IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 05.10.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.31186 OF 2006 P.Vellaisamy ... Petitioner Vs 1. The Inspector General of Prisons, Anna Salai, Chennai. 2. The Deputy Inspector General of Prisons, Coimbatore Range, Coimbatore  18. 3. The Superintendent of Prison, Central prison, Coimbatore. ... Respondents PRAYER: Writ Petition came to be numbered by transfer of O.A.No.8871 of 1998 on the file of the Tamil Nadu Administrative Tribunal praying to this Court seeking writ of certiorarified mandamus to call for the entire records pertaining to the impugned order of stoppage of increment in the order in Se.Mu.A.No.13973/PO-1/97, dated 10.12.97 of the third respondent and the proceedings Se.Mu.No.7504/PO-1/98, dated 22.10.98 of the second respondent and the order enhancing the punishment to removal of service in the proceedings No.35376/E2(4)/98, dated 13.10.98 of the first respondent and confirming the order of the second respondent and set aside the same and further direct the respondents to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr. K.Venkatramani, Senior Counsel for Mr.R.Nithiayanandam For Respondents : Mr. R.Neelakandan for (Government Advocate) O R D E R The petitioner was appointed as Second Grade Warder in Jail Department. He joined in service on 13.08.1983. On 05.09.1997, the petitioner was allotted the duty of cleaning the Central Jail Compound, Coimbatore with two convict warders namely Ramu @ Panjobkaran and Durai @ Ramasamy. The petitioner had taken in-charge of the two convict warders without any weapons, Handcuff or leading chain. It is the practice that whenever the convict prisoners are sent in Sweeper Gang for cleaning work, they will be sent without handcuff or without leading chain. After finishing the work, they were returning to jail. At that time, one of the convicts Mr.Durai @ Rangasamy requested the petitioner to attend to natural call of motion urgently and went behind a bush. Thereafter he ran away. Since he could not leave the other convict warder, he was not able to apprehend him. This led to the issuance of charge memo dated 09.09.1997 under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. 2. The crux of the allegations against the Petitioner was that due to the negligence of the petitioner, one of the convict prisoners escaped from the prison. In the enquiry, the enquiry officer found the petitioner guilty of charges. The third respondent imposed the punishment of reduction in pay scale for two stages for two years without cumulative effect by an order dated 10.12.1997. 3. The petitioner made an appeal to the second respondent on 09.02.1998. The second respondent confirmed the order of the third respondent in the order dated 19.03.1998 without assigning any reason. 4. The petitioner filed a revision petition before the first respondent on 30.04.1998. The first respondent issued a show cause notice on 24.08.1998 to the petitioner asking him to show cause as to why major punishment could not be imposed on him. 5. The petitioner submitted his explanation on 12.09.1998. In the said explanation he stated that one Thiru.P.Sundarrajan was also charge-sheeted like the petitioner and he was initially imposed with the stoppage of increment for six months without cumulative effect and he filed an appeal to the appellate authority and the appellant authority set aside the order of the punishment imposed by the third respondent. The petitioner also pointed out that one Thiru Ramasamy, who was also charge- sheeted for similar charges, was initially imposed with a minor penalty and even that penalty was set aside on appeal. He further pointed out that in three other cases, wherein minor punishments were imposed, those punishments were further reduced in appeal. The details of those three cases are as follows: The petitioner pointed out that i) one Shanmugam was charge-sheeted for allowing the prisoner to escape and he was imposed ultimately imposed with the punishment of stoppage of increment for three months without cumulative effect. ii) In the case of Baskar Singh, who was also charge-sheeted for allowing the prisoner to escape, was imposed with a minor punishment and on appeal the same was reduced to stoppage of increment for six months without cumulative effect. Iii) One Mr.Thambusamy, who was also similarly situated, was imposed with the minor punishment and on appeal even the said minor punishment was reduced to stoppage of increment for six months without cumulative effect. 6. Under such circumstances, the first respondent passed the order dated 13.10.1998, without considering those cases cited and enhanced the punishment and removed the petitioner from service. 7. The petitioner filed O.A.No.8871 of 1998(W.P.No.31186 of 2006) to quash the order dated 13.10.1998 of the first respondent. While admitting the O.A., the Tribunal granted interim order and the petitioner is still continuing in service. 8. The learned Senior counsel appearing for the petitioner submits that in similar cases initially some minor punishment of stoppage of increment for two years without cumulative effect was imposed and the appellate authority reduced the punishment of stoppage of increment to three months without cumulative effect and in some cases even the minor punishments were set aside. The learned Senior Counsel also submits that the warders were charge-sheeted in all those cases that they allowed the prisoners to escape and the warders were imposed with the lesser punishments as stated above or left without imposing any punishment. Hence, the impugned order of the first respondent is totally arbitrary, discriminatory and in violation of Article 14 of the Constitution. The learner counsel has taken me through those orders, which are enclosed in the typed set of papers. 9. On the other hand, the learned Government Advocate submitts that the first respondent has power to enhance the punishment and therefore, there is no illegality in the order. 10. The learned Senior Counsel submits that the petitioner would be satisfied if the original punishment imposed on the petitioner is sustained. 11. I have considered the submissions made on either side. 12. The facts are not in dispute. When the petitioner was entrusted with the work of clearing the central jail compound by two convict prisoners, one of them escaped. Similarly placed persons were imposed with the punishment of stoppage of increment for two years without cumulative effect by the Disciplinary authority. On appeal, ultimately, those punishments were reduced to the punishment of stoppage of increment for 3 months or 6 months and in some cases the punishments set aside. In his representation, the petitioner stated that three warders, namely, V.M.Shanmugam, R.Baskara Singh and L. Thambusamy were imposed with the punishment of stoppage of increment for three months/six months and he pointed out that two other warders, who are also similarly situated, namely S.Ramasamy and P.Sundarrajan were initially imposed with minor punishment, and on appeal those punishments were set aside. The relevant passage in his representation, on the show cause notice issued by the first respondent asking him to show cause as to why punishment should not be enhanced, is as follows: jpU.tp.vk;.rz;Kf Re;juk;. ,uz;lhk; epiyf; fhtyh; vd;gth; 19/08/84y; btspf;FG rpiwthrpiaj; jg;gtpl;ljw;fhdj; jw;fhypfg; gzpePf;fk; bra;ag;glhknyna fz;fhzpg;ghsh; Miz vz;/12450/bgh1/84d; K:yk;; ,thpd; mLj;j Cjpa cah;[t[ K:d;Wkhj fhyj;jpw;F jpuz;l gadpd;wpj; js;spitj;Jf; Fiwe;j jz;lid tH';fg;gl;Ls;sJ. 2/jpU Mh; gh!;fh; rp';. ,uz;lhk; fhtyh; vd;gth; 25/02/97y; btspf;FG gzprpiwthrpiaj; jg;gtpl;ljw;fhf fz;fhzpg;ghsuhy; jz;lid tH';fg;gl;L ,th; jz;lidia vjph;j;J nfhit ruf rpiwJiwj; Jizj; jiytUf;F nky; KiwaPL bra;jjpy; rpiwj;Jiwj; Jizj; jiyth; Miz vz/; 3195-rpV-97 K:yk; ,tuJ jz;lid khw;wg;gl;L ,tuJ Cjpak; xUepiy MWkhjf; fhyj;jpw;Fj; jpuz;l gadpd;wp Fiwj;J Mizaplg;gl;Ls;sJ. 3/ jpU v!; jk;g[rhkp. ,uz;lhk; epiyf; fhtyh; vd;gth; 30/05/96;y; btspf;FGg; gzpapypUe;J rpiwthrp jg;gpr; brd;wikf;F fz;fhzpg;ghsuhy; jz;lid tH';fg;gl;L mj;jz;lidia vjph;j;J nfhit ruf rpiwj;Jiwj; Jizj; jiytUf;F nky;KiwaPL bra;jjpy; rpiwj;Jiwj; Jizj; jiyth; Miz vz; 6240-Kc-96d; K:yk; fz;fhzpg;ghsh; mspj;j jz;lid khw;wg;gl;L ,tuJ mLj;j Cjpa cah;[t[ Mwkhj fhyj;jpw;Fj; jpuz;l gadpd;wpj; js;spitj;J Mizaplg;gl;Ls;sJ* nkw;Twpa fhtyh;fs; jtpu fPH;fz;l fhtyh;fSf;F ,nj nghd;w neh;tpw;F jz;lid ,uj;J bra;ag;gl;Ls;sJ/ 1/ *jpU.v!;/uhkrhkp. ,uz;lhk; epiyf; fhtyh;. kj;jparpiw. Nfhit/ vd;gth; rpy Mz;LfSf;F Kd;g[ btspf;FGg; gzpapy; rpiwthrpiaj; jg;gtpl;ljw;fhf fz;fhzpg;ghsuhy; jz;lid uj;J bra;ag;gl;Ls;sJ/ 2) ,nj nghd;W jpU.gp.Re;jh;uh$d;. ,uz;lhk; epiyf;fhtth; kj;jpa rpiw. nfhit (jw;nghJ Kjy;epiyf; fhtyh;. fpisr; rpiw. mtpdhrp) vd;gth; btspf;FGtpypUe;J 4/3/93y; rpiw thrpiaj; jg;g tpl;ljw;fhf fz;fhzpg;ghsh; Mizapd; K:yk; jz;lid tH';fg;gl;L mj;jz;lidia vjph;j;J nfhit ruf rpiwj;Jiwj; Jizj; jiytUf;F nky;KiwaPL bra;jjpy; rpiwj; Jiwj; Jizj; jiyth; Miz vz;/1414-rpV-93 ehs; K:yk; jz;lid uj;J bra;ag;gl;Ls;sJ* 13. However, the first respondent passed the impugned order without considering the specific instances cited by the petitioner in similar circumstances. The first respondent passed the impugned order without applying the mind to the the facts of the case, which is as follows: *,k; kj;jpa rpiwapy; ,uz;lhk; epiyf; fhytuhf gzpg[hpe;J tUk; jpU gp/bts;isr;rhkp. ,uz;lhk; epiyf; fhtyh; vz;/28. vd;gth; fle;j 5/9/97 md;W mtuJ bghWg;gpy; btspf; FG gzpf;fhf vLj;Jr; brd;w ,uz;L jz;lid rpiwthrpfspy; rpiwthrp vz;/73667 Jiu (v) u';frhkp vd;gtiu jg;gtpl;l Fw;wj;jpw;fhf ,th; 5/9/97 Kjy; jw;fhypf gzp ePf;fk; bra;ag;gl;L ,th; kPJ bjhlug;gl;l 17(go) tpjpapd; fPH; xG';F eltof;if njh;tpy; ,t;tYtyf bray;Kiw Miz vz;/13973-bgh/1-97ehs;;/10/12/97d;go ,tuJ Cjpak;. ,uz;L epiyfs;. ,uz;L Mz;L fhyj;jpw;F jpuz;l gadpd;wp Fiwj;J Mizaplg;gl;Ls;sJ kPs gzpf;F vLj;J bfhs;sg;gl;lhh;/ 2) ,j; jz;lidia vjph;j;J ,th; nfhit ruf rpiwj; Jiwj; Jizj;jiytUf;F bra;j nky; KiwaPL nfhit ruf rpiwj; Jiwj; Jizj; jiyth; bray; Kiw Miz vz;/931-Kc-98, ehs;/19/03/98d;;;;;;;;;;go js;Sgo bra;ag;gl;L jz;lid cWjp bra;ag;gl;lJ/ 3) ,e;epiyapy; jpU/gp/bts;isr;rhkp. ,uz;lhk;epiy fhtyh; vz;/28. Rpiwj; Jiwj; jiytUf;F mspj;j 30/04/98 kWghprPyid kDtpd; kPJrpiwj; Jiwj; jiyth; brd;id mth;fshy; ghh;itapy; fhQqk; Mizg;go *gzpePf;fk;* (REMOVED FROM SERVICE)vd;w jz;lid tH';fg;gl;Ls;sjhy; ,th; ,d;W (22/10/98) gpw;gfy; Kjy; gzpePf;fk; bra;ag;gl;L ,r;rpiw gzpfspypUe;J tpLtpf;fg;gLfpwhh;/ 4)jpU/gp/bts;isr;rhkp. ,uz;lhk;epiyf; fhtyh; vz;/28.kj;jpa rpiw. nfhit. ,t;thizapid bgw;Wf; bfhz;likf;F ,jd; kW efypy; xg;g[jy; ,l;L kPs rkh;g;gpf;Fk;goa[k; nfhug;gLfpwhh; * 14 When the petitioner has made detailed representation running to four pages and also giving at least five instances, wherein the similarly placed employees were given minor punishment, the first respondent passed the impugned order removing the petitioner from service. Hence, the order of the first respondent is arbitrary, discriminatory and in violation of Article 14 of Constitution of India. Therefore, the impugned order is quashed. As stated above, in view of the interim order, the petitioner is continuing in service. Accordingly, the Writ petition is allowed quashing the order of the first respondent removing the petitioner from service and the punishment as imposed by the disciplinary authority as confirmed by the appellate authority will stand and the same is not disturbed. No costs. 05.10.2010 Index : Yes/No Internet : Yes/No kal D.HARIPARANTHAMAN.J, kal 1. The Inspector General of Prisons, Anna Salai, Chennai. 2. The Deputy Inspector General of Prisons, Coimbatore Range, Coimbatore  18. 3. The Superintendent of Prison, Central prison, Coimbatore. W.P.NO.31186 OF 2006 05..10..2010