Madras High Court: In a writ petition filed against the desertion order passed by the Deputy Inspector General of Police (‘DIG’) and quash the same and consequently direct the respondents to reinstate the petitioner as Inspector of Police at Kadayam Police Station, L. Victoria Gowri, J. has held that the action of the respondents cancelling and refusing paternity leave to the petitioner would amount to violation of Article 21 of the Constitution of India. Thus, the Court quashed the impugned desertion order passed by the DIG and consequently directed the DIG to re-visit the impugned order, thereby, extending the time given to the petitioner to submit explanation for his unauthorized absence, for another period of 15 days from the date of receipt of a copy of this order. The Court also directed the petitioner to appear before the DIG and submit the necessary explanation along with the medical records of his wife and a letter of apology. The Court further directed the DIG to consider the case of the petitioner with a considerate mind and pass appropriate orders reinstating the petitioner, as Inspector of Police.
Background:
The petitioner is the Inspector of Police at Kadayam Police Station, his wife conceived through In Vitro Fertilization (IVF) method. IVF is a complex series of procedures used to aid with fertility or prevent genetic problems and assist a childless couple with the conception of a child. IVF is a high-risk pregnancy procedure, which caters to the needs of infertile couple. Hence, the women undergoing IVF procedure, needs complete attention and wholistic care for a risk-free delivery. Hence, the petitioner, apart from serving his post, was also in a compulsion to give special care to his pregnant wife at that point of time. Therefore, he gave a leave letter to the Superintendent of Police (‘SP’), seeking paternity leave for a period of 90 days.
Considering the same, the SP vide an order granted leave to the petitioner for the said period. But even before the commencement of the paternity leave period, the SP had sent communication on the previous date of his leave period, by a cryptic order cancelling his leave, citing law and order problem prevailing in the locality of Kadayam. Since the date of delivery of the petitioner’s wife was fixed by the Doctors on 30-05-2023, the petitioner filed a writ, assailing the order of cancellation of his leave, dated 30-04-2023. The Court, disposed of the said writ petition directing the petitioner to report duty by 16-06-2023 and permitted the petitioner to give a representation to the DGP and consequently directed the DIG to re-visit the issue and issue appropriate orders favourably by considering his representation. Thereafter, the DIG sanctioned leave to the petitioner for a period of 30 days. However, unfortunately the delivery date of the petitioner’s wife was extended and finally, she gave birth to the child on 31-05-2023. As a result of which, the petitioner was not able to report duty on 31-05-2023. However, he had sent a WhatsApp message to the SP, stating that due to the critical condition of his wife, he was not able to reach in person and apply seeking extension of leave.
The petitioner was directed in the impugned order to appear before the DIG of Police, within 60 days from the date of commencement of desertion and submit his explanation. Under such circumstances, assailing the impugned desertion order, this writ petition was filed.
Analysis:
The Court noted that as per the Police Standing Order 95(2), an application for reinstatement of an officer, who has been struck off as deserter, shall not be entertained unless it reaches the SP or an officer of equal rank under whom he worked, within a period of two months from the date of commencement of absence without leave. In this case, the petitioner has not been struck off from the force as a deserter, however, the impugned order has been passed, as a preliminary measure.
The Court said that though paternity/paternal leave are a kind of labour law benefit, the same has stemmed up from the right of a child to be protected under Articles 14, 15(3) and 21 of the Constitution of India. The Constitution provides with specific provisions in Chapter III and IV under Fundamental Rights and Directive Principles of State Police respectively, recognising the significance of child welfare, protection and development. Further, Article 39(f) directs the State to evolve a policy towards security, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and abandonment.
The Court said that the development of a child commences from the pre-natal care days, that is from the day of the mother’s pregnancy and continues all along the post-natal care days, till the age of attaining majority. The role of both the mother and father during the pre-natal care and post-natal care days gains importance from the perspective of the child’s right to survive. A welfare state has the bounden duty to provide the foetus with dignified pre-natal care and the child with proper health care, hygiene and sanitation in the post-natal care days. Perhaps grant of maternity/paternity leave to the biological parents and paternal leave to the adoptive parents is to ensure proper pre-natal/post-natal care, upholding the child’s right to protection of life as guaranteed under Article 21 of the Constitution of India. The right to protection of life guaranteed to every child by Articles 21 and 15(3) of the Constitution of India, culminates in the fundamental human right of the biological parents/adopting parents seeking maternity/paternity/parental leave. Thus, the Court held that the action of the respondents cancelling and refusing paternity leave to the petitioner would amount to violation of Article 21 of the Constitution of India.
The Court said that the survival of a child vests with the joint responsibility of the family. Since the days of joint family system has almost diminished and when the challenges of nuclear families are unprecedented in India, it is high time for the policy makers to recognise right to paternity leave/parental leave to the biological/adoptive parents, as the basic human right of the respective prenatal/post-natal child.
Thus, the Court considered the petitioner’s child’s right to life and protection of life as guaranteed under Article 21 of the Constitution of India. Further, it said that the petitioner’s child’s right to live, survive, health and development of childhood which flows from Article 21 of the Constitution of India, guarantees the petitioner’s right to seek paternity leave to attend his wife’s delivery. Hence, the Court quashed the impugned desertion order passed by the DIG and further directed the DIG to consider the case of the petitioner with a considerate mind and pass appropriate orders reinstating the petitioner, as Inspector of Police.
[B. Saravanan v Deputy Inspector General of Police, W.P.(MD). No.19561 of 2023, Order dated 11-08-2023]
Advocates who appeared in this case :
For Petitioner: Advocate R. Anand
For Respondents: Additional Government Pleader M.Prakash
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