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2023 DIGILAW 1244 (CAL)

Ld. District and Sessions Judge v. Shabbir Sayyed

2023-07-27

RAJA BASU CHOWDHURY, TAPABRATA CHAKRABORTY

body2023
JUDGMENT : Tapabrata Chakraborty, J. 1. The present appeal has been preferred challenging the judgment dated 23rd June, 2023 delivered in a writ petition being W.P.A. 642 of 2023. 2. Shorn of unnecessary details, the facts are that the writ petitioner/respondent no.1 in the present appeal, namely, Shri Shabbir Sayyed (in short, Shabbir) was working in the post of lower grade clerk under the appellant no. 2. By a memo dated 10th May, 2021 issued by the appellant no. 2, Shabbir was directed to proceed to Port Blair in the morning of 11th May, 2021 for handing over some urgent letters and for some other miscellaneous work relating to the smooth functioning of the Courts at Mayabunder and to return back to the station at Mayabunder on or before 17th May, 2021. Complying with such directives, Shabbir reached Port Blair on 11th May, 2021 and handed over all relevant documents on 12th May, 2021. On and from 13th May, 2021, lockdown was declared by the District Magistrate, South Andaman District and as such, Shabbir could not join his office on 18th May, 2021. Intimating such fact, Shabbir wrote a letter to the appellant no. 2 on 18th May, 2021 and forwarded the same through WhatsApp on 25th May, 2021.By a letter dated 17th June, 2021 the appellant no. 1 directed the appellant no. 2 not to release the salary of Shabbir for the month of June, 2021. However, Shabbir was allowed to join his duties on 28th June, 2021 on the basis of his representation to the appellant no. 1 on 21st June, 2021. In the said representation, Shabbir also prayed for regularisation of the period of leave from 18th May, 2021 to 25th June, 2021. Thereafter, Shabbir was served with a show-cause dated 14th July, 2021 to which he duly replied. The appellant no. 1 issued a further memo dated 5th October, 2012 asking Shabbir to show cause as to why the period of his unauthorised absence, shall not be treated as dies non. Thereafter, the appellant no. 1 constituted a preliminary enquiry committee and the said committee submitted its report on 5th January, 2023. Immediately thereafter, Shabbir was served with a chargesheet vide memo dated 31st January, 2023 issued by the appellant no. 1. By a memo dated 9th February, 2023, the appellant no. Thereafter, the appellant no. 1 constituted a preliminary enquiry committee and the said committee submitted its report on 5th January, 2023. Immediately thereafter, Shabbir was served with a chargesheet vide memo dated 31st January, 2023 issued by the appellant no. 1. By a memo dated 9th February, 2023, the appellant no. 1 appointed an Inquiring Authority, who in turn, forwarded certain documents to Shabbir by a memo dated 6th March, 2023. Challenging the same, Shabbir preferred the writ petition in which initially an interim order was passed on 20th April 2023 staying the enquiry till 27th April, 2023 and by an order dated 28th April, 2023, the departmental proceeding initiated against Shabbir was stayed till conclusion of the writ petition. The parties exchanged affidavits in the midst thereof and the writ petition was finally decided on 23rd June, 2023. 3. Mr. Jayapal, learned advocate appearing for the appellants primarily argues that mere issuance of a chargesheet does not give rise to any cause of action for preferring a writ petition since a chargesheet cannot be construed to be an adverse order affecting the right of any party unless the same is issued by a person who does not possess the requisite jurisdiction. It is possible that after holding an enquiry, the concerned authorities may drop the proceeding and/or hold that the charge is not established. Writ jurisdiction is a discretionary jurisdiction and such discretion should not ordinarily be exercised by quashing a chargesheet prior to conclusion of the disciplinary proceeding. The learned Single Judge erred in law in quashing the chargesheet though the same was not even under challenge in the writ petition. 4. According to Mr. Jayapal, the issue as to whether the absence was unauthorised involves disputed questions of fact and the Writ Court ought to have allowed the disciplinary authority to ascertain the said charge by conducting an enquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short, the 1965 Rules) but the proceeding was interdicted and the chargesheet was quashed prior thereto acting as an appellate authority. 5. Drawing our attention to the replies furnished by the Directorate of Transport, in response to Shabbir’s applications under the Right to Information Act, 2005, annexed at pages 152 to 158 of the stay application, Mr. 5. Drawing our attention to the replies furnished by the Directorate of Transport, in response to Shabbir’s applications under the Right to Information Act, 2005, annexed at pages 152 to 158 of the stay application, Mr. Jayapal submits that the said documents do not conclusively establish that there was no bus service from Baratang to Mayabunder and as such, the learned Single Judge erred in law in quashing the chargesheet before such fact could be considered in the pending disciplinary proceeding. 6. According to him, the writ petition itself was not maintainable as State had not been impleaded as a party respondent. The judgment impugned was delivered, failing to appreciate, that the writ petition was not even preceded by a demand notice. In support of his arguments, Mr. Jayapal has placed reliance upon the judgments delivered in the cases of State of Andhra Pradesh and others vs. S. Sree Rama Rao, reported in AIR 1963 SC 1723 , High Court At Judicature of Bombay vs. Shashikant S. Patil, reported in (2000) 1 SCC 416 , State of Karnataka and another vs. N. Gangaraj, reported in (2020) 3 SCC 423 , Union of India and others vs. P. Gunasekaran, reported in (2015) 2 SCC 610 . 7. Per contra, Mr. Prashant, learned advocate appearing for Shabbir submits that the appellants had all along proceeded in a vindictive and arbitrary manner against Shabbir. It was impossible for Shabbir to return to his office at Mayabunder since lockdown was declared due to the pandemic. The documents annexed at pages 69 and 70 of the stay application would reveal that in respect of other employees, who were unable to attend their duties due to the restriction imposed by the administration, their period of absence was regularised as ‘leave on duty’. However, a different yardstick has been applied in case of Shabbir. 8. He argues that the chargesheet has been issued observing, inter alia, that Shabbir had exhibited lack of devotion, dereliction of duty and conducted himself in a manner unbecoming of a public servant violating the provisions of Rule 3 of the Central Civil Services (Conduct) Rules, 1964 (in short, the 1964 Rules). However, indisputably, in view of the pandemic, lockdown was declared by the administration in the month of May, 2021. The bus services and ferry services were discontinued. However, indisputably, in view of the pandemic, lockdown was declared by the administration in the month of May, 2021. The bus services and ferry services were discontinued. In view of the contagious virus, people at large, were living in a state of fear. The unprecedented surge in Covid-19 resulted in a steep spike in the number of people who were affected by Covid-19. Even the Hon’ble Supreme Court in appreciation of the outbreak of the dangerous disease declared that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15th March 2020 till 2nd October, 2021 would be excluded. In the backdrop of such compelling circumstances, Shabbir could not return to Mayabunder and join his duties on 18th May, 2021 and such absence cannot be construed to be deliberate or wilful by any stretch of imagination. As such, the chargesheet under Rule 3 of the 1964 Rules could not have been issued since there was no iota of evidence to establish that Shabbir failed to maintain absolute integrity and devotion to duty or had acted in a manner, unbecoming of a government servant. Shabbir’s absence cannot be construed to be a form of misconduct and as such, the Hon’ble Writ Court had rightly quashed the chargesheet. 9. He further argues that the averments made in the writ petition need to be considered as a whole and not in isolation. A particular clause cannot be extracted and highlighted. The memo dated 9th February, 2023, by which an Inquiry Authority was appointed for an enquiry against Shabbir under Rule 14 of the 1965 Rules cannot be disentangled from the chargesheet dated 31st January, 2023. As such, the allegation that the chargesheet has not been challenged, is not sustainable. 10. Indisputably, during the period of absence lockdown was declared due to the Covid-19 pandemic. The transport facilities were disrupted. The disciplinary authority allowed Shabbir to join his duties on 28th June, 2021 but refused to regularise the period of absence by granting leave and issued a memo dated 5th October, 2021 asking Shabbir to show cause ‘as to why the period of his unauthorised absence from 11.05.2021 to 27.06.2021 amounting to gross misconduct, shall not be treated as dies non’. The contents of the said memo reveal that prior to initiation of a regular disciplinary proceeding, the absence of Shabbir was found to be unauthorised. 11. The contents of the said memo reveal that prior to initiation of a regular disciplinary proceeding, the absence of Shabbir was found to be unauthorised. 11. On the basis of the chargesheet dated 31st January, 2023, the enquiry under Rule 14 of the 1965 Rules was initiated and the Inquiring Authority was appointed vide memo dated 9th February, 2023. The learned Writ Court, by an interim order, stayed such disciplinary proceeding. The issuance of the chargesheet and the order appointing the Inquiring Authority are inextricably bound. As such, it cannot be argued that there was no challenge to the chargesheet. 12. From the statement of imputation, it would be explicit that upon being dissatisfied with Shabbir’s response to the show-cause, a preliminary enquiry committee was constituted which submitted its report on 5th January, 2023 observing, inter alia, as follows : ‘Considering the prevailing COVID situation at the relevant time and after hearing the incumbent in person, we are of the unanimous view that the explanation submitted by the incumbent may be recommended for acceptance. The meeting thus ended with a vote of thanks to the Chair. The resolution alongwith the representation submitted by Shri Shabbir Sayyed is forwarded to the Ld. District and Sessions Judge, A & N Islands requesting sympathetic consideration with a strong caution upon the incumbent Shri Shabbir Sayyed that such act may not be repeated by him in future.’ Let the report dated 5th January, 2023, as produced by Mr. Jayapal, be kept on record. 13. It is true that writ jurisdiction is discretionary in nature but that does not estop the Court from quashing the chargesheet if it does not disclose any misconduct or when there is pre-judgment of the guilt of the charged employee or when it is arbitrary and capricious. In the preliminary enquiry, the committee constituted by the disciplinary authority was of the opinion that the explanation provided as regards the absence, was acceptable. It is surprising as to how in the statement of imputation the disciplinary authority observed that ‘it appears from the report that the Committee has failed to arrive at any conclusion regarding the subject-matter of reference’. Such observation is ex facie contradictory to the observation of the preliminary enquiry committee. The documents annexed at pages 69 and 70, reveal that other employees who were unable to attend their duties during the COVID period were granted ‘leave on duty’. Such observation is ex facie contradictory to the observation of the preliminary enquiry committee. The documents annexed at pages 69 and 70, reveal that other employees who were unable to attend their duties during the COVID period were granted ‘leave on duty’. In the said conspectus, the learned Single Judge had rightly interfered and quashed the chargesheet and directed the appellants to treat Shabbir’s absence from 11th May, 2021 till 19th June, 2021 as ‘leave on duty’. 14. It is well known that a decision is an authority for what it decides and not what can be logically deduced therefrom. Even a slight difference in fact may make a lot of difference in decision making process. The judgment is a precedent for the issue of law that is raised and decided and not the observations made in the facts of any particular case. Plenitude of pronouncements leaves cleavage in the opinions formed in the respective cases. The judgments relied upon by Mr. Jayapal are all distinguishable on facts since in none of the said judgments, the Court was dealing with an extraordinary situation which had occasioned due to the COVID-19 pandemic. 15. The word ‘misconduct’ is not capable of any precise definition but at the same time, the word on reflection, receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of duty. In the present case, Shabbir completed the work for which he was deputed but he could not return and join at his place of posting in view of the prevailing pandemic. Accepting the explanation given, the appellant no. 2 had allowed him to join but subsequent thereto, the chargesheet was issued. Undoubtedly, the lockdown imposed by the administration was a necessary measure for combating the spread of the virus and to safeguard public health. Appreciating the necessity involved, the administration declared lockdown and failure to join one’s duties during such lockdown, cannot be construed to be a misconduct. 16. For the reasons discussed above, no interference is called for, in the present appeal. 17. The appeal, being MAT No. 19 of 2023 and the connected application, being IA No. CAN 1 of 2023 are, accordingly, dismissed. 18. There shall, however, be no order as to costs. 19. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.