Karnataka HC directs NIMHANS to consider giving nurses 120 days of childcare leave

On November 26, 2024By Pranco

The Karnataka High Court has upheld a Central Administrative Tribunal (CAT) order directing the National Institute of Mental Health and Neurosciences (NIMHANS) to consider granting 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 underlined that NIMHANS, as an instrument of the state, must be attentive while dealing with the claims of women employees for maternity and childcare leave. The court further emphasized that a nursing mother has a fundamental right to breastfeed her baby and spend a reasonable amount of time doing so, and that the baby also has a fundamental right to be breastfed.

A Division Bank of Justice Krishna S Dixit and Justice CM Joshi during rejection the NIMHANS petition against the CAT order read: “The petitioner-NIMHANS, being an organ of the State under Article 12, must behave like a model employer and be considerate while dealing with the claims of women employees for maternity and childcare leave. We cannot be oblivious to the fact that it is the mother who is the best judge of what is in the best interests of a growing baby.”.

The Tribunal had allowed the application of S. Anitha Joseph. NIMHANS challenged the February 14 order, contending that any leave is not a matter of right; Whether or not a request for leave should be granted depends on a large number of factors that cannot be determined by the court. Moreover, granting Anitha such a long leave would cause problems in the intensive care unit where she works.

The court noted that it cannot be profitably argued that the employer’s decision to grant or deny leave cannot be challenged in court. In appropriate cases involving elements of injustice, an injured worker may resort to legal proceedings, the court said. However, the extent of interference in such cases would depend on the facts and circumstances of each case, the court added.

The court rejected the petitioner’s contention: “Casual leave is a matter of routine, while maternity leave is a serious matter… The significance of childcare leave cannot be underestimated. The respondent, who hails from Kerala, is a bona fide employee of the petitioner and has been working since 2016 with an unblemished record. Excluding maternity leave, a nursing mother may sometimes be required to take child care leave; the maximum is 120 days combined with leave of any other nature within the meaning of Rule 43C of the Central Civil Services (Leave) Rules, 1972. Only in the case of an employee who is on probationary period such leave can be refused.”.

Counsel for the petitioner submitted that the text of sub-rule (1) of 43C Central Civil Services (Leave) Rules uses the term ‘may be granted’ and therefore the employer has a vast discretion as to whether to grant leave or not grant. the kind. However, the court rules that this statement cannot be accepted.

It said civil servants and civil servants are not the “indigenous prisoners of state entities within the meaning of Article 12”; they are part of the executive branch and enjoy protection and status; Although their entry into the labor process begins with a contract, this becomes a status. Therefore, the employer’s action must be in accordance with this, it added.

The court further emphasized that a “A nursing mother has a fundamental right to breastfeed her baby and to devote a reasonable amount of time to it as necessary for its upbringing, especially during its formative years.

It further underlined that even a baby has a fundamental right to breastfeed and that in a sense “both rights constitute one particularity”.

“This important attribute of motherhood is protected under the umbrella of 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 for the benefit of both,” the UN experts say”, the court underlines.

It further added: “One way to measure the greatness of a civilization is by observing how women and children are treated.” The court referred to smrutikaaraas from thousands of years ago, which translates to ‘where women are honoured, there divinity flourishes; where they are dishonored, all action remains fruitless.”

The court noted that there are more than 700 nurses, 70% of whom are women: “How the absence of such a nurse would lead to insurmountable problems remains a mystery shrouded in enigma”.

It held up then “In these types of cases, decisions have to be somewhat data-driven, and not based on assumptions and conjectures. We have also not found that the 5% rule would have been violated if the defendant had been granted child care leave. In her statement dated August 12, 2022, she also explained why she needed such a long leave of absence. It is difficult to guess what heaven would have fallen if her request had been favorably judged. In its reasoned decision, the court rightly awarded compensation to the employee”.

The court subsequently dismissed NIMHANS’ plea and directed immediate execution of CAT’s order.

Case title: National Institute of Mental Health and Neuroscience AND S Anitha Joseph