Karnataka High Court
The State Of Karnataka vs Smt Rahamatunnisa on 14 November, 2022
Bench: G.Narendar, P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO.20695 OF 2022 (S-KSAT)
BETWEEN:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF HEALTH AND FAMILY
WELFARE SERVICES
VIKASA SOUDHA,
BENGALURU - 560 001
2. THE COMMISSIONER OF HEALTH AND
FAMILY WELFARE SERVICES
ANANDA RAO CIRCLE,
BENGALURU - 560001
3. THE DIRECTOR OF HEALTH AND
FAMILY WELFARE SERVICES
ANANDA RAO CIRCLE,
BENGALURU - 560001
4. THE ADMINISTRATIVE MEDICAL OFFICER
TALUK HOSPITAL, BANTAWAL,
D.K-560066
... PETITIONERS
(BY SMT. SHILPA S.GOGI, HCGP)
2
AND:
SMT. RAHAMATUNNISA,
W/O. JAMEEL AHMED SHAIK,
AGED ABOUT 36 YEARS,
HOSPITAL ATTENDER GR.II (GROUP D),
TALUK HOSPITAL, BANTAWAL,
DAKSHINA KANNADA,
R/O. NEAR P.M.H. SCHOOL,
BOABRAWAD, ANKOLA - 581314.
... RESPONDENT
(BY SRI.IRFAN I.A., ADV. FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT OR ORDER, TO QUASH THE ORDER DATED 25.05.2022
PASSED BY THE HON'BLE KSAT BENGALURU IN
A.NO.3036/2019 AT ANNEXURE - A AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, G.NARENDAR J., PASSED THE
FOLLOWING:
ORDER
Heard Smt. Shilpa S.Gogi, learned High Court Government Pleader appearing for the petitioners and Sri. Irfan I.A., learned counsel wants to file power on behalf of the caveator/respondent.
32. The petitioners - the Secretary, Department of Health and Family Welfare Services, the Commissioner of Health and Family Welfare Services, the Director of Health and Family Welfare Services and the Administrative Medical Officer, Taluk Hospital, Bantwal, are impugning the order dated 25.05.2022 passed by the Karnataka State Administrative Tribunal (for short hereinafter referred to as 'Tribunal) in application No.3036/2019, whereby the Tribunal has been pleased to allow the said application preferred by the respondent/applicant.
3. In brief the facts of the case are that the respondent was selected and appointed to the post of Attender - Grade-II (Group-D) by the second petitioner under the Special Recruitment Committee vide order dated 29.12.2014 and she was directed to report to duty at Taluk Hospital, Bantawal. In the interregnum, the 4 respondent had delivered a baby on 17.12.2014 and hence by a representation dated 05.01.2015, hence she sought time to report to duty and it appears to have been granted.
4. Thereafter, again by another representation dated 28.01.2015, the respondent apparently sought for granting maternity leave. The said application was forwarded to the second petitioner on 10.02.2015. It appears that the same came to be granted. Thereafter again on 30.05.2015, another representation was made by the respondent enclosing the medical records of the child and therein it is claimed that the child was born prematurely and suffered complications like perinatal asphyxia. The request dated 30.05.2015 was forwarded to the District Health and Family Welfare Officer to take a decision at his level. Another representation was forwarded from the respondent on 10.06.2015 praying 5 that she be permitted to travel to her native place (her mother's) in order to provide more succor and care to her ill-child.
5. From the above, it is apparent that the respondent had delivered a child, the child was prematurely born and the child suffered from health complications at birth and over and above, the said facts were brought to the notice of the petitioners herein and the recipients of the representations had left the same to the discretion of the District and Health Family Welfare Services Department.
6. These facts are not denied. The fact of receipt of representations and the factum of respondent having delivered a child and the child suffering from birth complications. It appears that on 23.01.2018, a representation was made by the respondent requesting permission to report to duty. The saga appears to have 6 started after the request of the respondent to report to duty and it has culminated in issuance of the order impugned before the Tribunal i.e., the order dated 29.04.2019 which is purportedly prescribed as discharge simpliciter.
7. The Tribunal has appreciated the factual aspects of the case in paragraph No.6 which reads as under:
"6. Perusing the materials and looking to the objection statement filed by the respondents, the respondents go on making the impugned order i.e, dismissal order but the impugned order is not a dismissal order in fact it is the order of discharge, invoking the provisions of KCS (Probation) Rules, 1977. It is the contention of the applicant herein that though the appointment order dated 29.12.2014 was issued under Annexure-A1 and in the counselling, the applicant was given a posting to the office of the Taluk Hospital, 7 Bantawal. As the applicant has delivered a premature baby, she submitted a representation dated 05.01.2015, requesting for time to report for duty vide Annexure-A2.
The applicant submitted another representation dated 28.01.2015 along with necessary medical certificates which were forwarded by the District Health and Family Welfare Services on 10.02.2015 to the 2nd respondent and the copy of the said letter is at Annexure-A3. I have perused the said documents. In Annexure-A2, which is dated 05.01.2015, wherein she has stated that she had a delivery on 17.12.2014 and after getting 12 days rest and on 29.12.2014, she attended the counselling and selected a place. The applicant also stated in her report that she has to join for duty within 15 days as per the appointment order but because of the delivery, it is not possible for her to report for duty and after completion of six weeks she will attend to the duty along with medical certificates. Therefore, by this letter at Annexure-A2, she has sought for permission. Accordingly, I have 8 also perused the contents of Annexure-A3, the letter dated 10.02.2015 addressed by the District Health and Family Welfare Officer, Dakshinakannada, Mangaluru to the Director of Health and Family Welfare Services, Ananda Rao Circle, Bengaluru, under this letter, wherein it is stated that as the applicant delivered a baby and six weeks time is also over and the applicant has produced the medical certificate issued by the doctor and for taking care of the child, she has requested for extension of some more time. Therefore, the medical certificate, applicant's request letter and the copy of her appointment order were forwarded to the office of the Health and Family Welfare Services, Bengaluru. By Annexure-A4, the Director of Health and Family Welfare Services, Bengaluru, addressed the letter dated 30.05.2015 to the District Health and Family Welfare Officer, Dakshinakannada, Mangaluru, to take the decision at his level. I have also perused another letter dated 10.06.2015 of the applicant under Annexure-A5 addressed to the 9 Medical Officer, Taluk Hospital, Bantawal, under this letter the applicant has claimed that as there is a health problem with her child, there is a necessity for her to go to her mother and therefore from 10.06.2015 she may be granted leave without pay and she has also stated that while attending to the duty, she will produce her child's medical certificate. I have perused another document under Annexure-A6 which is dated 06.05.2019 issued by the Chief Medical Officer, K.L.E. Societies, Dr. Kamal Hospital and Medical Research Centre, Ankola, wherein the contents of the documents goes to show that Mrs.Rahamatunissa Jameer Shaikh D/o Anwar Shaikh was admitted to the said hospital on 16.12.2014 and had delivered a male baby on 17.12.2014. According to the patient, this is her second delivery and the baby was admitted in NICU on 17.12.2014 in view of perinatal asphyxia. Annexure-A7 is her representation dated 23.01.2018, requesting to permit her to join duty. Annexure-A8 is discharge order invoking Rule 6(1) of KCS 10 (Probation) Rules, 1977. Looking to the contents of this discharge order under Annexure-A8, it is passed by the Commissioner, Health and Family Welfare Services, Bengaluru, wherein it has stated that the applicant reported to duty on 09.06.2015 and from 10.06.2015 to till that date she was unauthorisedly absent and as she remained absent for a long time during her probationary period and therefore, the order of discharge came to be passed. But whereas her request was made on medical grounds, she was not in a position to attend to duty because of the health issues of her child and even requested to grant her leave without pay. What is the decision taken on her representations/applications, no material is placed by the respondent-authorities whether these representations/applications were rejected or they were sanctioned. Unless and until the decision is taken on her representations and by considering the medical certificates, it cannot be said that the applicant remained unauthorizedly absent to 11 the duty. The applicant was regularly making the correspondences, requesting for grant of leave but even then she was not informed that her representations/applications are rejected. Therefore, she has to attend for the duty immediately. Looking to the materials, ultimately, the discharge order came to be issued to the applicant. Whereas, in the discharge order it is stated that she remained unauthorizedly absent for duty, which is the misconduct alleged against the applicant and discharge order with attaching stigma which requires conducting regular departmental enquiry against the applicant but without doing so, the applicant has been ordered to be discharged from service though such allegations are made that she remained unauthorizedly absent. Therefore, order cannot be said to be discharge simplicitor. But it is the order discharging the applicant attaching stigma. I have also perused the principles enunciated in the two decisions, relied upon by the learned Counsel for the applicant which are referred above. Looking to the principles 12 enunciated in the two decisions also, the discharge order is liable for quashing. Apart from that the discharge order is not by the Government but by the Commissioner, Health and Family Welfare Services. When that is so, as per the provisions under Rule 6(1) of KCS(Probation) Rules, 1977, it is subject to approval by the next higher authority, which is also not complied in this case. Hence, the applicant has made out a case."
8. The Tribunal has deemed it necessary to allow the application for the following three reasons:
1. The order is a stigmatic order and we find that the reasons are supported by the contents of the discharge order, wherein it is alleged that the respondent has unauthorisedly remained absent from duty. The facts narrated supra do not controvert the said finding and infact the Tribunal has based its reasons on the undisputed facts.13
2. The second reason appears to be that the impugned order i.e., the order of discharge is not in compliance with the mandate of the Rules and that the approval of the superior authority has not been obtained.
3. Thirdly, none of the representations submitted by the respondent were considered and disposed off nor does the impugned order of discharge, even acknowledges these facts apparently thereby vitiating the impugned order.
9. It would also be pertinent to note the rules governing maternity leaves: Section IV, Rule 135 of Karnataka Civil Services Rules, reads as under:
"135. (1) A female Government servant may be granted maternity leave by an authority competent to grant leave for a period of (180 days) from the date of its commencement.
During such period, she shall be paid leave 14 salary equal to the pay drawn immediately before proceeding on leave.
(2) Maternity leave may also be granted in case of miscarriage or abortion including abortion induced under the Medical Termination or Pregnancy Act, 1971 (but not threatened abortion), subject to the conditions that.-
a) the leave does not exceed six
weeks; and
b) the application for leave is supported
by a medical certificate from a
Registered Medical Practitioner.
(3) Maternity leave under sub-rule (1) or (2) above shall not be admissible to a female Government servant who has two or more living children.
(4) (a) Maternity leave may be combined with vacation or any other kind of leave. Such leave not exceeding sixty days may be granted without production of medical certificate.
15(b) Leave in further continuation of leave granted under clause (a) of sub-rule (4) may be granted in the case of illness of the female Government servant subject to the production of a medical certificate from the Authorised Medical Attendant. Such leave may also be granted in case of illness of a newly born baby, subject to production of a medical certificate from the Authorised Medical Attendant to the effect that the condition of ailing baby warrants personal attention and that her presence by the baby's side is absolutely necessary.
(5) The maternity leave shall not be debited against the leave account."
10. A useful reference could also be made on the law expounded by the Hon'ble Apex Court in this regard.
In the ruling reported in 2022 SCC ONLINE SC 1088 in the case of Deepika Singh Vs. Central Administrative Tribunal and others, the Hon'ble Apex Court has observed as under in paragraph Nos.17, 18, 19, 20 and 28:
1617. For the purpose of adopting an approach which furthers legislative policy, it would be appropriate to derive some guidance from the provisions of the Maternity Benefit Act 19617 though, it must be stated at the outset that the Act perse has no application to the PGIMER as an establishment.
Nonetheless, the provisions of the Act of 1961 are indicative of the object and intent of Parliament in enacting a cognate legislation on the subject.
18. Section 3(c) of the Maternity Benefit Act of 1961 defines the expression 'delivery' to mean the birth of a child. Section 5 provides for the right to payment of maternity benefit. Section 5 is extracted in its entirety below:
"5. Right to payment of maternity benefit.- (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.17
Explanation.- For the purpose of this sub- section, the average daily wage' means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948), or ten rupees, whichever is the highest.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.- For the purpose of calculating under the subsection the days on which a 18 woman has actually worked in the establishment, the days for which she has been laid-off or was on holidays declared under any law for the time being in force to be holidays with wages, during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:
Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:
Provided further that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:19
Provided also that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.
(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.
(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree."20
19. Sub-section (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub-section (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.
20. The Act of 1961 was enacted to secure women's right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In Municipal Corporation of Delhi v. Female Workers (Muster Roll), a two-judge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India's international obligations 21 under the Universal Declaration of Human Rights 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women to extend benefits under the Act of 1961 to workers engaged on a casual basis or on muster roll on daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules 1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections.
28. For the above reasons, we hold that the appellant was entitled to the grant of maternity leave. The communication of the third respondent denying her the entitlement was contrary to the provisions of Rule 43. We accordingly set aside the impugned judgment of the High Court dated 16 March 2021 and the judgment of the CAT dated 29 January 2021. The OA filed by the appellant shall in consequence stand allowed and the appellant shall be granted maternity leave under Rule 43 in terms of the present judgment. The benefits which are admissible to the appellant shall be released to her within a period of two months from the date of this order."
2211. In view of the above, we are of the considered opinion that the writ petition is bereft of merit and is accordingly disposed off as unsustainable.
12. That apart on the earlier part of the day, learned Advocate General had appeared and had placed before this Court the document titled as "Karnataka State Dispute Resolution Policy, 2021" which was prepared and released by the Law Department, Government of Karnataka and the instant writ petition is one of the type of cases which the policy statements firmly recognize that this type of writ petition ought not to have reached the doors of this Court and its classifications fall within the class of cases of the policy document, ought not to have been carried forward. Infact in page No.32 of the Policy document, paragraph Nos.4, 4.1.1, 4.1.2, 4.1.3, 4.2, 4.3, 4.3.1 and 4.3.2 reads as under:
23"Measures for Reform
4. Process - Oriented and Structural Reforms to the Conduct of Disputes Often, individual actors emphasize on "procedural"
aspects in the conduct of disputes rather than the "substantive". The focus is on movement of files from one official to the next in the hierarchy, instead of ensuring value addition to the file at every step of the process. In order to address this issue, the Policy prescribes three key steps that must become part of the process of conduct of litigation: Risk Analysis, Workflow Management and Devising Dispute Strategies. These steps are to be implemented by the Heads of Departments in consultation with the Law Officers.
4.1. Risk analysis 4.1.1. Just as companies / businesses make decisions on whether it makes economic sense to litigate or to settle a case, Departments must make these decisions for every case. Values should be assigned to probabilities and the likelihood of adverse outcomes if 24 adversarial methods of dispute resolution such as litigation or arbitration are pursued, must be evaluated. As a process, risk analysis must include two aspects: (i) gauging the likelihood of adverse outcomes; (ii) factoring the impact caused on the respective Department, the State and on society as a whole.
4.1.2. It is not that risk analysis is a new concept, it may be found in several existing rules: evidence is required to be evaluated by HLCs/Legal cells before initiating claims, opinions are sought from the Law Department or from the Advocate General's Office in various situations and HLCs are to examine the merits of the case before filing appeals., It is essential is that in the process of routinely following rules, the object and purpose of the rules are not missed. Thus, there is a need to consciously focus on analyzing risk by taking into account various factors.
4.1.3. Factors that could aid the process of risk analysis include:
a. Strength of evidence 25 b. Time that may be taken at the stage of original proceedings and subsequently in appeals c. Background check on opponents: their resources, circumstances and other contributory factors that may hinder dispute resolution including their propensity to file appeals.
d. Probability of opponents pursuing
appeals
e. Assessment of legal trends
by reading precedents
f. Value of the claim being raised or
defended which will have a bearing
on impact caused to the Department. g. Perceptional impact on society 4.2. Workflow Management Effective risk analysis will help formulate appropriate responses, reduce uncertainties and adopt corrective or damage-control measures.
Importantly, it will guide workflow management by providing an understanding of prioritization of 26 problems and allocation of human and financial resources. Given that resources are scant, and volume of disputes is very high, enhancing efficiency by an optimal workflow management is crucial.
4.3. Devising dispute strategies 4.3.1. Once the risk analysis is complete and the reasons on which the analysis is based are clear, it is essential to evolve sound strategies before proceeding with the next steps in the dispute. These strategies will determine the tool or combination of tools that will best serve in resolution of the dispute and also include contingency plans. Strategies could relate to the choice of remedy where there are multiple options, choice of dispute resolution mechanism such as mediation, negotiation or litigation, choice of Special Counsel, etc. It is essential that strategies are revisited as the case evolves and the focus at all times remains on the resolution of disputes.
274.3.2. The strategies formulated need to have a correlation to the impact of the dispute. From the State's perspective, impact is not only measured in financial terms to the Department / State but also in terms of public perception and serving public interest. The practice of filing appeals all the way to the Supreme Court merely to obtain a certificate of dismissal so that quietus can be put in the Department has been repeatedly frowned upon by the Apex Court including in its recent judgment. Even in cases where the likelihood of the Department succeeding in Court is high, it is necessary to evaluate if the value addition of such victory is of worth to the Department and would justify the expending of public resources."
13. From the above, it is clear that the policy document would clearly disapprove the present type of litigation to reach the doors of the Court, yet Court is burdened with one more petition.
2814. It would not suffice if the Policy is drawn up and launched if it is not widely circulated. The Law Department would not be doing justice, if even after having conceived such a policy and also after having launched the same at the hands of Hon'ble the Chief Minister, keeps it under wraps. The Law Department would do well to circulate the policy document and ensure its compliance by all the departments and law officers.
The view of the above writ petition is disposed of.
Sd/-
JUDGE Sd/-
JUDGE HJ