Denial Of Child Care Leave To A Govt Contractual Employee In Effect A Denial Of Rights Of Child : Uttarakhand HC (FB)

"CCL is primarily for the benefit of a child. A child whose mother happens to be employed on a contractual basis with the Government, has the same needs as any other child. A denial of CCL to a government contractual employee would in effect mean a denial of the rights of a child. Rights which a child would have under Articles 14 and 21 of the Constitution of India," the bench comprised of Chief Justice Ramesh Ranganathan, Justice Alok Kr. Verma and Justice Sudhanshu Dhulia held.

However, the bench has added a rider that such an employee can be granted paid CCL for 31 days, on the same terms and principles as "earned leave", as is given to other employees in terms of Government Order dated May 30, 2011 issued by the Uttarakhand Government, stipulating 'Child Care Leave for Women Government Servants in State Government Service.'

The Full Bench stated :

"A contractual employee whose employment is only for one year, cannot be granted child care leave for 730 days. Such an employee can be granted paid child care leave for 31 days, on the same terms and principles as "earned leave", as is given to other employees in G.O. dated 30.05.2011," the bench clarified.

Background

The order was passed while disposing of a reference made by a division bench of the High Court faced with the case of a mother, working as a contractual Ayurvedic doctor at the State Medical and Health Services, Uttarakhand.

After availing her maternity leave, the Petitioner Tanuja Tolia had applied for CCL, which came to be rejected by the Director, Ayurvedic and Unani Services, stating that the benefit of CCL is not available to contractual employees.

The Petitioner's case was placed before a division bench of the High Court where she argued that CCL is a beneficial provision made in law primarily for female work force in the country. Such a provision must be given a liberal construction and all female employees, irrespective of the nature of their job. Reliance was placed on a decision rendered by another division bench of the High Court in Dr. Shanti Mehra v. State of Uttarakhand.

It was held therein that even a contractual employee is entitled for CCL for a period of 730 days.

Finding itself at odds with this decision, the division bench referred the matter to a higher bench with the following remarks,

"We find it difficult to agree with the view that a person, employed on a contractual basis for a period of one year should also be granted Child Care Leave for a period of 730 days i.e. for a period of two years, which would, in effect, obligate the Government to automatically renew the contract of employment, with the employee concerned, beyond the original contractual period of one year."

The Respondents had argued that the total period of employment of the Petitioner was of twelve months i.e. 365 days, and therefore it is not possible to grant child care leave for 730 days.

Findings

The bench clarified that CCL is not a recognition of the rights of a woman but, "it is more a recognition of the rights of a child."

It observed that even the concept of maternity leave went through a "similar trajectory" as the child care leave. "Like the child care leave today, even maternity leave was denied to a contractual worker, or that is how the Maternity Benefit Act, 1961 was interpreted by the employer," the bench remarked.

It added that it was only in the year 2000 that the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) & Anr., (2000) 3 SCC 224, came to the conclusion that maternity leave has to be provided in all kinds of employment, including for women who are a muster roll employees of a corporation.

In this backdrop the bench held,

"When no distinctions have been made by the court while granting maternity benefit right, the same principle ought to be adopted while considering child care leave as well.
…We have absolutely no doubt in our mind that even a contractual employee engaged for a period of 12 months is entitled for a child care leave and this entitlement has to be read in the Government order dated 30.05.2011 itself."

It clarified that even though the provisions pressed by the Petitioner viz. Article 39(f), Article 42 an Article 45, were provisions contained in Part IV of the Constitution, which are Directive Principles of State Policies, the same are "fundamental in the governance of the country."

Reliance was placed on Mohini Jain v. State of Karnataka & Ors., (1992) 3 SCC 666, where the Top Court had opined,

"The directive principles which are fundamentals in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all."

However, the bench was also alive of the "apparent contradiction" in granting 730 days CCL to a contractual employee whose employment itself was for a period of 12 months.

To remedy the same, the bench relied on the approach adopted by the Gauhati High Court in Doli Gogoi v. State of Assam, (2017) 3 Gauhati Law Reports 247.

In this case, the Gauhati High Court while admitting CCL for a contractual employee said that the same should be granted on pro rata basis.

Taking cue from this finding, the Bench said,

"We have been told that the State Government employees are entitled for 31 days of earned leave in a year. The same principle ought to be adopted here as well and an employee whose entire employment is for one year, if he/she fulfils the other parameters given in the Government Order dated 30.05.2011 i.e. she has two children, who are less than 18 years of age, will also be entitled for the child care leave."

The bench further clarified that CCL shall not be given as a matter of right, and no one will go on CCL without its proper sanction as mentioned in the G.O.

Similar judgements by other High Courts

Recently, the High Court of Himachal Pradesh has held that the benefit of maternity leaves is available to contractual employees also, with all consequential benefits, including continuity in service (Dr. Mandeep Kaur v. Union of India & Ors).

The High Court of Kerala has held in two decisions - Rasitha C H v State of Kerala and Rakhi P V v State of Kerala - that contractual employees are also entitled to benefits under the Maternity Benefit Act.

Other High Court judgments on the similar point, allowing relief to contractual/ temporary employees include:

• Anima Goel v. Haryana State Agricultural Development Corporation (2007)- Punjab & Haryana High Court
• Neetu Choudhary v. State of Rajasthan & Ors. (2008)- Rajasthan High Court
• Dr. Deepa Sharma v. State of Uttarakhand (2016)- Uttarakhand High Court
• Meenakshi Rao v. State of Rajasthan & Ors. (2017)- Rajasthan High Court
• Archana Pandey vs The State Of Madhya Pradesh (2017)- Madhya Pradesh High Court

Case Details:

Case Title: Tanuja Tolia v. State of Uttarakhand & Ors.

Case No.: WP (S/B) No. 263/2019

Quorum: Chief Justice Ramesh Ranganathan, Justice Alok Kr. Verma and Justice Sudhanshu Dhulia

Appearance: Advocate BD Pandey with Advocates Rakshit Joshi and Harshit Sanwal (for Petitioner); Chief Standing Counsel Paresh Tripathi with Advocate Suyash Pant (for State)

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