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2019 DIGILAW 755 (GAU)

Sewali Deka Talukdar v. State of Assam

2019-06-14

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. 1. Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. R. Singha, learned counsel for the petitioner. Also heard Mr. D.P. Borah, learned standing counsel for the respondent Nos. 1, 5, 6 & 7 and Mr. B. Gogoi, learned standing counsel for the respondent Nos. 2, 3 & 4. 2. In this petitioner, the petitioner has challenged the order dated 05.04.2017 by which the application filed by the petitioner for grant of child care leave for two years has been rejected on the ground that the said leave application for a period of two years cannot be considered at a stretch by referring to Rule SR-121 (2) (XV) which provides that child care leave shall be granted for a maximum of three spells in a calendar year. 3. Petitioner has assailed the aforesaid rejection on the ground that the said rejection is by misconstruing the aforesaid provision which only provides that the aforesaid leave can be granted to the extent of three years in a calendar year. 4. The plea of the petitioner is that the petitioner is not seeking child care leave more than three times. In fact, what she is seeking is only for once, for a period of two years as entitled to her in terms of the notification dated 31.07.2015 issued by the Govt. of Assam, Finance Department. 5. It has been submitted that by the said notification dated 31.07.2015, the Govt. of Assam inserted Rule SR-121 (2) (XV) the provision of grant of two years of child care leave to women employees of the Govt. of Assam. 6. It is a case of the petitioner that there is no limitation of the leave period provided under the notification. 7. It has been submitted that in the present case the petitioner is not seeking multiple leaves but seeking the said child care leave at one go, which Govt. is not prohibited under the rules. On the other hand, the State vide the said impugned letter dated 05.04.2017, by invoking the Clause XV of the aforesaid rules has rejected the application of the petitioner. 8. The petitioner has also submitted that the Director of Medical Assam had written to the State Govt. for considering grant of one year of child care leave (first spell) in favour of the petitioner as communicated by the Director in his letter dated 08.06.2016. 9. 8. The petitioner has also submitted that the Director of Medical Assam had written to the State Govt. for considering grant of one year of child care leave (first spell) in favour of the petitioner as communicated by the Director in his letter dated 08.06.2016. 9. It is a case of the petitioner that the petitioner's daughter is around 11 years and she has been selected for undergoing advanced training in Rhythmic Gymnastics in Mohali, Punjab for two years. It has been submitted that since her daughter is a minor, she would require proper monitoring and guidance at this tender age and if the petitioner is not given child care leave as sought for, her daughter may not be in a position to attend the said course, and as such, if the said leave is not granted her daughter may have to forgo the said opportunity of being trained in Rhythmic Gymnastics in Mohali. 10. The respondents have filed their affidavit in this case. 11. In affidavit-in-opposition filed by the Health Department, it has been contended that the authorities had declined to grant the aforesaid two years of child care leave after considering the report submitted by the Head of Department of Clinical Haematology, Gauhati Medical College & Hospital, where the petitioner is serving as a Registrar, which indicates that Department is taking care of various clinics involving Leukemia, Lymphoma, Hemophilia and Thalassemia besides regular inter & intra departmental academic discussion and activities, and absence of a single manpower may result in a lot of extra burden in rendering optimum service. However, it would be possible to manage the workload with an adequate substitute. 12. The Finance Department which issued the notification also filed an affidavit contending that grant the child care leave is not a matter of right but at the discretion of the authority and the compete authority has a right to refuse or grant the same in exigency of service. 13. 12. The Finance Department which issued the notification also filed an affidavit contending that grant the child care leave is not a matter of right but at the discretion of the authority and the compete authority has a right to refuse or grant the same in exigency of service. 13. As regards the stand taken by the Medical Department it is contended by the learned senior counsel for the petitioner that the aforesaid reliance on the letter of the Head of Department is merely an afterthought as by the said letter dated 04.05.2016, the Director of Medical Education had already recommended grant of child care leave and accordingly it has been submitted that the Director had taken into consideration all these aspects before recommending the said request for grant of child care leave by the petitioner, and as such, there would have been no difficulty on the part of the State Govt. to accept the said recommendation of the Director in granting child care leave of one year, even though the petitioner had sought for two years leave. 14. Learned senior counsel for the petitioner further submits that the affidavit filed by the respondent Department perhaps does not portray the correct picture,' in view of the fact that at the time of issuing impugned order. dated 05.04.2017, nothing was mentioned in the rejection order which merely says that child care leave shall be granted for a minimum of three spell of a calendar year and as such, the application for child care leave for a period of two years cannot be considered at a stretch. 15. As regards Rule SR 121 (2) (XV), the same was notified by the authority on 16.9.2015, which provides that the child care leave shall be granted for a maximum of three spells in a calendar year. However, as mentioned above, the said rule does not indicate the duration of the spell which can be availed by an employee. Be that as it may, the reason for rejection is not on the ground as mentioned by the respondent authorities in their affidavit filed on 13.06.2019. 16. Heard learned counsel for the parties and perused the materials on record. 17. It is now well settled that grant of child care leave is at the discretion of the authorities. Be that as it may, the reason for rejection is not on the ground as mentioned by the respondent authorities in their affidavit filed on 13.06.2019. 16. Heard learned counsel for the parties and perused the materials on record. 17. It is now well settled that grant of child care leave is at the discretion of the authorities. However, the said discretion has to be exercised by the authorities reasonably and in accordance with law and as per the situation obtaining in each case and there cannot be hard and fast norm to regulate the term of the leave. 18. Child care leave is new kind of benefit which has been introduced for the benefit of women employees' with the purpose of enabling women employees to take care upto two minor children, whether for rearing or to look after any of their needs like examination, slickness etc. subject to the conditions notified under notification. The said child care leave has been also adopted by the State Govt. by notifying under notification 31.7.2015. The said notification also enumerates the various conditions for availing the said child care leave. 19. As is well settled, it has been also provided under the said notification that the child care leave shall not be demanded as a matter of right and under no circumstances can any employee proceed on child care leave without prior sanction of leave by the competent authority. In fact considering the aforesaid provisions of the notification, the petitioner had applied for grant of two years of child care leave after her minor daughter was selected to undergo training in Rhythmic Gymnastics in Mohali. 20. In this regard, it may be mentioned that the authorities did grant six months of child care leave vide order dated 30.12.2016 for the aforesaid purpose of enabling the petitioner to attend to her child while undergoing advance Rhythmic Gymnastics. 21. However, since the said six months leave was considered inadequate as the petitioner had to take her minor daughter to Punjab and ensure her boarding and lodging for the purpose of undergoing the said training, had applied for two years of child care leave. 22. It has been submitted by the learned counsel for the petitioner that in fact, the child care leave application submitted by the petitioner through proper channel was duly recommended by the Principal-cum-Chief Superintendent of the College on 21.04.2016. 22. It has been submitted by the learned counsel for the petitioner that in fact, the child care leave application submitted by the petitioner through proper channel was duly recommended by the Principal-cum-Chief Superintendent of the College on 21.04.2016. Thereafter, the State Govt. also sought for a report from the Principal-cum-Chief Superintendent of the College on 02.05.2016 seeking clarification as to whether grant of such long leave to the petitioner would lead to disruption of the functioning of the College. In response to the said communication, the Head of Department submitted a report to the Principal-cum-Chief Superintendent on 4.5.2016 stating that a Department of Clinical Haematology, Gauhati Medical College & Hospital, in which petitioner is serving is catering to various needs, as mentioned above, and these services are being rendered with very minimal manpower and absence of single manpower results in a lot of extra burden in rendering optimum service. However, it would be possible to manage the workload with adequate substitute. 23. It may be noted that after the said report was submitted on 04.05.2016, the Director of Medical Education in the subsequent letter dated 08.06.2016 recommended that the petitioner may be granted one year of child care leave (first spell). It may be noted that prior to the said letter dated 08.06.2016, there was a communication from the Govt. of Assam to the Director of Medical Education as mentioned in the letter dated 02.05.2016 of the Govt. of Assam to the Principal-cum-Chief Superintendent directing the Director to attend the Office Chamber of Commissioner & Secretary, Health & Family Welfare Department in this regard. 24. Accordingly, it can be inferred that the Director of Medical Education duly recommended the grant of child care leave for one year after necessary discussion. 25. Therefore, from the pleadings there are indications that the petitioner's request for grant of child care leave may be granted for one year at least. 26. Though, the claim for grant of child care leave cannot be granted as a matter of right as mentioned in the notification and is also well settled, yet denial of the same without proper reason cannot be also accepted as otherwise, it would defeat the very purpose of creating such a leave, which has been specifically provided for the benefit of the children and not for the employee herself as mentioned in the notification itself. 27. 27. The notification dated 31.07.2015 mentions that women employees having minor children (children upto 18 years of age) may be granted child care leave (CCL) by an authority competent to the grant leave, for a maximum period to two years (i.e. 730 days) during the entire service for taking care of upto two minor children whether for rearing or to look after any of their needs like examination, sickness etc. subject to the conditions mentioned therein. 28. However, while the interest of the women employee with respect to the child has to be considered, the public interest also has to be kept in mind. 29. In the present case, the petitioner is admittedly serving as a Registrar in a Department of Haematology, which plays a critical role in the health care service rendered by the State. 30. Therefore, if the State Govt. declines to grant two years of child care leave sought by the petitioner, it cannot be said to be unreasonable. On the other hand, if the petitioner submits that she would require longer period of child care leave of more than six month for taking care of her child for undergoing training in Rhythmic Gymnastics in Mohali, which the authorities themselves had earlier sanctioned, as mentioned above, the said prayer of the petitioner also cannot be said to be unreasonable, for it would require shining of the location from the present place of residence at Guwahati to Mohali in Punjab and it would be in the best interest of the child that the mother also accompanies her during such training period. 31. Be that as it may, there are certain indications on the part of the authorities to grant the child care leave for a period of one year as recommended by the Director of Medical Education and also not totally opposed by Medical College and also the petitioner has submitted that she would be satisfied if the authorities grant child care leave in multiple spells with each spell having at least six months period with reasonable break in between the spells, so that she can take care of well being of her child for undergoing the aforesaid training. 32. 32. Considering the aforesaid submission made by the learned counsel for the petitioner, and also keeping in mind the requirement of the State as mentioned above, and materials on record, this Court is of the view that it would be appropriate if the authorities grant child care leave to the petitioner initially for a period of six months for the first spell, followed by other spells with breaks in between the spells for about a month or two months as may be decided by the authorities, provided the entire child care leave does not exceed 730 days, as provided in the aforesaid notification, so that the petitioner can take care of her child, and the health care system also does not unduly suffer on account of long absence of the petitioner. 33. Petition is accordingly disposed of.