Calcutta High Court (Appellete Side)
Smt. Shikha Sarkar vs The State Of Wes Bengal & Ors on 13 November, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
S/L No. 45
13.11.2018
Ct- 10
(AD)
W.P. 9776 (W) of 2018
Smt. Shikha Sarkar
Vs.
The State of Wes Bengal & ors.
Mr. Kumar Jyoti Tewari
Mr. Rajlakashmi Ghatak
.... For the Petitioner.
Mr. Arjun Roy Mukherjee
Mr. Sajal Kumar Pandit
.... For the State
ears of independence and the bold words of Article 14 of the
stitution of India, and the hallowed expectations of Article 15
t women in India are still treated as the second sex, and
er equality remains a concept which is used, in reality, to
rce the patriarchal traditions of our society. This is what
ars to me when I go through the records relating to the writ
ion where Mr. Kumar Jyoti Tewari's client has had to
enge the decision of the respondent no. 3 upholding the
ol authority's decision to dock the pay of the writ petitioner April 2017 because she availed of a child care leave for the ons stated therein.
Roy Mukherjee, learned Advocate for the State submits that judicial review is directed against an order of the respondent passed on June 14, 2018. This order was passed in terms e last chance to comply as given by a coordinate Bench on e 8, 2018 in an application for contempt where rule was 2 ed. Such application for contempt arose from an order ed by the coordinate Bench on July 19, 2017 in W.P. 2592 (W) of 2017. In such writ petition, the writ petitioner challenged the action of the respondent authorities including chool for wrongful withholding of the salary of the petitioner period when the petitioner had not attended her duties. It the case of the petitioner that she had duly applied for child leave. The case of the respondent school was that though had applied for leave from 14th of February, 2017 she gone eave from 17th of February, 2017 and availed of 42 days of e even before it was approved. Thus, the case of the school, rief, as Mr. Roy Mukherjee would like to put it, is that the petitioner had been willfully absent without leave and a very punishment of withholding of one month's salary was sed on her.
e earlier writ proceedings as aforesaid a Coordinate Bench directed that the third respondent who considers and osed of the said representation. By an order dated ember 20, 2017 the third respondent had expressed his ion as follows:
"From the records as were placed before me I am of the opinion that grant of child care leave is not a matter of legal right and every employer, before granting such leave, has to balance various aspects, including the working requirement of the employer not being affected on account of leave sought by an employee and in the instant case the petitioner was enjoying such leave prior to sanction of the same was made by the administrator of the school and the petitioner left the school without confirmation being made on such leave by the school administration and enjoying a total 42 days of unauthorised leave."
eafter the respondent no. 3 had however not disposed of the 3 er but directed the present respondent no.4, the inistrator of the school, to take a decision in the matter. The empt application was filed since the third respondent had complied with the order of the coordinate Bench of July 19, 7, by not disposing of the matter himself.
Roy Mukherjee submits that by the order dated June 14, 8 the respondent no.3 has not taken any fanciful decision has merely upheld the decision taken by the school orities, for the reasons stated in it, against which the first petition aforesaid had been filed. This decision of the school ority is also annexed to the present writ petition and ars at page 75 and a sequel of several notices of the ioner to show-cause.
rding to Mr. Roy Mukherjee, the opinion which has been rated in the fourth last paragraph of the order dated June 2018 (annexure P/14) could not be different from his opinion essed in the order dated September 20, 2017 because that the reason for passing the said order and this order has r been set aside.
e, the order of the school authorities appearing as page 75 of writ petition is said to have been upheld by the third ondent any judicial review of the said order would require the decision-making process behind the said order dated mber 27, 2017 at page 75 be scrutinized.
a plain reading of the said order it is clear that the school orities considered the following as a reason for passing the sion.
4
"After that without any consideration she had done a Writ Petition numbering 12592(w) of 2017"
efore, the materials which were considered by the school orities were not merely the alleged unauthorized leave or ing of leave before its confirmation. It also included the fact the present writ petitioner had filed a writ petition. Even I take the most charitable interpretation, that an oyee has filed a writ petition challenging the action of holding her salary, her means of livelihood, cannot be a ant material for considering whether her salary should inue to be withheld.
Therefore, by consideration of that which has not relevant school authorities had violated the well-settled principles of nesburyreasonableness.Even if I embark upon a deeper tiny of the said decision making process I find that proper htage has not been given to the fact that gender equality ands that the species of special protection given to women in the meaning of Article 15 of the Constitution of India sub- es horizontal reservation and affirmative action for which one to give such treatment to women as would negate inequality h has been traditionally imposed on women as those who ide care to children at home, are homemakers and, efore, are held to be unable to do gainful employment like In other words, while the society provides guarantees of lity, it does not provide the means for a woman to be a an and still earn our livelihood. Instead, it is expected that 5 en who work for a living and earn their livelihood, shall r not care for their husbands, children and the home, or give up working for their livelihood and do the washing, ing and look after their husband and children and do what e-makers do.Equal footing, in this context, would have nt creating conditions which would allow the woman to do she wanted to do for the family while at the same time g able to maintain her livelihood. Is it proper that her ren will not get her care? The school thinks it is the ondent no.3 has not questioned this article of faith of the ol.For that special provisions were made for women as mitted under Article 15 of the Constitution of India. Child leave is such a special provision. A complete mockery of this ial protection will occur if a woman is required to wait until application for child care leave is granted before she is wed to go on such child care leave, on pain of forfeiting her hood if she does not do so. If, instead of the factual ation for which she wanted this leave, her child had had an dent and required urgent hospitalization, would the ondents or even this court insisted, in all fairness, that she pones taking her child to the hospital until her application eave was granted? The principle must be same, regardless of exact reason for seeking such child care leave. This aspect of matter was not even considered by either the school orities or the respondent no. 3.
As I analyse the very introduction of the concept of ting child-care leave to a Mother, by a democratic state idering not just the health and nutritional welfare but even 6 developmental needs of a child which includes, inter alia, the ational, physical and mental nourishment from the parents, d that even if relief is granted to the mother, the very ework is predisposed to perpetuate the existing notions of archy which has still not been dispelled despite 68 years of titutional experiment in our country. It is noteworthy that conception of a family arises out of equal contribution from ends, and the outcome must therefore not be treated as a ity of the mother or father, alone where the situation is not single parent. Sadly, the legal framework of addressing erns like child-welfare do not concentrate on this aspect of ly life but are rather based upon what seems a societal umption. As I proceed to address this notion, what I observe hat even though the fundamental principles of equality as enched under part III of the Constitution of India proffer er neutrality but in situations like this, the said concept is nt. That apart, it is to be seen when there is conferment of affirmative right on women, can it go to the extent of treating m as the sole bearer of child care, in all circumstances, even he cost of their professional distress? Viewed from this age point, such provisions seem to create a dent on the idual independent identity of a woman and tantamount to rdination of a woman where the Constitution confers equal us. A time has come when the society must realize that a an is equal to a man in every field. The presumption that the onsibilities within the family must be the priority of the en, I protest, appears to be quite archaic. When the society resses and the rights are conferred, the new generation of ghts spring, which under the existing circumstances are 7 pensable to the growing movement to address the ualities in a gender binary society and sustain a level playing for individuals across genders. The constitutional morality eveloped by our superior courts of record, demand that we ide to all citizens a level playing field, and not just technical lity.
Very recently, in the case of Joseph Shine v. Union of India ded on September 27, 2018 by a Constitution Bench, the eme Court of India while discussing the constitutional ity of section 497 of the Indian Penal Code, 1860 has hasized upon the patriarchal undertones which have crept in the legal system of our democracy. In no uncertain terms, Apex Court was pleased to hold that "the Indian prudence has interpreted the constitutional guarantee of sex lity as a justification for differential treatment: to treat men women differently is, ultimately, to act in women's interests. status of Section 497 as a "special provision" operating for benefit of women, therefore, constitutes a paradigmatic mple of benevolent patriarchy."
Delineating further, the Apex Court, in paragraph 48 of its ment observed the following:
"48. Article 15(3) encapsulates the notion of 'protective discrimination'. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of 'protection'. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection 8 of Article 15(3). In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that she was 'seduced' into a sexual relationship. Given the presumed lack of sexual agency, criminal exemption is then granted to the woman in order to 'protect' her. The 'protection' afforded to women under Section 497 highlights the lack of sexual agency that the section imputes to a woman. Article 15(3) when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women."
In her book, "Seeing like a Feminist", author Nivedita on has recognized the patriarchal family as the "basis for the ndary status of women in society." Menon notes that 'the onal is political'. Her scholarly work implores us to recognize es which may be considered personal such as the bedroom kitchen. These spaces are immersed in power relations, but ramifications for the public sphere.1 As I see, the basic underpinnings of child care stems out of parochial understanding of family life which has furthered archy deep inside not just personal and individual beliefs has even been conditioning the society to its utter detriment. erly understood, Patriarchy, is an unjust burden on men as as on women. It divides both from their common humanity proscribes a structure of authority at the expense of their mon humanity - an ethics of equal respect and a democracy ual human rights.2 1 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35 2 David A. J. Richards, FUNDAMENTALISM IN AMERICAN RELIGION AND LAW: Obama's Challenge to Patriarchy's Threat to Democracy, Cambridge University Press (2010) at page 4. 9
Patriarchy expresses its demands in two related ways. , it rigidly imposes a gender binary (e.g., reason as culine, emotion as feminine), which tracks not reality but the er stereotypes which support patriarchy. Second, it always es one pole of the binary in hierarchical order over the other. psychology of patriarchy offers an explanation of how these features of patriarchy come to be culturally entrenched, hing a moral voice that challenges both the gender binary its hierarchical ordering. The opposite of patriarchy is, we e, democracy, in which authority accords everyone a free equal voice, a voice that both breaks out of the gender ry and contests hierarchy. When I say free and equal, I n giving both the freedom and the opportunity to become l such that whatever difference one may have, whether by tion, anatomy or due to the "other's" mindset, is offset by an ling special provision, which brings both to a level playing in reality and not just seemingly. What patriarchy udes is love between equals, and thus it also precludes ocracy, founded on such love and the freedom of voice it urages. Because patriarchy is inconsistent with the mative demands of democratic constitutionalism, its stence is a continuing threat to democracy.3 The contradiction between patriarchy and democracy is not
- indeed, is so easily dismissed - because our society has so itically structured its authority in terms of a patriarchal hology that we have come to regard patriarchy as nature, ed as God's law. Both these patriarchal structures and the 3 Ibid at page 5.
4 Ibid at page 7 10 porting psychology darken our ethical intelligence in law. In a ocratic country like ours, we need to question the psychology atriarchal manhood and womanhood - its force in our society in our politics- that has held us captive for much too long. annot deal with the problem until we can see the problem.4 The moment we let assumptions such as these weigh the d of the respondent no. 3 when he takes a decision, or that of school authority when it takes such a decision, we allow the ept of equality, equity and social engineering inherent in the an Constitution to be defeated by paternalistic consideration. To the extent that the third respondent has not considered above in his decision-making process, as aforesaid, such sion-making process is one-sided, mechanical and flawed. I ot, therefore, sustain such a decision-making process. The h respondent despite service has not come forward to defend ecision based on extraneous materials as aforesaid. The fact that the school authority allowed the fact that the petitioner had instituted writ proceedings to ventilate her ances, to be a factor in its process for taking the decision, shows that the respondent no. 4 (and by extension, the ondent no. 3) think that the right of judicial review by a rior court of record under the Constitution of India is not ething which employees can resort to, especially when they want a consideration.
The Fundamental and other rights guaranteed under Part the Constitution of India become illusory unless the means xercise the said rights are also protected. The right to 11 ection of the means to exercise such fundamental or utory rights, is also fundamental and/or basic and is ired to be declared as existing by necessary implication. ral rights which are required for exercising fundamental or utory rights, have grown silently and without legislation, as e which are necessary and basic, for exercising the statutory ndamental rights, and some of these have been declared or preted to exist by amplifying the meaning of existing rights. respondents no.3 and 4 obviously feel that such means ht not to exist, because the fact that the writ petitioner tuted the petition under Article 226 of the Constitution of a was considered to be one of the relevant factors for lowing her prayer.
Accordingly, having found such fatal flaw in the decision- ing process it cannot be sustained, and the impugned order n annexure P/14 and the basis of the decision upheld of the order as also the order dated September 20, 2017 are, efore, quashed, set aside and cancelled along with the sion at page 75 of the writ petition.
I make it clear that the State of West Bengal has made isions even for teachers and non-teaching staff of arasahs, panchayats and government servants for earned e in general and child care leave in particular, and these do t a discretion to the respondents concerned to approve, even ost facto, for sufficient reason shown, any such absence out leave being granted before the person commenced on e. In a similar matter cited on behalf of the writ petitioner, g the case of Kakali Ghosh--v--Chief Secretary, Andaman 12 Nicobar Administration and Others reported in (2014) 15 300 the Hon'ble Supreme Court was pleased to grant relief writ petitioner stated to be similarly circumstanced as the ent writ petitioner.
The third respondent shall take a fresh decision without g influenced by anything mentioned at page 75 or the rds on which they were based on or his earlier order, but in ight of my above judgment.
Such decision shall be taken within a period of two ths from the date of communication of this order. No direction was sought for filing affidavits and since I have ded the matter only on the basis of the records produced re me, the allegations contained in the writ petition are med not to have been admitted.
The writ petition is allowed to the above extent. There shall be no order as to costs.
(Protik Prakash Banerjee, J.)