The Karnataka High Court has upheld an order passed by the Central Administrative Tribunal (CAT) which directed the National Institute of Mental Health and Neurosciences (NIMHANS) to “consider granting” child care leave children (CCL) to a nurse for a period of 120 days. and extend CCL benefits within eight weeks.

In doing so, the court emphasized that NIMHANS, as an instrument of the State, must be taken into consideration while processing applications for maternity and childcare leave of female employees. The court further emphasized that a breastfeeding mother has the fundamental right to breastfeed her baby and spend reasonable time with him and the baby also has the fundamental right to be breastfed.

A division bench of Justice Krishna S Dixit and Justice CM Joshi by rejecting the NIMHANS petition against the CAT order read: “The petitioner-NIMHANS, who is an instrumentality of the State under Article 12, must behave like a model employer and show consideration while dealing with the requests of female employees for maternity and childcare leave of children. He cannot ignore that it is the mother who is the best judge in deciding what would be in the best interest of a growing baby.“.

The Court had allowed the application filed by S Anitha Joseph. NIMHANS, challenging the February 14 order, contended that any authorization is not a question of law; The question of whether or not the application for leave should be granted involves a multitude of factors which cannot be determined judicially. Additionally, granting Anitha such a long leave would create difficulties within the intensive care unit where she works.

The bench noted that it cannot be validly argued that the employer’s decision to grant or refuse leave is not justiciable. In appropriate cases involving elements of injustice, an aggrieved employee can resort to legal proceedings, he said. However, the extent of interference in such matters would depend on the facts and circumstances of each case, the court added.

Rejecting the petitioner’s contention, the bench said: “Casual leave is a matter of routine while maternity leave is a serious matter… The importance of child care leave cannot be ignored. The respondent, a native of Kerala, is a bona fide employee of the petitioner working since 2016 with impeccable service record. Apart from maternity leave, a breastfeeding mother must sometimes benefit from child care leave; the maximum is 120 days combined with leave of any other nature as per Rule 43C of the Central Civil Service (Leave) Rules, 1972. Only in the case of an employee on probation Such leave may be refused.“.

The petitioner’s counsel submitted that the text of sub-rule (1) of the Central Civil Service (Leave) Regulations 43C uses the term “may be granted” and, therefore, enormous discretion rests with the employer to grant leave or not. the kind. The court, however, declared that this contention could not be accepted.

He said civil servants and civil servants are not the “native captives of state entities within the meaning of Article 12”; they are part of the Executive and enjoy protection and status; although their access to employment begins with a contract, it results in status. Therefore, the employer’s action must be consistent with this, he adds.

The court further emphasized that a ““The nursing mother has the fundamental right to breastfeed her baby” and to spend a reasonable amount of time with him as required by his upbringing, especially during the formative years.

He further emphasizes that even a baby has the fundamental right to be breastfed and that, in a way, “these two rights constitute a single singularity”.

“This important attribute of motherhood is protected as part of the fundamental rights guaranteed by Article 21 of the Constitution. “Breastfeeding is a human rights issue for babies and mothers. It must be protected and promoted in the interests of both parties,” say UN experts.“, underlined the court.

He further adds: “The greatness of a civilization can be measured, among other things, by observing the way in which women and children are treated. » The court referred to the smrutikaaraas of millennia ago, which translate to “where women are honored, there divinity flourishes; where they are dishonored, all action remains fruitless.”

Noting that there are more than 700 nurses, 70% of whom are women, the court said: “How the absence of such a nurse would create insurmountable difficulties remains a riddle shrouded in enigma.“.

He then held “In areas like this, the decision must be based on data and not on assumptions and presumptions. Nor has it been demonstrated to us that the 5% rule would have been violated if child care leave had been granted to the respondent. She also explained in her statement dated 12.08.2022 why she needed such a long leave. It is difficult to guess what heaven would have fallen if his request had been favorably received. The Tribunal, in its well-reasoned order, rightly awarded relief to the employee.“.

The court later dismissed NIMHANS’ plea, directing him to give immediate effect to the CAT’s order.

Case Title: National Institute of Mental Health and Neurosciences ET S Anitha Joseph

Appearance: Advocate Prabhakar Rao K for the petitioner.

Advocate Suraj Naik for the respondent

Citation number: 2024 LiveLaw (Kar) 482

Case No: WRITTEN PETITION NO. 11915 FROM 2024

Click here to read/download the order