IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 01-07-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.49464 of 2006 (O.A.No.627 of 2001) C.Ayyaswamy .. Petitioner. Versus 1.Inspector General of Prisons, 807, Anna Salai, II Floor, Chennai-600 002. 2.Superintendent of Jail, Central Prison, Madurai-16. .. Respondents. Prayer: Original Application No.627 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.49464 of 2006, seeking for a writ of Certiorari to call for the records relating to the order of the Inspector General of Prisons, Chennai, first respondent herein and made in No.23/AB4/99-1, dated 8.9.2000, and consequential order of Superintendent of Jail, Central Prison, Madurai-16, the second respondent herein and made in No.13580/CC.1/2000, dated 19.10.2000, and quash the same. For Petitioner : Mr.N.Ishtiaq Ahmed For Respondents : Ms.S.Anitha Government Advocate O R D E R
This writ petition has been filed to call for and quash the records relating to the order of the first respondent, dated 8.9.2000, and the consequential order of the second respondent, dated 19.10.2000, imposing the punishment of scaling down of the pay of the petitioner to its initial appointment level for two years, with cumulative effect.
2. It has been stated that the petitioner was working as Assistant Jailor, Central Prison, Coimbatore, during the month of February, 1999. While so, a preventive inspection had been conducted in Ward No.10 of the prison at 3.30 A.M, on 19.2.1999, with the help of the Field Officers and Field Assistants of the Police and Prison Department. The Al-Umma activists, who were the inmates at Ward No.10 of the Central Prison, Coimbatore, had resisted the search and they had caused damage and loss to the Government properties. Therefore, a charge had been levelled against the petitioner by issuing a charge memo, dated 8.4.1999, wherein it was stated that the petitioner had failed to prevent the damage caused to Government Properties by the inmates of the High Security Ward No.10 of the Central Prison, Coimbatore. Though the petitioner had submitted an explanation, dated 19.5.1999, to the first respondent stating that he had taken steps to prevent the causing of damage to the Government properties, an oral enquiry had been conducted into the charge levelled against the petitioner. During the oral enquiry held on 22.3.2000 and 23.3.2000, three witnesses had been examined by the enquiry officer. None of the witnesses had deposed against the petitioner stating that the damage to the Government properties was committed when the petitioner was in charge. In fact, they had deposed stating that they were not clear of the time when the damage was done. In fact, the petitioner was on duty only from 3.00 A.M to 6.00 A.M, on 19.2.1999. The damage to the Government properties, including the tube lights, fittings and the close circuit television camera, had been committed by the persons belonging to Al-Umma group following the preventive inspection and search conducted in the Ward.
4. The main contention of the learned counsel for the petitioner is that the petitioner was not on duty at the time, when the damage was caused to the Government properties. In spite of the fact that there was no concrete evidence against the petitioner showing that he had failed to prevent the causing of such damage, the punishment of scaling down of the pay of the petitioner to its initial appointment level for two years, with cumulative effect, had been awarded to the petitioner, arbitrarily, without jurisdiction and contrary to the principles of natural justice.
5. The submissions made on behalf of the petitioner had been denied by the respondents by filing a reply affidavit. The learned counsel appearing on behalf of the respondents had submitted that the punishment of scaling down of the pay of the petitioner to its initial appointment level for two years, with cumulative effect, had been awarded to the petitioner based on the oral, as well as documentary evidence available during the enquiry conducted on the charge levelled against the petitioner. Since the petitioner had failed to prevent the Al-Umma activists from damaging the Government properties, he is liable to suffer the punishment imposed on him.
6. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had prayed that the punishment of scaling down of the pay of the petitioner to its initial appointment level for two years, with cumulative effect, imposed on the petitioner may be reduced to scaling down of the pay of the petitioner to its initial appointment level for two years, without cumulative effect.
7. The learned counsel appearing on behalf of the respondents had no serious objection for an order being passed by this Court, reducing the punishment imposed on the petitioner to one of reduction in scale of pay, without cumulative effect, as prayed for by the learned counsel for the petitioner.
8. In view of the submissions made by the learned counsel appearing for the petitioner, as well as the respondents and on a perusal of the records available, this Court is of the considered view that there was no clear evidence showing that the petitioner was guilty of the charge levelled against him. In fact the witnesses examined on behalf of the respondents had stated that they were not sure of the exact time when the damage was caused to the Government properties by the Al-Umma activists in the Central Prison, Coimbatore. Further, from the evidence made available, during the oral enquiry conducted, with regard to the charge levelled against the petitioner, it cannot be said that the alleged incident had occurred at the time when the petitioner was on duty.
9. Further, no good reasons have been shown on behalf of the respondents to come to the conclusion that the petitioner had failed to prevent the Al-Umma activists from damaging the Government properties. However, it should also be noted that the petitioner cannot be fully exonerated from the allegations made against him, since it had been seen from the prison records that he was available within the premises of the Central Prison, Coimbatore, at the time of the happening of the alleged incident. Even though the petitioner might not have been in a position to prevent the damage being caused to the Government properties without the help and co-operation of the other staff members present in the prison at the relevant point of time, he may be partly responsible for the failure to prevent the incident that had taken place, on 19.2.1999.
10. In such view of the matter, this Court is inclined to reduce the punishment to scaling down of the pay of the petitioner to its initial appointment level for two years, without cumulative effect, instead of the punishment imposed on the petitioner of scaling down of the pay of the petitioner to its initial appointment level for two years, with cumulative effect. Accordingly, the punishment imposed on the petitioner stands modified. The petitioner is entitled to receive the enhanced retirement benefits that he would be eligible to get, pursuant to this order. Such retiral benefits which the petitioner would be entitled to, as a consequence of this order, shall be disbursed to him, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs.
Index:Yes/No 01-07-2009
Internet:Yes/No
csh
To
1.Inspector General of Prisons,
807, Anna Salai, II Floor,
Chennai-600 002.
2.Superintendent of Jail,
Central Prison, Madurai-16.
M.JAICHANDREN,J.
csh
Writ Petition No.49464 of 2006
01-07-2009