leave

Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]

Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsHigh Courts

Jharkhand High Court: S. N. Pathak, J., directed the State of Jharkhand to provide maternity benefits to a contractual employee whose demand for honorarium for the duration of maternity leave was not addressed by the authorities concerned. The Bench stated,

“A woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment…”

The petitioner was appointed on a contractual basis to the post of Protection Officer Institutional Care (POIC), Bokaro and till date she was working. The petitioner contended that she had applied for maternity leave before the District Social Welfare Officer from 03-10-2019 to 30-03-2020 and the same was duly received in the office of the Deputy Commissioner, as well as District Social Welfare Officer.

The grievance of the petitioner was that she was continuously working and getting honorarium for the current month, but she had not been paid the honorarium for the period of her maternity leave, though, she had made representation before the respondents, but no heed was paid. The petitioner submitted that there could not be any distinction between a regular employee, contractual employee and casual employee so far as grant of maternity benefit is concerned as the maternity leave was duly sanctioned to the petitioner and prior information was given to the authorities before leaving the station.

Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of such case(s) and it applies to all establishments belonging to the Government and to every establishment wherein person(s) are employed. Further, Section 3(O) of the Act defines a “woman”; which means a woman employed whether directly or through any agency, for wages in any establishment. Section 5 of the Act provides for right to payment of maternity benefits, which includes any women.

Thus, the Bench opined that a woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment, subject to the condition that the contract of employment should subsist.

Accordingly, the petitioner was directed to file a fresh representation before the respondents, claiming maternity leave benefit for the period in question, and the respondent authorities were directed to take an appropriate decision and issue orders for payment of the arrears of honorarium. [Sarita Kumari v. State of Jharkhand, 2021 SCC OnLine Jhar 706, decided on 21-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr Shadab Bin Haque, Advocate

For the Respondents: Mr Achyut Keshav, GP-I

Case BriefsSupreme Court

Supreme Court: On the question as to exclusion of unauthorised leaves for determination of pensionary benefits, the 3-judge bench of SA Bobde, Sanjay Kishan Kaul and Deepak Gupta, JJ has held that

“the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations.”

The Court said that Rule 21 of the Central Civil Services (Pension) Rules, 1972  is quite clear in its terms, i.e., “all leave during service for which leave salary is payable” would count. The corollary is that if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension. Rule 3(1)(q), while defining “qualifying service” provides for service rendered while on duty “or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.”

The Court, hence, said that it had no hesitation in coming to the conclusion that to avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules.

The Court was hearing the plea of ex-employees of the Delhi Transport Corporation (DTC), who availed of the Voluntary Retirement Scheme (VRS) but were held disentitled to pension on account of exclusion of period when they remained absent without authorisation for which period they were  held not entitled to salary.

On the issue that the respondents were not governed by these Rules, but by the Employees Contributory Provident Fund Scheme, the Court said:

“The Pension Scheme was sought to be introduced only couple of months before the VRS, and that too was not implemented till 1995. Not only that, it was not implemented through the LIC but ultimately by the appellant-Corporation itself, much later in 1995. Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied. There may have been some significance to these aspects if the Pension Rules were already applicable over a period of time and entries had not been made, though, even there, it would not be in supersession of the plain language of the Rule. … The qualifying period for the VRS would have to be governed by that Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules.”

[Delhi Transport Corporation v. Balwan Singh, 2019 SCC OnLine SC 276, decided on 26.02.2019]