Mother Is Best Judge To Decide Interest Of Growing Baby: Karnataka HC Directs NIMHANS To Consider Giving Nurse 120 Day Child Care Leave

The Karnataka High Court has upheld an order passed by the Central Administrative Tribunal (CAT) which directed National Institute of Mental Health and Neurosciences (NIMHANS) to "consider grant" of Child Care Leave (CCL) to a nurse for a period of 120 days and extend CCL benefits' within eight weeks.In doing so the court underscored that NIMHANS as State's instrumentality has to be considerate whilst treating the claims of women employees for Maternity and Child Care Leave. The court further underlined that a lactating mother has a Fundamental Right to breastfeed her baby and to spend reasonable time with it and the baby too has a Fundamental Right to be breastfed.A Division bench of Justice Krishna S Dixit and Justice C M Joshi while dismissing the NIMHANS's petition against the CAT order said “The petitioner-NIMHANS which is an instrumentality of State under Article 12, has to conduct itself as a model employer and be considerate whilst treating the claims of women employees for Maternity and Child Care Leave. It cannot be oblivious to the fact that it is the mother who is the best judge to decide what would be in the best interest of a growing baby”. The Tribunal had allowed the application filed by S Anitha Joseph. NIMHANS, challenging the order dated February 14, contended that any leave is not a matter of right; whether application for leave should be granted or not involves a host of factors which are not judicially determinable. Moreover, granting such a long leave to Anitha would create difficulties in the ICU wherein she is working. The bench noted that it cannot be gainfully argued that the employer's decision to grant or refusal leave, is not justiciable.In appropriate cases involving elements of injustice, an aggrieved employee can resort to judicial process, it said. However, the scope of interference in such matters, would depend upon facts & circumstances of each case, the court added. Rejecting the contention of the petitioner the bench said “A casual leave is a matter of routine whereas, maternity leave is a serious matter...The significance of Child Care Leave cannot be discounted. Respondent, who hails from Kerala, is a bonafide employee of the petitioner working since 2016 with spotless service records. Maternity leave apart, a lactating mother at times has to be granted Child Care Leave; maximum is 120 days combined with leave of any other kind in terms of Rule 43C of the Central Civil Services (Leave) Rules, 1972. It is only in the case of an employee who is on probationary period, such a leave may be denied”. The counsel for the petitioner argued that the text of sub-Rule (1) of 43C Central Civil Services (Leave) Rules employs the term 'may be granted' and therefore, enormous discretion lies with the employer to grant or not to grant leave of the kind. The court however said this contention cannot be countenanced. It said that Civil servants and public servants are not the "native captives of State entities under Article 12"; they form a part of the Executive and they enjoy protection & status; although their entry in the employment begins with a contract, it graduates to status. Therefore, the action of the employer has to be consistent with the same, it added.The court further underscored that a "lactating mother has a Fundamental Right to breastfeed her baby" and to spend reasonable time with it as is required for its rearing, more particularly, during the formative years. It further underlined even a baby too has a Fundamental Right to be breastfed and in a way, "both these rights constitute one singularity". "This important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution. 'Breastfeeding is a human rights issue for babies and mothers. It should be protected and promoted for the benefit of both' say the UN experts," the court underscored. It further added “The greatness of a civilization can be measured inter alia by observing how women & children are treated.” The court referred to smrutikaaraas from a millennia ago which translates to 'where women are honoured, divinity blossoms there; where they are dishonoured, all action remains unfruitful'. Noting that there are more than 700 nurses of whom 70% are women the court said “How absence of one such nurse would create unsurmountable difficulty, remains a riddle wrapped in enigma”.It then held “In matters like this, decision has to be a bit data driven, and not on the basis of assumptions & presumptions. It is also not shown to us that the 5% Rule would have been violated if Child Care Leave was accorded to the respondent, either. She has also explained in her representation dated 12.08.2022 as to why she needed such a long leave. What heavens would have fallen down if her request was favourably considered, is difficult to guess. The Tribunal in its well reasoned order has rightly granted relief to the employee”.The court thereafter dismissed...

Mother Is Best Judge To Decide Interest Of Growing Baby: Karnataka HC Directs NIMHANS To Consider Giving Nurse 120 Day Child Care Leave

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