Unauthorized Absence Precludes Child Care Leave as a Matter of Right; Discretionary Grant Requires Adherence to Procedure.

The applicant, Vandana Saini, joined the Postal Department as a Postal Assistant in 2004.

The Government of India introduced Child Care Leave (CCL) up to 730 days for women employees with minor children via a memorandum dated 11.09.2008 and Rule 43-C of the CCS (Leave) Rules, 1972.

The applicant applied for CCL on 05.10.2017 for the period 25.03.2018 to 10.03.2020, citing her husband's posting in Pune and lack of family support in Ambala.

This request was rejected on 16.10.2017.

She made further applications on 13.01.2018, 19.04.2018, and 24.05.2018.

Respondent No. 5 granted only 10 days of CCL (20.05.2018 to 29.05.2018) via order dated 29.05.2018 (Annexure A-6) and directed her to join duty on 30.05.2018.

The applicant failed to join duty, leading to her absence from 30.05.2018 to 03.08.2018 being treated as DIES-NON via order dated 28.08.2018 (Annexure A-8) following a show-cause notice.

Subsequent absences were also treated as DIES-NON: 04.08.2018 to 17.09.2018 (Annexure A-9), 18.09.2018 to 03.05.2019, and 04.06.2019 to 06.12.2019 (Annexure A-12).

Disciplinary proceedings under Rule 16 of CCS (CCA) Rules, 1965, were initiated (Annexure A-10), and after considering her reply, a penalty of "withholding one increment for two years without cumulative effect" was imposed via order dated 06.12.2019 (Annexure A-12).

The applicant rejoined on 04.05.2019 but absented herself again from 04.06.2019 until 26.02.2021.

This period (04.06.2019 to 25.02.2021) was also treated as DIES-NON by order dated 26.03.2021 (Annexure A-18).

The applicant filed an appeal against the orders dated 06.12.2019 and 26.03.2021.

Pursuant to a direction from this Tribunal in OA No.1048/2021, the appellate authority held a personal hearing on 25.10.2021.

The appeal was rejected by respondent No. 3 via order dated 12.11.2021 (Annexure A-21), citing staff shortage.

The respondents contended the applicant was habitually absent for an aggregate of 972 days and did not approach the Tribunal with clean hands, having not exhausted the alternative remedy of revision.

1. Whether the applicant was entitled to CCL as of right for the periods in question despite proceeding on leave without prior sanction and remaining willfully unauthorizedly absent.

2. Whether the orders treating the periods as DIES-NON and imposing penalty under Rule 16 of CCS (CCA) Rules, 1965 suffered from illegality, arbitrariness, or violation of Rule 43-C of CCS (Leave) Rules, 1972.

3. Whether any interference was warranted with the appellate order dated 12.11.2021 (Annexure A-21).

The court primarily applied Rule 43-C of the CCS (Leave) Rules, 1972, which grants Child Care Leave (CCL) to women government servants.

It also applied Rule 7(1) and 7(2) of the CCS (Leave) Rules, 1972, which explicitly state that leave cannot be claimed as a matter of right and can be refused or revoked when exigencies of public service so require.

Additionally, Rule 16 of the CCS (CCA) Rules, 1965, pertaining to disciplinary proceedings and imposition of penalties, was relevant.

The principle that an employee must obtain approval before proceeding on leave was also considered.

The court distinguished the precedent of Kakali Ghosh v. Chief Secretary, Andaman and Nicobar Administration.

The court distinguished the precedent of Mrs. Bhagyashree v. Union of India.

The court distinguished the precedent of Dr. Kanchana Bala v. State of Haryana, on the basis that those cases did not involve willful and prolonged unauthorized absence.

The Tribunal found that the applicant's claim that CCL is a statutory right enabling her to remain absent without proper approval lacked merit.

While Rule 43-C grants CCL, Rule 7(1) clearly states that leave cannot be claimed as a right, and Rule 7(2) allows refusal due to public service exigencies.

The applicant applied for CCL *after* already proceeding on leave, reflecting carelessness and irresponsibility, as specific procedures must be followed to avail any right.

She did not challenge the initial grant of only 10 days CCL through legal channels at that time.

The court upheld the procedural fairness demonstrated by the respondents, noting the numerous show-cause notices issued and that the applicant's explanations were considered unsatisfactory before imposing penalties and treating absences as DIES-NON.

The appellate authority also granted a personal hearing and passed a reasoned order.

The Tribunal noted the applicant's conduct of refusing to sign the minutes of the personal hearing and her prolonged unauthorized absence totaling 972 days, which exceeded the 730-day CCL limit.

Furthermore, the cited judgments of Kakali Ghosh, Mrs. Bhagyashree, and Dr. Kanchana Bala were distinguished because they did not involve willful and prolonged unauthorized absence or defiance of orders, unlike the present case, which centered on misconduct.

The Tribunal also observed that the applicant had not exhausted the statutory remedy of revision, which alone rendered the application liable for dismissal.

The applicant’s prolonged and repeated unauthorized absence justified the respondents’ actions.

The impugned orders dated 06.12.2019 (Annexure A-12), 26.03.2021 (Annexure A-18), and 12.11.2021 (Annexure A-21) were reasoned, lawful, and proportionate.

The cited judgments were found distinguishable on facts, and the applicant did not approach the Tribunal with clean hands.

The Original Application was accordingly dismissed.