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2023 Supreme(Mad) 3027
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
L. VICTORIA GOWRI, J.
B. Saravanan - Appellant
Versus
The Deputy Inspector General of Police, Tirunelveli & Ors. - Respondents
W.P.(MD). No. 19561 of 2023 & W.M.P(MD) Nos. 16159, 16160, 16161 of 2023
Decided On : 11-08-2023
For the Petitioner:R. Anand, Advocate, For the Respondent: M. Prakash Additional Government Pleader.
The central legal point established in the judgment is the significance of paternity leave in protecting the child's right to survive, as guaranteed under Article 21 of the Constitution of India.
Headnote:
Paternity Leave - Labour Law - Central Civil Services (Leave) Rules, 1972, Police Standing Order 95(1)(2) - The court discussed the significance of paternity leave, the legal provisions related to paternity leave, and the violation of Article 21 of the Constitution of India in refusing paternity leave. The court quashed the impugned desertion order and directed the first respondent to reconsider the petitioner's case and reinstate him as Inspector of Police.
Fact of the Case:
The petitioner, an Inspector of Police, sought paternity leave to care for his wife during a high-risk pregnancy due to In Vitro Fertilization (IVF). Despite initially granting leave, the second respondent later canceled it, leading to the petitioner's absence from duty and subsequent desertion order. The petitioner approached the court seeking to quash the desertion order.
Finding of the Court:
The court found that the petitioner's request for paternity leave was justified, considering the high-risk nature of his wife's pregnancy. The court also noted the violation of the petitioner's rights under Article 21 of the Constitution of India. Consequently, the court quashed the impugned desertion order and directed the first respondent to reconsider the petitioner's case and reinstate him as Inspector of Police.
Issues: The issues involved the refusal of paternity leave, subsequent absence from duty, and the legality of the desertion order issued by the first respondent.
Ratio Decidendi: The court held that the refusal of paternity leave violated the petitioner's rights under Article 21 of the Constitution of India, which guarantees the right to life and protection of life. The court emphasized the significance of paternity leave in ensuring proper prenatal and postnatal care, ultimately protecting the child's right to survive.
Final Decision: The court quashed the impugned desertion order and directed the first respondent to reconsider the petitioner's case, extend the time for submitting an explanation, and reinstate the petitioner as Inspector of Police within a specified period.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus by calling for the entire records pertaining to the order passed by the first respondent in Na.Ka.No. A2/ 1941/2023 Sa.A.Aanai No. 236/2023, dated 22.06.2023 and quash the same and consequently direct the respondents to reinstate the petitioner as Inspector of Police, Kadayam Police Station, Tenkasi District.)1. The present writ petition has been filed seeking to quash the order passed by the first respondent in Na.Ka.No. A2/ 1941/2023 Sa.A.Aanai No. 236/2023, dated 22.06.2023 and consequently direct the respondents to reinstate the petitioner as Inspector of Police, Kadayam Police Station, Tenkasi District.
“ONE WHO GIVES BIRTH, ONE WHO INITIATES, ONE WHO IMPARTS KNOWLEDGE, ONE WHO PROVIDES FOOD AND PROTECTS FROM FEAR – THESE FIVE ARE CONSIDERED AS FATHERS” – Neeti Sastra :80
1. Prelude:
1.1.It was during the first International Labour Conference (ILO) in 1919 that, the first convention on maternity protection (Convention No.3) was adopted. Significantly, the adoption of the International Labour Organisation (ILO) workers with Family Responsibilities Convention, 1981 marked the recognition that “a change in the traditional role of men as well as the role of women in society and in the family is needed, to achieve full equality between men and women”, as stated in the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979. Over the past 20 years, paternity leave provisions have also become more common, which is an indicator of the growing importance attached to the presence of the father around the time of child birth. In 1994, statutory paternity leave provisions existed in 28% of the 141 countries for which data were available at the International Labour Organisation. As on date, a majority of countries have establised legislative provisions to protect and support maternity and paternity, even if those provisions do not always meet the ILO standards.
1.2.Maternity protection is a fundamental human right and an indispensable element of comprehensive work family policies. The 1948 Universal declaration of Human Rights states that motherhood and childhood are entitiled to special care and assistances as well as to social security. In providing the mother and child with utmost attention, the role of father is imminent. Father and mother are the inevitable instruments of parenting partnership. There is no law in India mandating the private sectors in India to provide paternity leave for working fathers. However, the Central Civil Services (Leave) Rules, 1972 provides with paternity leave and the relevant provision is extracted as follows:
“43-A. Paternity leave (DOPT Notification No. 13026/1/99-Estt. (L), dated 18.04.2002)
(1) A male Government servant (including an apprentice) with less than two surviving children, may be granted Paternity Leave by an authority competent to grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date of delivery of the child.
(2) During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3) The paternity Leave may be combined with leave of any other kind.
(4) The paternity leave shall not be debited against the leave account.
(5) If Paternity Leave is not availed of within the period specified insubrule (1), such leave shall be treated as lapsed. NOTE:- the Paternity Leave shall not normally be refused under any circumstances.
43-AA. Paternity Leave for Child Adoption (DOPT Notification No. 110 I2/l/2009-Estt. (L), dated 01.12.2009)
(1) A male Government servant (inc
