Chhabirani Sinha @ Chhabirani ... vs The State Of West Bengal & Ors
2022 Latest Caselaw 803 Cal

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                   IN THE HIGH COURT AT CALCUTTA

                    (Constitutional Writ Jurisdiction)

                               APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                              WPA 30811 of 2017

              Chhabirani Sinha @ Chhabirani Sinha (Deoyan)

                                    Versus

                        The State of West Bengal & Ors.



            Mr. Sarajit Sen
            Mr. Tapas Sinha Roy
                                                  .....For the Petitioner


Heard on                  : 18.02.2022

Judgment on               : 24.02.2022

Krishna Rao, J.:    Though vide order dt. 12.11.2018 directions were issued

upon the respondents to file Affidavit-In-Opposition and accordingly

28.11.2018 affidavit is filed but since then no one is appearing on behalf of

the respondents. On 15.02.2022 notice was also served upon the Counsel

for the respondent by the Counsel for the petitioner but inspite of service of

notice, none appeared on behalf of the respondent.

The petitioner is working as Assistant Teacher in Goghat Bhagabati

Balika Vidlaya (H.S). The son of the petitioner who was aged about 1 ½

years was suffering from Typhoid and the presence of the petitioner with her

minor son was necessary to take care of the child, the petitioner could not

attend the school from 12.07.2016 to 07.08.2016 and the petitioner has

requested for Child Care Leave. The Headmistress of the School refused to

grant Child Care Leave to the petitioner over phone and accordingly the

petitioner had sent a written request to the school authorities for grant of

Child Care Leave by enclosing medical prescription of the son of the

petitioner.

The school authorities instead of granting Child Care Leave to the

petitioner, the leave of the petitioner was treated as medical leave from

12.07.2016 to 07.08.2016.

On 08.08.2016 the petitioner reported her duty but the son was not

fully recovered from illness, the petitioner again went on Child Care Leave

from 09.08.2016 till her son recover from illness.

Vide letter dt. 31.08.2016 the Headmistress of the school informed the

petitioner that considering the general interest of the students and also the

applications given by the other lady teachers for CCL, the Managing

Committee of School has not accepted the application for CCL. After

rejection of the request of the petitioner for CCL on 01.09.2016, the

petitioner has again made an application for CCL from 12.07.2016 to

07.08.2016 and from 09.08.2016 the petitioner reported her duty.

The school authorities have not granted CCL to the petitioner but the

petitioner was on leave till 28.09.2016, for taking care of her ailing child.

The respondents have issued show cause upon the petitioner as to why

disciplinary proceeding shall not be initiated for unauthorized absence of the

petitioner. The petitioner has submitted her reply but the same was not

accepted and charge sheet was issued against the petitioner.

The departmental proceeding initiated against the petitioner was

subsequently dropped as per the decision taken by the Managing Committee

with the warning to discharge her duty in proper manner failing which

appropriate action will be taken against her.

The respondents have treated the leave period of the petitioner from

12.07.2016 to 07.08.2016 as medical leave and remaining period from

09.08.2016 to 28.09.2016 without pay.

The Counsel for the petitioner submitted that as per the Memorandum

No. 5560-F(D) dt. 17.07.2015, a female employee to take maximum period of

two years, i.e. 730 days as Child Care Leave. The petitioner relied upon

clause (iii) (iv) and (v) of the said memorandum which reads as follows:-

(iii) It may not be granted more than 3 (three) spells in a calendar

year.

(iv) It may not be granted less than 15 days is a spell.

(v) Child Care Leave shall not be debited against leave account.

The Counsel for the petitioner further submitted that the petitioner

enjoyed first spell of CCL from 08.03.2016 to 22.03.2016 and the petitioner

is entitled to get other two spell and accordingly the petitioner had applied

for second spell from 12.07.2016 to 07.08.2016 and third spell from

09.08.2016 to 28.09.2016 in the same year but the respondents have

illegally rejected the request of the petitioner for grant of CCL.

Counsel for the petitioner relied upon the judgment passed by this

Court in the case of Purnima Sarkar & Ors. -vs- State of West Bengal & Ors.

Reported in (2018) 11 CHN 112.

The Counsel for the petitioner further submitted that the impugned

letter dt. 31.08.2016 may be set aside and to direct the authorities for

treating the period from 12.07.2016 to 07.08.2016 and 09.08.2016 to

28.09.2016 as CCL and to grant salary of the petitioner for the said period.

Though the respondents are not appearing but have filed their

Affidavit-In-Opposition and in the Affidavit-In-Opposition, it is stated that

the petitioner is in the habit of coming late in the school, not taking classes

and her behaviour is also not good with other staffs. The petitioner had

already availed CCL from 08.03.2016 to 25.03.2016 and thereafter without

any intimation the petitioner was absent from 12.07.2016 to 25.03.2016

and all of a sudden on 08.08.2016 the petitioner attended duty and put her

signature in attendance register and again without any intimation from

09.08.2016 the petitioner remain absent from duty only. On 24.08.2016 the

petitioner had submitted application for CCL from 12.07.2016 to 07.08.2016

and 09.09.2016 till joining her duty. It is further revealed from Affidavit,

that the Managing Committee rejected the request of the petitioner for grant

of CCL and the same was communicated to the petitioner.

Considered the submission made by the Ld. Counsel for the

petitioner's documents available on record and the judgment relied by the

Counsel for the petitioner.

Admittedly the petitioner is a permanent Assistant Teacher in Goghat

Bhagabati Balika Vidlaya (H.S). Initially the petitioner applied for CCL from

08.03.2016 to 22.03.2016 and the same was granted. The son of the

petitioner who was aged about 1 ½ years had suffered from Typhoid and

accordingly the petitioner had not attended her duty and had applied for

CCL to take care of her minor child from 12.07.2016 but the same was

rejected. When the petitioner joins her duty on 08.08.2016 found that

absence of the petitioner was treated as medical leave. Again from

09.08.2016 the petitioner went on leave to take care of her ailing child and

till 28.09.2016 and in the mean time the petitioner had applied CCL but the

same was rejected on 31.08.2016 and the petitioner was treated without

salary.

The Memorandum dt. 17.07.2015 allows female employee to take

maximum period of two years, i.e. 730 days as CCL. Clauses (i) to (ix)

provide condition for taking such leave more important the clause in the

instant case is clause (iii) and (iv) as mentioned (supra). As per clause (iii)

CCL may not be granted more than three spells in a calendar year.

In the present case the petitioner has obtained 1st spell of CCL from

08.03.2016 to 22.03.2016 and the petitioner intend to avail other two spells

from 12.07.2016 to 07.08.2016 and 09.08.2016 to 28.09.2016 on account of

the illness of her 1 ½ years child.

In the instant case, the school authorities had not prescribed any

rules for seeking CCL and the same was prescribed by way of resolution

which reveals from the Affidavit-In-Opposition filed by the respondents. In

the absence of any rules by the Managing Committee, the action of the

Managing Committee is not granting CCL to the petitioner and treating the

leave of the petitioner on medical leave and without salary is not justified. It

is settled law that the authorities under the State cannot take decision on

their whims and fancies and can only act as per prescribed law.

In the instant case though the school authorities have not prescribed

any law for grant of CCL but the authorities have to act in accordance with

the Memorandum dt. 17.07.2015 which is applicable in the instant case.

In view of the above, this court has no other alternative but to set

aside and quash the communication dt. 31.08.2016 issued by the

Headmistress Goghat Bhagabati Balika Vidlaya (H.S), Hooghly. The school

authority is directed to treat the leave of the petitioner from 12.07.2016 to

07.08.2016 and 09.08.2016 to 28.09.2016 as Child Care Leave and to

release salary of the petitioner from 09.08.2016 to 28.09.2016 within a

period of four weeks from the date of communication of the order.

WPA No. 30811 of 2017 is thus disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)