Central Administrative Tribunal - Bangalore
Sophia B vs National Institute Of Mental Health And ... on 1 January, 2025
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OA.No.170/00121/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00121/2023
ORDER RESERVED ON 20.12.2024
DATE OF ORDER: 01.01.2025
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
Smt Sophia B
Aged 35 years
D/o Rev D Barnabas,
# No. 66, Samathanapuram, Dharga,
Hosur 635 129
Working as Nursing Officer,
NIMHANS, Bengaluru 560 029 .... Applicant
(By Shri Suraj Naik, Advocate)
Vs.
1. The National Institute of Mental
Health and Neuro Sciences, Hosur Road,
M/o Health & Family Welfare,
Bangalore 560 029
Represented by its Director.
2. Chief Administrative Officer
National Institute of Mental Health
And Neuro Sciences,
Hosur Road, Bangalore 560 029
3. Registrar
National Institute of Mental Health
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OA.No.170/00121/2023/CAT/BANGALORE
And Neuro Sciences,
Hosur Road, Bangalore 560 029 ...Respondents
(By Shri K. Prabhakara Rao, Advocate)
ORDER
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. Set aside the Official Memorandums dated 27.07.2022 at Annexure-A12 and 28.01.2023 at Annexure-A14 bearing reference No. NIMH/PER(2)/SB-NO/2022-23 and NO. NIMH/PER(2)/SB-NO/CCL/2022-23 issued by the Respondent No. 2 and Respondent No. 3 respectively as it is arbitrary, without application of mind and unjustified. b. Direct the respondents to treat the applicant's representation dated 27.04.2022 as Child Care Leave from
02.08.2021 to 05.11.2021 and 14.11.2021 to 30.12.2021. c. Direct the respondents to grant applicant pay for the period concerned., i.e. from 02.08.2021 to 05.11.2021 and 14.11.2021 to 30.12.2021.
d. Direct the respondents to re-consider the applicant's representation dated 10.12.2022 afresh and grant Child Care Leave for a period of three months from 14.03.3023. e. Allow the cost of this application to the applicant. f. To pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in the favour of the applicant and against the respondent in the interest of justice and equity."
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2. Though the applicant has sought for the aforesaid reliefs, vide memo dated 20.12.2024 filed by the learned counsel for the applicant, quashing of Official Memorandum dated 28.01.2023 (Annexure-A14) and also the consequential prayer at prayer (d) are not pressed.
3. The facts in brief are that the applicant was appointed to the position of Nursing Officer on 29.06.2015 with the Department of Clinical Nursing Services of the National Institute of Mental Health and Neuro Science (NIMHANS), Bengaluru. The applicant's doctor recommended total bed rest after delivery of the second child, as such, she made an application to the respondent for seeking maternity leave which was granted for a period of 180 days from 01.02.2021 to 30.07.2021, and directed to report to work on 31.07.2021 which was duly complied with by the applicant. The applicant being the mother of a daughter and a newborn son was facing hardship and difficulty in raising her infant, and accordingly, submitted an application on 01.08.2021 for Child Care Leave (CCL) for the period from 02.08.2021 to 05.11.2021. The respondent belatedly issued an Official Memorandum on 28.09.2021 sanctioning only 10 days as CCL. On 28.10.2021, the kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 4 OA.No.170/00121/2023/CAT/BANGALORE applicant once again requested for CCL from 14.11.2021 to 05.01.2022. No response was given by the respondent to the said application. In response to the Official Memorandum dated 28.09.2021, the applicant addressed a letter to the respondent on 09.11.2021, outlining her hardship and requesting the respondent to re-evaluate the length of her absence for child care. When the applicant failed to report back to duty, the respondent issued a show cause notice directing the applicant to return to work within five days of receiving the notice. As a result, the applicant reported to duty on 31.12.2021.
4. The respondent issued an Official Memorandum on 01.02.2022 stating that the applicant had returned to duty after taking 143 days of Extra Ordinary Leave (EOL) for domestic reasons between 02.08.2021 to 05.11.2021 and 14.11.2021 to 30.12.2021. Further, the Assistant Administrative Officer was instructed to make necessary arrangements to regularize her pay and allowances. On 27.04.2022, the applicant addressed a letter to the respondent requesting to sanction her CCL which was rejected vide memorandum dated 27.07.2022. Further request of the applicant for CCL from 10.01.2023 to 04.04.2023 has been rejected kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 5 OA.No.170/00121/2023/CAT/BANGALORE by the respondents vide Official Memorandum dated 28.01.2023. Being aggrieved by the aforesaid OMs dated 27.07.2022 (Annexure-A12) and 28.01.2023 (Annexure-A14) though the applicant had preferred the present OA, now the challenge is restricted only to the OM dated 27.07.2022 (Annexure-A12) since the applicant claims that she reported to duty from 10.01.2023 to 04.04.2023 sans pursuing for CCL.
5. Learned counsel Shri Suraj Naik representing the applicant argued that the applicant being the primary caretaker of her children, sought for CCL during the period 02.08.2021 to 05.11.2021 and 14.11.2021 to 30.12.2021 which was not sanctioned sans stating sufficient reason, however, the same was treated as EOL and her salary was deducted due to which the applicant is unable to meet the economic needs of the family leading to financial instability.
6. Placing reliance on Rule 43-C of Central Civil Services (Leave) Rules, 1972 ('Rules' for short), learned counsel submitted that a female government servant may be granted CCL by an authority competent to grant leave for a maximum period of 730 days during entire service for taking care of two eldest surviving kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 6 OA.No.170/00121/2023/CAT/BANGALORE children, whether for rearing or for looking after any of their needs such as, education, sickness and the like. The respondents have failed to consider the purport and object of Rule 43-C in a right perspective. Inviting the attention of the Tribunal to the judgment of the Hon'ble Apex Court in the case of Kakali Ghosh vs Chief Secretary, Andaman and Nicobar Administration and Ors reported in (2014) 15 SCC 300 and the order passed by the Hon'ble High Court of Karnataka in the case of NIMHANS vs Smt. S. Anitha Joseph, Writ Petition No. 11915/2024 (DD: 20.11.2024), learned counsel submitted that while construing the provisions of rules relating to maternity leave and CCL, the laudable object of Directive Principles of State Policy enumerated in the Constitution has to be given effect to and the same cannot be rejected merely on the ground that the applicant's long absence would disrupt the routine functioning of the employer.
7. Learned counsel Shri K. Prabhakar Rao representing the respondents submitted that the applicant has remained on unauthorised absence for a total of 439 days from 2017 to 2021 in the following spells of leaves which have been converted to EOL on medical/domestic grounds:
kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 7 OA.No.170/00121/2023/CAT/BANGALORE "a. 45 days of EOL from 22.11.2017 to 05.01.2018 on medical grounds.
b. 91 days of EOL from 08.11.2018 to 06.02.2019 on medical grounds.
c. 06 days of EOL from 26.12.2021 to 31.12.2021 on medical grounds.
d. 143 days EOL from 02.08.2021 to 05.11.2021 on domestic grounds.
e. 11 days of EOL from 21.01.2021 to 31.01.2021 on medical grounds f. 96 days of EOL from 02.08.2021 to 05.11.2021 on domestic grounds.
g. 47 days of EOL from 4.11.2021 to 30.12.2021 on domestic grounds."
8. Referring to the above, the learned counsel submitted that the aforesaid facts would indicate that the applicant is in the habit of remaining absent from duties without prior approval and then seeking retrospective CCL against the unauthorised leave. The applicant requested for pre maternity leave from 31.12.2020 to 31.01.2021 on medical grounds, vide her application dated 24.12.2020. The respondent institute vide its OM dated 19.01.2021 granted a combination of leave on medical grounds from 31.12.2020 to 31.01.2021 for a total period of 32 days.
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9. Thereafter the applicant vide letter dated 09.02.2021 requested to sanction 180 days of maternity leave from 21.01.2021 which was sanctioned from 01.02.2021 to 30.07.2021 towards the second confinement with specific instructions not to extend the leave due to exigencies of institute services. After availing the aforesaid leave, the applicant reported to duty and worked for two days and remained unauthorizedly absent to duties with effect from 02.08.2021. Subsequently, the applicant submitted the letter on 04.08.2021 seeking for 03 months of CCL from 02.08.2021 to 05.11.2021. The institute vide OM dated 28.09.2021 sanctioned 10 days CCL from 02.08.2021 to 11.08.2021. The Institute issued recall memo dated 02.11.2021 directing the applicant to report back to duty within five days to which the applicant submitted her explanation stating her inability to join for duty. The request of the applicant was rejected owing to difficulties in patient care services and a show cause notice was issued. The Institute has taken a lenient view in regularising the unauthorised absenteeism of 143 days as EOL on domestic grounds from 02.08.2021 to 05.11.2021 and from 14.11.2021 to 30.12.2021 along with the warning memo dated 01.02.2022. However, the applicant vide letter dated 27.04.2022 once again requested to convert her leave of EOL to kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 9 OA.No.170/00121/2023/CAT/BANGALORE that of CCL which has been rejected which is in conformity with the provisions of the Rules. Leave in public employment cannot be claimed as a matter of right. Learned counsel submitted the term "may" employed in Rule 43-C of the Rules confers discretionary power on the employer and the same has to be read conjointly with Rule7 of the Rules.
10. Learned counsel submitted that the order passed in Writ Petition No. 11915/2024, supra, has no application to the facts and circumstances of the case. In the background of the applicant remaining absent from duties without prior approval and then seeking retrospective CCL against the unauthorized leave, OA deserves to be rejected, being devoid of merit.
11. Heard the learned counsel for the parties and perused the material on record.
12. The factual aspects are not in dispute. The arguments advanced by the learned counsel for the respondents are fully identical to the arguments analysed and adjudicated by the Hon'ble kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 10 OA.No.170/00121/2023/CAT/BANGALORE High Court of Karnataka in Writ Petition No. 11915/2024, supra, wherein it is observed thus:
"3. xxxxx
(a) The first submission of Panel Counsel appearing for the Petitioner that any leave in public employment is not a matter of right and therefore, grievance of the kind could not have been carried to the Tribunal, appears to be too farfetched a proposition. Ours being a constitutionally ordained Welfare State and therefore, an entity that answers definition of 'State' u/a 12 of the Constitution has to conduct itself as a model employer vide BHUPENDRA NATH HAZARIKA vs. STATE OF ASSAM [(2013) 2 SCC 516]. Therefore, it cannot be gainfully argued that employer's decision to grant or refusal leave, is not justiciable. In appropriate cases involving elements of injustice, an aggrieved employee can resort to judicial process. However, the scope of interference in such matters, would depend upon facts & circumstances of each case.
(b) Refusal of leave though appears to be a small matter, more often than not, however, it cannot be too much generalized. It all depends upon the nature of leave applied for, the kind of employment and such other factors. Differentiation cannot be avoided: A casual leave is a matter of routine whereas, maternity leave is a serious matter. So also, medical leave depending upon the nature of ailment. The significance of Child Care Leave also cannot be discounted. Respondent, who hails from Kerala, is a bonafide employee of the petitioner working since 2016 with spotless service records. Her's is an inter-
caste marriage; she begot a baby. Maternity leave apart, a lactating mother at times has to be granted Child Care Leave; maximum is 120 days combined with leave of any other kind in terms of Rule 43C of the Central Civil Services (Leave) Rules, kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 11 OA.No.170/00121/2023/CAT/BANGALORE 1972. It is only in the case of an employee who is on probationary period, such a leave may be denied. This view can be gathered from the following text of sub-Rule (3)(iii):
"It shall not ordinarily be granted during the probation period except in case of certain extreme situations where the leave sanctioning authority is satisfied about the need of child care leave to the probationer, provided that the period for which such leave is sanctioned is minimal".
(c) The related contention of the Panel Counsel that the text of sub-Rule (1) of 43C employs the term 'may be granted' and therefore, enormous discretion lies with the employer to grant or not to grant leave of the kind, cannot be countenanced. Let us see text of this sub-Rule (1), which is reproduced below:
"Subject to the provisions of this rule, a female Government servant and single male Government servant may be granted child care leave by an authority competent to grant leave for a maximum period of seven hundred and thirty days during entire service for taking care of two eldest surviving children, whether for rearing or for looking after any of their needs, such as education, sickness and the like."
It hardly needs to be stated that law is not the slave of dictionaries; the word 'may' may imply discretion going by the English usage; however, when it comes to the realm of law, the meaning of a word or a term depends upon the intent & policy content of the instrument of law and the other words/terms which they keep company with, vide nocitur a socis. At times, 'may' can mean 'shall' and 'shall' can mean 'may', surprises none associated with legal profession. Added, any discretion in a Welfare State has to be exercised according to the rules of reason & justice. Observations of Lord Halsbury in SUSANNAH SHARP vs. WAKEFIELD [(1891) A.C. 173, 179] are worth reproducing:
kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 12 OA.No.170/00121/2023/CAT/BANGALORE "... when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion, according to law, and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular...".
Civil servants and public servants are not the 'native captives' of State entities under Article 12; they form a part of the Executive and they enjoy protection & status; although their entry in the employment begins with a contract, it graduates to status. Therefore, the action of the employer has to be consistent with the same. Contention of the Panel Counsel does not accord with this view.
4. Leave Rules of the kind have been promulgated to give effect to the Directive Principles of State Policy constitutionally enacted in Article 42 and to accord with the pith & substance of Article 21 as expensively construed by the Apex Court from precedent to precedent. The former reads: "The State shall make provision for securing just and humane conditions of work and for maternity relief". In B. SHAH vs. PRESIDING OFFICER, LABOUR COURT, COIMBATORE & OTHERS [(1977) 4 SCC 384], at Paragraph No.18 it is observed as under:
"...It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 13 OA.No.170/00121/2023/CAT/BANGALORE previous efficiency and output has to be adopted by the Court."
5. The above apart, India is a signatory to several International Conventions. A lactating mother has a Fundamental Right to breastfeed her baby and to spend reasonable time with it as is required for its rearing, more particularly, during the formative years. The baby too has a Fundamental Right to be breastfed. In a way, both these rights constitute one singularity. This important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution. 'Breastfeeding is a human rights issue for babies and mothers. It should be protected and promoted for the benefit of both' say the UN experts [Joint Statement dated 17.11.2016 by the UN Special Rapporteurs on the Right to Food, Right to Health]. International Convention on the rights of the Child, 1989 vide Article 3(1) provides:
"...in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration..."
13. Article 25 (2) of the Universal Declaration of Human Rights also has been referred to. In response to the submissions made by the learned counsel for the respondents, in para 9, the Hon'ble High Court observed thus:
"9. The vehement submission of learned Panel Counsel appearing for the petitioner that the respondent-employee is working in the ICU and her long absence would disrupt routine work of significance, is liable to be rejected for more than one kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 14 OA.No.170/00121/2023/CAT/BANGALORE reason: Firstly, he has admitted before us that there are more than 700 nurses of whom 70% are women. How absence of one such nurse would create unsurmountable difficulty, remains a riddle wrapped in enigma. During the relevant period, how many of such nurses have remained away from the job because of resignation, retirement, removal or leave is also not forthcoming. In matters like this, decision has to be a bit data driven, and not on the basis of assumptions & presumptions. It is also not shown to us that the 5% Rule would have been violated if Child Care Leave was accorded to the respondent, either. She has also explained in her representation dated 12.08.2022 as to why she needed such a long leave. What heavens would have fallen down if her request was favourably considered, is difficult to guess. The Tribunal in its well reasoned order has rightly granted relief to the employee."
14. The Hon'ble Apex Court in Kakali Ghosh, supra, while considering the claim of the women government servant for 730 days of CCL at a stretch to ensure success of her minor son in the secondary/senior examination has referred to Rule 7 of the CCS (Leave) Rules, 1972 and has observed thus:
"14. Leave cannot be claimed as of right as per Rule 7, which reads as follows:
"7. Right to leave (1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 15 OA.No.170/00121/2023/CAT/BANGALORE for except at the written request of the Government servant."
However, under Sub-Rule (2) of Rule 7 leave can be refused or revoked by the competent authority in the case of exigencies of public service.
15. In fact, Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25.1.1961, reiterated vide Government of India letter dated 22.3.2001/27.3.2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars.
16. In the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above.
17. For the reasons aforesaid, we set aside the impugned judgment dated 18.9.2012 [Union of India v. Kakali Ghosh, WPCT No. 550 of 2012, decided on 18.9.2012 (Cal)] passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30.4.2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment."
15. It is apt to refer to the judgment of the Hon'ble Apex Court in Municipal Corporation of Delhi vs Female Workers (Muster Roll) and another reported in (2003) 3 SCC 224, para 33:
kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 16 OA.No.170/00121/2023/CAT/BANGALORE "33. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period."
16. Thus, it is clear that the concept of grant of CCL has been introduced to promote the motherhood and child care under Article 21 of the Constitution read with Article 42 of the Constitution. Under Article 15 (3), the State is empowered to enact beneficial legislation for advancing the interest of the women.
17. Rule 10 of CCS (Leave) rules, 1972 reads thus:
"10. Commutation of one kind of leave into another (1) At the request of a Government servant, the authority which granted him leave may commute it retrospectively into leave of a different kind which was due and admissible to him at the time the leave was granted, but the Government servant cannot claim such commutation as a matter of right.
kavya shree k kavya CAT Bangalore 2025.01.03 shree k 15:46:22+05'30' 2024.3.0 17 OA.No.170/00121/2023/CAT/BANGALORE Provided that no such request shall be considered unless received by such authority, or any other authority designated in this behalf, within a period of 30 days of the concerned Government servant joining his duty on the expiry of the relevant spell of leave availed of by him.
(2) The commutation of one kind of leave into another shall be subject to adjustment of leave salary on the basis of leave finally granted to the Government servant, that is to say, any amount paid to him in excess shall be recovered or any arrears due to him shall be paid.
NOTE.- Extraordinary leave granted on medical certificate or otherwise may be commuted retrospectively into leave not due subject to the provisions of Rule 31."
It is true that the applicant cannot claim commutation of leave as a matter of right but there is no legal impediment to consider commutation of leave retrospectively into a leave of a different kind which was due and admissible to the applicant at the time the leave was granted, no hyper-technical approach was warranted in the circumstances of the case.
18. CCL Rules are enacted not only in recognition of the rights of a woman but more in recognition of the rights of a child. The primary purpose of such beneficial legislation is to ensure that the needs of the child are taken care. Such request of CCL has to be considered with humane approach and cannot be rejected on hyper-
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OA.No.170/00121/2023/CAT/BANGALORE technicalities. Granting ten days of CCL vide OM dated 28.09.2021 retrospectively in response to the leave application dated 01.08.2021 claiming leave for the period 02.08.2021 to 05.11.2021 would not resolve the hardship pleaded by the applicant, a breast- feeding mother, to take care of her infant of about 6 months old. Unauthorized absence for a total of 439 days from 2017 to 2021 in different spells spelt out by the respondents narrated in the preceding paragraph No. 7 above, is not lucid and clear, the same has no relevancy to reject the claim of the applicant for conversion of 143 days of EOL to CCL. It was more essential for the nursing mother to take care of the infant during COVID-19 situation, a right of the child, such right cannot be defeated by any technical approach. For the reasons aforesaid, the impugned OM dated 27.07.2022 (Annexure-A12) issued by the Respondent No. 2 rejecting the request of the applicant for conversion of 143 days of EOL to CCL cannot be approved. Hence, the following:
:ORDER:
1) The impugned OM dated 27.07.2022 issued by the Respondent No. 2 at Annexure-A12 is set aside.
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2) The respondents are directed to re-consider the applicant's representation dated 27.04.2022 to treat 143 days Extra Ordinary Leave from 02.08.2021 to 05.11.2021 and 14.11.2021 to 30.12.2021 as Child Care Leave and shall grant applicant pay for the said period.
3) OA stands allowed to the extent indicated above.
No order as to costs.
(JUSTICE S. SUJATHA)
MEMBER (J)
/ksk/
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