Case Title: The
Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.
- Question before Hon’ble Court : Whether Section 43-C of the Central Civil Service (Leave) Rules, 1972 (for short, 'CCS Rules”) read with Annexure A5(a) clarification (O.M.No.13018/2/2008) dated 29.9.2008 stipulates that the Child Care Leave (for short, 'CCL') facility is restricted to the two eldest surviving children alone, especially when such leave facility has not been availed in respect of the first two children, is the question involved in this O.P. Tribunal had declared Annexure-A5(a) order as unconstitutional and granted relief to the third child of the applicant/employee in the given facts, which order is under challenge at the instance of the BSNL/employer-PARA 1.
- Facts of the Case: Applicant in the O.A. (1st respondent herein) is working as Telecom Mechanic in the Palakkad Telecom Division. She applied for CCL in respect of her third child, for a period of 176 days in different spells between 24.6.2013 and 10.10.2015, which was originally granted. However, as per Annexure-A2 communication issued by the Accounts Officer (4th respondent in the O.A.), the CCL availed by the applicant was 2023/KER/33534 O.P.(CAT)No.340 of 2017 2 directed to be regularised as against eligible earned leave and half pay leave, with a further direction to recover the excess payment. - PARA 2.
- Case of Petitioner/s: Annexure-A4 order which introduced CCL in the year 2008 only stipulates grant of CCL for a 2023/KER/33534 O.P.(CAT)No.340 of 2017 3 maximum period of two years (i.e., 730 days) during the entire service for taking care of upto two children, without mandating that the said two children should be the elder ones. Annexure-A5(a) order dated 29.9.2008 which is issued in purported clarification of Annexure-A4 stipulates that CCL shall be admissible for the two eldest surviving children only, which according to the applicant, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. - PARA 3.
- Case of Respondent/s: CCL Rules does not distinguish children based on marriages (successful/broken), but is restricted only to two eldest surviving children, wherefore re-marriage cannot have any effect on the Rule and its interpretation. On facts, it was also clarified that the applicant had availed maternity leave benefit in respect of her first two children born in the earlier marriage. -PARA 4.
- Judgement of the Court with reasoning:
a. As in the case of grant of maternity benefit,
CCL is also a beneficial provision to advance the interest of woman and
children as envisaged in Article 15(3) of the Constitution. - PARA 11.
b. “…..maternity benefit is also part of Rule 43
of the CCS (Leave) Rules, 1972, which also stipulates that the benefit is
available to a female Government servant with less than two surviving children. PARA 21.
c.
Annexure-A5(a)
is in serious conflict with the benefit contemplated in Annexure-A4 order/Rule
43-C as it stood then. Annexure-A5(a) only purports to reiterate the statutory
upper limit of the benefit being available to two children only PARA 22.
d.
…confirm
the order impugned affording the CCL benefit to the 1st respondent but
modifying the same to the limited extent of doing away with the order setting
aside Annexure-A5(a). -PARA 27.
5. Case
law/Statutory provisions/Notifications/rules/Boks referred:
1. 1. Rule 43 of
the CCS (Leave) Rules, 1972.
2.
DOPT
Notification No.13018/4/2011-Estt.(L), dated 27.08.2011.
3.
Article
15(3) of the Constitution.
4.
Article 45 of Directive Principle.
5.
Article 3
of the Convention on the Elimination of All Forms of Discrimination against
Woman (CEDAW)
6.
Article
25(2) of the Universal Declaration of Human Rights (UDHR)
7.
United
Nations Convention on the Rights of the Child.
8.
Abhiram
Singh v. C.D. Commachan [(2017) 2 SCC 629]
9.
Stock v.
Frank Jones (Tipton) Ltd. - (1978) 1 WLR 231]
10. Workmen of American Express International
Banking Corporation v. Management of American Express International Banking
Corporation [(1985) 4 SCC 71]
11. Surendra Kumar Verma v. The Central Government
Industrial Tribunal-Cum-Labour Court [(1981) 4 SCC 433].
12. Badshah v. Urmila Badshah Godse and another [(2014)
1 SCC 188].
13. K.H.Nazar v. Mathew.K.Jacob and others [(2020)
14 SCC 126].
14. Deepika Singh v. Central Administrative
Tribunal and Ors. [AIR 2022 SC 4108].
15. Municipal Corporation of Delhi v. Female
Workers (Muster Roll) and another [(2000) 3 SCC 224].
16. classic work of Benjamin N.Cardozo titled 'The
Nature of the Judicial Process'.
17. 'The Nature and Sources of the Law' by John
Chipman Gray.
18. Kakali Ghosh v. Chief Secretary, Andaman and
Nicobar Administration and others – [(2014) 15 SCC 300].
Click here to read the judgment
%20(10).jpg)
%20(10).jpg&description=Service Law - "CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."){kind=link}
0 Comments