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2019 DIGILAW 670 (CAL)

Minakshi Khan v. State of West Bengal

2019-06-26

MOUSHUMI BHATTACHARYA

body2019
JUDGMENT : 1. The petitioner prays for an order commanding the respondents for approving a Resolution taken by the Managing Committee of the school on 11th March, 2014 and for release of the petitioner's arrear salary of 115 days pursuant to the Resolution. The petitioner is an assistant teacher of Bankra Moberak Hossain Balika Vidyalaya and was appointed to the school in 2003. The tussle, as would appear from the documents shown by counsel appearing for the parties, is between the petitioner and the Headmistress of the school being the respondent no. 7. 2. The issue to be decided is whether the petitioner is eligible for Special Leave in Exceptional Circumstances under Rule 5 (1) of the Leave Rules, which the petitioner claims, or whether the petitioner is entitled to Extraordinary Leave under Rule 7 as has been contended by the Headmistress of the school. The difference between the two Rules is that under extraordinary leave, the teacher may be granted leave without pay at the discretion of the Managing Committee for a period of not exceeding two years. The Leave Rules have been prescribed by a circular issued by the Board of Secondary Education, West Bengal on 12th September, 1955 and are applicable to teachers of high schools. 3. Learned counsel appearing for the petitioner relies on various documents of 2007 to 2011 showing decisions of the Managing Committee as well as the Headmistress pertaining to leave applied for by the petitioner from the school. Counsel relies on an order dated 6th January, 2014 passed by this court by which an order passed by the school as well as an order passed by the Board with regard to a decision taken by both the authorities in relation to leave applied for by the petitioner were set aside. By the said order, the Managing Committee of the school was directed to take a fresh decision in the matter of leave applied for by the petitioner in terms of the order dated 31st March, 2008 of the West Bengal Board of Secondary Education (the Board) by which the petitioner was found to be eligible to get special leave under Clause 5(1) of the Leave Rules. Counsel relies on the Resolution of the Managing Committee dated 11th March, 2014 which was taken pursuant to the order passed by this court on 6th January, 2014 and where the Managing of the members agreed for grant of special leave of pay in favour of the petitioner under Clause 5(1) of the Leave Rules. Counsel also relies on several communications from the President of the school to the Headmistress which inter alia directed the latter to complete and give effect to the Resolution for sanction of medical leave on special ground to the petitioner. It is submitted that the correspondence would show that despite several requests made by the President of the school to the Headmistress, no steps were taken to complete the process of recording the Resolution pertaining to the petitioner. Counsel points to the observations of the Headmistress with regard to deny special leave with pay to the petitioner which, according to counsel, were taken in derogation of the order passed by this court on 6th January, 2014. Counsel emphasizes that the action of the Headmistress in disputing the eligibility of the petitioner for special leave with pay displays her malice towards the petitioner and which is without any basis since the petitioner was compelled to take leave for a serious medical condition, namely, a Gall bladder Operation and post-surgery complications. Counsel submits that the medical certificates would corroborate the petitioner's need for medical leave for 115 days. 4. Learned counsel for the Headmistress relies on several facts which points to the petitioner being a habitual absentee from the school amounting to dereliction of duty. Counsel submits that the petitioner had taken leave of 115 days from 12th June, 2007 to 4th October, 2007 without prior approval from the school. It is submitted that the petitioner was diagnosed of her physical condition (Gallstones) on 30th June, 2007 and was admitted in a hospital for an appropriate procedure on 20th July, 2007 despite enough time being available to the petitioner, the petitioner did not inform the school or apply for leave. Counsel points to the paucity of teachers in number of students and further that the petitioner was the only teacher who was qualified to teach English. Counsel points to the paucity of teachers in number of students and further that the petitioner was the only teacher who was qualified to teach English. Counsel raises further questions on the conduct of the petitioner in that the petitioner was admitted in the hospital for the medical procedure only for four days and that there was no major post operated complications mentioned in the discharge certificate or in any prescription of the concerned doctor. Counsel submits that the medical certificate dated 3rd October, 2007 furnished to the school after the petitioner had enjoyed a leave does not disclose any basis as to why the petitioner should be on leave for an extended period of time. The observations of the Headmistress annexed to the petition points to the past conduct of the petitioner in availing of leave on numerous occasions without informing the school. According to counsel, complaints were made against the petitioner by the parents of students and staff for the petitioner's negligence in discharging her duties as a teacher. 5. I have heard learned counsel appearing for the parties. 6. For a proper understanding of the eligibility of the petitioner under the Leave Rules, Rule 5(1) and Rule 7 are required to be set out below: "5. Special leave in exception circumstances. (1) Special leave on medical ground may be granted to a teacher or non-teaching employee of a school for a period not exceeding eighteen months, provided the cases reported to the Board with a concrete proposal which shall have to be approved by the Board. Leave under this rule may be granted with the approval of the Board to a teacher or non- teaching employee of any school suffering from prolonged illness such as tuberculosis, injury to limbs requiring plastering, cancer, heart trouble or any other serious ailment making him or her bed-ridden for along time, when he or she has exhausted all other leave admissible to him or her under these rules. 7. Extraordinary Leave If for any unforseen reason a teacher or a non-teaching employee or a school fails to attend his or her duties and if there is no other leave due at this or her credit he or she may be granted leave without pay at the discretion of the Managing Committee for a period not exceeding two years." 8. Extraordinary Leave If for any unforseen reason a teacher or a non-teaching employee or a school fails to attend his or her duties and if there is no other leave due at this or her credit he or she may be granted leave without pay at the discretion of the Managing Committee for a period not exceeding two years." 8. From the above it is evident that the present dispute is in relation to whether the petitioner would be entitled to leave with pay or without pay and hence the prayer for release of arrear salaries of 115 days. The Leave Rules placed by counsel makes it clear that the approval of special leave would have to be given by the Board while for extraordinary leave is at the discretion of the Managing Committee of the concerned school. The Resolution taken by the Managing Committee of the school on 11th March, 2014 (the minutes are annexed to the writ petition) would show that five out of nine teachers voted in favour of granting special leave with pay to the petitioner under Rule 5(1) of the Leave Rules. The minutes of the Resolution is referred to the order passed by this court on 6th January, 2014. The said Resolution was forwarded by the Secretary of the School to the District Inspector by a letter dated 16th July, 2014 which states that the petitioner has enjoyed leave for 115 days on medical ground and leave under Rule 5(1) of the Leave Rules has been sanctioned to the petitioner "as special leave with pay" in terms of the decision of the Managing Committee. The Headmistress of the school has also forwarded the relevant papers for sanctioning the leave of the petitioner to the Deputy Secretary, Academic, West Bengal Board of Secondary Education on 21st August, 2017. 9. From the documents on record, particularly the letters dated 16th July, 2014 and 21st August, 2017, it is evident that despite the objections raised by the Headmistress for sanctioning special leave with pay in favour of the petitioner, the Headmistress herself (and the Secretary of the School) had approached the District Inspector as well as the Board in July, 2014 and August, 2017 for sanctioning leave to the petitioner. In fact, in the first letter, it has been clearly mentioned that the Resolution adopted by the Managing Committee on 11th March, 2014 following the direction of this court is for sanctioning special leave with pay to the petitioner under Rule 5(1) of the Leave Rules. In the view of this court, these two documents taken together with the Resolution of the Managing Committee dated 11th March, 2014 would show that the entitlement of the petitioner to special leave under Rule 5(1) is established. It should also be noted that Rule 5(1) mentions particular physical conditions for an applicant to apply under the said Rule but such enumerated physical conditions are suffixed by "....... or any other serious ailment making him or her bedridden for a long time......" This shows that the conditions mentioned under the said Rules are not exhaustive and can include a surgery/procedure in the Gall bladder. This court is not inclined to get into the nuances of the medical certificates or prescriptions on the point whether the petitioner was indeed compelled to take leave by reason of post-operation complications. This decision would exclusively be in the domain of the concerned surgeon/medical practitioner. 10. Despite the above, some of the observations made by the Headmistress are indeed relevant for a teacher who is duty-bound to bear the best interest of the students in mind and perform his or her duties towards this objective. It is correct that a teacher cannot take leave as a matter of right and inform the school of the reasons for such leave or the duration thereof at a later date only when such leave has already been availed of. This is because grant of leave depends not only on the availability of teachers at the relevant point of time but also on the availability of teachers qualified to teach a particular subject. Absence for a substantial length of time would no doubt affect the performance of the students. Although this court must consider the facts emerging from the documents on record, the conduct of the petitioner in being absent from the school for extended periods of time (the earlier leave availed of by the petitioner is also taken note of) cannot be condoned under any circumstances. 11. Although this court must consider the facts emerging from the documents on record, the conduct of the petitioner in being absent from the school for extended periods of time (the earlier leave availed of by the petitioner is also taken note of) cannot be condoned under any circumstances. 11. Notwithstanding the above observations and in reliance on the documents on record, there shall be an order in terms of prayer 'b' of the writ petition. The concerned respondents are directed to release the arrear salary of 115 days to the petitioner in terms of the Resolution dated 11th March, 2014 of the Managing Committee of the school within a period of four weeks from the date of communication of this order. 12. W.P. 3527 (W) of 2019 is disposed of in terms of the above order.