Dr. Aruna Mishra vs Govt. Of NCT Of Delhi & Others

Aradhana Johri, Member (A)

The applicant is working as Assistant Director in Lie Detection Division of Respondent no 1 i.e., Forensic Science Laboratory (FSL), Delhi. She was sanctioned 15 days' Child Care Leave (CCL) from 15.03.2019 till 29.03.2019. She sent an application for extension of leave upto 30.06.2019 which was not sanctioned, however, she resumed duties only on 27.06.2019. Respondent no. 2 sent her an intimation of rejection dated 30.05.2019 on her application for extension upto 31.O5.2019. Subsequently, memo No. 1110 dated 17.07.2019 was issued to her directing her to improve her conduct and to submit her earned leave application for the whole period of unauthorised absence i.e., with effect from 30. 03.2019 till 26.06.2019 (89 days) failing which, disciplinary action (including "Dies non" for unauthorised absence), as per rules world be initiated against her. She did not act upon this. Thereafter, vide office order dated Id. 09.2019 her whole period of unauthorised absence was treated as "Dies now". This OA has been filed praying for setting aside the said orders dated 30.05.2019, 17.07.2019 and 16.09.2019. The applicant has also prayed that the period of "Dies non" be treated as duty, for which period she had earlier sought Child Care Leave and not attended office.

It is the contention of the applicant that CCL is due to her as a matter of right since she has to look after her only son. The respondents have wrongly commenced deduction of Rs.35,980 for a month and total amount of Rs. 1,43,000/- for her period of absence. She has also claimed that a memorandum dated 30.05.2019 was not served on her at all. It 1s her contention that remarks like 'negligent and wilful absence from duty' and 'serious lapse or her part' and 'amounts to unbecoming of a government servant' in the impugned order are irrelevant remarks.

The respondents have denied the claims of the applicant and have stated that she is a perennial problem creator, and is habituated to taking leave. In fact as per the applicant herself, she applied for 45 days' CCL from 19.11.2018 to 02.01.2019 of which 15 days was sanctioned, and then again applied for CCL for 45 days from 20.01.2019 to 19.02.2019 which was not sanctioned. The respondents have also stated she was or study leave from O1.10.2016 to 30.12.2018 at IHBAS wherein she also misbehaved with the IHBAS authorities who wrote to her parent department regarding her misbehaviour, her habit of making baseless written complaints and threatening the staff. The IHBAS authorities who informed vide their letter dated 10.10.2019 (Annexure R/ 1) about the now completion or time of the course of M. Phil, Clinical Psychology. IHBAS authorities also informed vide the same letter that since the Rehabilitation Council of India had not approved her admission, they could not give the same. But she filed a petition in the Hon'b1e Delhi High Court after which she was given provisional admission and subsequently, she kept going to the High Court for small things like doing Patient Care Work, declaration of results etc. IHBAS further informed that when the results of M. Phil, part-I annual examination were declared by the University in 2019, she was declared failed. Results of M. Phil, part II annual examination could not be submitted to the University as she had not completed her dissertation arid the examination of dissertation could not be held at the time of M.Phil Part-II annual examination, 2018. She completed her dissertation and her examination of dissertation could only be held on 28.09.2019. The respondents have stated that as per study leave rules after she re-joined FSL or 0 1.10.2018 she was directed to submit the full report or technical skills obtained and course content at IHBAS vide letters dated 14.11.2018, 06.12.2018 and 21.01.20 19. Instead of providing the relevant information, she put forth unnecessary and non relevant facts. They have stated that till date no response 1s received from her on this account.

The respondents have averred that her performance is not up to the mark arid in 2014 the matter related to violation of conduct rules and insubordination was also mentioned by the them Director FSL. Furthermore, the Lt. Governor of Delhi directed that disciplinary proceedings be initiated against her. In one matter the Court at Dwarka viewed seriously the fact that she did not perform her duties and directed Director FSL Delhi to take action against her for not conducting the examination despite giving dates two times.

As far as the leave in question is concerned the respondents have stated that she was sanctioned 15 days' leave from 15.03.2019 to 29.03.2019 arid rejection of leave up to 31.05.2019 was conveyed vide memo dated 30.05.2019 which was delivered to the applicant by speed post. They have also pointed out that as per DoPT OM No. 13018/2/2008-Estt.)L) dated 18.11.2008, CCL cannot be demanded as a matter of right and under no circumstances can any employee proceed on CCL without proper approval of the leave competent authority. They have also drawn attention to Rule 7 of CCS Leave Rules, 1972 which reiterate the same point.

Respondents have cited Hon'b1e Guwahati High Court's order in Sewali Deka Taluirdar Vs. State of Assam and Ors. (14.06. 20 19-GUHC): MANU/ GH / 0800/ 2019 wherein the High Court has held the same matter of principle that CCL cannot be demanded as a right. Hon'ble High Court has observed the following -

"17. It Is now well settled that grant of child care leave is at the discretion of the authorities. However, the said discretion has to be exercised by the authorities reasonably and in accordance with law and as per the situation obtaining in each case and there cannot be hard and fast norm to regulate the term of the leave.

Child Care leave is new kind of benefit which has been introduced for the benefit of 'women employees' with the purpose of enabling women employees to take care upto two minor children, whether for rearing or to look after any of their needs like examination, slickness etc. subject to the conditions notified under notification. The said child care leave has been also adopted by the State Govt. by notifying under notification. The said child care leave has been also adopted by the State Govt. by notifying under notification 31.O7.2O15. The said notification also enumerates the various conditions for availing the said child care leave.

As is well settled, it has been also provided under the said notification that the child care leave shall not be demanded as a matter of right and under no Circumstances can any employee proceed on child care leave without prior sanction of leave by the competent authority"

The respondents have given several instances of the poor performance and irresponsible conduct of the applicant. They have stated that in the month of August 2019 she did not report a single case though 22 case files were allotted to her. She made a complaint to Delhi Commission for Women stating that some important documents were missing from her office record. When she was asked to provide complete list of alleged misplaced documents along with documentary evidence vide memo No. 576 dated 12.04.2019 and memo no. 1144-45 dated 24.07.2019, she did not submit any reply, which clearly brings out that she is in the habit of making false complaints.

Heard the applicant in person and Ms. Esha Mazumdar, learned counsel for the respondents and perused the records.

We are of the clear view that though Child Care Leave is a facility given for care of children, but it can certainly riot be demanded as a matter of right. Furthermore, the concerned employee also has a duty to perform and cannot be negligent towards her duties under the garb of taking leave to care for her children. The DoP&T OM No. 13018/2/2008-Estt.(L) dated 18.11.2008 clearly lays down that CCL cannot be claimed as a matter of right. Therefore, the applicant has certainly erred in absenting herself without sanction of leave. She cannot claim that she did not know of rejection of her leave application since the onus of taking leave only after it is duly sanctioned, rests squarely only on the employee. Furthermore, from the pleadings it emerges that the respondents sent a rejection letter dated 30.05.20 19 by speed post.

It is also noted that very fairly the respondents asked the applicant vide memo dated 17.07.2019 to submit an earned leave application, failing which, disciplinary application (including "Dies non" for unauthorised absence) as per rules would be initiated. This clearly showed that they were open to regularising this period even of unauthorised absence. However, the adamance of the applicant compelled them to take action. Law clearly lays down that no Salary is paid for work not done. The relief claimed by the applicant that this period should be treated as or duty, is quite absurd since she herself had applied for CCL for the same.

We are also compelled to point out the conduct of the applicant is extremely reprehensible and unbecoming of a senior officer who is charged with serlous responsibilities. There are complaints against her from IHBAS where she went for training, the Dwarka Court has made observations against her as well as her employers themselves. She seems to be in the habit of getting into protracted emails and complaints against various people which is not conducive to a proper working environment arid also a complete waste of time, which could have been better utilised. She would be well advised to devote herself to her duties seriously.

In light of the above, we find the OA has no merit and is dismissed. No order as to costs.