State Contractual Employees Entitled to Claim Child Care Leave
Who are Contractuls Employees: Contractual employment may be a sort of employment that needs an employee to sign and comply with terms of the contract before one starts working. These days’ permanent employment agreement is on the increase and more and more corporates are offering new joiners the privilege of contractual employment. Some companies also offer permanent employment contracts to new employees. While in India, the concept of contractual employment is yet to become more popular like its western counterparts, nonetheless everyone seems to be embracing an equivalent gradually. While Indians (whether employer or employee) still want to the general concept of contractual hiring and permanent employment agreement, there are ample benefits of accepting contract employment. Let’s take a glance at the main benefits of contractual employment for employers Contractual Employees & Child Care Leave (CCL).
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Court Observation on Entitlement of Child Care Leave to Contractual Employees
In the case titled Smt. Tanuja Tolia vs State Of Uttarakhand And Others on 24 July 2020, in this case, the petitioner is a lady Ayurvedic doctor in Uttarakhand’s State Medical and Health Services, appointed on a contractual basis for one year which had been repeatedly renewed since her appointment in 2009. After her maternity leave, she did not rejoin service and instead claimed Child Care Leave (CCL), citing a 2015 Judgement by a division bench of the Uttaranchal High Court which allowed a contractual employee to get CCL for 730 days. Her application was rejected on the grounds of a 2011 Government Order which excluded contractual employees from availing CCL. A division bench referred the matter in the present case to a Full Bench, which had to decide whether CCL of 730 days could be granted to a contractual employee hired for only one year and whether the High Court, exercising its jurisdiction under Article 226, could issue mandatory guidelines extending this benefit to contractual employees in the absence of any legislation in this regard. Contractual Employees & Child Care Leave (CCL)
The Bench of Chief Justice Ramesh Ranganathan and Justices Sudhanshu Dhulia and Alok Kumar Verma on Friday held as follows:
- Child care leave should be for the same number of days as an earned leave which a regular employee gets in a year.
- This was in view of the Government Order issued by the State Government in May 2011 where it was mentioned that the CCL shall be treated on the same footing as earned leave, and will be sanctioned in the same manner.
- As per this GO, State Government employees are entitled to 31 days of earned leave in a year.
- Applying the same principle, the Court held that an employee whose entire employment is for one year, if he/she fulfills the other parameters given in the May 2011 GO (i.e. she has two children, who are less than 18 years of age) will also be entitled to the child care leave for 31 days.
- The May 2011 GO stipulates that CCL shall not be given as a matter of right, and no one will go on CCL without its proper sanction. The same principle shall be applicable for a contractual employee as well.
- Normally child care leave should not be denied. It could only be denied by the employer on very pressing valid and plausible reasons, which must be specifically stated when such a request for child care leave is being denied.
In passing the ruling, the Bench also emphasized that the underlying rights being protected in the grant of such leave is not that of the parents’ but that of the child. Contractual Employees & Child Care Leave (CCL)
“CCL 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 CCL to a government contractual employee would in effect mean a denial of the rights of a child. Rights which a child would have under Articles 14 and 21 of the Constitution of India”, reads the judgment.
The Court also added that, ideally, child care leave should be available to both parents of the child.
“Ideally speaking a child care leave can be given to both the parents, father as well as mother, as the actual ‘beneficiary’ here is neither the father nor the mother but the child.”
Uttarakhand High Court Contractual Employees & Child Care Leave (CCL)
The Court opined that since no distinction is made between a regular and a contractual employee with respect to maternity leave, the same principle should be adopted while considering CCL as well. On the first issue, the Court held that a contractual employee employed for a year was also entitled to CCL, but not for 760 days. Rather, they can be granted paid CCL for 31 days on the same terms as “earned leave” given to other employees under the 2011 Government Order. With regard to the second issue, the Court stated that it has merely read the rights of a contractual employee into the 2011 Order, which have duly been subjected to the restrictions imposed on any regular employee under the said Order. 24-07-2020. Contractual Employees & Child Care Leave (CCL)
Author: This article was written by Ishmeet Kaur, B.A. LLB, student of Government Mohindra Collage, Patiala.
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