Read Judgment: Mrs. Prachi Sen V. Ministry of Defence And Ors. 

LE Correspondent

Bangalore, March 24, 2022: The Karnataka High Court has dismissed a plea by an employee of the Semi-Conductor Technology and Applied Research Centre (STARC) seeking sanction of extended Child Care Leave with retrospective effect and to regularize her salary and to release the salary withheld, saying the petitioner has not been able to point out any specific provision of law or rules that would mandate her employer organization to grant child care leave facility as is available to Central government employees.

The High Court, however, granted her liberty to make fresh representations regarding the unauthorized absence and seek regularization of the same.

“This Court would take judicial notice of the fact that there was a third wave in the month commenced from November-December 2021. Therefore, if the petitioner was unable to join duties, the fourth respondent-Organsiation is required to have sympathetic view towards the petitioner,” a Single Judge bench of Justice R. Devdas observed. 

The petitioner, working as a Senior Executive Engineer at STARC (fourth respondent), delivered a baby in 2020 and has been on maternity leave till February 14, 2021. Thereafter, the petitioner availed personal leave till April 26, 2021. However, the petitioner contended that during the second wave of COVID-19 and the lockdown announced by the Government of Karnataka, she was given the benefit along with other employees to work from home during the lockdown period. 

However, when the petitioner did not join duty after the sanctioned leave was exhausted, she received a communication that her overstay without sanction of leave would be treated as unauthorized absence and that she would not be entitled for salary for the unauthorized period of absence. She was also informed that disciplinary action could be initiated against her for willful absence from duty after expiry of leave period sanctioned by the Management.

The petitioner responded to the said communication while pointing out to the benefits that were required to be provided to a woman under maternity, in terms of the Maternity Benefit Act, 1961, and the two Official Memoranda issued by the Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training), Government of India, which provides for grant of child care leave to women employees having minor children below the age of 18 years. 

However, ignoring such contentions, the petitioner was once again called upon to join duties immediately and regularize the absence. Nevertheless, the petitioner filed the present petition. 

After considering the submissions, Justice Devdas found that the contentions of the petitioner in respect of grant of child care leave proceed on the footing that all the employees of STARC, just like the employees of the Government of India, are eligible for the said facility. 

The Single Judge noted that though reference is made to Section 5(5) of the Act, 1961, it is evident from the said provision that maternity benefits such as work from home after availing the maternity benefit could be given only in case where the nature of work assigned to the women is such that it is possible for her to work from home. 

In this regard, Justice Devdas observed that a specific decision is taken by the Organization in its meeting held along with its employees, that the premises of the Organization is sensitive and involved with risk due to usage of chemicals and toxic gases, and that the employees working with the Organization are involved in research work which is both sensitive as well as complicated. 

Having regard to the peculiar facts and circumstances of this case where the petitioner has been on leave having exhausted the leave sanctioned in her account, this Court cannot lose sight of the fact that during the period of delivery and post-delivery, there were two serious waves of COVID-19 pandemic, added the Single Judge. 

Therefore, the High Court opined that if the petitioner was unable to join duties, the Organization is required to have sympathetic view towards the petitioner.

Insofar as the Child Care Leave, as rightly pointed out by the learned Counsel for the respondents, consequent to the Advisory given by the DOPT regarding applicability of the Child Care Leave facility available to the employees of the Central/Public Sector Undertakings/autonomous bodies that decisions may be taken by the PSUs/autonomous bodies in consultation with their Administrative Ministries, the Board of Governors of the third respondent-Society has specifically resolved on 22.09.2021 that they would not implement the Child Care Leave facility in the Organisation as it would affect the production schedules and delivery timelines,” added the Court.

Accordingly, the High Court disposed of the petition and directed that as and when representations are given by the petitioner, after she joins duty, the fourth respondent-Organization shall consider such representations sympathetically. 

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