The absence of an employee during the COVID-19 lockdown cannot be construed as misconduct if the employee was unable to attend his duties due to the restrictions imposed by the administration.

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. 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 interdic