VR KRISHNAN EZHUTHACHAN LAW COLLEGE

ELVANCHERY 10TH SEMESTER INTRA- CLASS MOOT

COURT

BEFORE THE HONOURABLE SUPREME COURT OF VR

KRISHNAN EZHUTHACHAN LAW COLLEGE ELVANCHERY

SPECIAL LEAVE PETITON FILED UNDER ARTICLE 136 OF

THE INDIAN CONSTITUTION

MS. NIMA (PETITONER)

V.
METRICS LOGISTICS LTD (RESPONDENT)

Submitted by,
Balajith
.S
Roll no:LVATLBA019, BBA.LLB (HONS) (2019-‘24)
Nayankrishna . P
Roll no:LVATLBA036, BBA.LLB (HONS) (2019-’24)
 MEMORIAL BEHALF OF PETITIONER

TABLE OF CONTENT

SL.NO CONTENT PAGE

NO
1 LIST OF ABBREVATIONS
2 INDEX OF AUTHORITIES

3 STATEMENT OF JURISDICTION

4 STATEMENT OF FACTS

5 ISSUES RAISED

6 SUMMARY OF ARUGMENTS

7 ARUGMENTS ADVANCED

8 PRAYER
 LIST OF ABBREVATIONS
Admn Administrative
AIR All India Report
Art Article
Ors. Others
Hon’ble Honourable
Co Company
Govt Government
& And
Anr Another
HC High Court
i.e That is
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
SLP Special Leave Petition
UOI Union of India
 INDEX OF AUTHORITIES

Cases Referred:
1. Bandhua Mukti Morcha vs. UOI , M.C. Mehta vs. UOI .
2. Nevada Department of Human Resources v. Hibbs (2003)
3. Young v. United Parcel Service, Inc. (2015)
4. Johnson Controls, Inc. v. EEOC (1991)
5. Electric Company v. Martha V. Gilbert
6. Air India v. Nergesh Meerza
7. Navtej Johar v. Union of India,
8. Neetu Bala v. Union of India,
9. S. Amudha v. Chairman, Neyveli Lignite Corporation
10. Neera Mathur v. Life Insurance Corporation of India
11. Deepal Girishbhai Soni vs. Union of India and Others:
12. Punjab Beverages Pvt. Ltd. Vs. Suresh Chand and
Another
13. Municipal Corporation of Delhi vs. Female workers
(Muster Roll)
14. Ramesh Chandra vs. State of U.P. and Others
15. Annie Besant vs. M. M. Loganatha Mudaliar:
16. Rasitha C.H. Vs State of Kerala & Anr
Statute:

 The Indian constitution,1950

 The Maternity Benefit Act, 1961

Journals :

 All India Report

 Supreme Court cases

Books referred:

 M.P Jain, Indian Constitutional law, lexis nexis, 7th ed. 2014
 Dr. J. N Pandey, Constitutional law of India, Central law agency, 56th ed. 2009
 S.N Misra , Labour Industrial laws
 DR. S.R Myneni, Labour law

Websites Referred:

www.scconline.com

www.manupatrafast.com

www.indiankanoon.org

www.hindustantimes.com

www.livelaw.in
 STATEMENT OF JURISDICTION
The petitioner has the honor to submit before the Hon’ble Supreme Court of India,
the Memorial on behalf of the petitioner’s under Art 136 of the constitution of India,
1950.
 STATEMENT OF FACTS
In 2020, Metrics Logistics Ltd employed 16 persons and 1 out of 4 employees
working in the import operations departments, Ms.Rakhi was found to be pregnant.
Ms.Nima was employed with a view to replace her during Ms.Rakhi’s maternity
leave. The former also were to become a permanent employee on the return of latter,
following a probationary period. However Ms.Nima, who was the sole earner of her
family, joined the company on 1st July 2020 after which she also become pregnant
which lead to her dismissal on 30th July. This was also followed by the declaration
of the national emergency in the country owing to COVID 19 which brought about
changes like work from home with 50% of monthly salary because of the pandemic
the company was facing some financial crisis .

Ms.Nima brought proceedings before the Labour court pleading direct

discrimination on the ground of sex and indirect discrimination. The Labour Court
dismissed her action denying the alleged discrimination stating that the real reason
for her dismissal was her anticipated inability to carry out the task for which she had
been recruited. The court also observed that the nature of work includes lot of stress
which negatively effects her pregnancy. Ms.Nima appealed to High court, even from
where she did not get a favorable judgement because the High court was doubtful
about the same.

It has to be noted that she was employed under employment contract concluded for
age of 60 years including one year probation period. Ms.Nima rightly argues that
pregnancy cannot be comparable with a pathological condition, situation that the
Labour Court used to justify the dismissal of a woman, without discriminating on
the ground of sex. Unsatisfied by both the decisions that caused her grave injustice,
Ms.Nima decides to move the Supreme Court with the Special Leave Petition under
art 136 of Indian Constitution.

ISSUES RAISED
1. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART 136
OF INDIAN CONSTITUTION IS MAINTAINABLE OR NOT?

2. WHETHER THE ACT OF DISMISSAL OF MS.NIMA IS VIOLATION OF

FUNDAMENTAL RIGHTS GUARANTEED UNDER INDIAN
CONSTITUTION ?

3. WHETHER THE PETITIONER ENTITLED TO GET COMPENSATION

UNDER MATERNITY BENEFIT ACT?
 SUMMARY OF ISSUES
1. Whether the special leave petition filed under Art 136 of the Indian
Constitution is maintainable or not?

The special leave petition moved to the Supreme Court of by Ms. Nima against
the successive orders of the Labour Court and the High Court is maintainable
because direct discrimination on the grounds of sex and indirect discrimination
at the workplace of Ms. Nima which results in the violation of a plethora of
fundamental rights guaranteed by the State to its citizens which includes Ms.
Nima. Discrimination on the basis of pregnancy, childbirth, or related medical
conditions constitutes unlawful sex discrimination. The termination of the
employment of Ms. Nima was on the grounds of her pregnancy is not justifiable
and the special leave petition is maintainable before the supreme court

2. the act of dismissal of Ms.Nima is violation of fundamental rights

guaranteed under Indian constitution?

The act of dismissal of ms. Nima , is violating fundamental rights guaranteed under
India constitution.It Is discrimination on the grounds of sex contrary to the Standing
Orders for an employer to dismiss a female employee.dismissing a female pregnant
employee exclusively on the grounds of pregnancy is considered as direct
discrimination on the grounds of sex which viloates article 15 (1) of the Indian
Constitution. Termination of service in such circumstances was held to be callous
and cruel. It was termed as an insult to Indian Womanhood and violative of Article
14 of the Constitution and 19(1)(g) violated. Article 21 has right to live with human
dignity free from exploitation and practice any profession to support his livelihood.
Here ms. Nima termination from job due to pregnancy,which violate the
fundamental right

3. Whether the petitioner entitled to get compensation under Maternity Benefit

Act?

All employees are protected from discrimination if they are dismissed or treated
unfairly because of pregnancy or childbirth. This means that even though you are
still on your probation period and have only been with your employer for a few
months, your employer should not treat you unfairly due to your pregnancy.The
Maternity Benefit Act, 1961 defines a woman as, “a woman employed, whether
directly or through any agency, for wages in any establishment.” The Act also
prohibits the discharge or dismissal of a woman at any time during her pregnancy,
if the woman but for such discharge of dismissal would have been entitled to
maternity benefit or medical bonus, in order to deprive her of the same except when
the discharge is for a gross misconduct. The respondents has abused the provisions
of the said act to dismiss the petitioner.Hence the petitioner is entitled to get
compensation under the Maternity Benefit Act.

ARUGMENTS ADVANCED
1. Whether the special leave petition filed under Art 136 of the Indian
Constitution is maintainable or not?

The special leave petition moved to the Supreme Court of by Ms. Nima
against the successive orders of the Labour Court and the High Court is
maintainable. The Article 136 of the Constitution deals with Special Leave
Petitions. It expressly states that the Supreme Court has the discretionary
power to grant special leave to appeal from any judgment, decree,
determination, sentence or order passed by any court or tribunal in the
territory. This system provides the citizens a chance to forego the hierarchy of
Courts functioning in the country and directly move the Supreme Court. The
appeal can Be made in cases where there is an involvement of a substantial
question of law or a gross injustice has been observed. The judgment /decree
/determination /sentence /order against which the special leave is being made
must also primarily have a character of judicial adjudication which means that
it cannot be passed against an administrative or executive order. The power
under Article 136 can be exercised in very exceptional circumstances as and
when a question of law of general public importance arises or a decision
shocks the conscience of the Court.

The main issue surrounding this case is with regards to direct discrimination
on the grounds of sex and indirect discrimination at the workplace of Ms.
Nima. The Labour Court and the High Court have observed that there has been
no direct discrimination in dismissing Ms. Nima on the grounds of her
pregnancy, neither was there an indirect discrimination. Ms. Nima moved the
Supreme Court by means of a Special Leave Petition stating grave injustice
caused to her due to the order/decisions of the Labour Court and the High
Court. The presence of a gross injustice affecting the public at large is an
important condition to be satisfied while moving a special leave petition. The
grave injustice referred to here is the discrimination based on sex, more
specifically pregnancy discrimination, which results in the violation of a
plethora of fundamental rights guaranteed by the State to its citizens which
includes Ms. Nima. Discrimination on the basis of pregnancy, childbirth, or
related medical conditions constitutes unlawful sex discrimination. The
termination of the employment of Ms. Nima was on the grounds of her
pregnancy. “Women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related purposes …
as other

Persons not so affected but similar in their ability or inability to work.”

Discrimination on the grounds of sex is a part Of the core of Article 15(2) of
the Constitution pertaining to discrimination against citizens on the basis of
religion, race, caste, gender and place of birth. Additionally, the Right to
livelihood is a part of Right to Life guaranteed under Article 21 of the
Constitution and as interpreted by the Supreme Court, the Right to livelihood
adds meaning to sustain life with dignity rather than a mere animal existence.

This will invariably give rise to the question whether fundamental rights can
be invoked against private entities. This is where the direct horizontal
application of fundamental rights will come into effect. Direct Horizontal
Effect is a position where the right holders can bring an action directly against
the private individuals for infringing their rights and make them a party to the
case. In the Indian Constitution, Articles such as 15 (2), 17, 21, 23, 24 have a
horizontal effect. Therefore, in India, the rights are guaranteed not only
against the state but also against the private individuals. The Indian judiciary
has given Horizontal Effect to fundamental rights in a number of cases such
as

Bandhua Mukti Morcha vs. UOI , M.C. Mehta vs. UOI .

Applying this principle here, it can be stated that Ms. Nima has been
unreasonably stripped off her very fundamental right to livelihood guaranteed
under Article 21 and protection from discrimination on the grounds of sex,
guaranteed under Article 15 merely on the grounds of confirmation of her
pregnancy, especially when she is the sole earning member of her family. The
fact that the same happened during a period of national emergency when
employment was scarcely available should not be disregarded. Fundamental
rights are protected and guaranteed by the Constitution of the country and so
are they justiciable. Hence, whether Ms. Nima has suffered grave injustice
from the successive orders of the Labour Court and the High Court is out of
the question. This decision also affects the public at large. It has also been
held by the Supreme Court that giving birth to and taking care of the child is
covered under the fundamental right of the child and the woman. Pregnancy
discrimination is not subject affecting Ms. Nima alone but a huge section of
the female population for whom the decision

Could be at disadvantage if taken against Ms. Nima favor. Therefore, it

amounts to gross injustice that could potentially affect the public at
large.Additionally, it has to be noted that the case involves a substantial
question of law which is a prerequisite to filing a Special Leave Petition. . In
this case, the settled position of law or legal principle with regards to which
there is a substantial question of law is the Maternity Benefit Act, 1961.Since
it has been established that the case involves a

Substantial question of law and also is characterized by a gross injustice that

affects public at large, the Special Leave Petition moved in the Supreme Court
by Ms. Nima is maintainable. The Act provides that every woman who has
worked for a period of not less than eighty days in the twelve months
immediately preceding the date of delivery is entitled to claim maternity
benefits from the establishment of her employer. The employer deliberately
terminated the employment of Ms. Nima from his establishment, within one
month of her employment, i.e. before she could complete the stipulated time
period of eighty days, so as to prevent her from invoking the Maternity Benefit
Act. The dismissal of a pregnant employee, for any reason other than gross
misconduct as may be prescribed by the employer, shall be considered invalid.
It is not gross misconduct that is the ground for the termination of her
employment, but her pregnancy, which can be inferred from the termination
notice issued to her. Hence, the substantial question of law that arises here
,thus The special leave petition is maintainable before the supreme court.

Nevada Department of Human Resources v. Hibbs (2003): In this case, the

U.S. Supreme Court held that the Family and Medical Leave Act (FMLA)
provision allowing employees to take leave to care for a family member with
a serious health condition, including pregnancy-related conditions, was
constitutional. The Court rejected arguments that the provision violated state
sovereignty and upheld the law as a valid exercise of Congress’s power under
the Fourteenth Amendment.

Young v. United Parcel Service, Inc. (2015): In this case, the U.S. Supreme
Court clarified The standard for proving pregnancy discrimination under Title
VII. The Court held that a pregnant worker can establish a prima facie case of
discrimination by showing that she was Treated less favorably than non-
pregnant employees who were similar in their ability or inability to work. The
decision emphasized the importance of ensuring equal treatment for pregnant
employees in the workplace.

Johnson Controls, Inc. v. EEOC (1991): In this case, the U.S. Supreme Court
ruled that an employer’s policy excluding fertile women from certain jobs to
protect potential fetuses violated Title VII’s prohibition on sex discrimination.
The Court held that such a policy discriminated against women based on their
sex and their potential to become pregnant, rather than on their ability to
perform the job.
 These cases highlight the importance of protecting women’s fundamental
rights regarding maternity and pregnancy in the workplace. Employers must
comply with anti-discrimination laws and ensure that pregnant employees are
treated fairly and given equal opportunities for employment and advancement.

2. Whether the act of dismissal of Ms.Nima by the respondent on the ground

of Pregnancy is discrimination on the ground of sex?

The act of dismissal of ms. Nima is violating fundamental rights guaranteed

under India constitution.It Is discrimination on the grounds of sex contrary to
the Standing Orders for an employer to dismiss a female employee.It is
humbly contended before this Hon’ble Supreme Court that dismissing Ms.
Nima on the above stated ground amounts to discrimination on the grounds of
sex. The Maternity Benefit Act, 1961 defines a woman as, “a woman
employed, whether directly or through any agency, for wages in any
establishment.” The Act also prohibits the discharge or dismissal of a woman
at any time during her pregnancy, if the woman but for such discharge of
dismissal would have been entitled to maternity benefit or medical bonus, in
order to deprive her of the same except when the discharge is for a gross
misconduct.In this regard, it has to be primarily noted that Ms. Nima, even
though was on a probationary period, was a regular employee since the
contract of employment concluded
With her was for the age of 60 years including 1 year of probationary period.
The fact that she was a replacement was only the intention of the employer
which was not contractually concluded. Additionally, the Apex Court has
emphasized that a female employee even as a probationer should not be
disentitled from availing the benefit of availing maternity benefit with pay
solely because she was not regularly appointed. This conclusion was drawn
from a similar case which stated that Maternity Leave could be granted even
to a daily wager woman. “Women employees, regardless of whether their job
is contractual or not are entitled to maternity leave.” Hence, Ms. Nima is
entitled to all the maternity benefits specified under the Maternity Benefit Act
of 1961 as is Ms. Rakhi.

Apart from availing benefits, dismissing a female pregnant employee

exclusively on the grounds of pregnancy is considered as direct discrimination
on the grounds of sex which viloates article 15 (1) of the Indian constitution
and Article 15(3) says that nothing in article 15 shall prevent the State from
making any special provisions for women and children ,so state shall take
measures for protection and measures need to be safeguard them. It implies
the duty of state.

When, very shortly after the appointment, the employer discovers that the
Appellant herself will be absent on maternity leave during the maternity leave
of the other employee and the employer dismisses her because he needs the
job holder to be at work during the absentee period of Ms. Rakhi. Ms. Nima
was employed under a regular employment contract as stated previously.
“Furthermore, dismissal of a pregnant woman recruited for an indefinite
period cannot be justified on grounds relating to her inability to fulfill a
fundamental condition of her employment contract. For an employer, the
availability of an employee is a necessary precondition for the proper
performance of the employment contract. However, the protection given by
law to a woman during pregnancy and after childbirth cannot be dependent on
whether her presence at work during maternity is essential to the proper
functioning of the undertaking in which she is employed.” Furthermore, in
compliance to the provision of the Maternity Benefit Act 1961, Ms. Nima
could have worked at least for another

Five and a half months, considering Maternity Leave can be availed for a
period of one month immediately preceding the period of six weeks before
the date of her expected delivery. As an alternative, Ms. Nima could also have
been assigned to work from home as per the Maternity Benefit (Amendment)
Act, 2017 considering that the functions of an Import Operations Department
includes those of such nature which can also be carried out remotely.

The Karnataka High Court has reiterated that, the work from home benefit
under Section 5(5) of the amended Act could be given only in cases where the
nature of work assigned to the women allows her to work from home.

It is clear that the employer dismissed her primarily to prevent her from
availing these above mentioned benefits and not due to her impending
absence. “The dismissal of a female worker on account of pregnancy
constitutes direct discrimination on grounds of sex as is a refusal to appoint a
pregnant woman.” Hence, such a dismissal made solely on the grounds of
pregnancy amounts to direct discrimination on the grounds of sex.

Denying a woman extension of her job on the grounds of her pregnancy shall
amount to penalizing her for embracing motherhood The Supreme has also
held that collection of personal data relating to pregnancy, menstrual periods,
are violations of the right to the privacy of the woman under article 21 of the
Indian constitution and further deny women the benefit of medical leave to
which she is duly entitled to. Hence, denial of employment by the employer
at the time of appointment upon the knowledge of her pregnancy too shall
amount to direct discrimination on the grounds of sex. As stated by the
Hon’ble Supreme Court, “if any group of discrimination whether direct or
indirect is founded on a stereotypical understanding of the role of sex, it would
not be distinguishable from the discrimination which is prohibited by Article
15 on the ground only of sex.” “There is no doubt that in general to dismiss a
woman because she is pregnant or to refuse to employ a woman of child
bearing age because she may become pregnant is unlawful direct
discrimination. Child bearing and the capacity for child bearing are
characteristics of the female sex. So to apply these characteristics as the
criterion for dismissal or refusal to employ is to apply a gender based

Criterion which is held to constitute unlawful direct discrimination.” Is

humbly contented before the Hon’ble Supreme Court that pregnancy is not
comparable to a physical limitation/ disability/ disease/pathological condition.
“It may be noticed that pregnancy is not a disability but one of the natural
consequence of marriage and any distinction made on the ground of
pregnancy be always held to be arbitrary and violative of Article 14 of the
Constitution.” A man due to go on medical leave can only be compared with
a woman who is also due to go on her medical leave and not a woman who is
waiting to avail her maternity leave. Moreover, there can be no question of
comparing the situation of a woman, who finds herself incapable by reason of
pregnancy discovered very shortly after the conclusion of an employment
contract of performing the task for which she was recruited, with that of a

Man similarly incapable for medical or other reasons. Pregnancy is not in any
way comparable with a pathological condition and even less so with
unavailability for work on non-medical grounds, both of which are situations
that may justify the dismissal of a woman without discriminating on the
grounds of sex.
Part III of the Constitution contains the Fundamental Rights. In case of any
violation, these rights are directly enforceable against the State.

Moreover, Article 13(2) prohibits the State from legislating without following
or being in accordance with the Fundamental Rights and such a law would be
considered void. It’s also violating human rights of ms.nima.

In the case of Keshvanand Bharti v. State of Kerala, the apex court observed:
“The Universal Declaration of Human Rights may not be a legally binding
instrument but it shows how India understood the nature of human rights at
the time the Constitution was adopted.”

The corresponding fundamental rights in the Constitution are Art.14, 15, 16,
19(1)(g) and Art.21 respectively.

It has been observed by the Supreme Court that “in any case, the difficulty in
discharge of duties by pregnant Air Hostesses could be mitigated by granting
them maternity leave even up to periods of 14 to 16 months and making
alternative arrangements on temporary or ad hoc basis. Termination of service
in such circumstances was held to be callous and cruel. It was termed as an
insult to Indian Womanhood and violative of Article14 of the Constitution. It
was emphatically held that pregnancy is not a disability but only a natural
consequence. Any distinction made on the ground of pregnancy was held to
be arbitrary.”
It was also observed that Moreover, whether the woman after bearing children
would continue in service or would find it difficult to look after the children
is her personal matter and a problem which affects the AH concerned and the
Corporation has nothing to do with the same. These are circumstances which
happen in the normal course of business and cannot be helped. The Supreme
Court has also upheld the dissenting opinion of the three judges of the US
Supreme Court in the General

Electric Company v. Martha V. Gilbert holding that the pregnancy disability

exclusion amounted to downgrading women’s role in labor force. The case
also held that the pregnancy disability exclusion stemmed from a policy that
purposefully downgraded women’s role in the labor force, rather than from
gender, neutral risk assignment considerations.” Moreover, the U.S Supreme
Court has stated that “administrative convenience alone is insufficient to make
valid what otherwise is a violation of due process of law.”

In the light of Article 15, I employer’s rule placed the risk of absence caused
by pregnancy in a class by itself, thus violating the statute as discriminating
on the basis of sex, since it was the capacity to become pregnant which
primarily differentiated the female from the male.” “Moreover, since sex, like
race and national origin, is an immutable characteristic determined solely by
the accident of birth, the imposition of special disabilities upon the members
of a particular sex because of their sex would seem to violate ‘the basic
concept of our system that legal burdens should bear some relationship to
individual responsibility.”
Similarly the Constitution o prohibits any discrimination on the basis of
religion, race, caste, sex, descent, birthplace, residence or any of them for the
purpose of employment or appointment to any office under the State.
Antariksh Logistics Ltd. Being a public company can be considered as a State,
hence bound by this provision.

Article 19(1) (g) of the Constitution o empowers every citizen of the country
to have the vested right to practice any profession, or to carry on any
occupation, trade or business. This right is subject to certain reasonable
restrictions.

However, in this case it has to be noted that preventing Ms. Kangana from
exercising her right under Article 19(1)(g) is what will affect the public at
large rather than posing reasonable restrictions on the same. Ms. Nima has
been stripped off her right to carry on any occupation by terminating her
employment merely due to pregnancy, in spite of it not being a ground for
reasonable restriction.

Article 21 of the Constitution states among other things that every citizen has
the right to live with human dignity free from exploitation and practice any
profession to support his livelihood. “The sweep of the right to life conferred
by Article 21 is wide and far- reaching. It does not mean, merely that life
cannot be extinguished or taken away as, for example, by the imposition and
execution of the death sentence, except according to procedure established by
law. That is but one aspect of the right to life an equally important facet of
that right is the right to livelihood because, no person can live without the
means of living, that is, the means of livelihood.” The simplest method to
revoke someone’s right to life would be to completely strip him of all means
of subsistence, i.e. if the right to livelihood is not recognized as integral to the
constitutional right to life. In this instance, Ms. Nima was denied of her means
of livelihood which was absolutely capable of stripping her off her Right to
Life, also considering that she is the only earning member of her family. It
also has to be noteds that the said violation occurred during the time of a
national emergency,

She is not capable for doing anything in that time, her right to life also violated
guaranteed under article 21 of the constitution. Here Ms.Nima fundamental
rights are violated by the actions of the company which guarantees under
constitution

In Air India v. Nergesh Meerza,6 air hostesses working for Air India and
Indian Airlines challenged the constitutionality of employment regulations
that provided for employment termination on first pregnancy. The Supreme
Court struck down this regulatory requirement as being arbitrary and
unreasonable, and thus in violation of Article 14 of the Indian Constitution.

Recently, in Navtej Johar v. Union of India,7 Chandrachud J. in his concurring

opinion, questioned the correctness of this decision. Inter alia, he criticized
the Court’s approach of placing the entire burden of family planning and
upbringing of children on women as a violation of their constitutional
guarantee against non-discrimination on grounds of sex under Article 15 since
it reinforces stereotypical gender norms.

Along similar lines, the Kerala High Court

In Neetu Bala v. Union of India,8 held that denial of employment to women

solely on grounds of pregnancy was arbitrary and illegal and thus violative of
Articles 14, 16 and 42 of the Indian Constitution.
It further stated that such discrimination would amount to negation of India’s
obligations under the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), International Labour

Organization’s Maternity Protection Convention and the Universal

Declaration of Human Rights (UDHR). In this case, the petitioner had
challenged the State’s decision to deny her appointment to the Short Service
Commission only on account of her pregnancy. Likewise, in

S. Amudha v. Chairman, Neyveli Lignite Corporation,9 the Madras High

Court invalidated employment regulations that termed women with pregnancy
of more than four months as “temporarily unfit” for employment, regardless
of the nature of work to be performed by them. Citing this rule, the respondent
had sought to defer the appointment of the petitioner in this case, till after
childbirth. The Court held that such a restriction violates Articles 14 and 21
of the Indian Constitution.

In Neera Mathur v. Life Insurance Corporation of India,10 a female employee

was dismissed from service on account of her failure to correctly declare her
last date of menstruation and the existence of her pregnancy on her
employment declaration form at the time of joining the service. She
approached the Supreme Court on the grounds that her right to equality
guaranteed under Article 14 of the Indian Constitution had been violated by
the arbitrary order of discharge. The Supreme Court set aside the discharge
order stating that the declaration required in the form was embarrassing,
humiliating and a violation of the employee’s modesty and self-respect. The
Court recommended deletion of such requirements from the declaration form
and indicated that attempts to evade provision of maternity benefits to a
 female candidate by not hiring her if she is pregnant would be open to a
constitutional challenge.

Here Ms.nima fundamental rights are violated by the actions of the company
which guarantees under constitution.

3. Whether the petitioner is entitled to get compensation under maternity

benefits act ?

3.1 Dismissal of Ms . Nima itself is invalid and hence can claim compensation under
the Maternity Benefit Act.

It is humbly submitted that the Respondents have abused the provisions of Maternity
Benefit Act to dismiss the employee.

Maternity Benefit Act, 1961 defines a woman as, “a woman employed, whether
directly or through any agency, for wages in any establishment.” The Act also
prohibits the discharge or dismissal of a woman at any time during her pregnancy,
if the woman but for such discharge of dismissal would have been entitled to
maternity benefit or medical bonus, in order to deprive her of the same except when
the discharge is for a gross misconduct. The Act states that every woman shall be
entitled to a maternity benefit of 12 weeks. The Act endeavors to increase the same
to 26 weeks. Furthermore, as per the prior provisions, a woman could not avail of
the said benefit before 6 weeks from the date of expected delivery which was
changed to 8 weeks after the amendment.
 The amendment of 2017 also enables a woman to work from home if the
nature of work assigned to her is of such nature. The employer shall also allow her
to do so after availing the maternity benefit for such period on such condition as the
employer and the woman may mutually agree. Moreover, no temporary worker or
probationer or badli or fixed term employment worker shall be entitled to any notice
or pay in lieu, if his services are terminated. Provided that the service of such worker
shall not be terminated as a punishment unless an opportunity for explaining the
charges of misconduct alleged against him has been given to him in the manner
specified under the Standing Orders.

“Women employees, regardless of whether their job is contractual or not are entitled
to maternity leave.” Hence, Ms. Nima is entitled to all the maternity benefits
specified under the Maternity Benefit Act of 1961 as is Ms. Rakhi. Apart from
availing benefits, dismissing a female pregnant employee exclusively on the grounds
of pregnancy is considered invalid.

Ms. Nima was employed under a regular employment contract as stated

previously. “Furthermore, dismissal of a pregnant woman recruited for an indefinite
period cannot be justified on grounds relating to her inability to fulfill a fundamental
condition of her employment contract. For an employer, the availability of an
employee is a necessary precondition for the proper performance of the employment
contract. However, the protection given by law to a woman during pregnancy and
after childbirth cannot be dependent on whether her presence at work during
maternity is essential to the proper functioning of the undertaking in which she is
employed.” Furthermore, in compliance to the provision of the Maternity Benefit
Act 1961, Ms. Nima could have worked at least for another five and a half months,
considering Maternity Leave can be availed for a period of one month immediately
preceding the period of six weeks before the date of her expected delivery. As an
alternative, Ms. Nima could also have been assigned to work from home as per the
Maternity Benefit (Amendment) Act, 2017 considering that the functions of an
Import Operations Department includes those of such nature which can also be
carried out remotely. The work from home benefit under Section 5(5) of the
amended Act could be given only in cases where the nature of work assigned to the
women allows her to work from home. It is clear that the employer dismissed her
primarily to prevent her from availing these above mentioned benefits and not due
to her impending absence. “The dismissal of a female worker on account of
pregnancy constitutes direct discrimination on grounds of sex as is a refusal to
appoint a pregnant woman.” Hence, such a dismissal made solely on the grounds of
pregnancy is invalid.

Certain judgments regarding the unfair dismissal of pregnant women from work.

Deepal Girishbhai Soni vs. Union of India and Others: In this case, the Gujarat High
Court ruled that the termination of a woman during her maternity leave was a
violation of the Maternity Benefit Act. The court emphasized the need to protect the
employment rights of pregnant women and awarded compensation to the woman
under the Act.

Punjab Beverages Pvt. Ltd. Vs. Suresh Chand and Another: The Supreme Court of
India reaffirmed the importance of adhering to the Maternity Benefit Act in this case.
The court awarded compensation to a woman who was wrongfully terminated during
her maternity leave, emphasizing the prohibition on discrimination against pregnant
women in the workforce.

Municipal Corporation of Delhi vs. Female Workers (Muster Roll): In this case, the
Delhi High Court held that female workers on muster rolls were entitled to maternity
benefits under the Maternity Benefit Act. The court stressed the need to provide
maternity protection to all women workers, regardless of their employment status.

Ramesh Chandra vs. State of U.P. and Others: The Allahabad High Court ruled in
this case that the termination of a woman during her pregnancy was unjust and
violative of the Maternity Benefit Act. The court ordered the reinstatement of the
woman and awarded compensation for the wrongful termination.

Annie Besant vs. M. M. Loganatha Mudaliar: In this landmark case, the Madras
High Court emphasized the fundamental right of women to maternity benefits under
the Maternity Benefit Act. The court held that denying maternity benefits to women
employees amounted to discrimination and violated their constitutional rights.

3.2 .There is claim on contract of employment

It is humbly submitted before the Hon’ble Court that the petitioner was dismissed
during her probationary period without sufficient reason and hence can claim the
benefit of contract.

In this regard, it has to be primarily noted that Ms. Nima, even though was on a
probationary period, was a regular employee since the contract of employment
concluded with her was for the age of 60 years including 1 year of probationary
period. The fact that she was a replacement was only the intention of the employer
which was not contractually concluded. Additionally, the Court has emphasized that
a female employee even as a probationer should not be disentitled from availing the
benefit of availing maternity benefit with pay solely because she was not regularly
appointed. This conclusion was drawn from a similar case which stated that
Maternity Leave could be granted even to a daily wager woman.
All employees are protected from discrimination if they are dismissed or treated
unfairly because of pregnancy or childbirth. This means that even though you are
still on your probation period and have only been with your employer for a few
months, your employer should not treat you unfairly due to your pregnancy.

The agreement lays down the terms of employment, agreed upon by the employer
and employee.The Common and default probation period is of 6 months. However,
the length of this period may vary as agreed and established in the contract between
the employer and the employee. The scope and terms of your probation period are
governed by your contract of employment. The reasons provided by the employer
for a dismissal of a pregnant employee during probation period must be clear and
unequivocal. Moreover, it stated that said reasons must hold a good and sufficient
cause.

Maternity Benefit is not merely a statutory benefit or a benefit flowing out of a

contract.This is held in , Rasitha C.H. Vs State of Kerala & Anr

Women employees, regardless of whether their job is contractual or not, are

entitled to maternity leave, according to the Kerala High Court. “The maternity
benefit is not merely a statutory benefit or a benefit flowing out of an agreement,”
Justice A Muhamed Mustaq wrote in allowing a petition filed by Rasitha, 35, who
was denied maternity leave by the Calicut University on the grounds that the terms
of her contract did not envision the grant of such leave. “The maternity benefit is
neither only a statutory benefit nor a benefit growing out of an agreement,” Justice
A Muhamed Mustaq wrote. This court has consistently found that it is associated
with a woman’s dignity…. It was held that a woman employee cannot be refused
maternity benefits only because her employment status is contractual. As a result,
despite anything in the contract agreement, the University is obligated to provide
such benefits.” In light of these considerations, the Court granted Rasitha’s petition
and ordered Calicut University to pay Rasitha’s maternity benefits, which are the
same as those paid to other University workers, within two months.
 Here the reason was Stated that it was her inability to perform the work due to her
Pregnancy.It is not a good and sufficient cause . Hence the dismissal is inalid and
can claim the benefit of contract .

PRAYER

Wherefore, in the light of the issues raised , arguments advanced and

authorities cited, the appellant respectfully requested this hon’ble court it
may be pleased to adjudge and declare:

1. The Special Leave Petition is Maintainable

2. There is violation of fundamental rights

3. The petitioner can claim the compensation

AND/OR pass any other order/orders as this hon’ble court deems fit and
proper in the Circumstances of the given case and In the light of justice,
equity and good conscience and thus render justice

The counsel pleads this hon’ble court to bind “sacramentum habet in se

tres comites, Veritatem, justitiam et judicium habenda est in jurato,
Justitia et judicium in judice”
And for this act of kindness and justice the PETITIONER shall be
duly forever Pray

All of which is submitted with utmost reverence

Place:
Date:

COUNSEL BEHALF OF PETITIONER