1. Motherhood is the mother of all civilization. Family as a social institution is considered as the backbone of the society. Family is the first model of political society (Rosseau on the Social Contract). When people settled down and started living as a commune, the family was the foundation of such commune, and women was the center of such family. No civilization passed without recognising the power of mother and often figuratively projected her as Goddess. (See our own glorious past, as described by Jasodhara Bagchi, a feminist writer in her book, "Interrogating motherhood"):
"The celebration of motherhood has happened in most cultures in the world, and Indian culture is no exception. The oldest available cultural artifacts in the pre-Aryan civilization in Mohenjo-daro and Harappa bear testimony to the mother cult. The principle of fertility represented by the embodiment of mother is the oldest testimony to the sense of continuity of the species. Not just birthing but the process of nurturance that makes it incumbent upon homo sapiens to recognize the value of the mother."
A child born to a family sees the world first through the eyes of his mother and develops his cognitive skills through the vision of his family. In earlier centuries, predominantly, in agrarian society, the role of woman was limited to taking care of children, household and family. Social conditions of modern family underwent transformation due to industrialisation and urbanisation. As a result, the social and legal concept related to the society also got changed. Motherhood then has become a contentious issue in the modern society, particularly, in economic frontier, as the competing market interests override notions of culture and social justice like gender equity. Identity of a women is often tangled within the patriarchal structure of a commercially or profit motivated enterprise which dare to see mothering or family responsibility remain subordinate to their interest. Complexity of working environment as above is designed by an architecture without adhering to rules of gender equality; often overwhelmingly to suit men. In this writ petition, a distressed mother, a working woman, finds herself confronted with the institutional structure of her employer. She was thrown out of her service for continuous absence for taking care of her differently abled child. The disciplinary authority after enquiry found that absence from employment to take care of such child cannot be a reason to remain out of service. Treating unauthorised absence from service as misconduct, not justifying her continuation in service, she was removed.
2. Brief facts which are not in dispute are as follows:
The petitioner Smt.K.T.Mini, Assistant with the Life Insurance Corporation of India (hereinafter referred to as the "Corporation"), a State owned Insurance group, had unblemished and uninterrupted 17 years of service before she was removed. She joined service as an Assistant on 24.11.1989. All her trouble seems to have started on the birth of her second girl child. She was born on 14.11.2001. She was afflicted with chicken pox after two years. Later she developed speech impairment and abnormal behavior. According to the petitioner, doctors treating her, diagnosed her condition as mild autism. She was at that time working at Calicut. She took her daughter to Chennai sometime in the year 2007 on the firm belief that the child would get a better treatment. Child was admitted in Priya Speech and Hearing Centre, Madippakam Chennai. She applied for transfer to Chennai on 20.6.2007. She also applied for extra ordinary leave before proceeding for leave on 29.6.2007. Her husband, at that time, appears to be working as the Manager of a private Bank at Tirupur. It appears that she was granted LWA till 30.4.2008. In the meanwhile, her husband got a job in Bahrain in Middle East. Therefore, during the period of leave, on 28.1.2008, Mini made another request to cancel her request for transfer to Chennai and permit her to go abroad. She also requested for issuance of no objection certificate. No objection certificate was issued for obtaining passport. On 21.4.2008, she sought an extension of leave of 60 days on the ground that she has to join her husband abroad. In the meanwhile, the petitioner's request for extension has been rejected from 1.5.2008. This appears to have been communicated to her as per Ext.P6 dated 15.7.2008. The petitioner was directed to join duty within 15 days. The petitioner by Ext.P7 dated 27.7.2008 narrated the circumstances under which she has to stay back in Bahrain. The reason being that she need to take care of her child and she found the facilities in Bahrain, of par excellance and she could do well with the support of her husband. Ignoring her request, she was proceeded under disciplinary action. In a response to show cause notice, she reiterated the circumstances for granting her special leave to take care of her child. She also moved the Chairman of LIC narrating her grievance. She even requested to get a transfer to any of the Branches in Bahrain. All that ended in vain for the simple reason that overstay of the petitioner without sanction of leave is found in violation of LIC (Staff) Regulations, 1960. After enquiry, the petitioner has been ordered to be removed from service. As I adverted earlier, there is no dispute regarding the facts involved. Interestingly, the appellate authority was considerate regarding the petitioner's reason for not joining duty, however, finding that such sympathetic approach is against organisational interest, did not interfere with the order passed by the disciplinary authority. It is appropriate to reproduce the findings of the appellate authority in this regard which would better tell how conflict between identity of a woman; organisational interest and motherhood of working women remain incongruous for want of protective measures under law.
"...in her appeal, the appellant has mainly contended that her prolonged unauthorised absence was mainly for the treatment of her daughter who was suffering from certain developmental disabilities and that she had to leave for Bahrain only for her husband's moral support and also for availing effective training/therapies for her sick child. In this regard, I may state that the appellant's problems, as a mother, are quite understandable and deserve all pity. On the other hand, viewing broader interest of the Organisation, Office cannot run without the support of its employees and long absence from work of any employee is sure to deter our services to customers. It was for this reason that the appellant was advised repeatedly to report for duty. Records reveal that the appellant had been given ample leniency in the matter of availing leave which only shows that Office had been considerate and sensitive to her problems. However, as pointed out earler, viewed from the office angle, organiszational interest overweighs individual interest. I have also gone through the representations dated 08/06/2010 and 18/10/2010 subsequent to her preferring the appeal against the Order of the Disciplinary Authority. I have only come to conclusion that in spite of being advised with all seriousness to join duty, she had not heeded to our advice and had taken her own time to settle down in India and prefer a representation. While leaving India, she did not obtain prior permission from the Office and it only shows that she had taken the Office for granted in the matter of extending her absence. Although her problems may be genuine, it is not possible for the Office to grant leave indefinitely to every employee who is undergoing similar problems. Therefore, from the Organisational point of view, her unauthorized absence cannot be justified." (emphasis supplied)
3. In the light of the undisputed facts, this court is called upon to adjudicate on an unique problem related to working women in Constitutional context of fundamental rights. Can a State or its instrumentality as an employer discriminate a woman employee based on compelling family care giving responsibility?
4. Though, there is no protective legislation to protect a working woman against compelling family responsibility discrimination, the Constitutional court cannot ignore involvement of fundamental rights as against the State. The question of legality of disciplinary proceedings should not be assessed in the narrow compass of rules or regulations of the Corporation, but rather within the framework of fundamental rights qua principles relating to family responsibility developed through International Human Rights Law embedded into our constitutional principles. The standards and norms enunciated under the International Human Rights Law can be juxtaposed while assimilating Fundamental Rights of citizens which are not inconsistent with domestic law in India. (See judgments in Vishaka & Ors vs State Of Rajasthan [(1997) 6 SCC 241]; Pratap Singh v. State of Jarkhand and Another [(2005) 3 SCC 551] and National Legal Services Authority v. Union Of India & Others [(2014) 5 SCC 438].
5. In a recent judgment, the Hon'ble Supreme Court after adverting to the India's commitment on International Law observed as follows in Justice K.S.Puttaswamy (Retd.) v. Union of India [2017 (4) KLT 1]:
'133. The position in law is well settled. Where there is a contradiction between international law and a domestic statute, the Court would give effect to the latter. In the present case, there is no contradiction between the international obligations which have been assumed by India and the Constitution. The Court will not readily presume any inconsistency. On the contrary, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament would indicate a legislative desire to implement the human rights regime founded on constitutional values and international conventions acceded to by India.'
6. It is to be noted that if the State had not denounced obligations arising out of international conventions, impliedly it means that the State has agreed to implement such obligations in domestic law. No doubt when positive law is required, the Constitutional court cannot merely act upon such international conventions or obligations. However, when such relevant International law becomes a guidance to interpret fundamental rights, certainly, the Court will not be hesitant to infuse such principles while determining nature of fundamental rights. The Constitution is the Supreme Law which binds the State for the present and the future as well.
7. The Society is dynamic and its organic growth is nursed by the Constitution. The social and economic process undergo changes from time to time. The Constitutional Court, thus, has to interpret the provisions in the Constitution in tune with the changing dynamics of the Society, otherwise, the Constitution principles will become mere dogmatic and cannot be translated into reality. Constitution also envisages a transcendental process of its ideals for all the time to come. On account of geopolitical changes and changes in societal attitude, new challenges which our founding fathers could not conceive, have to be dealt with under the Constitution. [See The Right to Development and its Implications for Governance Reform in India by Arjun Sengupta published in the Journal of The National Human Rights Commission, India Vol.2, 2003)].
"Human rights have been recognised as standards of achievement and norms of behaviour of all members of a society, in particular of those in authority like the governments or other agencies who have the power to influence the behaviour of others. They form the foundations of a society and they are invoilable, as society would disintegrate otherwise. These rights are claimed by the people as their entitlement to certain objects or privileges or interests which they value--what they want to have and to be--to protect and promote their dignity as human beings. The society is formed to ensure through its laws, constitution, and institutions that everyone enjoys these rights. The states, according to this perspective, derive their authority over society from their responsibility to safeguard these rights.'
8. The issues relating to intersection of law and culture pose greatest challenge to our Constitution. It is only through careful interpretation of the Constitution by the Constitutional Court a fine balance of Constitutional principles and value and cultural and social changes in society can be maintained. It is always to be remembered that Constitution must be capable to respond to all the social and cultural challenges for all the time to come. At the same time, the court also has to safeguard that through interpretative process, it shall not transgress into law making by encroaching upon the domain of legislature.
9. The Delhi High Court speaking through the Hon'ble Mr.Justice A.K.Sikri in Saurabh Kumar Mallick v. The Comptroller and Auditor General of India and Another [MANU/DE/0956/2008] observed in para.22 as follows:
'2. Once it is accepted that for achieving justice adapting to such changes is imperative, the question that arises is as to how these changes may be effected. No doubt, one method is to incorporate such changes through legislation. However, in the absence of legislation, as in the present case where the term 'workplace' is not defined, that would not mean that such changes are not to be judicially recognized and taken note of while defining such an expression. In the process one of the conceptual tinkering and use of equity are the accepted judicial methods. Sir Henry Maine propounded the classic thesis that what he called 'progressive societies' develop beyond the point at which 'static societies' stop through the use of fiction, equity and finally legislation. The judgment in the case of Vishaka (supra) itself is a recognition of change through judicial method.'
10. The Parliament was aware that International Human Rights Conventions can have an impact upon domestic law. The Parliament enacted protection of Human Rights Act, 1993 after taking note of International Covenants enforceable in India. Accordingly, 'Human Rights' is defined as follows:
'2(1)(d) 'human rights' means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.'
Relevant International Laws and its impact:
11. Any debate on human rights begins with principles enunciated in universal declaration of human rights. Article 16 of UDHR states as follows:
'Article 16(3). The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.'
Article 25(2) of UDHR provides as follows:
'Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.'
12. In International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966:
'Article 10 The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also 14 The Core International Human Rights Treaties set age-limits below which the paid employment of child labour should be prohibited and punishable by law.'
13. International Covenant on Civil and Political Rights (ICCPR) was ratified by India on 11.12.1977. ICCPR provides as follows:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children."
14. Convention on the Rights of the Child adopted by General Assembly resolution 44/25 of 20 November 1989 states:
'Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 23(4). States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.'
15. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly on 18.12.1979. This convention had significant place for evolving legal principles to determine rights of women.
Article 1 of CEDAW provides as follows:
For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Articles 2(d) & 2(e) of CEDAW states as follows:
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;'
Article 11 of CEDAW contemplates elimination of discrimination against women in employment under broader rights of human rights law. Article 11 reads as follows:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.'
16. Relying on CEDAW convention in Vishaka's Case (supra), the Apex Court held that provisions of the above conventions are binding and enforceable as such in India. It is appropriate to refer para.8 of Vishaka's case, which reads as follows:
"8. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme..."
17. The Apex Court in, Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another, [(2000) 3 SCC 224], while considering a matter arising under the Maternity Benefit Act, 1961, referred to Article 11 of CEDAW and observed that the principles contained in Article 11 are to be read into with contract of service between Municipal Corporation of Delhi and the women employees (muster roll) working therein. Therefore, there may not be any difficulty in incorporating standards and norms referred in the International Human Rights Law not repugnant to any domestic law to have a vision on justice as enshrined under the Constitution or the Statutory Laws.
18. Status, dignity and self respect of a woman as mother; evolution of her rights in India:
Motherhood is all about love, care, affection, protection, nurturing of child etc. It is a dignity inherent in a woman. Dignity means the quality that holds her in esteem. She is considered to be noble and honourable on account of the status as above. Motherhood is perhaps the most important challenging job in the world. The principles enunciated through the Human Rights Law demand the dignity of the individual is protected. On account of her social status as above, a woman shall not be discriminated while competing with men in the field of employment or in any other segment. The issue involved in this writ petition calls for determination based on the status, dignity and self respect and also on the ground of discrimination. The status essentially involves a question whether motherhood is integral to the dignity of a woman or not. In Justice K.S.Puttaswamy's case (supra), the Hon'ble Supreme Court while adverting to the privacy of individual observed that privacy is an essential aspect of dignity. It is further observed that dignity has both intrinsic and instrumental values. According to the Apex Court an intrinsic value of human dignity is an entitlement or a constitutional protection interest in itself. Thus, it was concluded that the family, marriage, procreation and sexual orientation etc are integral to the dignity of individual. To understand the dignity of a woman, the societal background has to be considered. The value cherished and nourished by a society that matters for recognition of such dignity. As adverted above, this court has to consider the issue in the light of Articles 21 and 14, 15 and 16 of the Constitution. For deciding the issue within the scope of Article 21, the Court has to find how Indian society viewed motherhood.
19. Indian society is a religious society. From birth to death for an Indian, religion matters. During Vedic period, the women enjoyed highest status. The Gour's Empowerment of Women & Gender Justice in India, 3rd Edn. [Empowerment of Women and World Religions Chapter 4], refers to status of women in vedic period as follows:
'(i) Vedic period-Status of women.-The Vedic period was golden days for women when they, like men participated in all the social fields and took active part in each and every sphere of human life. The women enjoyed full freedom and equality with men during those period. They had studied in Gurukul and equally enjoyed in learning Vedas. The girls belonging to higher societies were allowed even to undergo upanayana rite for a long time. The great women as Ghosa, Apala, Visvara, Lopamudra, Gargi, Matreyi, Indrani, Yami and many others had distinct qualities of art, dance, music and fighting in the battle too. In Vedic period there was no custom of purdah. The women had similar rights in their selection of life partner in marriage.'
In the book 'Embodying Motherhood -- Perspectives from Contemporary India' written by Anu Aneja and Shubangi Vaidya in the context of mother ideology, the authors have referred to motherhood in Indian cultural background and noted as follows:
'Constructs of Gender, Sexuality and Motherhood
...Even though Hindu ideology conceptualizes the reproductive role of the woman as the 'field' on which the man deposits his seed and the father as the source of the child's lineage and identity, her role as the life-giver and her moral power in nurturing and training her children is acknowledged and celebrated. For instance, Yashoda, the foster mother of Lord Krishna, may not have been his biological mother, as per the legend, but her utter absorption and devotion to the child, and her exasperation and delight in his pranks and naughtiness are lovingly told and retold through song, dance and stories. The mother as the font of values and ideals, which makes ą man a worthy one, forms a recurrent theme in literature and cinema...
Mother's Body and National Identity
As the mother is regarded as the repository of culture and the sanctity and integrity of the collectivity, she is also invoked as the metaphor for the nation...
Prospectives on Mothering
...As we discuss throughout the book, becoming a mother is culturally regarded as an Indian woman's defining goal, a key 'act' in her life, the fulfilment of her womanly destiny.'
20. The Foreign religions like Islam and Christianity holds 'mother' in the esteem position in the society:
Chapter 46 Verse 15 of the Holy Qur'an illustrates as follows:
'And We have enjoined upon man, to his parents, good treatment. His mother carried him with hardship and gave birth to him with hardship, and his gestation and weaning [period] is thirty months. [He grows] until, when he reaches maturity and reaches [the age of] forty years, he says, 'My Lord, enable me to be grateful for Your favor which You have bestowed upon me and upon my parents and to work righteousness of which You will approve and make righteous for me my offspring. Indeed, I have repented to You, and indeed, I am of the Muslims.'
Once Prophet Muhammed was asked by a believer about mother, Prophet responded as follows (as specified in Hadith):
'A man came to the Prophet and said, ‘O Messenger of God! Who among the people is the most worthy of my good companionship? The Prophet (PBUH) said: Your mother. The man said, ‘Then who?’ The Prophet said: Then your mother. The man further asked, ‘Then who?’ The Prophet said: Then your mother. The man asked again, ‘Then who?’ The Prophet said: Then your father. (Bukhari, Muslim)
A man once consulted the Prophet Muhammad about taking part in a military campaign. The Prophet asked the man if his mother was still living. When told that she was alive, the Prophet said: '(Then) stay with her, for Paradise is at her feet.' (Al-Tirmidhi)
On another occasion, the Prophet said: 'God has forbidden for you to be undutiful to your mothers.(Sahih Al-Bukhari)'
Motherhood as a Concept depicted in the Holy Bible: In old testament, reverence to mother and father was stated. (See Levictus 19:3)
"Every one of you shall revere his mother and his father, and you shall keep my Sabbaths: I am the LORD your God."
Further, in the holy Bible, it is stated:
'Behold, children are a heritage from the LORD,
the fruit of the womb a reward. (Psalm 127:3)
He gives the barren woman a home,
making her the joyous mother of children.
Praise the LORD! (Psalm 113-9)
The Enticement of Sinners
Hear, my son, your father’s instruction,
and forsake not your mother’s teaching, (Proverb 1:8)'
Motherhood -- status, dignity and self-respect; An examination based on constitutional principles and values –
21. The Constitution of India is committed to protect individual liberty and also secures equality for everyone. The values cherished in the Constitution are having strong foundational strength drawn from tradition and culture of Indian Society that existed prior to it. The Right to Life also encompass status, dignity and self respect as elements. The Constitution intends to protect these values. These values are self supporting and having strong foothold in the society. The role of constitutional value is not intended to stifle and substitute those values with new values. While 'we the people' of India have agreed themselves to be governed by the Constitution, they have not intended to forego 'antecedent interests' which they have cherished for centuries. The Constitution has only taken away certain practices in tradition which are repugnant to public morality, health etc. Except those taken away expressly in the Constitution, the makers have intended to protect the traditions and cultures of the Indian Society. The State, therefore, is expected to respect moral rights prevalent in the society which are not opposed to constitutional provisions. These moral rights gave meaning to the values propounded in the Constitution. These moral values are nurtured by the society through practices and shaped the identity of Indian culture. The traditions followed in Hindu, Muslim, Christian etc. communities through practices allude how Indian society value a person-hood of the woman as a mother. This case is a pointer how promise of dignity and equality under the Constitution will remain as a distant reality if there is no effective interference.
22. As seen from the discussions as above, motherhood is an integral part of dignity of a woman. Motherhood encompass status, dignity and self respect as elements. Article 21 protects life and personal liberty. It can be deprived only in accordance with the procedure established by law. Motherhood is an option. In this Universe life of everyone is an option of his parents, but that does not mean that motherhood has to be subjugated to any other interest. Right to procreation is intrinsically associated with right to live. It is a basic right of man. Thus, choice of option does not change character of such right as fundamental right. In general, employer has no legal obligation to have concern over employee's private affairs. However, this has an exception, if those private affairs are interest protected as fundamental rights. To understand the nature of fundamental rights, in fact, in the foregoing paragraph, this court had adverted to the standards and norms developed through international human rights law.
23. Coming back to the question of dignity, those dignity has to be understood in the societal background. Indian cultural and traditional practices would go to show that motherhood is an essential part of family responsibility. International Human Rights Law thus protect dignity of woman and also family. The Constitution thus demand interpretation of its provisions in that background. Person-hood of a woman as mother is her acclaim of individuality essentially valued as liberty of her life. This was so designed by culture, tradition and civilisation. Mother's role in taking care of the child has been considered as an honour; she enjoyed such status because of her position in respect of the child. If on any reason she could not attend her workplace due to her duties towards child (compelling circumstances), the employer has to protect her person-hood as 'mother'. If not that, it will be an affront to her status and dignity. No action is possible against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child. No service Regulations can stand in the way of a woman for claiming protection of her fundamental right of dignity as a mother. Any action by an employer can be only regarded as a challenge against the dignity of a woman. Motherhood is not an excuse in employment but motherhood is a right which demands protection in given circumstances. What employer has to consider is whether her duty attached to mother prevented her from attending employment or not. As already adverted above, motherhood is an inherent dignity of woman, which cannot be compromised.
24. A mother cannot be compelled to choose between her motherhood and employment. A woman employee is not expected to surrender herself respect fearing action against her for not being able to attend duty for compelling family responsibility. John Rawls in the book, 'A Theory of Justice', identifies that in a just Society, self respect is not subject to political bargaining while parties in original position thrust for justice as fairness. He describes self respect thus:
'67. SELF-RESPECT, EXCELLENCES, AND SHAME
...We may define self-respect (or self-esteem) as having two aspects. First of all, as we noted earlier, it includes a person's sense of his own value, his secure conviction that his conception of his good, his plan of life, is worth carrying out. And second, self-respect implies a confidence in one's ability, so far as within one's power, to fulfill one's intentions. When we feel that our plans are of little value, we cannot pursue them with pleasure or take delight in their execution. Nor plagued by failure and selfdoubt can we continue in our endeavors. It is clear then why selfrespect is a primary good. Without it nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them. All desire and activity becomes empty and vain, and we sink into apathy and cynicism. Therefore the parties in the original position would wish to avoid at almost any cost the social conditions that undermine self-respect. The fact that justice as fairness gives more support to self-esteem than other principles is a strong reason for them to adopt it.'
25. The Hon'ble Supreme Court in Bandhua Mukti Morcha v. Union of India and Others [(1984) 3 SCC 161] held that right to live with human dignity, free from exploitation enshrined in Article 21 derives its life breath from the Directive Principles of State Policy. In Jeeja Ghosh and Another v. Union of India and Others [(2016) 7 SCC 761] the Supreme Court elaborately considered what constitutes human dignity. While articulating human dignity jurisprudentially under three types of models vis-a-vis Theological Models, Philosophical Models and Constitutional Models, the Court opined that since India is having a written Constitution, these human rights are part of fundamental rights and held that human dignity is a constitutional value and a constitution goal. It is also appropriate to quote the reference made in the judgment about the dimensions of constitutional value of human dignity, which reads as follows:
'Thus, human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is beautifully illustrated by Aharon Barak [Human Dignity -- The Constitutional Value and the Constitutional Right (Cambridge University Press, 2015] (former Chief Justice of the Supreme Court of Israel) in the following manner:
'The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.'
26. In patriarchy, woman belonged to kitchen. It needs to be realised that girls do have a dream and woman do have a vision, and motherhood cannot be seen as a burden on them to pursue such dreams and visions. The court while considering amplitude and meaning of life under Article 21 of the Constitution has to embrace its full meaning in the societal background on which the court is called upon to decide such disputes. Thus, a woman employee cannot be thrown out from service for remaining absent on account of taking care of child, if such taking care is indispensable for her. It is made clear that it is only in compelling circumstances, such right can be claimed and protected. In the enforcement of fundamental right, the employer cannot raise a plea to defend themselves by referring to financial implication or organisational interest. Whatever be the inconvenience that the employer may suffer, that is no excuse against claim of protection of fundamental rights. Our culture, tradition and practice venerate motherhood; our Constitution proclaim and protect status, dignity and selfrespect of motherhood; let our deeds, action and decision not be allowed to become profane on motherhood of a woman.
27. The issue has another dimension in the context of Articles 14, 15 and 16 of the Constitution. Our Constitution proclaims through Preamble, the equality of status and opportunity. When a dignity is denied, that would amount to denial of status. That denial is a discrimination and amounts to violation of equality before law and equal protection before law as enshrined under Article 14. The fundamental rights are considered as part of a common thread of liberty, therefore, fundamental rights enumerated under different articles may overlap. A woman employee cannot be discriminated on account of compelling family responsibility. Nor can she be thrown out from employment on account of compelling family responsibility. The Constitution makers foresaw woman can be deprived from opportunity in public employment on account of her position in the traditional Society. Constitutional provisions, therefore, want to ensure that woman shall not be discriminated on account of her sex. Right to equal opportunity for a woman, for office or position is not possible, if her shackles of chain to confine her to household, is not removed. Their familial obligation cannot hamper her prospects of obtaining employment or continuing in employment. Our constitutional scheme under Articles 14 to 16 is well designed to insulate any discrimination against woman likely to be suffered by her on account of her familial obligations. Her womanhood as mother flows from her moral personality and can be distinguished as a superior right in any social standards. Any denial of such status certainly would offend protection accorded to her under Articles 14 to 16.
28. The crux of determination is whether a woman employee is unjustly denied an opportunity to compete with men in public employment.
29. Fairness in the workplace is a facet of equal opportunity in employment. The organisation should have policies in place to prevent discrimination. In the absence of any Regulations protecting her, the constitutional court has to adopt an approach reconciling service Regulations with Fundamental Rights to protect from any impending discrimination. Therefore, the service Regulations have to be read in harmony with the constitutional principles and those Regulations cannot be understood having an operational domain to invalidate such Fundamental Rights conferred on woman under the Constitution. Thus, any action of the employer denying an opportunity to woman to compete with men in public employment on account of her obligation as a woman, as a mother would amount to discrimination.
30. Convention on rights of child, cast an obligation on the State to respect the responsibility, rights and duties of parents. ICESCR Convention also obligates the State to take special measures for protection of children without any discrimination. UDHR also mandates that motherhood and child are entitled for special care. A woman as a mother, in fact, discharges those obligations cast on her which the State had been mandated to protect under the International conventions and laws. The modern State is having a pervasive control over the family. The State declared right of children upto elementary school as a Fundamental Right. The State also under Juvenile Justice (Care and Protection of Children) Act, 2015 protects the best interest of the child. Any neglect in the welfare of child or failure to secure best interest in child would entail in taking over custody of the child by the State through its agencies. State invested its resources on children. It is in that background the care giving to a child by a mother has to be addressed. A woman cannot therefore be discriminated on account of her compelling family responsibility of care giving to a child.
31. There is no right for an employee to get leave. Right to obtain leave would depend upon service Regulations. However, in the context of a claim based on fundamental right, the right to claim for leave has to be understood from the perspective of Fundamental Right. The fact that a woman discharges her duties as a mother, cannot be a reason to claim leave or to remain absent from employment in the absence of enabling provisions. She will have to show that she was deprived of attending duties on account of child care. There must be a correlation between absence and reasons for such absence. If on account of compelling familial obligation, a woman employee is unable to attend duty, that cannot be a reason to initiate any disciplinary proceedings against her. A compelling circumstance alone can be considered for such absence.
32. How does a compelling circumstance arise for consideration in a given context? It has to be ascertained whether a woman employee was prevented on account of the responsibility attached with the family and a woman employee has no other option in those circumstances. In the absence of protective legislation, the court can consider only 'compelling circumstance' in the sense protecting a woman employee under negative conception of liberty. In negative concept of liberty, the State is expected to protect its citizen from interference of others. In all other circumstances, a woman employee can claim only through positive liberty which requires a legislation. In a famous article, Two Concepts of Liberty, published in the year 1958, Isaiah Berlin refers to the concept of negative and positive liberty. The author introduced this concept beautifully in narratives in a prelude to the article.
'To coerce a man is to deprive him of freedom - freedom from what? Almost every moralist in human history has praised freedom. Like happiness and goodness, like nature and reality, the meaning of this term is so porous that there is little interpretation that it seems able to resist. I do not propose to discuss either the history or the more than two hundred senses of this protean word recorded by historians of ideas. I propose to examine no more than two of the senses - but those central ones, with a great deal of human history behind them, and, I dare say, still to come. The first of these political senses of freedom or liberty (I shall use both words to mean the same), which (following much precedent) I shall call the 'negative' sense, is involved in the answer to the question, What is the area within which the subject - a person or group of persons - is or should be left to do or be what he is able to do o, be, without interference by other persons?' The second, which I shall call the positive sense, is involved in the answer to the question .'What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?, The two questions are clearly different, even though the answers to them may overlap.'
It is not possible for the court to determine the area that falls for positive liberty. The court can very well determine existence of negative liberty, if the liberty is allowed to be encroached that might cause harm to her. 'Harm' means to refer, injury to her own individual value as protected 'interest'. This is the criteria to find out compelling circumstances.
Consideration of the issues involved in this case:
33. In this case, there are two charges levelled against the petitioner; one is for remaining absent and the other for going abroad without permission.
34. In respect of the first charge, it is to be noted that the petitioner never wanted to be absent from employment. She requested the Corporation to transfer her to Chennai so as to enable her to provide better treatment to her child. This was not acceded. When the petitioner moved to Bahrain, she also sought a transfer to Bahrain. According to her, in Bahrain she found out better facilities to take care of her child. This was also not considered. Autism impacts communication, language and social skill. The study in Embodying Motherhood supra, the author refers to the position of the mother in such a situation as follows:
Mother as the 'Voice' of the Autistic Child
As Autism impacts communication, language and social skills, mothers saw themselves as the child's voice, the medium through which the child was rendered intelligible to the world and vice-versa. The child's person-hood and his participation in social life were also constructed through talk. Mothers would delve into great detail on family activities, and
the things their children were doing. They would talk about the new foods the child was eating, the appreciative comment made by a visiting relative on how much the child had improved, or a funny incident in the school or playground. Mothers also narrated their ongoing battles to secure acceptance and dignity for their child with kin, neighbours, shopkeepers, rickshawdrivers, school authorities and salespersons. They recounted their initial feelings of discomfiture, embarrassment and shame, which over a period of time changed to anger at people's insensitivity or a 'don't-care' attitude. A mother recounted an incident when she
yelled at a shopkeeper for calling her son 'paagal' (mad): 'you are mad, not he. Is he hitting you? Abusing you?'
The mother in such a situation has
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to give all her care to the child in precedence to any other affairs. That priority cannot be a reason for initiating disciplinary proceedings against her. If there is any causal connection between her absence and child care, the Corporation is bound to inquire and to make necessary adjustments for her. The Corporation could have considered her request, to transfer her to any other place where they can accommodate her to continue with the treatment of her child. The Corporation remained insensitive to the cry and love of a mother for her child, who suffered mild autism. Perhaps, it is for the reason that the Corporation have no regulation in its place to consider such request. It is to be noted that the Central Government incorporated a rule in the Central Central Civil Services (Leave) Rules, 1972 by inserting Rule 43C to grant leave to a woman Government servant as 'child care leave' for a maximum period of two years for taking care of upto two children. It shows that the State is sensitive about the issue of child care. The petitioner applied for extra ordinary leave. As per the Regulation of the Corporation, extra ordinary leave can be granted to an employee when no leave is due, not exceeding three months on any one occasion and 12 months during the entire period of service (see Regulation 65). Therefore, the Corporation did not accede to the request of the petitioner. But that does not fail the Corporation in recognising the petitioner's fundamental rights. The communication between the petitioner and the Corporation would clearly go to show that the petitioner does not want to remain absent from employment but only wanted to work at a place where she can provide better treatment to her child. All her communication would go to show that she was absent as she was compelled to remain at a place where she could give the best treatment to her child. As already noted, it is the insensitiveness of the organisation that led to the conclusion that the petitioner was unauthorisedly absent. 35. The next serious charge against the petitioner is going abroad without permission. It is to be noted that the petitioner made a request as per Ext.P1 to go abroad. The Corporation did not reject her request. On the other hand, the Corporation issued a no objection certificate for obtaining passport. The Corporation never raised any objection to her going abroad. On the other hand, the Corporation knowing well that she was at abroad, directed her to report for duty as seen from Ext.P6. That itself would show that Corporation had no intention to take action against her for going abroad without getting permission. It may be true that in terms of Regulation 31, no employee shall remain absent from station without permission of the Corporation. However, the Corporation had never raised any objection. Further, there is no specific Regulation that written permission shall be obtained before going abroad. Ext.P1 request and Ext.P2 no objection certificate issued by the Corporation would clearly establish that the Corporation had no objection in allowing the petitioner to go abroad. Therefore, the charge on this misconduct is legally unsustainable. 36. Thus, the disciplinary proceedings were initiated against the petitioner as the Corporation had no measures to deal with the situation encountered by the petitioner. Incapacity of the organisation to deal with woes of a woman employee cannot be capitalised to penalise her. The inevitable conclusion thus has to be drawn is that the impugned orders have to be set aside and the petitioner has to be reinstated in service forthwith. However, taking note of the fact that the petitioner was requesting for extra ordinary leave without pay, this court is not ordering back wages. The petitioner will be entitled to reckon the broken period of service for all other service benefits. Thus, the petitioner is ordered to be reinstated forthwith. 37. Before parting with this judgment, this court has to remind the State the requirement of a legislation to protect an employee from discrimination based on family responsibility. Family responsibility may be equally applicable to male and woman employees. The State has to pursue family as an important unit for its own sustenance. The employers both in private and public remain oblivious as to the right of the employees on account of family responsibility and they are equally insensitive to such rights. Family responsibility discrimination arises when an employee suffers an adverse employment action owing to family care giving responsibility. Family responsibility may occur in different circumstances like, taking care of elderly parents, accidents, child care, diseases etc. It may not be possible for this court to enumerate all the circumstances. If an employee is able to demonstrate that on account of family responsibility, she/he requires adjustments in workplace, the employer or organisation must be in a position to accommodate such claim of the employee. The importance given to the family in the tradition and culture of this great Country must survive. It is for the State to come out with a legislation protecting employees against family responsibility discrimination. Therefore, the Registry shall forward a copy of this judgment to the Law Commission of India, Department of Labour and Social Welfare of the State and the Union and also to the Law Department of the Union and the State. The writ petition is disposed of as above. No orders as to costs.