CHILD CARE LEAVE FOR FEMALE CONTRACTUAL EMPLOYEESAND SINGLE FATHER

"Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection."

-Universal Declaration of Human Rights (UDHR), 1948

A) CONCEPT OF CHILD CARE LEAVE

Undeniably, children need care from the moment of birth. They need feeding, health care, early stimulation, love and everything else that is part of full development. Women and children were rather neglected subjects for lawmakers for a long time till recently. As modern societies grew it was recognized 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. 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 is an equal responsibility of his family as well as of the State. Universal Declaration of Human Rights and Convention on the Elimination of Discrimination Against Women of which India is a party enshrined various rights of women and children. In the year of 1989 Convention on the Rights of the Children was adopted by the United Nations which declared rights of children. The convention recognized that all those who are less than 18 years of age have specific needs and are children. It spells out basic human rights of children worldwide, which are rights to survive, to develop into the fullest, protection from harmful practices, protection from abuse and exploitation and to create facilities for them so that they can participate fully in family, cultural and social life. Therefore, to ensure the fullest development of children the concept of child care leave was introduced.

B) INTRODUCTION OF CHILD CARE LEAVE IN INDIA

The provision of child care leave was first introduced for the Central Government employees, on the recommendations of the Sixth Pay Commission in the year 2008. The provision was initially for women employees alone, who had two children of less than 18 years of age. The maximum period of leave, during the entire service period was upto 730 days. By virtue of G.O. dated 11.09.2008 issued by Ministry of Personnel, Public Grievances and Pensions the concept of child care leave was introduced. Thereafter, the Government of Uttar Pradesh brought its Government Order on 11.04.2011 which gave the benefit of child care leave to Government female employees of the State Government with certain conditions that:- i) in one calendar year, it can be taken for a maximum of three times; ii) it shall be for not less than 15 days at a time; iii) Child care leave will not be given during the period of probation, unless the authority concerned is satisfied that it is necessary. The other conditions such as that it can be maximum for a period of 730 days, spread over the entire service period and that it shall be given for care of two children who are less than 18 years of age were also applicable.

Government of Uttarakhand

The Government of Uttarakhand then came out with its own Government Order on 30.05.2011 for the women employed in the State Government services. It more or less reproduced the same language as G.O. of Uttar Pradesh, except that Uttarakhand G.O. specifically stated that Child care leave will not be treated as a matter of right and under no condition will an employee go on CCL without prior sanction of the leave.

C) CAN A CONTRACTUAL EMPLOYEE SEEK CHILD CARE LEAVE?

View of Uttarakhand High Court

The Divisional Bench of Uttarakhand High Court in the matter of Dr. Shanti Mehra Vs. State of Uttarakhand reported in 2017 (1) U.D., 191, was dealing with an issue where a women who was appointed as a Doctor in the Community Health Center, Gangolihat, Pithoragarh in Ayush Wing was denied maternity leave. She was denied maternity leave on the ground of being a contractual employee. The Uttarakhand High Court held that all the female employees even working on contractual basis, ad hoc/tenure or temporary basis are entitled to maternity leave. Though the issue was not directly involved, the Hon'ble Court in its judgment after referring to various covenants and relevant law also directed the State Government to grant Child Care Leave of 730 days to all the female employees, whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis having minor children with a rider that the child should not be more than 18 years of age or older.

The aforesaid judgment of the Hon'ble High Court of Uttarakhand was reconsidered by a Full Bench of the Hon'ble Court in the matter of Smt. Tanuja Tolia Vs. State Of Uttarakhand And Others, W.P.S.B. No. 263 of 2019 wherein the issue involved was whether a contractual employee is entitled to child care leave. The Hon'ble Court after referring to various international covenants and preamble of the constitution observed that Child care leave is primarily for the benefit of a child. A child whose mother happens to be employed on a contractual basis with the Government, has the same needs as any other child. A denial of Child care leave to a government contractual employee would in effect mean a denial of the rights of a child, which he would have under Articles 14 and 21 of the Constitution of India. It ruled that contractual employee is also entitled to child care leave.

View of Allahabad High Court

The Division Bench of Allahabad High Court in the matter of Dr. Rachna Chaurasiya Vs. State of UP reported in (2017) 6 ALJ 454, wherein the issue involved was whether the petitioner being a contractual employee was entitled to child care leave. The Honble Court has held in its judgment that the law does not make any distinction between a regular and contractual employee, for grant of child care leave and it ought to be granted in favour of contractual employees as well.

View of Gauhati High Court

A Single Bench decision in Gauhati High Court in Doli Gogoi Vs. State of Assam reported in (2017) 3 Gauhati Law Reports 247, after taking into consideration the constitutional mandate and the Judgment of Divisional Bench of the Uttarakhand High Court in Dr. Shanti Mehra Vs. State of Uttarakhand reported in 2017 (1) U.D., 191, held that even women contractual employee will be entitled to child care leave

Situation where contractual employee is in employment for a specific period

The Uttarakhand High Court in the matter of Smt. Tanuja Tolia Vs. State Of Uttarakhand And Others, W.P.S.B. No. 263 of 2019 faced a peculiar situation wherein the contractual employee who was seeking child care leave was employed only for a period of one year. Therefore, leave of two years could not be granted to her. So the question was as to whether in such an employment she could be given child care leave and if yes then for how long. The Hon'ble Court in the said matter held that 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 in G.O. dated 30.05.2011.

D) SHOULD A MALE PARENT/FATHER BE ALSO ENTITLED TO CHILD CARE LEAVE?

The Seventh Pay Commission had made recommendations of extending child care leave to the single parent whether it be male or female government servant as the entire responsibility of taking care of the children then falls under the shoulder of such a parent. The Department of Personnel and Training in the light of the said recommendation on 11.12.2018 issued a notification granting Child care leave for Single male parent with certain riders. The single male parent would mean a divorcee, widower and also an unmarried parent.

In the opinion of the author, child care leave benefit should be extended to both male and female parent of the child and not just to a father who is a single parent as in essence if we look at the nature of the child care leave it is for the benefit of the child who needs love and care of both the parents, individually as well as jointly.

A method can be adopted by the Government for a couple who are employed in the Government services granting X number of total leaves to both the husband and wife for their child care and they can choose as to who will take how many leaves as per their convenience and requirement.