Child Care Leave - Continuous 730 days CCL can be availed with Maternity Leave, Principal modified it for 60 days only and court finds it is wrong -
Central Administrative Tribunal - Delhi
Mrs. Najma Raza vs Directorate Of Education on 16 January, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.3460/2012
Thursday, this the 16th day of January, 2014
Hon ble Shri G. George Paracken, Member (J)
Mrs. Najma Raza
TGT (Urdu), RPSV
R/o A-64, 2nd Floor
Ashoka Enclave-2
Sector-37, Faridabad.
...Applicant
(By Advocate: Sh. Rakesh Kumar Singh)
Versus
1. Directorate of Education, NCT of Delhi
Through Deputy Director of Education (N.D)
Plot No.5, Jhandewalan
New Delhi.
2. Dr. Rajendra Prasad, (Govt.) S. Vidyalaya
Through its Principal
President Estate
New Delhi 110004.
3. Govt. of NCT
Through its Chief Secretary
Delhi, Secretariate, I.T.O.
New Delhi.
Respondents.
(By advocate: Shri B.N.P. Pathak)
ORDER(ORAL)
Shri G.George Paracken, M(J) The applicant in this OA has challenged the impugned Memorandum dated 31.08.2012 according to which the applicant was informed that after the expiry of her maternity leave w.e.f. 04.09.2009 to 02.03.2010 she can be granted Child Care Leave for only 60 days w.e.f. 03.03.2010 to 01.05.2010, as per the directions of this Tribunal in its order dated 11.07.2012 in OA No. 4006/2011 filed by her earlier. The reliefs/interim reliefs sought by her are as under:-
(A) Declare memorandum dated 31.08.2012 qua denied leave to applicant w.e.f. 2.5.2010 till 12.7.2012 as issued by R-2 as bad in law vide qua aforesaid and set aside and consequently order/direct the respondents to regularize the leave fully as CCL excluding the period of 11.11.2011 to 11.05.2012 (6 months).
(B) Order/direct the Respondent consequently to treat the applicant w.e.f. 3.3.2010 on continued Child Care Leave (CCL) keeping in view of her un rebutted clarification by letter dated 18.8.2012 and 3.9.2012.
(C) Declare and consequently order/direct the Respondents while regulating the CCL w.e.f. 3.3.2010 to 12.7.2010 (excluding period from 11.11.2011 to 11.5.2011) to adjust actual vacations holidays, which applicant, being vacation department employee is as entitled as per statute, without even approval, along-with C.C.L. keeping in view of her letter dated 18.8.2012 and 3.9.2012.
(D) Consequently Order/direct the respondents to pay her salary w.e.f. April 2010 till Sept. 2012 along with 18% p.a. interest and further salary till the actual date of payment with 24% interest on delayed payment and recover the same from the guilty official s individuals.
(E) Consequently Order/direct a suitable enquiry against the guilty officials for the wrongful acts to fix the responsibility as per procedure established under law.
(F) Consequently order and direct suitable compensation not less than 3 lacs and cost to the applicant towards her faced harassment, dishonest victimisation, suffering insults, mental agony, loss of career status and causing damage of her career and reputation etc. (G) Pass any such other/further consequential order/direction which this learned Tribunal deems fit and proper in the facts and circumstances of the present case.
Interim Relief (A) Pending O.A. the respondents be directed to pay at least undisputed four months due salary from April 2010 to July 2010 and salary from 13, July 2012 to September 2012 after re-joining, which is also admitted by respondents vide impugned memo dated 31.08.2012 and speaking order dated 14.8.2012, immediately, keeping the issue claimed full salary and of interest thereupon for final adjudication for the period of April 2010 till actual payment.
(B) Direct/order the Respondents not to victimise and harass her in any manner nor transfer her with evil design or create unnecessary deliberate administrative and teaching complication etc.
2. The brief facts of the case are that the applicant is an Urdu Teacher working with Respondent No.2, namely, Dr. Rajendra Prasad, Govt. S. Vidyalaya, New Delhi. The Principal of the school, vide letter dated 30.04.2009, allowed her to proceed on maternity leave from the month of July, 2009 after availing the CL/EL and Special Leave admissible to her. Thereafter, the applicant proceeded on maternity leave from 02.07.2009 and she delivered a pre-mature child on 04.09.2009. She has also informed about the aforesaid position to the respondents on 05.11.2009. Thereafter, vide her letter dated 03.03.2010, she applied for Child Care Leave followed by maternity leave as the doctor has advised her to restrain herself from physical hard work and hectic work schedule for 60 days. Therefore, the applicant initially applied for 60 days CCL on 03.03.2010. However, the respondents, vide their memorandum dated 20.03.2010, rejected her application. As the applicant did not report for duty, she was issued with memoranda dated 21.04.2010, 14.09.2010 and 10.02.2011 directing her to report for duty. She replied to all those Memoranda and informed her inability to join duty. In the meanwhile, the respondent-Education Department called for the comments of the Principal of the School and vide her letter dated 23.06.2010, a copy of which has been obtained by the applicant under Right to
Information Act, 2005, the Principal informed the Education Officer as under:-
That, Mrs. Nazma Raza has never applied for any kind of Earned/Child Care Leave and remain absent from the duty since 02.07.2009 till date.
That, she never intimated the office about period of maternity leave.
That, Mrs. Nazma Raza sent information that she may be considered on child care leave without mentioning the period and date.
That, her application was sent to E.O. Zone -26 for grant of child care leave and E.O Zone-26 rejected the same by writing child care leave can not be claimed as matter of right.
That, she was given two memorandums to join the school but she never came to join the school and did not assign any reason. In the absence of any application indicating nature and period of leave her leave account can not be updated.
That, she is sitting at home and she is asking child care leave as a matter of right without following the proper procedure of leave sanctioned.
Mr. Nazma Raza is the only TGT (Urdu) of this school where the large number of students of Urdu language are studying, Students had suffered during the academic year 2009-2010.
Sd/-
Principal Dr. N.P. Dhaka
3. Finally, the respondents, vide Memorandum dated 28.06.2011, proposed to proceed against her under rule 14 of CCS (CCA) Rules, 1965. The article of charges leveled against her are as under:-
ARTICLE-I Smt. Nazma Raza, TGT (Urdu), presently working in Dr. Rajinder Prasad Sarvodaya Vidhyala, Rashtrapati Bhawa, New Delhi, has proceeded on willful leave/unauthorized absence w.e.f. 02/07/2009 on the presumption / in anticipation of Maternity Leave without seeking the approval of the Competent Authority. Thus, she has exhibited lack of responsibility and devotion to duty which is in violation of provision of Rule-25 of CCS (leave) Rules, 1972 and has exhibited conduct of unbecoming of Govt. servant and has violated CCS (Conduct) Rules, 1964.
ARTICLE-II Smt. Nazma Raza, TGT (Urdu), presently working in Dr. Rajinder Prasad Sarvodaya Vidhyala, Rashtrapati Bhawa, New Delhi, has proceeded on willful leave/unauthorized absence w.e.f. 02/07/2009 on the presumption / in anticipation of Maternity Leave without seeking the approval of the Competent Authority.
Smt. Nazma Raza, TGT (Urdu) was blessed with a child on 04.09.2009. She subsequently remained on assumed Maternity Leave which would have been otherwise admissible for a period of 06 months which in any way got completed on 03/03/2010.
ARTICLE-II Smt. Nazma Raza, TGT (Urdu), has again made a request dated 03/03/2010 to the School Authorities for grant of 60 days Child Care Leave in continuation to Maternity Leave which was summarily rejected by E.O. Zone-26 on the grounds of pre requisite formalities to be met for grant of Child Care Leave.
Despite several directions, reminders, memorandums and other authorities to Smt. Nazma Raza, TGT (Urdu), did not bother to resume her duties even as on date.
Thus, the said Smt. Nazma Raza, while functioning as TGT (Urdu) in Dr.RPSV, Rashtrapati Bhawa, New Delhi has flouted the departmental directions for not joining the duties immediately and thus acted in a manner of unbecoming of Govt. servant which amount disobedience and indiscipline on the part of said Smt. Nazma Raza, TGT (Urdu) and hence violated Rule-3 of CCS (Conduct) Rules, 1964.
4. The applicant challenged the aforesaid order before this Tribunal vide OA No.4006/2011 (supra) and the same was disposed of vide order dated 05.07.2012 directing the respondents to reconsider the application dated 3.3.2010 made by the applicant keeping in view the Govt. of India, DOP&T OM No.13018/1/2010-Estt.(Leave) dated 07.09.2010 and to keep the disciplinary proceedings initiated against her vide show cause notice dated 01.9.2010, charge sheet dated 28.6.2011, in abeyance till such decision is taken and to allow her to join the duty before 13.07.2012. The respondents were also given two months time to carry out the aforesaid directions under intimation to her. The said OM reads as under:-
(5) CCL can be availed, even if employee has EL at credit.-
This Department has been receiving representations from Government servants through various quarters like the Public Grievances Cell / Associations, etc., requesting to review the decision to allow Child Care Leave (CCL) only if the employee has no E.L. at her credit.
2. This Department s O.M. No.13018/2/2008-Estt. (L), dated 11-9-2008, regarding introduction of Child Care Leave in respect of Central Government employees and subsequent clarifications vide O.Ms., dated 29-9-2008, 18-11-2008 and 2-12-2008 were reviewed. It has now been decided in consultation with Department of Expenditure, to delete the condition that CCL can be availed only if the employee concerned has no Earned Leave at her credit, subject to the following conditions:-
CCL may not be granted in more than 3 spells in a calendar year.
CCL may not be granted for less than 15 days.
CCL should not ordinarily be granted during the probation period except in case of certain extreme situations where the leave sanctioning authority is fully satisfied about the need of Child Care Leave to the probationer. It may also be ensured that the period for which this leave is sanctioned during probation is minimal.
3. It is reiterated that the leave is to be treated like Earned Leave and sanctioned as such.
4. These orders take effect from 1-9-2008. Earned Leave, if any, availed by women employees before availing CCL subsequent to the issue of the O.M. No.13018/2/2008-Estt. (L), dated 18-11-2008 may be adjusted against CCL, if so requested by the employee.
5. It is in pursuance to the aforesaid directions of this Tribunal that the respondents have issued the impugned Memorandum dated 31.08.2012 granting her only 60 days Child Care Leave from 04.09.2009 to 02.03.2010 and treating the rest of the period of her absence from 02.05.2010 to 12.07.2012 as unauthorized/unapproved absence from duty followed by CCL for 60 days from 03.03.2010 to 01.05.2010.
6. The respondents have filed their reply. Their main contention is that vide letter dated 03.03.2010, the applicant herself has applied only for 60 days Child Care Leave.
7. I have heard the learned counsel for the parties. Rule 43(C) has been incorporated in CCS (Leave) Rules, 1972 as a welfare measure for the working ladies vide DOP&Ts notification No.13018/1/2010-Estt.(Leave) dated 07.09.2010 published in the Gazette on 05.12.2009 and it has taken effect from 01.09.2008. According to the said Rule, the Govt. has fixed the maximum period of Child Care Leave for two years i.e. (730 days) and it reads as under:-
43-C. Child Care Leave. -
(1) A woman Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e., 730 days during the entire service for taking care of upto two children whether for rearing or to look after any of their needs like examination, sickness, etc. (2) During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3) Child care leave may be combined with Leave of any other kind.
(4) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of rule 30 or sub-rule (1) of rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) upto a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
(5) Child care leave may be availed of in more than one spell.
(6) Child care leave shall not be debited against the leave account.
8. In my considered view, on the request of the applicant, the respondents should have granted her Child Care Leave without any reservation. They could not have taken such an arbitrary view that since she has initially asked only for 60 days CCL, no further CCL can be granted to her. In fact, the Applicant has denied that she sought only 60 days leave but it was at the instance of the Principal that she had to add the words sixty days in ink in her typed application. In any case, she has clarified by the subsequent letter dated 03.03.2010 that she was requesting for the entire period CCL as admissible under the Rules. Even otherwise, the Child Care Leave for a maximum period of 730 days followed by Maternity Leave is a welfare measure introduced by the Government in the interest of the new born babies of working women. The Supervisory Officers are required to facilitate the lady officers to avail the said leave, on their request. At least they should not stand in their way and create mental tension and financial problems for such lady officers.
9. In view of the above position, I allow this OA. Consequently, the impugned memorandum dated 31.08.2012 is quashed and set aside. The applicant s absence shall be regularized after granting her maternity leave followed by 730 days of CCL as admissible under the aforesaid rules excluding the Summer Vacation. For the remaining period, the applicant may apply for the leave of the kind due and on receipt of the same, the respondents shall consider the same as per rules. The applicant shall also be given the salary and allowance for the aforesaid period of CCL as provided under the rules. However, in the above facts and circumstances of the case, I do not consider that the applicant is entitled for any interest as prayed for. As regards the other reliefs sought by the applicant in this OA are concerned, the Applicant is at liberty to make fresh application for the consideration of the authorities concerned, if so advised. On receipt of such a representation within a reasonable time, the Respondents shall consider the same and take appropriate decision under intimation to her at the earliest. If the Applicant has any further surviving grievances, she is also at liberty to approach this Tribunal again through original separate proceedings.
10. There shall be no order as to costs.
( G. George Paracken ) Member (J) /vb/
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