination could not be done to the petitioner and she was also entitled to maternity leave with pay. The relevant portion of said certificate of maternity leave is reproduced below:-- 'In compliance with directions of, the Honourable Court, Mrs. Saira Ravi, Internee (stipend basis), Workeit Welfare School Boys (Evening Shift), Jauharabad is hereby allowed maternity leave w.e.f.
22.09.2021 to 14.12.2021 (with pay) on extreme hardship basis and compassionate grounds reasons and Subject to the final outcome of writ petition No. 59814/2020.
18. It would not be out of place to mention here that the Article 35 of the Constitution of Islamic Republic of Pakistan, 1973, (`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 in part II Chapter II titled 'Principles of Policy' through its sub-article (e) provides that the state shall make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment. 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 infringe her rights provided under the afore-referred 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.
19. Another important aspect of the matter that needs consideration is that 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 labor taken from her in her physical, and mental state, when Article 11 of the Constitution prohibits forced labour. 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.
Reliance is placed on 2004 CLC 473 (Muhammad Aslam versus Muhammad Umer and others) and 2001 YLR 2329 (M Saleem, Ahmad Siddiqui versus Sabira Begum).
20. In view of the principles laid down in the aforementioned cases, read with Articles 9, 11, 14, 23, 35 & 37 of the Constitution, it is 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.
21. In view of the above, this constitutional petition is allowed with direction to the respondents to allow maternity leave to the petitioner and for the said period, she would be entitled to receive her salary/pay.