In a judgement delivered by the Uttarakhand High Court on July 24 the court reaffirmed that the employees employed on contractual basis cannot be denied maternity or child care leave.
The matter was heard by a full Bench of the High Court consisting of Chief Justice Ramesh Ranganathan, Justice Sudhanshu Dhulia and Justice Alok Kumar Verma. The petitioner had filed a writ petition before the Court on behalf of an Ayurvedic doctor. As a contractual employee, she had sought to access her child care leaves after availing her maternity leaves. The petitioner relied on the judgement of the Uttarakhand HC in Dr Shanti Mehra v State of Uttarakhand, where it was held that even a contractual employee was entitled for child care leave for a period of 730 days.
In response, the State contended that they disagreed with the Order passed in Dr Shanti Shanti Mehra v State of Uttarakhand. It was contended before a division bench that the total period of employment is 365 days, and therefore it was not possible to grant child care leave for 730 days.
The full bench clarified that the state was indeed obligated to grant at least 730 days for child care to the petitioner. In their analysis, the Court said “Gradually as modern societies grew it was recognised that women as well as children both have special needs. This social approach was first reflected in the rights for the maternity leave and later for the child care leave.” Delving further into the readings of feminist reflections of labour law, the Court contended, “Behind the concept of maternity leave as well as the child care leave lie the philosophy of social responsibility which conveys that an individual who is in need of care 8 is an equal responsibility of his family as well as of the State”
Further the Court also reflected on relevant provisions of the UDHR and the CEDAW and other international law jurisprudence. Referring to Article 15, 42 and 45 of Constitution the Court held “All these provisions were brought into force with the needs and rights of children in mind. Similarly Child care is again essentially a recognition of the need and the rights of children, more than a recognition of woman’s right, as already stated above.”
In conclusion, the Court clarified a contractual employee whose employment is only for one year, cannot be granted child care leave for 730 days. Such an employee can be granted paid child care leave for 31 days, on the same terms and principles as “earned leave”, as is given to other employees as per the government order.
Read the judgement here:
[pdfviewer]https://migrate.theleaflet.in/wp-content/uploads/2020/07/Smt__Tanuja_Tolia_v__State_of_Uttarakhand_and_ors___Uttarakhand_HC-1.pdf[/pdfviewer]
