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IN LAW

Q: I have been working as an assistant science teacher in a government- aided school in West Bengal for the last four and a half years. Earlier this year, I qualified for a scientific research programme that would lead to a PhD degree under the Council of Scientific Research Programme. I applied to the school managing committee for two years’ extraordinary leave. Even though the committee has the power to grant extraordinary leave under the rules, it insisted on forwarding the matter to the West Bengal Higher Secondary Council as it felt schoolteachers have no right to go in for higher studies. As I did not receive any response from the council, I joined the research programme and wrote a letter to the school authorities informing them of my decision. I have now received a letter from the school asking me to join my duty immediately or else my services would be terminated. Can the school authority terminate my service despite the provision for extraordinary leave?

Name withheld

A:It is well settled in service jurisprudence that leave is a grant given by an employer to an employee on request and not a right vested in the employee to demand and take as he or she pleases. Thus, whereas you were entitled to apply to the school managing committee for leave to pursue higher studies, you were certainly rash in absenting from service without waiting for their decision to grant such leave. Though the services of a permanent employee cannot be terminated automatically for being absent without leave, your employer will certainly be entitled to initiate disciplinary proceedings against you. Unauthorised absence, after all, amounts to gross misconduct and the punishment can be as serious as dismissal.

But you have already taken the plunge and now it’s time for damage control. You have two courses of action, the first one is to submit a comprehensive representation to your employer renewing your prayer for extraordinary leave and seeking to be condoned for your unauthorised absence from work. Your employer has the discretion to allow you extraordinary leave retrospectively so as to include the period of your unauthorised absence.

The second course of action is to file a writ petition. Your employer is bound to decide your application in accordance with the relevant rules and administrative instructions, which in your case are the leave rules appended to the Management of Recognised Non-government Institutions (Aided & Unaided) Rules, 1969. Though courts are usually reluctant to interfere with the decision of the employer to refuse or curtail leave since the needs, demands and exigencies of public service are usually much better appreciated by the employer rather than the court, there has been no actual order of refusal yet in your case. Further, the managing committee failed to exercise its jurisdiction to consider your application. The committee was also wrong in supposing that extraordinary leave could not be granted for pursuing higher studies. It also erred in sending the matter for approval by the board, contrary to the rules.

There appears to have been gross inaction on part of the school authorities to take steps in the matter, which alone would justify judicial review of the procedural aspects of the decision-making process. Thus, on these limited grounds, you may approach the court seeking a direction that the appropriate authority considers your application in accordance with law and within a certain time. During the hearing of the petition, if you are able to impress upon the court the importance of the research programme you want to pursue, you may be able to obtain a direction for expeditious consideration of your application for extraordinary leave with retrospective effect and stay the intended disciplinary proceedings against you.


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