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IN THE HIGH COURT OF CALCUTTA
Krishna Rao, J.
Dr. Latifa Sk. - Appellant
Versus
State Of West Bengal And Others - Respondent
WPA No. 5278 of 2019
Decided On : 10-03-2022
Termination - University Service - aliah University act, 2007, Section 23, Section 44
Fact of the Case:
The petitioner, a university lecturer, was terminated from service due to unauthorized absence following maternity leave. The petitioner's representations for leave without pay were not considered, and her service was terminated without an opportunity for a hearing or enquiry.
Finding of the Court:
The court found that the termination violated the aliah University act, 2007, as no opportunity of hearing or enquiry was provided to the petitioner. The court set aside the termination and directed the reinstatement of the petitioner's service within 4 weeks, without back wages.
Issues: Unauthorized absence, Violation of natural justice, Interpretation of aliah University act, 2007
Ratio Decidendi: The termination without providing an opportunity of hearing or enquiry violated the provisions of the aliah University act, 2007. The court emphasized the importance of natural justice and held that the petitioner's representations were not adequately considered.
Final Decision: The court set aside the termination and directed the reinstatement of the petitioner's service within 4 weeks, without back wages. The authorities were given the option to initiate an appropriate enquiry against the petitioner as provided under the law.
JUDGMENT
Krishna Rao, J. - The instant writ application is directed against the Resolution adopted by the Executive Council of the University on 11.04.2015, Resolution dt. 27.02.2016, Memo dt. 08.10.2015 and Memo dt. 03.03.2016 issued by the Registrar (Musajjil), aliah University. The petitioner was initially appointed as Lecturer (Civil Engineering) on temporary basis for a period of 11 months in the aliah University on 04.09.2009. The petitioner had joined in the said post on 21.12.2009. Subsequently a fresh recruitment process was initiated for appointment to the Post of Lecturer which was re-designated as assistant Professor on permanent basis and accordingly, the petitioner was selected and appointed as assistant Professor in the said University on 29.10.2010.
The appointment of the petitioner was confirmed by the University on 03.07.2012 with effect from 01.11.2010. The petitioner had applied for maternity leave and accordingly, the University had granted maternity leave to the petitioner with effect from 02.01.2013 to 30.06.2013.
Even on expiry of maternity leave on 30.06.2013, the petitioner had not reported for duty. On 15.12.2013, the petitioner had made representation requesting for grant of child care leave for 18 months with effect from 11.07.2013.
On receipt of the representation dt. 15.12.2013, the same was placed in the University Council Meeting held on 11.04.2015. The decision of the meeting was communicated to the petitioner on 08.10.2015 by informing that the absence of the petitioner has been treated as unauthenticated and service of the petitioner is terminated w.e.f. 01.07.2013.
On receipt of the communication dt. 08.10.2015, the petitioner had again sent a representation to the Registrar of the University requesting for consideration of the entire period of her absence from 01.07.2013 as leave without pay and requested to allow her to join immediately. Similarly, the petitioner had made representation to the Vice-Chancellor on 13.11.2015.
On 13.12.2015, the petitioner had again made a representation to the Registrar of the University informing that she will not claim any salary for 30 months or extra ordinary leave/ leave without pay starting from 01.07.2013 up to 30.12.2015.
On receipt of the representations of the petitioner, the University has again considered the case of the petitioner and vide communication dt. 22.12.2015 informed the petitioner that the request of the petitioner will be placed before the Council Meeting of the University. In the mean time the petitioner had again made several representations and accordingly on 27.02.2016 the request of the petitioner was placed in the Executive Council Meeting and it was resolved that the service of the petitioner cannot be reinstated.
The Counsel for the petitioner submitted that the unauthorized leave of the petitioner is not wilful but for the circumstances beyond her control and due to which the petitioner could not able to join duty after completion of leave period as the petitioner is not from Kolkata and parents as well as her in-laws also not residing in Kolkata. It is further submitted that the husband of the petitioner went to abroad and was pursuing higher studies. He submitted that the petitioner had given birth to the second child and no one was with the petitioner to take care of two minor children of the petitioner.
The Counsel for the petitioner relied upon Clause 23 of Schedule of the aliah University act, 2007 which reads as follows:-
'23. Removal of Teachers:
(1) Where there is an allegation of misconduct against a teacher, the Shaikh-ul-Jamia (Vice-Chancellor) may, after an enquiry, by order in writing, place the teacher under suspension and shall forthwith report to the Majlis-i-Muntazimah (Executive Council) the circumstances in which the order was made:
Provided that the Majlis-i-Muntazimah (Executive Council) may, if it is of the opinion, that the circumstances of the case do not warrant the suspension of the teacher, revoke that orde
AI
The importance of natural justice and the requirement for an opportunity of hearing or enquiry before termination of service, as mandated by the aliah University act, 2007.
Termination of probationary services requires adherence to statutory procedures including notice and opportunity for defense.
Termination of a probationary teacher must follow due process and cannot be based on unverified allegations, as it may lead to stigmatization affecting future employment.
Termination without due process violates natural justice; confirmed employees must be given an opportunity to present their case per established service rules.
An employee's right to pension is statutory and cannot be forfeited without due process, emphasizing the need for formal inquiry before denying benefits due to unauthorized absence.
The judgment establishes the importance of contractual compliance, including the submission of mandatory qualifications and adherence to prescribed dispute resolution processes, in employment dispute....
The court established that contractual employees can be terminated without notice for failure to meet performance standards and comply with contractual terms, and that procedural irregularities do no....
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