December 27, 2017
Amongst a spree of notions against working mother mothers in India, Kerala High Court Judge, Justice A. Muhamed Mustaque has pronounced a verdict which reinstates the right and dignity of working mothers in India. In the case, Justice Mustaque in his opening statement has stated as under:
Motherhood is the mother of all civilization. Family as a social institution is considered as the backbone of society. Family is the first model of political society (Rosseasu on the Social Contract). When people settle down as start living as a commune, the family was the foundation of such commune and women was the center of such family. No civilization passed without and often figuratively projected her as Goddess.
Brief Facts: In this case, the Petitioner was removed by the Respondent i.e. LIC (Life Insurance Corporation) from job on account of alleged prolonged unauthorized absence due to treatment of her daughter who was suffering from developmental disabilities and that she had to leave for Bahrain for her husband’s moral support and to avail effective treatment facilities of her sick child.
The aggrieved Petitioner thereafter approached LIC’s appellate authority which rejected Petitioner’s appeal and opined that from office angle organizational interests overweighs individual interest.
In view of the aforesaid context, the seminal issue taken up by the High Court in the case was:
Can a State or its instrumentality as an employer discriminate women employee based on compelling family care giving responsibility?
The High Court of Kerala while pronouncing this remarkable judgment, made reference to the Convention on Elimination of all Forms of Discrimination against Women (CEDAW) as adopted by the United Nations.
The Bench examined the issue of Motherhood- status, dignity and self- respect based on constitutional principles and values.
The Court inter alia made some noteworthy observations in the case which are enumerated below:
- Motherhood encompass dignity, self-respect and status as elements. Motherhood is an option. In this Universe of life of everyone is an option of his parents, but that does not mean that mother has to be subjugated to any other interest. 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.
- Mother’s role in taking care of her 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, the employer has to protect her personhood 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 rules can stand in the way of woman for claiming protection of her fundamental right of dignity as mother. Any action by an employer can be only regarded as a challenge against the dignity of 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. Motherhood is an inherent dignity of woman that cannot be compromised.
- Mother cannot be compelled to choose between her motherhood and employment. A woman employee is not expected to surrender her self- respect fearing action against her for not being able to attend duty for compelling family responsibility. A woman employee cannot be thrown out of from service for remaining absent on account of taking care of her child, if such taking care is indispensable for her.
In view of the aforesaid observations, the High Court of Kerala ordered reinstatement of the Petitioner and urged the State to formulate a legislation to protect an employee from discrimination based on family responsibility and also directed to forward copy of the Judgment to Law Commission of India and Department of Labour and Social Welfare of the State and Union and also to the Law Department of the Union and the State.
This is indeed a noteworthy and praiseworthy verdict passed by the High Court of Kerala which restores faith in Judiciary and upholds the dignity of womanhood and also ensures fairness at work and equality at work of women.