K.V. Seetharamaiah
Underlining the need and importance of paternity leave, Justice L. Victoria Gowri of the Madras High Court asked the Tamil Nadu Police to reinstate an inspector who was penalised for availing ‘unauthorised’ leave to take care of his wife and new born child (Cause title: Saravanan v. The Deputy Inspector General of Police, Tirunelveli Region). The order asks the policy makers to recognise right to paternity leave/parental leave to the biological/adoptive parents as the basic human right of the respective pre-natal/post natal child. The court has pointed out that the employee B Saravanan had merely acted as a dutiful husband seeking leave to take care of his pregnant wife and then of his new born child who was born through the in vitro fertiliser (IVF) method. The court has lamented that in various states in India including Tamil Nadu, paternity leave is not provided. The paternity leave for 90 days from May 1, 2023 to July 29, 2023 granted earlier is said to have been cancelled by the Superintendent of Police. The High Court allowed him to stay away from police duty till May 15 with instruction to make a fresh representation for leave. But he was granted leave up to May 30 from May 15. He needed leave from May 31 when his wife gave birth to baby. His representation for leave from 31st was not only not considered, but also he was given a ‘desertion notice’ and suspended. The matter need not have been prolonged leading for the suspension of the employee if the court had allowed him to stay away from duty for the period of leave he had applied for, from May 1 to July 29. It is always tight-rope walking for officers who are supposed to protect the interest of the office on the one hand and also not to deny the rights of the employees working under their control. Service conditions stipulate that the leave is not a matter of right. But the same yardstick cannot be applied in all the cases. There are and have to be exceptions in medical cases to the self and his/her dependents. In such cases, the officers have to discharge their duties with circumspection. In Karnataka, paternity leave, not debitable to leave account, is allowed for 15 days in combination with any other kind of live except casual leave. The service condition stipulates that this leave is normally not refused. The rule must clearly say that the paternity leave “should not be refused” instead of saying “normally not refused”. The usage of the words “normally not refused” leaves some power to the officer to refuse the leave also. It implies that the grant of leave is subject to the discretion of the officer concerned. This is quite unfair. If the paternity leave is considered essential, the rule must clearly say “paternity leave should not be refused. Rule 135B of KCSRs says “Maximum paternity leave is 15 days for male employee having less than 2 living children”. CCS(Leave)R 1972 also speakes in the same language. What does ‘less than 2 (two) living children’ mean? Can parents have children in fraction commencing from 1.1 to 1.99 to say less than 2? Less than 2 (two) living children cannot mean anything below or beyond 1(one) but less than 2. In such a case, why does rule not say specifically that paternity leave is granted to only one living child? In many companies, maternity leave is not granted to women employees. It would be last day of service for woman employees proceeding on maternity leave. The law should be firm in dealing with the cases of maternity and paternity leaves.