Central Administrative Tribunal - Bangalore
Anitha Joseph vs National Institute Of Mental Health And ... on 14 February, 2024
1 OA No.38/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00038/2023
ORDER RESERVED : 08.02.2024
DATE OF ORDER : 14.02.2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Ms.Anitha Joseph,
Aged 31 years,
D/o M.R.Joseph M.S.,
No.6, 2nd Floor, 1st Cross,
Byrasandra, Jayanagar 1st Block,
Bengaluru.
Employed as Nursing Officer,
Emergency ICU Department,
National Institute of Mental
Health and Neuro Science. ... Applicant
(By Advocate, Shri Suraj Naik)
Vs.
1. The National Institute of
Mental Health and Neuro Sciences,
Hosur Road, Bangalore -560029,
Represented by its Director.
2. The Chief Administrative Officer,
National Institute of Mental Health,
And Neuro Sciences,
Hosur Road, Bangalore -560029. ....Respondents
(By Advocate Shri K.Prabhakar Rao for Respondents)
2 OA No.38/2023/CAT/BANGALORE BENCH
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. Set aside the Official Memorandum dated
02.01.2023 bearing No.NIMH/PER(2)/AJ-NO/2022-23
issued by the Respondent No.2, as it is arbitrary, without application of mind and unjustified. (vide Annexure A4). b. Direct the Respondents to consider the Applicant's Representation dated 13.01.2023 to grant Child Care Leave from 14.01.2023 to 14.05.2023.
c. Allow the cost of this application to the applicant. d. To pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in favour of the applicant and against the respondent in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that she was appointed to the post of Nursing Officer on 30.05.2016 in Emergency ICU Department at National Institute of Mental Health and 3 OA No.38/2023/CAT/BANGALORE BENCH Neuro Sciences (NIMHANS), Bengaluru. The applicant availed the maternity leave for a period of 180 days from 18.07.2022 to 13.01.2023 after the birth of her daughter in July, 2022. The applicant requested/applied for Child Care Leave ('CCL' for short) for a period of 120 days from 14.01.2023 to 14.05.2023, to take care of the child as her family reside in Kerala. The said application was rejected vide OM dated 02.01.2023. Being aggrieved, the applicant has preferred this OA.
3. Learned Counsel Shri Suraj Naik representing the applicant submitted that 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 rearing or for looking after any of their needs. Such leave is essentially not a recognition of the rights of a woman but it is more a recognition of the rights of a child. The guidelines issued by the respondents vide Circular dated 30.11.2018 (Annexure R1) in respect of CCL is not in conformity with CCSL Rules. CCSL Rules governing CCL, nowhere states that the CCL can be availed only for a period of 40 days. The applicant had genuine reason for availing CCL and the request was made almost 45 days prior to the date of expiry of her sanctioned maternity leave. The respondents having not 4 OA No.38/2023/CAT/BANGALORE BENCH been recruiting an adequate number of staff members in line with Government recommendations which is required by SIU norms prescribed by the Nursing Council, cannot burden the applicant with the shortcomings of the institution to meet the staff exigencies. The respondent institute should take steps to address the shortage of staff. The applicant was in need of the Child Care Leave as her infant daughter was unable to cope up without mother's care. However, the respondents have not taken into account the circumstances of the situation and arbitrarily rejected her request for CCL in defiance to the object of the statutory provisions of Rule 43-C which was inserted to provide proper facilities to women, so that she is easily able to balance her official duties along with her personal life, especially at the time of nursing the child with breast feeding.
4. Placing reliance on the judgment of the Hon'ble Apex Court in the case of Kakali Ghosh vs. Chief Secretary& others reported in 2014(15) SCC 300 and judgment of Hon'ble High court of Kerala in the Chairman and Managing Director, Bharat Sanchar Nigam Limited vs. C.R.Valsalakumari and another (OP (CAT ) No.340/2017, learned Counsel submitted that the employer has to be considerate and sympathetic towards the working women while considering the request 5 OA No.38/2023/CAT/BANGALORE BENCH of CCL benefit, the purpose and object of beneficial legislation or social welfare legislation has to be given a liberal construction to promote its objects. Thus the learned Counsel submitted that the rejection of the CCL claimed by the applicant vide the impugned OM dated 02.01.2023 being arbitrary and unreasonable deserves to be set aside.
5. Per contra, learned Counsel Shri K.Prabhakar Rao for Respondents No.1 and 2 submitted that the applicant having been appointed as Staff Nurse and joined duties on 30.05.2016 had applied for maternity leave from 18.07.2022 to 13.01.2023 which was sanctioned by the Respondent Institute vide its OM dated 24.11.2022. While sanctioning the maternity leave it was clearly informed that due to exigencies of Institute services, extension of any kind of leave in continuation of maternity leave cannot be granted. The applicant was positively informed to report back to duty after availing the sanctioned maternity leave. Due to shortage of staff which was hampering the patient care services of the ICU, the applicant's request for 120 days of CCL in continuation of maternity leave was rejected. Referring to Sub Rule-3 of Rule 43-C , learned Counsel submitted that the Child Care Leave can be granted on the following conditions:
6 OA No.38/2023/CAT/BANGALORE BENCH
"(i) it shall not be granted for more than three spells in a calendar year;
(ii) in case of a single female Government servant, the grant of leave in three spells in a calendar year shall be extended to six spells in a calendar year.
(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 be the probationer, provided that the period for which such leave is sanctioned is minimal.
(iv) child care leave may not be granted for a period less than five days at a time."
6. Learned Counsel submitted that the grounds urged by the applicant in as much as to the breast feeding to the infant for a further period of six months and her husband working in the private employment or any other family member residing in a different State are casual in nature. Learned Counsel further submitted that the Circular dated 30.11.2018 issued by the NIMHANS provides guidelines governing the grant of CCL to its eligible employees. As per the said guidelines and considering the interest of patient care services in the ICU, the applicant cannot claim CCL as a matter of right. A ceiling of maximum of 40 days CCL was made admissible for employee in not more than three spells in a calendar year. The said guidelines also 7 OA No.38/2023/CAT/BANGALORE BENCH restricted the CCL to 5% of eligible employee in any Section/Department, keeping in view of the staff available after considering all types of leave sanctioned to other employees in that particular period. The Nursing Officer working in critical care emergency ICU cannot proceed on long term leave which would affect the patient care services of the respondent institute. Considering these aspects, the respondents institute has rejected the claim of the applicant and the same deserves to be confirmed, rejecting the OA.
7. We have given our anxious consideration to the rival submissions made by the learned Counsel for the parties and perused the material on record.
8. The applicant having availed the maternity leave for a period of 180 days from 18.07.2022 to 13.01.2023 in terms of Rule 43 of CCSL Rules has applied for Child Care Leave vide application dated 02.12.2022 for a period of 120 days from 14.01.2023 to 14.05.2023. Rule 43-C of CCSL reads thus:
"(1) Subject to the provisions of this rule, a woman Government servant may be granted child care leave by an authority competent to grant leave for a maximum period 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, such as education, sickness and the like.8 OA No.38/2023/CAT/BANGALORE BENCH
(2) For the purposes of sub-rule (1), "child" means--
a) a child below the age of eighteen years: or
b) an offspring of any age with a minimum disability of forty per cent as specified in the Government of India in Ministry of Social Justice and Empowerment's Notification No.16-18/97-N 1.1, dated the 1st June, 2001.
(3) Grant of child care leave to a woman Government servant under sub-rule (1) shall be subject to the following conditions, namely:--
i. it shall not be granted for more than three spells in a calendar year;
ii. 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. iii. Child Care Leave may not be granted for period less than 5 days at a time.
(4) During the period of child care leave, the woman Government servant shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(5) Child care leave may be combined with leave of any other kind.
(6) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-
rule (1) of Rule 31, leave of the kind due and admissible (including Commuted Leave not exceeding sixty days and Leave 9 OA No.38/2023/CAT/BANGALORE BENCH Not Due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule(1). (7) Child care leave shall not be debited against the leave account."
9. This provision provides for grant of CCL for a maximum period of 730 days during the entire service of a woman Government servant for taking care of two eldest surviving children, whether of rearing or looking after any of their needs, such as education, sickness and the like. The CCL claim by the applicant from 14.01.2023 to 14.05.2023 cannot be clubbed with maternity leave availed by her. Merely for the reason that the Child Care Leave is in continuation to the Maternity Leave, the same cannot be denied. Maternity leave and Child Care leave are separate and distinct. Independent of the grant of Maternity leave, a woman is also entitled to Child Care Leave for taking care of her two children. No doubt certain conditions are prescribed under 43-C(3) of the Rules, nowhere a ceiling of maximum of 40 days in not more than three spells in a calendar year is provided. This is the first CCL claimed by the applicant for taking care of her newly born child. 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.
10 OA No.38/2023/CAT/BANGALORE BENCH
10. Circular dated 30.11.2018 issued by the Respondent No.1 (Annexure R1) prescribes the modified guidelines for sanction of CCL, the relevant paragraphs are extracted here under for ready reference:
"2. To ensure smooth functioning of patient care services and to provide equal opportunity for all women employees to avail CCL a ceiling of Maximum 40 days of CCL is admissible per employee in not more than three spells in a calendar year. Above and beyond said ceiling will have to be suitably justified and requires ratification by CCL Committee.
3. ................................
4. ................................
5. CCL is restricted to 5% of women employees in any Section/Department keeping in view the staff available after considering all types of leave sanctioned to other employees in that particular period."
11. It is well settled that statutory rules have supremacy over the guidelines issued by the NIMHANS. Statutory Rules prevails over the administrative guidelines/instructions. A ceiling of maximum of 40 days CCL provided in the circular dated 30.11.2018 runs contrary to the statutory rules of 43-C. Even assuming that for administrative reasons, if a maximum of 40 days ceiling of CCL per employee in not more than three spells in a calendar year is prescribed, no rejection of the claim of 11 OA No.38/2023/CAT/BANGALORE BENCH CCL applied by the applicant has been made for the said reason. No special rules are framed for the staff working in Emergency ICU. Taking shelter of shortage of staff, outright rejection of the claim of the applicant made, is wholly unsustainable. Further, no grounds urged by the applicant in her representation for CCL has been adjudicated upon while passing the impugned order.
12. At this juncture, it is apt to refer to the judgment of the Hon'ble High Court of Kerala in the case of C.R.Valsalakumari supra. 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 12 OA No.38/2023/CAT/BANGALORE BENCH 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 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."
13. In the said judgment, referring to the Kakali Ghosh supra, the Hon'ble Apex Court observed that the question which fell for consideration in Kakali Ghosh supra, was whether 730 days of CCL can 13 OA No.38/2023/CAT/BANGALORE BENCH be availed at a stretch wherein, it has been held that CCL can be claimed for continuous period of 730 days. 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 motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre- or post-natal period."14 OA No.38/2023/CAT/BANGALORE BENCH
14. 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 (W.P.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""
15. The Hon'ble High Court of Uttarakhand in the case of Deepa Sharma (Dr.) vs. State of Uttarakhand and others (Writ Petition No.54/2015 (S/B) dated 15.12.2016 in para-15 to 18 has observed thus: 15 OA No.38/2023/CAT/BANGALORE BENCH
"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."
16 OA No.38/2023/CAT/BANGALORE BENCH
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. It is not the case of the respondents that the applicant is not entitled to CCL or legally claim the leave. Outright rejection has been made on the ground of shortage of staff in EICU. If there existed any exigency, the respondents should have sanctioned leave atleast in different spells. In the absence of any family member available for taking care of the child who was totally dependent on mother's feeding, the applicant has applied for child care leave, the same ought not to have been denied on technicalities contrary to the objects of Rule 43-C. Hence the impugned order at Annexure A4 dated 02.01.2023 is unsustainable, deserves to be quashed and is accordingly set aside. The respondents are directed to consider grant of Child Care Leave to the applicant from 14.01.2023 to 14.05.2023 for a period of 120 days and extend the CCL benefits. This exercise shall be completed by the respondents in an expedite manner in any event not later than eight weeks from the date of receipt of certified copy of the order. 17 OA No.38/2023/CAT/BANGALORE BENCH
17. Resultantly, OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.