Case Law Details

Case Name : Tanuja Tolia v. State of Uttarakhand & Ors. (Uttarakhand High Court at Nainital)
Appeal Number : Writ Petition (S/B) No. 263 of 2019
Date of Judgement/Order : 24/07/2020
Related Assessment Year :

Tanuja Tolia v. State of Uttarakhand & Ors. (Uttarakhand High Court at Nainital)

A full bench of Uttarakhand High Court has upheld the rights of a person working on a contractual basis to have the right of getting child care leave as same as any other regular Government employee.  It was agreed that the child care leave is primarily for the benefit and a matter of right of the child, as a child whose mother happens to be employed on a contractual basis with the Government will have similar needs as any other child.

Mere denial of a Child Care Leave (CCL) to a government employee due to her employment being contractual in nature would mean a denial of rights of a child rather than the mother as an employee and doing such will be a violation of the rights of the child under Article 14 and 21 of the Constitution of India.

Though, the bench also added a proviso that” an employee could be allowed a  CCL for a period of  31 days, as an “earned leave” as is given to employees in pursuance of the order dated May 30, 2011 provided by the Uttarakhand Government specifying “Child Care Leave for Woman Government Servants in Service”.

Background:

A reference made by a division bench of the High Court where the petitioner namely Tanuja Tolia was a mother, who was practicing as an Ayurveda doctor at the State Medical and Health Services, Uttarakhand on a contractual basis.

After the completion of her maternity leave, she applied for the CCL that was rejected by the Director, Ayurveda and Unani Services asserting that the petitioner being a contractual employee was not eligible for the benefit of CCL.

On the other hand, the respondents had asserted that the total period of employment of the petitioner was of twelve months, and accordingly, it would be impossible for the entity to allow CCL for a period of 730 days.

The division bench of the High Court declared that the provisions of CCL are a constructive provision in law created for the benefit of the female workforce in the country. Consequently, such a provision must be given liberal construction and female employees, regardless of the nature of the job.

Findings of the Bench:

It was also observed that the question of rights of CCL is not alone in this case but it happened similarly in case of rights of maternity leave. It is not an acknowledgment of the rights of a woman but, more in the recognition of the rights of a child concerned. Similar to this situation, maternity leave was also deprived of the contractual worker as remarked by the Full Bench.

It was added that it was only in the year 2000, that the Supreme Court in the case of the Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and Anthr. (2000) 3 SCC 224, decided that the right to get the maternity leave shall be the same in all kinds of employment including the women engaged in the job of a muster roll employees of a corporation.

Thus, the court held that when no difference in the observation has been placed while allowing the right of maternity benefit, the same construction needs to be practiced in consideration of CCL as well.

It remains undoubted that even an employee engaged on a contractual basis only for a period of  12 months is eligible for a child care leave and this entitlement has to be understood in the light of the provisions of the Government order dated 30.05.2011 itself.

Additionally, it could be understood that the remedies sought by the petitioner under Article 39(f), Article 42 an Article 45 areas contained in Part IV of the Constitution also known as Directive Principles of State Policies.

Conclusion:

Thus, the judgment delivered by the bench of Uttarakhand could be seen as one more step towards securing justice and an efficient provision for enabling better social security for employees in the country.

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