Child Care Leave is justiciable and essential for the welfare of lactating mothers, emphasizing the employer's duty to act as a model employer in a Welfare State.

ORDER :

(Krishna S. Dixit, J.)

Petitioner-NIMHANS, is knocking at the doors of Writ Court for assailing Central Administrative Tribunal's order dated 14.02.2024 whereby, respondents Original Application No.18/2023 having been favoured, it has been 'directed to consider grant of Child Care Leave from 14.1.2023 to 14.5.2023 for a period of 120 days and extend CCL benefits' within eight weeks.

2. Learned Panel Counsel appearing for the petitioner passionately submits 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; granting such a long leave would create difficulties in the ICU wherein, the respondent-employee is working; in any event, relief of the kind could not have been accorded to the employee. So arguing, he seeks invalidation of the impugned order. Learned counsel appearing for the respondent-employee resists the petition making submission in justification of the impugned order and the reasons on which it has been constructed. In support of his resistance, he places reliance on an interim order of the Apex Court in SHALINI DHARMANI vs. STATE OF H.P., 2024 SCC OnLine SC 653.

3. Having heard the learned counsel for the parties and having perused the Petition Papers, we decline indulgence in the matter broadly agreeing with the reasoning part of the impugned order of the Tribunal:

(a) The first submission of Panel Counsel appearing for the Petitioner that any leave in public employment is not a matter of right and therefore, grievance of the kind could not have been carried to the Tribunal, appears to be too farfetched a proposition. Ours being a constitutionally ordained Welfare State and therefore, an entity that answers definition of 'State' u/a 12 of the Constitution has to conduct itself as a model employer vide BHUPENDRA NATH HAZARIKA vs. STATE OF ASSAM, (2013) 2 SCC 516. Therefore, it cannot be gainfully argued that 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. However, the scope of interference in such matters, would depend upon facts & circumstances of each case.

(b) Refusal of leave though appears to be a small matter, more often than not, however, it cannot be too much generalized. It all depends upon the nature of leave applied for, the kind of employment and such other factors. Differentiation cannot be avoided: A casual leave is a matter of routine whereas, maternity leave is a serious matter. So also, medical leave depending upon the nature of ailment. The significance of Child Care Leave also cannot be discounted. Respondent, who hails from Kerala, is a bonafide employee of the petitioner working since 2016 with spotless service records. Her’s is an inter-caste marriage; she begot a baby. Maternity leave apart, 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. This view can be gathered from the following text of sub-Rule (3)(iii):

"It shall not ordinarily be granted during the probation period except in case of certain extreme situations where the leave sanctioning authority is satisfied about the need of child care leave to the probationer, provided that the period for which such leave is sanctioned is minimal".

(c) The related contention of the Panel Counsel that the text of sub-Rule (1) of 43C employs the term 'may be granted' and therefore, enormous discretion lies with the employer to grant or not to grant leave of the kind, cannot be countenanced. Let us see text of this sub-Rule (1), which is reproduced below:

"Subject to the provisions of this rule, a female Government servant and single male Government servant may be granted child care