Sanat Kumar Sen vs State Of West Bengal & Ors

Moushumi Bhattacharya, J

The writ petitioner was appointed as a Group-C staff in the concerned school on 20th April, 2011. The petitioner now claims salary on and from 27th June, 2018 from the concerned school authorities.

Learned counsel for the petitioner places an order dated 1st February, 2018 by a learned Single Judge of this Court by which the petitioner was permitted to join his duties but without prejudice to the rights and contention of the parties to the writ petition being W.P. 1361 (W) of 2018. By the said order the school authorities were given liberty to initiate appropriate proceeding against the petitioner and the learned Judge was also pleased to record that the order should not be construed to mean that the conduct of the petitioner or his absence from duties stands condoned. Learned counsel submits that pursuant to this order, the petitioner joined his duties from 27th June, 2018 as would be evident from two representations made by the petitioner to the school as well as to the District Inspector on 14th December, 2018 and 21st December, 2018. Counsel places a letter from the school dated 12th July, 2018 to the West Bengal Board of Secondary Education by which the school sought clarification with regard to the applicability of Management of Recognized Non Government Institution (Aided and Unaided) Rules, 1969 (Leave Rules). The school raised specific queries with regard to application of said Rules to Government Sponsored Institutions and Rule 11(1) of the said Rules would apply to persons who have remained absent for more than five years even after expiry of their sanctioned leave. Counsel places the reply of the Board to these queries to the effect that the application of the Rules was within the jurisdiction of the School Education Department, Government of West Bengal and that the Rule 11(1) would apply to all cases of unauthorised absence of more than five years. Counsel submits that pending such clarification from the Board, the school authorities proceeded to penalise the petitioner by not paying his salary despite the fact that the petitioner had joined the school on and from 27th June, 2018 pursuant to order of Court.

Counsel for the petitioner further submits that the petitioner was prevented from joining the school by reason of political disturbances in the concerned area and an alleged life threat received by the petitioner. It is also submitted that despite several representations made to the concerned authorities, the petitioner was not given police protection.

Learned counsel for the school submits that the petitioner has been absent for a continuous period of 7 years 2 months from 20th April 2011 to 27th June, 2018, which has been stated in the affidavit in opposition filed by the school. Counsel relies on Rule 11(1) of the Leave Rules which provides inter alia that no permanent teaching or non-teaching staff shall be granted leave of any kind for a continuous period exceeding five years and further that where such an employee does not resume his duties after remaining on leave for a continuous period of 5 years or otherwise on ground of suspension, he shall be deemed to have resigned and shall accordingly cease to be in the employment of the school. The exception provided is a reference to the Board from the school authorities in exceptional circumstances. Counsel submits that the petitioner had stayed away without any formal leave application being made to the concerned authorities. It is also submitted that the order of the learned Single Judge dated 1st February, 2018 had given liberty to the school to initiate appropriate proceedings against the petitioner. Counsel relies on a decision of Punjab and Sind Bank and Ors.-vs-Sakattar Singh reported in (2001) 1 SCC 214 where the Supreme Court was also of the view that the principles of natural justice cannot be examined in a vacuum without reference to the fact situation arising in the case. Counsel submits that in that case the concerned person had been absent beyond the agreed period incorporated in an agreement.

Learned counsel for the State submits that the dispute is entirely within the domain of the school authorities and the State will take appropriate steps if a requisition is made by the school for payment of salary to the petitioner.

I have heard learned counsel for the parties. It is evident from the order dated 1st February, 2018 that in the concerned writ petition, the petitioner had sought police help for joining the school. It is also clear that although the petitioner was permitted to join the school, the learned Judge had not expressed any view on the conduct of the petitioner in respect of his absence from the school. The school authorities were also given the liberty to take appropriate action against the petitioner. Notably, the petitioner did not challenge this order.

Upon perusing the Leave Rules, there is no doubt that the leave rules would apply to the petitioner since the petitioner has admittedly been absent from 20th April, 2011 to 27th June, 2018. The last date applies to the date of joining pursuant to the order dated 1st February, 2018. Whatever be the reason for the petitioner to stay away from the school, no reason can justify an absence of more than 7 years from the date of joining. Even if it is assumed that the petitioner had taken appropriate steps for police protection including approaching this Court in 2014, an absence of 7 years cannot be condoned under any circumstances. Notwithstanding the conduct of the petitioner, it is also correct that the petitioner joined the school on 27th June, 2018 after being permitted to do so by order of Court. The action of the school in not paying petitioner's salary pending reply of the Board cannot be supported. The Board sought for a clarification on 12th July, 2018, 5 months after the order of the learned Single Judge and the reply of the Board Commission was received on 4th October, 2018. Therefore, it is only after 4th October, 2018 that the school could ascertain the application of the Leave Rules in respect of the petitioner. There is no reason why the school deprived the petitioner of his salary from 27th June, 2018 to 4th October, 2018.

In view of the above, the school authorities being the respondent nos. 8 and 9 are directed to pay the petitioner's salary from 27th June, 2018 to 4th October, 2018 within a period of three weeks from date. The school authorities will otherwise be at liberty to apply the Leave Rules against the petitioner in the manner as provided under the said Rules.

Since State has not filed any affidavit the allegations made in the writ petition are deemed not to have been admitted.

W.P. 5647 (W) of 2019 is disposed of in terms of the above direction.