On Friday, a full bench of the Uttarakhand High Court reiterated that women who were contractual workers cannot be denied maternity leave or child-care leave (CCL) by an employer only due to their status of not being a regular employee. In this case of Tanuja Tolia v. State of Uttarakhand, a woman who was working on a contractual basis with the government health service in Uttarakhand had been denied CCL, which is available to regular employees. The Court added that, “ideally speaking a child care leave can be given to both the parents, father as well as mother, as the actual ‘beneficiary’ here” is the child.
In 2015, a Division bench of the same High Court had held that contractual workers were entitled to CCL for 730 days; the period specified for regular employees in a 2011 Government Order. However, the full bench of the Court has now modified this earlier judgment, stating that it is “a contradiction in terms to suggest that a contractual employee, whose employment itself is for a period of 12 months, should be given 730 days child care leave”. Therefore, it has held that for contractual workers whose entire employment term is for one year, such employees shall be entitled to CCL for 31 days.
The bench stated; “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.”
The Court referred to international law such as the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Children to emphasis the state’s special obligations towards women and children. Refreshingly, the High Court also referred to and cited scholarly articles on feminist analyses of labour and childcare.
The Uttarakhand High Court stated that; “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”.
The Court went on to stress that, “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
The bench recognized that women contractual workers had previously been excluded from availing other maternity benefits too. “We must remember that maternity leave, which is in a way a precursor to the child care leave, went through a similar trajectory, as the child care leave. Like the child care leave today, even maternity leave was denied to a contractual worker”, the bench noted. In 2000, the Supreme Court held that maternity leave must be provided to women in all kinds of employment, including women who were muster roll workers, as opposed to regularized employees (Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224).