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Ideally, child care leave can be given to both parents, father and mother, as the actual 'beneficiary' here is the child, the Court added.
A Full Bench of the Uttarakhand High Court has re-affirmed that government employees appointed on contract cannot be denied maternity or child care leave (CCL) only on account of their being contractual workers, as opposed to regular employees (Smt. Tanuja Tolia v. State of Uttarakhand and ors).
However, since the State-specified period of 730 days child care leave may exceed the term of the worker's contract, the Court added that contractual workers employed for a shorter term of 1 year can only avail 31 days child care leave. This is on par with the number of "earned" or "paid" leaves available to government employees as per the directives issued by the Uttarakhand Government.
The Bench of Chief Justice Ramesh Ranganathan and Justices Sudhanshu Dhulia and Alok Kumar Verma on Friday held as follows:
Child care leave should be for the same number of days as an earned leave which a regular employee gets in a year.
This was in view of the Government Order issued by the State Government in May 2011 where it was mentioned that the CCL shall be treated on the same footing as earned leave, and will be sanctioned in the same manner.
As per this GO, State Government employees are entitled for 31 days of earned leave in a year.
Applying the same principle, the Court held that an employee whose entire employment is for one year, if he/she fulfils the other parameters given in the May 2011 GO (i.e. she has two children, who are less than 18 years of age) will also be entitled for the child care leave for 31 days.
The May 2011 GO stipulates that CCL shall not be given as a matter of right, and no one will go on CCL without its proper sanction. The same principle shall be applicable for a contractual employee as well.
Normally child care leave should not be denied. It could only be denied by the employer on very pressing valid and plausible reasons, which must be specifically stated, when such a request for child care leave is being denied.
In passing the ruling, the Bench also emphasised that the underlying rights being protected in the grant of such leave is not that of the parents' but that of the child.
The Court also added that, ideally, child care leave should be available to both parents of the child.
On a related note, the Court was infromed that as far as Central Government employees are concerned, CCL may now also be available to single fathers as well.
The case before the Court concerned a plea by an Ayurvedic doctor engaged by the State Medical and Health Services on a contract basis. After having availed the six-month maternity leave sanctioned to her, the woman employee did not join back to service but instead applied for child care leave.
However, her request was denied. The Government's order of May 2011 stated that child care leave could only be given to a "regular Government employee" and not contractual employees.
This prompted the woman to move the High Court, while also relying on the Court's 2015 Division Bench judgment in Dr. Shanti Mehra Vs. State of Uttarakhand, wherein it was held that even contractual employees are entitled to the child care leave of 730 days specified in the 2011 GO.
When this plea came up before a Division Bench of the High Court, it was pointed out that the statutory period of CCL (730 days) would exceed the term of the woman's work contract itself i.e. 1 year/ 365 days. Therefore, the Bench doubted the correctness of the 2015 Shanti Mehra verdict and made a reference to a larger Bench.
To resolve the reference, the Full Bench took note that Courts, through various judgments, have already ruled against making distinctions between contractual workers and regular workers when it comes to the grant of maternity leave. As such, the Court opined that, "the same principle ought to be adopted while considering child care leave as well."
Therefore, the Full Bench ruled in favour of the woman employee and directed that the matter be placed before the Division Bench for further appropriate orders.
Advocates BD Pandey with Advocates Harshit Sanwal and Rakshit Joshi appeared for the petitioner. Chief Standing Counsel Paresh Tripathi appeared with Advocate Suyash Pant for the State.