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Motherhood or Employment- the judicial perspective
The Kerala High court while upholding the right to fairness at workplace also gave recognition to the fundamental right of a woman to dignity of a mother which cannot remain insensitive to the love of a mother for 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,” Justice A Muhamed Mustaque ordered.
The court while hearing a petition from Miss KT Mini against her termination from service on account of her long absence from service as she needed to look after her child suffering from mild-autism, made the above mentioned observations.
Petitioner KT Mini was an assistant with the Life Insurance Corporation of with 17 years of unblemished and uninterrupted service. She worked in Calicut after joining LIC as Assistant in 1989. She gave birth to her second child in 2001. The child was affected with chicken pox after two years. Later, the child developed speech impairment and abnormal behaviour. Doctors identified her condition as mild autism. Mini as working in Calicut at that time took her daughter to Chennai sometime in the year 2007 for better treatment and applied for transfer to Chennai and proceeded on leave. Her husband, employed with a bank, got posted in Bahrain. Mini also joined him and found looking after her child easier in the company of her spouse. LIC, after ignoring her request for extension of leave or transfer to Bahrain, initiated disciplinary action against her and removed her from service. Mini then moved to the court.
The court, while hearing her plea, said, “This court is called upon to adjudicate on an unique problem related to working women in Constitutional context of fundamental rights.”
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 court stated.
The court contended that motherhood is not an excuse, but a right which has to be protected by an employer in certain circumstances.
The court after criticising the action of LIC in throwing her out of service, said, “No action is possible against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child.
The court then observed that “A mother cannot be compelled to choose between her motherhood and employment.
In this case, the court held that Mini never wanted to be absent from employment and was faced with a situation where she had 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. 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 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 has no regulation in its place to consider such request,” it said.
