The Karnataka High Court.
Credit: DH File Photo
Bengaluru: The Karnataka High Court has dismissed a petition filed by the National Institute of Mental Health and Neuroscience (Nimhans), Bengaluru, observing that the significance of Child Care Leave (CCL) cannot be discounted.
The petitioner Nimhans had challenged the order passed by the Central Administrative Tribunal (CAT), Bengaluru bench, directing it to consider the grant of Child Care Leave to S Anitha Joseph, a nurse working at the
institute.
Anita, who hails from Kerala, has been an employee of Nimhans since 2016 with spotless service records. After her delivery of a baby boy, she sought CCL, in addition to maternity leave, as she was a lactating mother. She moved the CAT, Bengaluru bench, after the authorities declined her request for a grant of CCL.
The CAT directed the Nimhans to consider the grant of CCL from January 14, 2023, to May 14, 2023, for 120 days as well as to extend the CCL benefits to her.
Challenging this order, Nimhans argued that any leave is not a matter of right and that whether an application for leave should be granted or not involves a host of factors that are not judicially determinable. Granting such a long leave would create difficulties in the ICU where Anitha was working, it was further
submitted.
A division bench, comprising Justices Krishna S Dixit, noted that in terms of Rule 43C of the Central Civil Services (Leave) Rules, 1972, a lactating mother at times has to be granted Child Care Leave; the maximum is 120 days combined with leave of any other kind. The bench also pointed out that such a leave may be denied in the case of an employee who is in a probationary period.
“The above apart, India is a signatory to several international conventions. A lactating mother has a fundamental right to breastfeed her baby and to spend reasonable time with it as is required for its rearing, more particularly, during the formative years. The baby too has a fundamental right to be breastfed. In a way, both these rights constitute one singularity. This important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution. Breastfeeding is a human rights issue for babies and mothers. It should be protected and promoted for the benefit of both’ say the UN experts. The International Convention on the Rights of the Child, 1989 vide Article 3(1) provides that the best interests of the child shall be a primary consideration,” the bench said.