Are legal aid lawyers entitled to maternity benefits? Delhi High Court answers

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The Delhi High Court has held that an advocate empanelled with a legal services authority is not an ‘employee’ and, therefore, is not entitled to maternity benefits under the Maternity Benefit Act, 1961 [Delhi State Legal Services Authority v. Annwesha Deb].

A Bench of Justices V Kameswar Rao and Saurabh Banerjee said that there cannot be a comparison between an advocate who continues to act as such and an employee who is appointed as per the recruitment rules.

“In view of our aforesaid discussion, we hold that the learned Single Judge has erred in extending the benefits of the Act of 1961 [Maternity Benefits Act] to the respondent, more particularly, given the nature of her appointment,” the Court said.

Justice V Kameswar Rao and Justice Saurabh Banerjee
The Court set aside an order of a single-judge ordering the Delhi State Legal Services Authority (DSLSA) to release medical, monetary and other benefits to its empanelled legal aid counsel, Annwesha Deb.

In an order passed on August 24, 2023, the single-judge had held that the Maternity Benefit (Amendment) Act, 2017 does not discriminate on the basis of the nature of employment.

The single-judge had reasoned that there was nothing in the language of the Maternity Benefit Act to suggest that a working, expecting woman is barred from getting maternity benefits due to the nature of her employment.

DSLSA challenged the judgment before the Division Bench.

The Bench today allowed the appeal and noted that Deb’s engagement with the DSLSA was as a professional, and not as a regular employee.

“According to her, if the Advocate does not attend the Court on a given day, he/she is not paid the fees on that day. It follows that the engagement of the respondent, as any other LSA, is not regular having any fixed terms. It is thus that the leaves as available to an employee are not available to a LSA. As a necessary corollary, the engagement of LSA on a day-to-day basis is as a professional.”

The Division Bench held that if single-judge’s interpretation of the words ‘employment‘ and ‘wages‘ in the Maternity Benefit Act is allowed to stand, it would mean that an entity engaging professionals like an advocate shall be bound to give the maternity benefits to each of those who are engaged professionally.

“This interpretation by the Learned Single Judge is completely misplaced in law and would have serious repercussions,” the Court said.

It added that once Deb willingly chose to accept the terms and conditions in the notice inviting applications for her empanelment, she is estopped from asking for maternity benefits as they were not available to her at any point of time before.

“There is/can be no dispute that the respondent is bound by the Terms and Conditions expressly laid out in the Notice inviting applications issued by the Authority [DLSA] as also the subsequent office order dated May 09, 2016, also issued by the very same Authority. Therefore, once having willingly chosen to accept them, she is bound to be governed by them. Once having done so without any coercion or force whatsoever, the respondent is estopped from asking for maternity benefits under the Act of 1961, more specifically, as they were not available to her at any point of time before.”

The Court, therefore, allowed the appeal and set aside the single-judge’s order.

Advocates Dr Amit George, Arkaneil Bhaumik, Rayadurgam Bharat, Adhishwar Suri, Piyo Harold Saimon, Rishabh Dheer and Shashwat Kabi appeared for the Delhi State Legal Services Authority.

Advocate Dr Charu Wali Khanna and Hemant Kumar Yadav represented Annwwesha Deb.

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