Central Administrative Tribunal - Bangalore
Dr S Archana vs South Western Railway on 26 February, 2024
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OA.No.170/00238/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00238/2023
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Dr. S. Archana
W/o Sri Harish Rama Sastry
Aged 46 years
Additional Chief Medical Superintendent
Railway Hospital, Mysuru. .... Applicant
(By Shri K. Shivakumar, Advocate)
Vs.
1. Union of India,
Rep. by General Manager,
S.W. Railway, Rail Soudha,
Gadag Road, Hubballi 580 020
2. Principal Chief Personnel Officer
S.W. Railway, Gadag Road,
Hubballi 580 020
3. Principal Chief Medical Director
South Western Railway,
Keshwapur, Hubballi 580 023 ... Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
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OA.No.170/00238/2023/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Call for the records and on perusal quash the speaking order dated 21.04.2023 (Annexure-A11) issued by the second respondent as unconstitutional, unethical, illogical and against rules, and
(ii) Direct the respondents to disburse the withheld salary of the applicant for the period from 01.06.2021 to 30.11.2021 along with interest as the action of the respondents without serving their advice dated 19.05.2021 and without issuing notice and hearing the applicant is arbitrary, unconstitutional, against rules and against the law of natural justice; and
(iii) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity."
2. This is second round of litigation. The applicant belonging to Central Services Group 'A' IRHS cadre of 1999 batch in Indian Railways, while working as Additional Chief Medical Superintendent in the Divisional Railway Hospital, Bengaluru was transferred during COVID-19 pandemic to Railway Hospital, Mysuru by order dated 09.02.2021 issued by the 2nd respondent. As the applicant's children were of the age of 13 years and 10 years 3 OA.No.170/00238/2023/CAT/BANGALORE and had some health issues during the pandemic and were in the scholastic year, the applicant was not in a position to carry out the transfer immediately and requested the General Manager to sanction her the Child Care Leave (CCL) to take care of her children during the COVID-19 period and assured that she would carry out the transfer after availing CCL. Her request was considered and General Manager was pleased to sanction her CCL for 365 days from 12.02.2021 to 11.02.2022.
3. The applicant claims that she joined for duty on 06.12.2021 duly cancelling the non-availed portion of CCL as she was not paid salary from June, 2021 to November, 2021. The applicant made a request for payment of arrears of salary, for which she was issued with a show cause notice on 15.09.2022 by the Principal Chief Medical Director (PCMD) stating that her leave was cancelled and she was advised to resume for duties. The applicant submitted a detailed explanation but no action was taken for redressal of her grievance with regard to non-payment of leave salary for six months. Repeated representations having not fetched any response, the applicant has preferred OA No. 53/2023. Considering the factual matrix of the case vis-a-vis non- 4
OA.No.170/00238/2023/CAT/BANGALORE consideration of the representation submitted by the applicant at Annexure-A6, this Tribunal disposed of the said OA directing the Respondent No. 2 to consider the representation dated 22.03.2022 (Annexure-A6) submitted by the applicant and pass an appropriate reasoned order after providing an opportunity of hearing to the applicant, fixing the timeframe, pursuant to which the impugned order dated 21.04.2023 (Annexure-A11) has been passed by the Respondent No. 2, rejecting the claim of the applicant for disbursing the withheld salary of the applicant for the period from 01.06.2021 to 30.11.2021. Being aggrieved, the applicant has preferred this OA.
4. Learned counsel Shri K. Shivakumar representing the applicant argued that the CCL was sanctioned by the General Manager for 365 days from 12.02.2021 to 11.02.2022 and no order has been passed by the General Manager cancelling the sanctioned leave, hence, the sanctioned leave cannot be cancelled or withdrawn or modified by any authority lower in rank to that of the General Manager. In the show cause notice dated 15.09.2022 issued by PCMD/South Western Railway (SWR) (Annexure-A7), it has been stated that the CCL was cancelled and the applicant was 5 OA.No.170/00238/2023/CAT/BANGALORE advised to resume duties vide letter dated 19.05.2021 said to have been issued by the Principal Chief Personnel Officer (PCPO) but the communication of the Senior Divisional Personnel Officer (SDPO), Bengaluru dated 22.03.2022 (Annexure-A5) states that the doctor (applicant) was advised to cancel the leave and resume for duty as per the advice dated 19.05.2021, which are contradictory to each other. The Chief Medical Superintendent (CMS) has no authority to propose for withholding the salary. Learned counsel submitted that the salary cannot be withheld arbitrarily without communicating the cancellation of the leave, denying any information communicated to the applicant through e-mail/speed post.
5. Learned counsel submitted that two other doctors had also been sanctioned with CCL. Dr. Ramya, Divisional Medical Officer (DMO), Railway Hospital, Benagluru who was sanctioned with CCL from 06.03.2021 to 06.07.2021, said to have been called back to report for duty along with the applicant by order dated 19.05.2021, though reported for duty only after availing the sanctioned CCL upto 06.07.2021, she was paid with full salary whereas the applicant has been discriminated in withholding the 6 OA.No.170/00238/2023/CAT/BANGALORE salary for the period from 01.06.2021 to 30.11.2021. Learned counsel further submitted that the speaking order (Annexure-A11) impugned does not disclose the application of mind, there being no clarity in the finding of the Respondent No. 2 in disposing of the representation inasmuch as treating the period from 20.05.2021 to 05.12.2021 (200 days) as either i) "dies non", ii) "break in service"
iii) regularized as Extra Ordinary Leave (EOL), or iv) any other leave, as per the Rules and by the relevant Competent Authority.
Disposal of representation with vague findings is nothing but merely an empty formality. Such an order cannot be considered as a speaking order where no firm decision has been taken by the Respondent No. 2 for rejecting the salary claimed by the applicant.
6. Learned counsel Shri N. Amaresh representing the respondents submitted that though the applicant was sanctioned 365 days of CCL from 12.02.2021 to 11.02.2022 by General Manager, South Western Railway communicated vide Memorandum dated 11.02.2021, further, due to second wave of COVID-19, many of the doctors and para medical staff being infected with COVID-19, resulting in shortage of doctors and para medical staff, the applicant was recalled for duty to manage the crisis by cancelling her CCL 7 OA.No.170/00238/2023/CAT/BANGALORE vide letter dated 19.05.2021 (Annexure-A12) issued by the competent authority - PCPO/SWR with the approval of PCMD/SWR. The same was communicated to the applicant through e-mail on 20.05.2021 by the office of PCPO, SWR and also by the office of PCMD, Hubballi. The Chief Medical Superintendent, Bangalore also conveyed this information to the applicant through e-mail on 25.05.2021 and again on 31.05.2021. Despite the same, the applicant has not reported to duty. Hence, CMS, Bangalore vide letter dated 29.05.2021 advised SDPO, Bangalore to stop drawal of salary of the applicant for the subject periods. In compliance with the directions issued by this Tribunal in OA No. 53/2023 dated 10.02.2023, after providing personal hearing to the applicant and going through all the relevant records pertaining to the case, PCPO, SWR has issued speaking order wherein it is held that the period from 20.05.2021 to 05.12.2021 shall be treated as per the Rules by the relevant Competent Authority, on her application and the same has been communicated to the applicant. However, the applicant has not submitted any application as directed in the speaking order dated 21.04.2023. 8
OA.No.170/00238/2023/CAT/BANGALORE
7. Learned counsel further submitted that at the time of cancellation of CCL, Disaster Management Act was in force. In COVID -19 exigency situation, it was not prudent to utilise the human resources to communicate the decision of the competent authority instead the resort made to the e-mail and speed post for communication by the respondents is valid. Justifying the impugned speaking order, learned counsel sought for the dismissal of the OA.
8. We have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
9. Rule 43-C of the Central Civil Services (Leave) Rules 1972 ('CCSL Rules' for short) entitles a women government employee with Child Care Leave of 730 days during her entire service for taking care of her two eldest surviving children, whether for rearing or for looking after any of their needs.
10. It is true that CCL cannot be claimed as a matter of right, however, the object of the beneficial legislation cannot be nullified taking shelter of shortage of staff. At this juncture, it is apt to refer 9 OA.No.170/00238/2023/CAT/BANGALORE to the judgment of the Hon'ble High Court of Kerala in the case of Chairman and Managing Director, Bharat Sanchar Nigam Limited vs. C. R. Valsalakumari and another (OP (CAT) No. 340/2017). In paragraph 11, it is observed thus:
"11. The answer to the present imbroglio would essentially depend upon the interpretation of Annexure-A4 (subsequently engrafted to Rule 43-C as it stood then) and Annexure-A5(a) clarification order. As in the case of grant of maternity benefit, CCL is also a beneficial provision to advance the interest of woman and children as envisaged in Article 15(3) of the Constitution. As referred to in the impugned order, CCL benefit has constitutional underpinnings in accord with Part- IV of the Constitution. The directive principle in Article 45 stipulates that the State shall endeavour to provide early childhood care and education for all children until they complete the age of 16 years. Article 3 of the Convention on the Elimination of All Forms of Discrimination against Woman (CEDAW), ratified by 189 countries including India, stipulates that the countries must take all appropriate measures to guarantee that woman and girls can enjoy their human rights and fundamental freedoms in every aspect of society. While Article 12 of the international convention guarantees equal access to Health Care and Family Planning for Woman, Article 16 inter alia guarantees equal rights for woman in their choice of marriage and any matter relating to birth, adoption and raising of children. Article 25(2) of the Universal Declaration of Human Rights (UDHR) envisage that motherhood and childhood are entitled to special care and assistance. The United Nations Convention on the Rights of the Child recognizes the need for special care and safe- guards for a child before, as well as, after birth and stipulates in Article 18(2) that the State shall render appropriate assistance to parents in the performance of their child-raring 10 OA.No.170/00238/2023/CAT/BANGALORE responsibilities. Further, Article 18(3) require the State to take all appropriate measures that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. It is in assumption of the fundamental principles and obligations as referred above that Annexure-A4 order has been issued, which was later engrafted to Rule 43-C as it stood then. Needless to say that the beneficial provision in Rule 43-C is two dimensional, one from the perspective of the mother and the other, more importantly, of the child."
Further, in paragraph 26, it is observed thus:
"26. Before parting with the judgment we should necessarily recognize the exalted position of woman in our society. We quote the following observations of the Hon'ble Supreme Court in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another [(2000) 3 SCC 224]:
"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 workplace 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 11 OA.No.170/00238/2023/CAT/BANGALORE motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre- or post-natal period."
11. The Hon'ble Madras High Court in the case of K. Subha vs. Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Chennai, Tamil Nadu and others (Writ Petition No. 31503/2012, DD: 04.03.2013) has referred to a Circular issued by the Ministry of Home Affairs, dated 27.09.2011. Paragraphs 2 and 3 given by the Ministry is extracted as under:
"8. ...................
"2. While the instructions provide that Child Care Leave cannot be demanded as a matter of right and is to be treated like Earned Leave and sanctioned as such, keeping in view that this leave is to be granted to women employees for rearing or to look after any of the needs of their children like examination, sickness etc., a more humane view needs to be taken when lady personnel apply for grant of this leave.
3. It is, therefore, requested that as far as possible lady personnel in all the CAPFs may be granted Child Care Leave subject to the conditions laid down in the instructions issued by DoPT on the subject.""
12. The Hon'ble High Court of Uttarakhand in the case of Dr. Deepa Sharma vs State of Uttarakhand and Ors (Writ 12 OA.No.170/00238/2023/CAT/BANGALORE Petition No. 54/2015 (S/B) dated 15.12.2016 in para 15 to 18 has observed thus:
"15. The International Labour Organization (ILO) has conducted the survey for maternity and paternity at work (Law and practice across the world) in 2014. The survey has covered the period w.e.f. 1994-2013 for duration of maternity leave across the world, maternity cash benefits, finance of maternity cash benefits, scope and eligibility requirements. The survey has also been undertaken for paternity, parental and adoption leave as well as protection of employment during maternity and non-discrimination in employment in relation to maternity, healthy arrangement of working time and arrangement of nursing breaks.
16. We are required to make labour laws in conformity with the recommendations made by the International Labour Organization read with Article 42 of the Constitution of India.
17. According to the Article 42 of the Constitution of India, "the State is required to make provision for securing just and humane conditions of work and for maternity relief."
18. The objective of ILO to conduct the survey was to promote motherhood and child care as well as to promote gender equality. Every female employee and male employee whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis have a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) and adoption leave to promote motherhood and child care under Article 21 of the Constitution of India read with Article 42 of the Constitution of India."
13. Thus, it is clear that the concept of grant of CCL has been introduced to promote the motherhood and child care guaranteed under Article 21 read with Article 42 of the Constitution. Under 13 OA.No.170/00238/2023/CAT/BANGALORE Article 15 (3), the State is empowered to enact beneficial legislation for advancing the interest of the women. It is not the case of the respondents that the applicant is not entitled to CCL, on the other hand, CCL was granted to the applicant by the General Manager for 365 days from 12.02.2021 to 11.02.2022. It is the specific contention of the applicant that no cancellation order of CCL was communicated to her. No such cancellation order has been placed on record by the respondents, though in the show cause notice dated 15.09.2022 (Annexure-A7) it has been stated that due to exigency of service, CCL was cancelled and the applicant was advised to resume duties vide letter dated 19.05.2021.
14. The mere statement made in the show cause notice regarding cancellation of the CCL cannot be considered as the communication of cancellation of CCL order. Annexure-R3 dated 29.05.2021 would indicate non-cancellation of sanctioned CCL as stated in the subject referred to therein. The following doctors who were sanctioned with CCL are said to have been advised to resume duty immediately duly cancelling CCL from Deputy Chief Personnel Officer/Gaz. & Welfare/SWR due to ongoing second 14 OA.No.170/00238/2023/CAT/BANGALORE wave of COVID-19 pandemic as they have not reported for duty even after 10 days:
Sl. Name (D) No. of From To
No. days
1 Dr. S. Archana 365 12.02.2021 11.02.2022
2 Dr. C.K. Ramya 122 06.03.2021 06.07.2021
3 Dr. Priyadarshini 6 months 01.04.2021 --
15. As such, SDPO/South Bangalore City (SBC) was advised to stop the drawal of their salaries with immediate effect. One Dr. C. K. Ramya shown in Sl. No. 2, is stated to have been reported for duty only after availing the sanctioned CCL upto 06.07.2021 and she was paid with full salary as contended by the applicant in the OA. In the reply statement, it has been duly admitted by the respondents submitting that, Dr. Ramya's period of absence was regularized and was paid salary for the said period as per the orders of the Divisional Railway Manager (DRM), Bangalore. Copy of the said order is placed on record at Annexure-R9. The said Dr. Ramya has reported back for duty on 07.07.2021 after availing sanctioned CCL and represented to DRM for the salary of the period for which the same was withheld. However, as per the orders of DRM, the salary was paid as the leave was sanctioned by General Manager/SWR.
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OA.No.170/00238/2023/CAT/BANGALORE
16. Rule of parity is applicable to the case on hand. Dr. C.K. Ramya's name is found along with the applicant and another in Annexure-R3 dated 29.05.2021, wherein SDPO/SBC was advised to stop the drawal of their salaries with immediate effect for not reporting to duty even after 10 days of giving advise to resume duty immediately. The said Dr. C.K. Ramya, though reported back for duty on 07.07.2021 after availing sanctioned CCL, the salary was paid as per the orders of DRM on the ground that the leave was sanctioned by the General Manager/SWR. The applicant is entitled to the similar treatment. Rejection of the claim of the applicant on some flimsy grounds is nothing but discrimination, violating Articles 14 and 16 of the Constitution of India.
17. Doctrine of "no work, no pay" is not at all applicable in the facts of the present case when CCL was granted by the General Manager. The cancellation of the said order ought to have been communicated to the applicant as per the available mode of services. Merely based on the advice to report to duty on the guise of the cancellation of CCL by the competent authority sans communicating that cancellation order, would not entitle the respondents to withhold the salary of the CCL period. 16
OA.No.170/00238/2023/CAT/BANGALORE
18. Para 19 of the impugned order is extracted hereunder for ready reference:
"(19) In view of the foregoing, the period from 20.05.2021 to 05.12.2021 (200 days) shall be treated as either
i) "dies non", ii) "break in service" iii) regularized as Extra Ordinary Leave (EOL), or iv) any other leave, as per the Rules and by relevant Competent Authority, on her application."
19. The request of the applicant as per the representation dated 22.03.2022 (Annexure-A6) is to regularize her leave period from June, 2021 upto November, 2021 as CCL as she was already sanctioned CCL by the General Manager vide memorandum dated 11.02.2021 and she had joined duties on 06.12.2021, cutting short her sanctioned CCL period. In that background, giving an evasive reply that the said period shall be treated as i) "dies non", ii) "break in service" iii) regularized as Extra Ordinary Leave (EOL), or iv) any other leave, as per the Rules and by the relevant Competent Authority, on her application, is wholly unjustifiable. An appropriate decision ought to have been taken by the Respondent No. 2 having regard to the facts and circumstances of the case, keeping the rule of parity in mind. Threatening the officer by quoting Section 56 of the Disaster Management Act and further saying that the administration has not invoked Section 56 of 17 OA.No.170/00238/2023/CAT/BANGALORE Disaster Management Act on the officer, as though administration is doing a favour to the applicant, would not resolve the grievance of the applicant.
20. As discussed in the judicial orders referred to in the preceding paragraphs, the laudable object of beneficial legislation of CCL has to be considered with a broader perception to achieve its objects and not to nullify the same. Given the circumstances, we are of the considered view that the applicant is entitled for her withheld salary for the period from 01.06.2021 to 30.11.2021 regularizing CCL for the said period which, indeed, was sanctioned by the General Manager. Hence, the impugned order dated 21.04.2023 Annexure-A11 cannot be approved.
21. For the reasons aforesaid, we pass the following:
:ORDER:
1) The order dated 21.04.2023 (Annexure-A11) issued by the Respondent No. 2 is set aside.
2) The respondents are directed to disburse the withheld salary of the applicant from the period of 01.06.2021 to 18 OA.No.170/00238/2023/CAT/BANGALORE 30.11.2021 considering the period from 20.05.2021 to 05.12.2021 (200 days) as CCL.
3) Compliance shall be made in an expedite manner, in any event, not later than 8 weeks from the date of receipt of the certified copy of this order.
4) OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/