Paternity Leave: Is it Applicable in Private Sector in Indian Scenario?

The expression paternity leave means a “span of time that a father is legally allowed to be away from his job so that he can take care of his wife and new born baby”. Paternity leave is one of the basic fundamental family-friendly benefits that also develops in the workplace. The basic objective and purpose of paternity leave is to promote gender equality in the society. It is not only the mother’s responsibility to take care of her new born child, but also the father responsibility.

In 2017, After the Maternity Benefit (Amendment) Act 2017, a new bill was proposed, known as the Paternity Benefit Bill,2017. Rajeev Satav, a Maharashtra MP, has taken a step towards the benefit of the fathers, known as the benefits of paternity. This new bill stipulates that all workers, both in the public sector and private sector, should be granted paternity leave of fifteen days, which can also be extended to three months.

Rajeev Satav said that “Child care is the joint responsibility of both parents. They must devote time to the new born to ensure its proper well-being”.

With the help of further study, we will come to know that after sufficient labour laws, rules and regulations, there is no particular Indian legislation that regulates provision of paternity leave for private sector in India. The concept is not mandatory for private entities, they can set their own laws, rules and regulations regarding paternity leave on their own.

The Central Industrial Relations Machinery (CIRM) which is also known as Chief Commissioner Central Organisation is responsible for regulating and governing such Act.

Paternity Leave in India-

In our country India, where a family is of utmost importance, it is a genuine necessity to provide both maternity and paternity leaves. In the year 1961, the Government of India drew up the Maternity Benefits Acti, by which women are entitled to different benefits like to take care of herself and her new born baby. In 1999 the central government under central civil services (CCS) rule [551 (A)], introduce the provision of paternity leave for government servants. Priorly, there was no legislation regarding paternity leave in private sectors but now after paternity leave rules, 2017 the employees of private sectors are also eligible for paternity leave but there is no law that mandates such provisions, the private sector can interpretate the guidelines which are mentioned under the bill according to themselves. It has been found in one survey which was conducted recently which states that 46% of the respondents said they hired mostly male employees in the last 18 months to avoid or get rid of maternity burden. One more survey which is conducted recently, which says mothers do all the work even them man take paternity leave.

Is There A Paternity Leave Regulation A Voluntary or Compulsory Regulation For All Companies?

“In India, Paternity leave is not compulsory, it is a voluntary action taken by father to take care of child and mother”.

Paternity Leave Rules in Private Sector-

If I am talking about the provision of paternity leave in the private sector, let me make it clear that the guidelines laid down in the 2017 bill are not mandatory for private companies. The rules set out in the bill only act as a guideline for the private enterprises, which may be formulated or interpreted by private enterprises in the manner or format prescribed by top level management.

Therefore, there is no mandate rule on paternity leave for the private sector.

Highlights of Paternity Benefit Bill, 2017-

• The rule applies to the whole of India, irrespective of type of sector i.e. the government sector or the private sector.

• Every employee shall have the right to receive similar salaries and salaries as if he or she were employed in office, irrespective of the government or the private sector.

• Any person with less than two surviving children shall be entitled to receive this benefit for a period of 15 days, not more than seven days before the date of the expected delivery and up to three months from the date of delivery of child may benefit from that benefit.

Exceptions of The Above Highlight: –

1. In the event that a man dies immediately after the date of delivery of his child, leaving the child behind, the employer is obliged to grant paternity benefits to the nominee of the deceased.

2. In the event that the child dies during that period, the employer is obliged to provide such benefit for the days before the child dies, including the date of the child’s death.

• The government shall establish a fund known as the “Parental Benefit Scheme Fund” for the implementation of paternity benefits.

Process Prescribed: –

• All employees, regardless of gender, employers and the Central Government would contribute to the Fund. The Fund will then be used to meet the costs of the paternity benefit.

• The amount of paternity benefit shall be paid in advance by the employer, if the employee produces proof or sufficient documents and that amount shall be paid to the employee within 48 hours of the date of production of the proof or documents.

• No one can deny a request for paternity, and if one dares to do so, a person will definitely be liable for punishment and penalty as described in the rules.

• Provision of Miscarriageii under the paternity benefit bill, 2017: After production of evidence relating to miscarriage, the employee shall be entitled to pay for a period of seven days immediately following the date of miscarriage.

• Provision of Adoptioniii under the paternity benefit bill, 2017: Man, who legally adopts a child under the age of three months, shall be entitled to paternity benefits for a period of fifteen days from the date on which the child is adopted.

Legal Interpretation Of Section 43a And 43aa of Central Civil Services (Leave) Rules, 1972

Section 43A and Section 43AA of Central Civil Services (Leave) Rules, 1972 plays very significant role in changing entire configuration of the society mindset.

Section 43A provides – (1) Paternity Leave may be provided by an authority qualified to grant leave for a period of 15 days during the childbirth confinement of its wife, i.e. up to 15 days before or up to six months from the date of childbirth.

(2) for the span of 15 days, leave shall be paid equal to the salary paid immediately before going on leave.

(3) The paternity Leave may be combined with any other type of leave.

(4) The paternity leave shall not be deducted from the leave account.

(5) If Paternity Leave is not available during the time defined in sub-rule (1), such leave shall be considered as lapsed.

Section 43AA provides – (1) A male Government servant (including an apprentice) with less than two living children may be granted paternity leave for a period of fifteen days, over a a period of six months from the date of valid adoption, upon the valid adoption of a child under the age of one year.

(2) for that span of fifteen days, leave shall be paid equal to the salary paid immediately before going on leave.

(3) The paternity leave can be paired with some other form of leave.

(4) The Paternity Leave shall not be deducted from the leave budget.

(5) If Paternity leave is not granted within the time defined in sub-rule (1), such leave shall be considered as lapsed.

Case Laws Related to The Study-

1. Chander Mohan Jain v. N.K Bagrodia Public Schooliv :

• Facts of The Case:

Chander Mohan Jain is a private school teacher moved to the High Court of Delhi challenging the rejection of his paternity leave application and reduction in his salary by N K Bagrodia Public School for taking leave to take care of his wife and the newly born child.

• Issue Related to The Case:

Whether Chander Mohan is entitled for paternity leave and refund of his salary or not?

• Judgement of The Case:

New Delhi High Court in this case held that all male employees of unaided recognised private schools were entitled to paternity leave. The court then directed the school to refund the deducted amount to Chander Mohan Jain. Therefore, providing relief to private sector teachers.

2. Vijender Kumar v. Delhi Transport Corporation, GOVT. OF NCDTv :

• Facts of The Case:

The applicant, driver filed an application in the department of DTC to seek paternity leave to take care of his wife and new born baby. The application leave has been rejected by the concerned department and deducted the salary of applicant. The applicant takes leave for 15 days on his own (without sanction of paternity leave). So, the applicant, driven in DTC filed the original application seeking a direction to the respondents to pay full payment of salary, along with interest.

• Issue Related to The Case:

Will the driver of DTC get full payment along with interest?

• Judgement of The Case:

No, the application has been dismissed because applicant fails to show any rule in which he is entitled for paternity leave and instances where the respondents have granted the paternity leave to any of the employee working over there.

Conclusion-

The government of India taken a landmark step that has promoted the gender inequality regime across the nation. With the help paternity leave, fathers will definitely understand the responsibility of child and mother and take care of them too. After the paternity leave bill 2017, employers in the private sector must sanction paternity leave to their employees, but this is not compulsory for the private sector to follow them, they can mold or interpretate those guidelines in their own way.

First, the guidelines set out in the paternity leave bill, 2017 should be mandate for the private sector and separate legislation should be passed from the government to regulate the provision regarding paternity leave to protect the interests of employees.

Second, the no. of leave i.e. 15 days, should exceeded because in my opinion, it is not enough to take care of the family.

Thirdly, the employer should provide an overview of all the evidence and documents submitted by a person on paternity leave to avoid criminal liability.

Finally, in Indian legislation we have the Maternity Benefit Act 1961, our country also need act such as paternity benefit act, which further helps to maintain gender neutrality. The initiative was a good one, but it would be excellent if it were binding on all sectors of the economy. Private corporations are still thinking about the provision of paternity leave, but some positive shift is definitely needed from their side so that interest of the employee stays protected.

References

i Maternity benefit act, 1961Accessed on: 23-05-2020 ii Miscarriage means loss of an embryo or fetus before the 20th week of pregnancy. Most miscarriages occur during the first 14 weeks of pregnancy. The medical term for miscarriage is spontaneous abortion available at https://medical-

dictionary.thefreedictionary.com/miscarriage Accessed on: 25-05-2020

iii The legal process that establishes a parent/child relationship between individuals who are not related by blood available at https://www.yourdictionary.com/adoption Accessed on:28-

05-2020 iv AIR 2009 available at https://indiankanoon.org/ Accessed on:31-05-2020 v AIR 2016 available at https://indiankanoon.org/ Accessed on:01-06-2020

Author Details: Pragya Kumar (Amity Law School, Noida)