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2019 DIGILAW 277 (CAL)

JASHODA MISRA (PATRA) v. STATE OF WEST BENGAL

2019-02-26

MOUSHUMI BHATTACHARYA

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JUDGMENT : 1. The Court : The petitioner seeks setting aside of two letters issued by the Headmaster of the concerned school dated 8th October, 2018 and 30th November, 2018 by which the petitioner’s application for Child Care Leave was refused and the leave taken was threatened to be treated as break of service. By the second letter, the leave which was availed of by the petitioner was adjusted by way of a deduction of the petitioner’s salary for the said period. A document being the pay slip for the month of December, 2018 shows that the petitioner’s salary has been deducted to the tune of more than Rs.30,000/- for the period of leave availed of by the petitioner. 2. The petitioner is an assistant teacher in the concerned school and has served in the said school since 21st March, 2006 on the recommendation of the Commission. 3. Learned counsel appearing for the petitioner submits that the petitioner applied for Child Care Leave on 3rd September, 2018 for the period 4th September, 2018 to 29th September, 2018 on the ground of the petitioner’s son sitting for the third unit test relating to Madhyamik Examination, 2019. The application for Child Care Leave was sent to the school management on 3rd September, 2018 itself. Counsel submits that the petitioner went on leave as proposed from 4th September, 2018. The petitioner received a show cause notice on 27th September, 2018 from the Headmaster of the school which was duly replied by the petitioner on 3rd October, 2018. The petitioner received the impugned letters dated 8th October, 2018 and 30th November, 2018 thereafter by which the petitioner’s Child Care Leave was refused. Counsel relies on the relevant Rules governing Child Care Leave as published by way of a Memorandum on 17th July, 2015 by the School Education Department which provides, inter alia, that Child Care Leave will be extended to female employees of educational institution subject to certain conditions out of which the counsel relied upon three conditions. These three are concerned with the proposed applicant having to take care of up to two children up to 18 years of their age for their needs including examination, sickness etc. The second condition relied upon provides that the female employee entitled to be paid salary equal to the pay drawn immediately before proceeding on leave calculated for the period of the leave availed. The second condition relied upon provides that the female employee entitled to be paid salary equal to the pay drawn immediately before proceeding on leave calculated for the period of the leave availed. The third condition is that Child Care Leave may be combined with leave of any other kind which is found to be due and admissible to the concerned female employee. Learned counsel submits that the Headmaster of the concerned school issued the show cause notice on 27th September, 2018, two days before the leave taken by the petitioner was to end and that no effort was made on the part of the school authorities to respond to the leave application sent by the petitioner on 3rd September, 2018. Counsel points to another instance of the unexplained delay and the lackadaisical attitude on the part of the school in a subsequent letter which was written by the President of the Managing Committee to the petitioner dated 2nd January, 2019 but was posted by the school on 4th February, 2019 as would be evident from the postal acknowledgement. By the aforesaid letter, the petitioner was informed that the application for Child Care Leave cannot be granted in the interest of the students of the school and that the petitioner should report for duty, in default of which necessary action would be taken against the petitioner. 4. Despite several attempts to serve the concerned school and the Headmaster and Managing Committee of the said school (being the respondent nos.4, 5 and 6 herein) no one appears on behalf of school to contest the instant proceeding. 5. Having considered the submission of learned counsel appearing for the petitioner and seen the documents placed in support of the contentions made on behalf of the writ petitioner, it is correct that the writ petitioner, despite being on notice of the test schedule of the Madhyamik Examination 2019 decided to apply for Child Care Leave a day before the proposed leave was to begin and further proceeded to go on leave without waiting for a response from the Headmaster or the school authority. Despite the irresponsible conduct of the petitioner in the context of the students of the school which was presumably preparing for Madhyamik as well as Higher Secondary Examination, 2019, the conduct of the school authorities, particularly the Headmaster, is required to be mentioned. Despite the irresponsible conduct of the petitioner in the context of the students of the school which was presumably preparing for Madhyamik as well as Higher Secondary Examination, 2019, the conduct of the school authorities, particularly the Headmaster, is required to be mentioned. The first communication being show cause notice is dated 27th September, 2018. The impugned communications have been issued in October and November, 2018 while the last letter issued by the President of the Managing Committee is dated 2nd January, 2019. If the continued attendance of the petitioner was of such importance to the school, there does not appear to be any justification for the school to wait for more than three weeks before issuing a show cause notice to the petitioner to explain her conduct particularly when the period of leave taken was about to be over. The deduction of substantial amount of money from the petitioner’s salary merely based on the petitioner’s response to the show cause dated 3rd October, 2018 also cannot be justified in the facts of the case. This would further be supported by the Memorandum relied upon by the petitioner and the Rules thereunder which significantly do not mention a time frame between mailing an application and the start-date of the proposed leave. The Rules are also silent on whether the female employee has to wait for the school’s response or the time frame of such, before she can proceed for leave. Upon perusal of the said Rules, this Court does not find any provision which caste an obligation on a female employee to make an application for Child Care Leave and wait for a specific time frame before such leave can actually be availed of. There is also no doubt that a female employee is entitled to leave on the ground of rearing or looking after her child which would include the child’s need of the mother’s presence during examination. The Rules also provide that the pay drawn immediately before proceeding on leave shall be given to the petitioner based on a calculation of the period on leave taken. 6. The Rules also provide that the pay drawn immediately before proceeding on leave shall be given to the petitioner based on a calculation of the period on leave taken. 6. In view of the above, this Court cannot accept the salary which has been deducted by the school authorities for the period of leave taken without taking into consideration the relevant Rules and the fact that school had not shown any promptitude in rejecting the leave application of the petitioner when it received the same on 3rd September, 2018. Having regard to what has been stated above, the respondent nos.4, 5 and 6 are directed to file a Report as to the basis on which the salary has been deducted and as to what steps it proposes to undertake in the event it is found that the petitioner was indeed entitled to the leave on the ground of urgency as provided in the relevant Rules. The Headmaster and the Managing Committee of the concerned school are directed to give a fresh hearing to the petitioner based on the letter dated 3rd October, 2018 and on any other materials which the petitioner chooses to rely on and pass a fresh order upon such hearing within a period of three weeks from date. Needless to mention, a copy of such order will be given to the petitioner within a week from the passing of the order as directed. WP 13 of 2019 is disposed of with the above directions.